COSA: Court of Substantial Agreement

By Chris Mincher

Update (11/11/2015): I figured my “crude, imperfect manual count” would miss something, and, sure enough, I failed to catch a dissent in an unusual per curiam unreported opinion in Spencer v. State, Sept. Term 2014, No. 0493 (Oct. 2, 2015) (Nazarian, J., dissenting). That brings the totals to nine dissents in the 726 cases — which is still a rate of about 1 percent — and six of the 15 judges who wrote a dissent between May and October.

Between May 1, when unreported Court of Special Appeals opinions began being posted online, and the close of October, a half-year of complete decisions of the intermediate appellate court were, for the first time, made available to Maryland court-watchers. That’s a sufficient sample size to do a crude, imperfect manual count and generate some data about the rate of reporting. It’s also useful for a few observations about the infrequency of disagreement among the three-judge panels.

In the six-month period, I tallied up 726 total cases among the reported and unreported opinions — a number that I’ll use as the total number of decisions (even though, because of instances in which multiple cases were consolidated into one opinion, it’s not wholly accurate). Within those 726 cases, 80 were reported opinions, so the overall rate of reporting in appellate cases, based on those numbers, comes out to about 11 percent. In order words, all you appellate practitioners out there, sorry to deflate your egos, but 89 percent of your cases are not of “substantial interest” (other than to the parties, obviously) and unworthy of creating precedential case-law.[1]

How else can we tell that the bulk of cases in Court of Special Appeals aren’t substantially interesting? Well, for one, the panels pretty much never disagree about them. Between May and October, there were no reported Court of Special Appeals opinions with a dissent, and only eight dissents in the 646 unreported opinions^[2]. That’s total of eight dissents in 726 cases, or about 1 percent.

Taking a closer look, one of those dissents was written by Judge Raker, who was specially assigned. Three of the remaining seven were written by Judge Meredith. That means that five of 15 judges on the Court of Special Appeals wrote a dissent in the first six months of full publication of opinions. In other words, two-thirds of the judges did not dissent in any case they were on.

Does this all mean that the Court of Special Appeals’ reasoning is 99 percent beyond dispute? Well, maybe — as with any court that accommodates an automatic right of appeal, there are likely to be a great deal of uncontroversial cases with rather longshot odds of reversal, or, on the flip side, glaring errors that can’t be overlooked. (If anyone wants to flip through the 726 opinions and tally up affirmances versus reversals, be my guest.) It’s also worth noting that, unless the judge thinks a case may be certiorari-bound, there really isn’t much utility to a dissent in an unreported opinion; as the decisions can’t be cited in court filings, an unreported dissent isn’t a particularly useful mechanism for presenting countervailing considerations to future jurists wrestling with similar issues. That 89 percent of the time a dissent is of little functional benefit to anyone could be a practical reason why they don’t show up that often.

In any case, that the vast majority of Court of Special Appeals opinions are unanimous and unreported will come as no shock to any experienced Maryland appellate lawyer. But the availability of all Court of Special Appeals opinions does — in addition to advantages that other commentators have identified — help put hard numbers to the hunches.

[1] If a party disagrees, of course, it can always request publication under Md. Rule 8-605.1.

^[2] Seal v. State, Sept. Term 2014, No. 1430 (May 13, 2015) (Raker, J., dissenting); Dunn v. A&R Dev. Corp., Sept. Term 2014, No. 0987 (June 3, 2015) (Meredith, J., dissenting); Wilkerson v. State, Sept. Term 2014, No. 1383 (June 17, 2015) (Friedman, J., dissenting); Bell v. State, Sept. Term 2014, No. 1109 (July 14, 2015) (Eyler, J., dissenting); Jordan v. Torain, Sept. Term 2014, No. 1320 (July 23, 2015) (Meredith, J., dissenting); Chin v. Fieser, Sept. Term 2014, No. 2188 (Aug. 3, 2015) (Meredith, J., dissenting); Sellman v. State, Sept. Term 2014, No. 0913 (Aug. 14, 2015) (Arthur, J., dissenting); Marti v. State, Sept. Term 2013, No. 0468 (Oct. 5, 2015) (Kehoe, J., dissenting).