Fifteen Days to Go, and an Avalanche — 15 — Maryland Court of Appeals Cases Left to Decide!

By Michael Wein

Last year, with about one week to go before the Maryland Court of Appeals’ self-imposed deadline for deciding all cases in a September term by the following August, the Court had only four cases left to decide. Per the “Pending Cases” page on the Court of Appeals’ web site, with two weeks to go before this year’s deadline, 15 decisions are left to decide. Of these 15 cases, seven are civil, six are criminal, one is an Attorney Grievance matter (which the oral arguments indicate was, interestingly, remanded back to the trial judge for additional findings and re-argued in the same term), and one is a Bar application case.

Although there’s no reason at present to believe that the Court of Appeals won’t deal with all 15, there are some indications that the Court is working extra hard to ensure it. For one, the monthly certiorari conference (when the Court decides to grant certiorari) was originally scheduled for August 8, but was apparently moved back to August 18. This suggests that the Court is also using the certiorari conference as a “workshop” meeting for any outstanding decisions left to be decided, at which the judges will iron out differences as well as give hard deadlines for any decisions (including any concurrences or dissenting opinions) that aren’t finalized by the 18th.

Of the cases left to be decided, all but two are from the April, May, or June 2016 oral arguments. The cases may therefore be pending simply due to the fact that they were argued comparably recently. But if there’s one case that would be most likely “blockbuster” or close opinion, it would be the post-conviction case of State v. Adams-Bey, which was heard on June 2 and is (as is clear from the oral arguments) a follow-up of sorts to State v. Waine — which itself was one of the last remaining “blockbuster” cases in last year’s term. Adams-Bey could allow, because of a flawed “advisory jury instruction,” a significant number of long-incarcerated defendants to have new trials.

There is one case pending from the February 2016 arguments, AGC vs. Framm (which, despite the unusual remand and re-argument in June, is still likely to have a decision rendered by August 31). There exists a significant difference of opinion on the proper punishment to be meted against Ms. Framm, with her counsel suggesting something comparable to a reprimand, and the assistant bar counsel saying that the case “has to be” a disbarment based on the misrepresentations found by the trial judge. This could be an interesting case to read when it comes out.

There’s one case left from November 2015. Is it a post-conviction petition that would result in scores of convicts being released? A lingering death penalty case? An opportunity to revisit contributory negligence?  Hold onto your hats, because the obvious, closely decided, “blockbuster” case, still awaiting an opinion is … Baltimore County v. FOP Lodge No. 4, posing the question of “[w]hether public policy, as clearly delineated in the Baltimore County Charter, the Baltimore County Code, controlling Maryland case law, and the separation of powers doctrine, provides an exception to the enforcement of the arbitration award in this case?” (An earlier, and somewhat related iteration of this case was discussed by Blog editor Chris Mincher, who described its “tortuously convoluted” history.)

Involving the intersection of the enforcement of arbitration decisions and public policy, the Baltimore County v. FOP No. 4 case is not quite as obviously exciting as previous late-pending cases such as Maryland v. Kulbicki, which ended up in the U.S. Supreme Court. But, in some ways, it’s not a complete surprise that the Court of Appeals is having difficulty with the case, as it had similar difficulty deciding such arbitration cases in past terms, including Prince George’s County Police Civilian Employees Association v. Prince George’s County. That case was originally argued as the first case in the September 2015 term with these questions presented:

1) Did CSA err when it vacated the arbitrator’s award in this case under the theory that the decision was contrary to an explicit public policy and that the arbitrator’s interpretation of the employees’ Weingarten rights under the collective bargaining agreement was too expansive? 2) If CSA erred, did the arbitrator’s order of reinstatement and back pay as the remedy for the violation exceed his authority?

The case was then re-argued in March 2016 with new questions added by the Court:

1) Did the negotiators of the collective bargaining agreement between Prince George’s County and the Prince George’s County Police Civilian Employees Association have the authority to enter into a contractual provision that extends a Weingarten right to criminal investigations? 2) As a matter of contract interpretation, does Article 8.C of the collective bargaining agreement apply to criminal investigations?

Thus, the Baltimore County case and Prince George’s County case, which was only decided on April 22 by Judge Watts, share an “intersection” of the enforcement of arbitration rights created as part of a comprehensive collective bargaining agreement and the County’s belief that an arbitrator’s decision was either illegal or against public policy (such as forcing the County to “appropriate” funds to employees, raising separation-of-powers concerns). The FOP Lodge 4 case might not be particularly exciting, but a close vote on what may prove to be interesting and important grounds does look likely.