The Importance of the New Maryland Daily Record Database of Unreported Court of Special Appeals Opinions

By Michael Wein

Last week, Chief Judge Mary Ellen Barbera delivered the State of the Judiciary address to the Maryland General Assembly, concluding, “The Judiciary is doing well and it is making strides in becoming smarter, more efficient and increasingly accessible to the public. The future presents challenges and opportunities alike, and the time is ripe for reasoned and thoughtful reforms.” (Both the written transcript and webcast links are available on the Judiciary website.) Along those lines, recent changes involving the statewide introduction of electronic filing are taking hold, and may help make Maryland’s intermediate appellate court, the Court of Special Appeals, more accessible and transparent. This corresponds with the recent launch by the Maryland Daily Record, as a benefit for its subscribers, of an online searchable catalog of the Court of Special Appeals’ unreported opinions from Jan. 1, 2014, on.

Compared to the Court of Appeals of Maryland, the Court of Special Appeals – where the large majority of appeals is heard and decided – is much more difficult to cover, both by this Blog, attorneys, academicians, or any curious individual seeking access to “public” appellate decisions. For the unfamiliar, here’s one way to conceptualize the differences in following the two appellate courts (with apologies to Prof. Jim McElhaney, who wrote for many years for the ABA litigation journal with similar Socratic-like comparisons).

Imagine one of our legal bloggers is scuba diving at some tropical locale. Having just finished a relaxing dive, viewing sea turtles and some of those pretty but predatory nuisance lionfish, there’s a mandated “timeout” for the residual nitrogen levels to drop before he or she can dive again. Assuming there’s good internet connection, the intrepid diver/legal blogger may choose this time to draft a piece for the Blog covering a recent Court of Appeals opinion.

He or she logs on to the Maryland Judiciary website to read the reported opinion online. (Virtually every appellate opinion from the Court of Appeals has been “reported” for more than a decade.) If the oral arguments need to be reviewed to shed light on the legal issues in the case, no worries — the Court of Appeals webcasts and archives all its oral arguments (something that the U.S. Supreme Court notoriously still does not do). The efficient legal blogger can successfully finish the blog piece during the dive break, because all the typical “ingredients” to writing an astute article on pending or recently decided Court of Appeals cases are easily accessible online. [Author’s note: To my knowledge, none of the contributors to the Blog have actually done this; instead, a writer will usually, while working late, scrape together enough time in the midst of deadlines to assemble a well-conceived piece. It’s nice to daydream, though.]

But that’s the Court of Appeals. The Court of Special Appeals, which is mandated to hear every timely appeal filed from the circuit courts, receives the vast majority (about 16 times more) of the appellate cases per year (2,077 appeals in fiscal year 2013 with 1,417 written decisions issued). This is compared with the Court of Appeals’ grant through certiorari, per the 2013 Annual Report, of 109 cases, on top of its active attorney-grievance docket and some miscellaneous actions (such as certified questions or election law cases).

The Court of Special Appeals functions differently, and the cases that are “reported” provide only a small subset of all the decisions it issues. Although no statistics were provided in the 2013 Annual Report, a review of the Judiciary website reveals that there were 167 reported opinions  from the Court of Special Appeals. (In 2014, there were 151 reported opinions, though comparing that with the total number of appeals will have to wait until the release of that year’s annual report.) If it’s a reported opinion in the Court of Special Appeals (for which there is still no available webcasted oral arguments), it functions as precedent in about the same way as the Court of Appeals’ reported and published opinions.

But the unreported opinions from the Court of Special Appeals, encompassing about 90 percent of all cases in Maryland’s appellate courts, have very little in common with these “Learned Hand-method” reported cases, which are given full review by judges and their law clerks, are publicly available online the same day that they are issued, and are fully citable as binding precedent. [Author’s note: I have written previous articles with more information on this subject, including two in the Maryland Daily Record.  See Wein, Michael, “Commentary: Need to Reform Unpublished Opinions in Maryland,” The Daily Record, Sept. 19, 2003 (citing Anastasoff v. United States, 223 F.3d 898 (8^th Cir.), vacated as moot, 235 F.3d 1054 (8^th Cir. 2000) (en banc)); Wein, Michael, “Commentary: Should MD Adopt the New Federal Rule Regarding the Citing of Unpublished Cases?” The Daily Record, May 19, 2006.]

Let’s go back to our diver/legal blogger. Turns out, he’s part of a group of attorneys diving. Across from him is general counsel for a small Maryland company. A paralegal has just sent him a text message that certain persons suing the company have just noted an appeal from their circuit-court loss to the Court of Special Appeals.

The general counsel knows that the case raises the exact same legal issues that his predecessor had previously litigated in an appeal. “Those fools,” the general counsel thinks. “Don’t they know we already won on an appeal of this legal issue? This will be the simplest appeal case I’ve ever worked on.” (He then lets out a mischievous and overconfident laugh, appropriate for a villain from a 1940s Flash Gordon serial.)

The general counsel also searches online during the dive break to bring up the case he recalled his predecessor winning.  He checks the Maryland Judiciary website, but is unable to locate the case. He then checks on the paid-subscription legal database, but can’t find it there either.

After his vacation, back at the office, the general counsel is disconcerted to learn from his predecessor that the reason the unanimous, thorough, and on-point 30-page Court of Special Appeals opinion – which followed oral arguments with three appellate judges – cannot be found is because it was unreported. (If the file is placed in storage, one has to usually traipse to the Courts of Appeals building in Annapolis to get a copy.) The general counsel is decidedly not happy. He needs to tell his employer/client that it will have to fight tooth and nail again in what is essentially the same case.

While this may seem like a hypothetical, this nearly identical scenario happened in Williams v. Dallas Area Rapid Transit (DART), 256 F.3d 260 (5^th Cir. 2001), a case that was heard less than two years after Anderson v. DART, 180 F.3d 265 (5^th Cir. 1999) (per curiam) (unpublished), decided the same issue of sovereign immunity. This resulted in an unusual dissent from a denial of petition for rehearing en banc, when three Fifth Circuit judges lambasted the notion that because of “the mere fortuity that the Anderson panel decided not to publish, our panel in Williams was free to disagree with Anderson and to deny to DART the same immunity that Anderson had conferred on it less than two years earlier.” Williams, 256 F.3d at 260-261.

There are three major differences that separate unreported opinions from their reported brethren.   First, before the recent service offered by the Daily Record, there existed no reasonable searchable methods through legal databases such as Westlaw or Lexis, Findlaw, or the Judiciary website to know that there was even an unreported opinion on the same topic. Typically, the only way a person knows of an unreported decision is if he or she (or the client) was previously involved in it.

Second, assuming that one knows there is a persuasive unreported case out there, he or she still has to get a copy. Before the Daily Record’s database, unreported opinions were unavailable online. Westlaw and Lexis, for reasons to be discussed, do not keep track of them. The Maryland Judiciary website, unlike most states (including Arkansas and Virginia), does not make them publicly available, instead relegating them to a single listing with the names of the parties in the case.

The third difference makes unreported opinions particularly problematic in terms of transparency and public accountability. Under Md. Rule 1-104, “[a]n unreported opinion of the Court of Appeals or Court of Special Appeals is neither precedent Rule within the rule of stare decisis nor persuasive authority.” Thus, even if the general counsel wanted to cite to the previous opinion, he could not. (Though that hasn’t stopped some lawyers from trying, as discussed in a recent reported opinion by Judge Nazarian.)

Therefore, approximately 90 percent of appellate decisions in the Court of Special Appeals are treated completely separate and apart from Maryland’s expanding common law. They are not citable as “persuasive” precedent, even if the legal issue being argued is identical. This blockading rule can have a large effect on the appellate process, including limiting the likelihood of getting certiorari granted by the Court of Appeals, the thoroughness and breadth of the decision, the opinion’s conformity with prior precedents, and the work done by the Court of Special Appeals’ staff attorneys. There also appears to be no official standards regarding publication of opinions, which differs from the Fourth Circuit (as noted in Steven Klepper’s recent post on Justices Thomas and Scalia, in a dissent from a denial of certiorari, criticizing the Circuit for failing to follow its own five-part standard for reporting an opinion, as set forth in Local Rule 36(A)).

As my 2006 article discussed, the federal courts have, as recommended by a committee headed by now-Supreme Court Justice Samuel Alito and including as a member now-Chief Justice John Roberts, and over then-heated dissent (particularly from the Ninth Circuit), reformed and made consistent their rule on unpublished opinions. Fed. R. of Appellate Proc. 32.1 now permits, at the very least, citations to unreported opinions. And all federal cases, even some comparably brief unreported opinions, are available online at the Circuit Courts of Appeals’ websites. (The Fourth Circuit even has a free daily service that emails links to all decided cases.)

I predict that the current iteration of Md. Rule 1-104 will not last long into the e-filing era, so it is best to begin addressing these concerns now. One such “push” along these lines is the Daily Record’s recent publication of unreported opinions, which helps remove one difficulty for those attempting to understand the appellate courts. The Maryland courts should begin permitting use of unpublished opinions at the very least for persuasive value, instead of imposing a blanket prohibition on their mention. This would give prospective value to unpublished opinions, in that they could be cited in similar cases (which is how FRAP 32.1 was implemented and still operates for all unpublished decisions issued after January 1, 2007) – and very likely prompt Lexis and Westlaw to include them in their databases, as they do with unpublished opinions in other states and the federal circuits.

Michael Wein is an attorney in Greenbelt whose practice concentrates on appellate, civil, and criminal litigation. He can be reached at weinlaw@hotmail.com. If you believe there to be a “blog-worthy” unreported opinion that may have gone unnoticed, please let him or one of the other Blog contributors know.