Archive | April 2015

A Brief Legal History of Baltimore Riots

By Steve Klepper (Twitter: @MDAppeal)

Wracked by feelings of powerlessness regarding Baltimore’s recent troubles, I did one thing I know how to do – I wrote a blog post.[1] I’ve seen debates on social media whether to label the events of this past week a “protest” or a “riot.” It’s a false dichotomy. We’ve had both protests and riots. And my adopted home city in fact has a long history of riots and litigation arising out of them. The decisions of the Court of Appeals of Maryland teach much about the history of Baltimore riots. Read More…

Update on Consideration of Proposed Unreported Opinion Rule

By Michael Wein

A lot of lively discussion ensued on this Blog and others on the proposed revisions to Md. Rule 1-104. There was a general positive reaction to the news that, for the first time, unreported opinions from the Court of Special Appeals (about 90 percent of the appellate opinions in the state) would by end of this year be made available online on the Judiciary website. Most commentary, however, focused on the proposed revisions to 1-104 that would expand the prohibition on citation of Maryland unreported opinions to include all “non-precedential,” “unreported,” and “unpublished” opinions, thereby broadly sweeping away an enormous number of previously citable decisions from across the nation, including all state and federal trial and appellate courts.

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Event: Fourth Circuit Seminar, Featuring Judges Motz, Davis, and Harris

This exciting invitation just arrived in our inbox. Big thanks to the FBA Maryland chapter!

Federal Bar Association Maryland Chapter




Panel discussion by 4th Cir. Judges Motz, Davis, and Harris

Advocacy Advice by former U.S. Solicitor General Paul D. Clement

View from Behind the Bench by Clerk of Court Patricia Connor

Round Table Discussion by Distinguished Attorneys

MAY 28th, 2015 at 1:30 p.m.

at the U.S. District Court for the District of Maryland in Baltimore

101 W. Lombard Street

Baltimore, MD 21201

Please RSVP to Kelly Cooper, Esq. at by May 14th.

Light Reception to follow


April 2015 Maryland Certiorari Grants

The Court of Appeals just posted nine certiorari grants, dated April 17, 2015. They appear after the jump. Read More…

Comptroller v. Wynne: Will Tuesday Be the Day?

By Steve Klepper (Twitter: @MDAppeal)

Only recently has the media been focusing on a sneaky-big Supreme Court case out of Maryland, Comptroller v. Wynne. Just last week, Bill Turque at the Washington Post noted the potentially major consequences in Maryland and beyond. The question is whether Maryland tax law, in denying a county income tax credit for income tax paid in other states on out-of-state income, discriminates against interstate commerce in violation of the so-called “dormant” or “negative” commerce clause. Read More…

The Judicial Policy Implications of Reckless Driving on Federal Land

By Steve Klepper (Twitter: @MDAppeal)

So you just received a citation for reckless driving on the Baltimore-Washington Parkway. You may think, perhaps, that you’re headed to Prince George’s County traffic court. Nope. The traffic ticket will tell you “U.S. District Court Violation Notice.” You’re headed to see a U.S. Magistrate Judge in Greenbelt.

That’s because the B-W Parkway is a federal enclave – federal land situated within Maryland’s borders. Read More…

Espina v. Jackson: Marbury v. Madison Revisited?

By Alan B. Sternstein

In Marbury v. Madison, 5 U.S. 137 (1803), Chief Justice John Marshall laid the cornerstone for this country’s view of judicial power, particularly as it relates to the powers of correspondent branches of government, in the case of the federal government, Congress and the President. There, in deciding whether the U.S. Supreme Court had jurisdiction to consider William Marbury’s petition to compel Secretary of State James Madison’s delivery of Marbury’s judicial commission by John Adams, Marshall’s opinion held that Madison’s withholding the commission was illegal. Sidestepping a confrontation with the executive branch, however, Marshall held that Marbury’s petition was not within the Court’s jurisdiction and denied it. Marshall ruled that the Judiciary Act of 1789, under which Marbury had brought his action, unconstitutionally expanded the Court’s Article III original jurisdiction, observing as a seeming aside that

It is emphatically the province and duty of the Judicial Department to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret that rule. If two laws conflict with each other, the Courts must decide on the operation of each.

So, if a law be in opposition to the Constitution, if both the law and the Constitution apply to a particular case, so that the Court must either decide that case conformably to the law, disregarding the Constitution, or conformably to the Constitution, disregarding the law, the Court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty. If, then, the Courts are to regard the Constitution, and the Constitution is superior to any ordinary act of the Legislature, the Constitution, and not such ordinary act, must govern the case to which they both apply.

5 U.S. at 177-78.

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Final Judgments — An Ongoing Dilemma

By Karen Federman Henry

Other than failing to preserve an issue or note an objection at the proper time, one of the main causes of paranoia in appellate practitioners is the need for a final judgment. During the past 20 years, the appellate courts have routinely admonished litigators that they must have a final judgment to obtain appellate review. The simplest final judgment occurs when a case has been tried and a jury rendered its verdict. In other situations, many of us refer to the Maryland Code to identify the status of a case — does it resolve all of the issues? Are the parties “out of court”? Does the case satisfy the criteria for an interlocutory appeal? Is it a collateral order?

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Rules Committee to Recommend Putting Maryland Unreported Opinions Online, But Expanding Restrictions on Use of Other Unreported Decisions

By Michael Wein

As detailed in a previous post of mine from February, the underpinnings of unreported opinions differ substantially in Maryland from those in other state and federal courts. I argued that having about 90 percent of appellate opinions from the Court of Special Appeals not available online seemed at odds with the Judiciary’s stated goal of being accessible to the public. To help remedy this, the Maryland Daily Record has begun publishing unreported opinions for subscribers, making it easier for attorneys to understand the appellate courts.

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The Court of Special Appeals on Vexing Text

Do you have bad writing habits that detract from your appellate briefs? Perhaps the arrogant, pompous jerks out there don’t think so. Irregardless, to expose a few annoying tendencies of brief writers, we went to their audience. In this feature of first impression, five Court of Special Appeals judges shared their least favorite words, phrases, idioms, and other writing practices that they frequently encounter in appellate briefs. See Kuzmin v. Thermaflo, Inc., 2009 WL 1421173 at *2 n. 6 (E.D. Tex. May 20, 2009) (“By submitting a poorly written brief, the attorney fails the Court as well as the client.”). Read on to see why this paragraph would drive the members of that Honorable Court nuts.

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