One Week, Four Court of Appeals Cases, One Potential Blockbuster

By Michael Wein,

Well, we’re one week away until the Maryland Court of Appeals’ self-imposed deadline of Monday, August 31, 2015, for deciding all cases in the September Term. Per the “Pending Cases” page on the Court of Appeals’ website, four, count that, only four, decisions are left, one from April (State v. Dykes), one from May (State v. Waine), and two from June (State v. Westray and Wicomico County Department of Social Services v. B.A.). The two from June may not reflect any particular disagreements between the judges, but are pending simply because they were the most recently argued, or, in the case of Westray, because it will be decided in tandem with the Dykes case from April, as both involve issues about the right to discharge counsel. The “Questions Presented,” as posed on the Court of Appeals’ web page, for all remaining cases are listed below.

That State v. Waine, in which the Attorney General’s Office has requested that the Court of Appeals overrule its recent post-conviction decision in Unger v. State, 427 Md. 383 (2012), which itself overruled at least in part earlier precedent on the issue of advisory instructions in State v. Adams, 406 Md. 240 (2008), remains undecided is a likely indication that, unsurprisingly, there is some form of dissenting opinion. Given that the Court of Appeals, much like the U.S. Supreme Court, holds off deciding its most contested cases until the end of the term, I think Waine could be this year’s blockbuster; last year’s pick of a “blockbuster,” Kulbicki v. State, 440 Md. 33 (2014), not only proved quite interesting when the decision was issued, but also is still awaiting potential Supreme Court consideration after being relisted numerous times for certiorari conferences. (Since my last post about the case, the petition has still not been ruled upon, and no related public orders have been issued.)

A few more words on Waine are in order. First, this case originated from a 1 ½-page-long unreported Court of Special Appeals decision that, based on Unger, essentially ordered the circuit court judge to grant post-conviction relief. Along with some unusual questions presented by the State, the Court of Special Appeals’ taking only 1 ½ pages to effectively release a felon sentenced to decades in jail may have drawn the Court of Appeals’ attention.

Second, the Waine case, at least in part, may provide a further opportunity to refine and opine on what exactly stare decisis means in Maryland. Prior to the Court of Appeals’ granting certiorari in Waine, I noticed public discussions on appellate practice from both a former and current member of the Court of Special Appeals, specifically expressing concern – particularly after the decisions issued in the controversial Tracey v. Solesky, 427 Md. 627 (2012) (dog bite liability) and Unger – about the potential adverse effect on the judiciary should it appear that cases might have different results based simply on retired Court of Appeals judges’ participation vel non in the decisions. Maryland’s Constitution and the Courts and Judicial Proceedings article permit use of retired judges on the Court of Appeals when, for reasons such as recusal, there is not a full complement of seven judges. In the Adams case, there were initially three specially assigned retired judges, whilst the later Unger case had only Judge Eldridge as a retired judge. (In Tracey, there were two retired judges who made the difference in the close 4-3 vote.) The Court of Appeals may wish to reiterate the strong stare decisis policy that, while a different contingent of judges may eventually consider the same issue, in all circumstances stare decisis is very difficult for future appellate panels to trifle with.

Third, even if arguendo the Unger Court, in retrospect, should not have at least partially overruled the comparably recent precedent of Adams, that does not necessarily entail returning to Adams’ holding. When I heard about the Attorney General seeking inter alia to overrule Unger, the simple phrase that came immediately to mind was, “Two wrongs don’t make a right.” Not too surprisingly, Respondent’s counsel at oral arguments used that exact phrase.

Whether or not the Unger court should have partially overruled Adams, there’s no question that the Unger Court knew about that recent precedent, was a properly constituted panel in compliance with the Maryland Constitution, and chose to go the other way in a very closely decided case. Indeed, even overruling Unger wouldn’t necessarily mean that Adams is or should be reestablished as the standing precedent. See John R. Sand & Gravel Co. v. United States, 552 U.S. 130, 139 (2008) (“Finally, even if the Government cannot show detrimental reliance on our earlier cases, our reexamination of well-settled precedent could nevertheless prove harmful. Justice Brandeis once observed that “in most matters it is more important that the applicable rule of law be settled than that it be settled right.” Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 406, 52 S.Ct. 443, 76 L.Ed. 815 (1932) (dissenting opinion). To overturn a decision settling one such matter simply because we might believe that decision is no longer “right” would inevitably reflect a willingness to reconsider others. And that willingness could itself threaten to substitute disruption, confusion, and uncertainty for necessary legal stability. We have not found here any factors that might overcome these considerations.”) I’m therefore not sure how the State of Maryland can fully justify the type of relief it wishes to achieve – as the ultimate authority on Maryland law, the Court of Appeals of Maryland decided to say what that law was, and ultimately concluded part of Adams was overruled.


State v. Dykes (April 2015 Argument)

Criminal Law – 1) When it finds meritorious grounds for granting a motion to discharge counsel, what is the extent of the trial court’s authority to appoint counsel? 2) After finding meritorious reasons for discharge and after discharging both Petitioner’s public defender specifically and the Office of the Public Defender generally, did the trial court err in denying Petitioner’s repeated pretrial requests for court-appointed counsel on the grounds that he was now “on his own” and that it did not have the authority to appoint counsel?

State v. Waine (May 2015 Argument)

Criminal Law – 1) Did the trial court retain the discretion, granted by Criminal Procedure Article § 7-104, to determine whether the interests of justice would be served by reopening Respondent’s prior post conviction proceeding to litigate an unwaived challenge to “advisory” jury instructions? 2) Should a circuit court consider a challenge to instructions under Unger v. State, 427 Md. 383 (2012), on a case by case basis to determine whether there is “a reasonable likelihood” that the jurors understood the court’s 1977 instructions as allowing them to convict Respondent on proof less than beyond a reasonable doubt? 3) Where the Unger majority ignored the underpinnings of the doctrine of stare decisis, and, in any event, was “plainly wrong” when it held that Stevenson v. State, 289 Md. 167 (1980) and Montgomery v. State, 292 Md. 84 (1981) had set forth a new interpretation of Article 23 of the Maryland Declaration of Rights over thirty years earlier and when it held that Stevenson and Montgomery were to be applied retroactively, should Unger be overruled.

State v. Westray (June 2015 Argument)

Criminal Law – 1) Did CSA err in determining that, where Respondent was represented by counsel and requested discharge of counsel, the trial court was required to determine and announce on the record that he was knowingly and voluntarily waiving the right to counsel? 2) Did the trial court abuse its discretion in denying Respondent’s request for the appointment of pro bono counsel on the grounds that it lacked the power to appoint pro bono counsel for Respondent?

Wicomico Co. Dep’t of Social Services v. B.A. (June 2015 Argument)

Family Law – Where an instructor used class time to groom a student and lure her into a secret intimate relationship, should he be exempted from a finding of “indicated child sexual abuse” on the basis that his blatantly sexual behavior with the student occurred outside of class?


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