Maryland Court of Appeals adds one case to its docket, subtracts another

By Steve Klepper (Twitter: @MDAppeal)

Keeping up regular updates to a blog isn’t easy, but the Maryland Court of Appeals is making things easier for us by issuing certiorari grants on a rolling basis. The Court’s monthly conference was yesterday. After the six grants earlier this month, there was only one cert-worthy case left. The new grant is a workers’ compensation case (which, from an appellate nerd’s perspective, is the Maryland equivalent of the Supreme Court granting an ERISA petition):

Charles C. Reger v. Washington County Board of Education et al. – Case No. 68, September Term, 2016

Issue – Workers’ Compensation – When a state employee is found to have a compensable injury under the Workers’ Compensation Act and is then found to be entitled to ordinary retirement disability benefits for a different injury, is it inappropriate to absolve the insurer of its liability under the Workers’ Compensation Act and thus prevent the injured worker from obtaining any recovery for a single injury because they recovered for a different injury?

The Court of Appeals dismissed a case just one month after granting certiorari. The case removed from the court’s docket is State v. Lapole, Case No. 54, September Term, 2016. On October 12, the court granted the State’s petition on the following questions:

1) Did CSA err in concluding that the trial judge abused his discretion in asking the following question during voir dire: “Would any of you automatically give more or less weight to the testimony of a physician, a clergyman, a police officer, a firefighter, a psychiatrist or any other witness merely because of their title, profession, education, occupation or employment?” 2) Did CSA err in concluding that error in phrasing the police officer question was “by definition” not harmless, even though the police officer’s testimony was inconsequential?

Today, however, the Court of Appeals issued a per curiam order granting reconsideration and dismissing the writ of certiorari. It’s not unusual for the Court of Appeals to issue a DIG (dismissed as improvidently granted) order after argument, although the rate of DIGs has decreased under Chief Judge Barbara. What distinguishes Lapole is that the case never even made it to briefing.

Chris Mincher previously covered Lapole as part of the blog’s COSA Dissent Watch feature. Chris was right that the case presented good questions for certiorari. And, as it turns out, the reason for the DIG has nothing to do with the importance of the questions.

According to the petitioner’s motion for reconsideration, the State conceded that it mis-calendared the deadline for its petition and therefore filed the petition late. As Judge Glenn Harrell writes in Appellate Practice for the Maryland Lawyer, “A late filed petition is as good as never filing one. It will be dismissed because a timely filing is a jurisdictional prerequisite.”

The motion for reconsideration did point out an interesting aspect of Maryland appellate procedure. Under Eastgate Associates v. Apper, 276 Md. 698 (1976), a Maryland appellate court has discretion to opine on the merits of the case in the absence of appellate jurisdiction, but that opinion is mere dicta. Here, however, the opinion of the Court of Special Appeals was unreported, making any such statement unnecessary.

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