With Mitchell v. Maryland Motor Vehicle Admin., Hard Cases Still Make Bad Law
The aged judicial adage, that hard cases make bad law — or, at least, not so good law — continues to hold true after the decision of the Court of Special Appeals in Mitchell v. Maryland Motor Vehicle Administration, Sept. Term 2014, No. 713 (Nov. 25, 2015).[i] Mitchell concerned a vehicular license plate displaying the Spanish word “mierda,” which translates as “shit” or, in Yiddish, “kakn” (as in “that’s a kakn bull story”), all terms that are often a useful expletive or noun in circumstances on the road and off. As vital or valuable to expression as those words may be generally (and regardless of the domestic dialect or foreign language in which they are spoken), there is, no doubt, something troublesome about their being displayed in traffic. In grappling with the matter in Mitchell, the Court of Special Appeals at least arguably reached the right result but for reasons that unduly and impermissibly compromise First Amendment protections in other contexts.
December 2015 Maryland Certiorari Grants
The Court of Appeals website has posted certiorari grants from its December 2015 conference. We have a whopping 10 grants. And yet it brings us to a less-than-whopping total of 80 for the year. There were 90 total grants by this time last year. It’s possible that the Court of Appeals will add some extra cases to its September Term 2015 docket at next month’s conference. If so, however, it would be the first time since January 2012, before Chief Judge Barbera took the reins from Chief Judge Bell and committed to deciding cases by the end of the term in which they were argued.
The list of this month’s certiorari grants, with questions presented, appears after the jump. Read More…
On remand from SCOTUS, Maryland Court of Appeals summarily affirms CSA in Kulbicki
By Steve Klepper (Twitter: @MDAppeal)
We have a breaking update in our coverage of the long-running Kulbicki case. Ten weeks ago, the Supreme Court summarily reversed the decision of the Court of Appeals of Maryland in Kulbicki v. State, 440 Md. 33 (2014), which had found ineffective assistance of counsel on grounds that the Court of Appeals raised sua sponte. Read More…
The Love Song of J. Anthony Kennedy
By Steve Klepper (Twitter: @MDAppeal)
Last year for the holidays we here are the Maryland Appellate Blog brought you pictures of the adorable Sonia Soto-minor. This year’s silliness is The Love Song of J. Anthony Kennedy, a poem in the latest issue of The Green Bag. You can click here for the poem. Read More…
No “sandbagging” allowed – the purpose behind the preservation rule
No “sandbagging” allowed. That was a message conveyed by the Court of Appeals recently in Peterson v. State, 444 Md. 105 (2015). The Court explained that the purpose behind the preservation rule – i.e.¸ the rule that provides that appellate courts will review only those issues that were raised and preserved in the trial court – is to avoid unfairness and to prevent “sandbagging.” Id. at 126. If a litigant wants an appellate court to review and correct what that litigant sees as an erroneous ruling made by the trial court, the litigant must have given the trial judge a fair chance to make the correct ruling and to fix any mistakes that he or she made. In other words, the trial judge shouldn’t be “sandbagged.” And as one of the cases cited by the Peterson Court demonstrates, the concern for fairness applies also to opposing counsel. Robinson v. State, 410 Md. 91, 104 (2009); see also e.g. In re Kaleb K, 390 Md. 502, 513 (2006) (holding that petitioner’s argument was not preserved and that allowing petitioner to raise on appeal a new argument, which had not been raised and argued in the circuit court, “would result in ‘sandbagging’ the State and the trial . . . court, which is the precise result that Rule 8-131(a) was designed to avoid”).[1]
16 Nominated to Court of Special Appeals
It’s been quite a busy week on the judicial-appointments front: On Tuesday, Gov. Hogan elevated The Hon. Michele Denise Hotten to the Court of Appeals, and, today, nominations for the at-large Court of Special Appeals opening were announced. Although the deep pool of 27 applicants has been somewhat pared down, the governor is still faced with the difficult task of selecting only one of the 16 impressively credentialed finalists, half of which are sitting circuit-court judges. Of those, three on the Prince George’s County bench (Judge Alves, Judge Geter, and Judge Serrette) would, if it didn’t work out for the at-large bid, be eligible to vie for Judge Hotten’s vacancy.
Judge Michele Hotten Appointed to Court of Appeals
Today Maryland Governor Larry Hogan announced that he is elevating Judge Michele Denise Hotten, currently of the Court of Special Appeals, to fill the vacancy on the Court of Appeals created when Judge Glenn Harrell Jr. reached mandatory retirement age this past June.
Expert’s Review of Literature Now Leaves Less Discretion for Exclusion
[Editor’s Note: Portions of this post were previously quoted in “Lead Paint Evidence Clarified in Maryland; Causation, Injury Source Proof Distinguished,” Expert Evidence Report, Bloomberg BNA, Vol. 15, No. 21 (Nov. 9, 2015) (also available here).]
By finding that the circuit court in Roy v. Dackman, Md. Ct. App., Sept. Term 2015 (Oct. 16, 2015), abused its discretion by excluding lead-paint medical causation testimony, Maryland’s highest court seemed to curtail the wide discretion that trial judges typically enjoy when ruling on the admissibility of such testimony. In Roy, the plaintiff designated a board-certified pediatrician with “more than 20 years in practice,” Dr. Eric Sundel, to opine that the plaintiff had been exposed to lead more than a decade earlier at the defendants’ property and that the exposure had caused his alleged brain injuries. The trial court initially denied the defendants’ Rule 5-702 motion to exclude Dr. Sundel’s lead-source and medical causation opinions.
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