Hidden Legal Horcruxes: “The Maryland Court of Appeals and the Amply Sized Certiorari Petition”

By Michael Wein

With the release of the movie “Fantastic Beasts and Where to Find Them,” it’s worth noting that Maryland law embraces Harry Potter, at least tongue-in-cheek. Three appellate decisions, by three separate appellate judges, have cited the popular series of seven books by J.K. Rowling and nine movies — though the citations are only to the first and third books. See People’s Counsel for Balt. Cty. v. Loyola Coll. in Md., 406 Md. 54, 107 (2008) (J. Harrell) (discussing  how the “‘Sorting Hat’ is a magical artifact that is used to determine in which house (Gryffindor, Hufflepuff, Ravenclaw or Slytherin) first-year students at Hogwarts School of Wizardry and Witchcraft are to be assigned” in “Harry Potter and the Sorcerer’s Stone”); Bishop v. State, 417 Md. 1, 26 (2010) (J. Battaglia) (in “Harry Potter and the Prisoner of Azkaban,” a “‘boggart’ is a shape-shifting creature … that takes the form of the viewer’s worst fears. Because it instantly changes shape when someone first sees it, no one knows what a boggart looks like when it is alone. One way to combat a boggart is with the charm riddikulus.”); Bethesda Title & Escrow, LLC v. Gochnour, 197 Md. App. 450, 452 (2011) (J. Zarnoch) (during the litigation, “parties moved in and out of the complaint faster than Harry Potter’s broomstick in a Quidditch match.”) Now it’s time to bring out more advanced concepts of lawyer wizardry exhibited in the later books.

I offer you the Horcrux, first directly mentioned in the sixth book, “Harry Potter and the Half-Blood Prince.” (I’m leaving out a secret Horcrux in the second book — the diary of Tom Riddle, who would later become the notorious Voldemort.) For those uninitiated with the stories, a Horcrux is a secret place that magically conceals valuable items, such as parts of a person’s soul. As Professor Slughorn explained after Tom, his young pupil, could not find a written description to perform a Horcrux spell: “You’d be hard-pushed to find a book at Hogwarts that’ll give you details on Horcruxes, Tom, that’s very Dark stuff, very Dark indeed…” Harry Potter and the Half-Blood Prince, “Horcruxes” chapter, Scholastic, Inc. Publishing, 2005, pg. 496.

Well, there are “Horcruxes” in appellate law as well, and no I don’t mean that parts of souls can be found in courthouse objects such as gavels. I’m (metaphorically) referring to important legal concepts most people, including attorneys and even those whom regularly work in appeals, may not know exist, as they are not found in any rule book. Yet they do exist, and — although not codified by the Maryland Rules Committee for enigmatic reasons — have a practical impact in Maryland law.

One of these involves the size of certiorari petitions. The size of certiorari petitions, now set forth in Md. Rule 8-303(b), has seen a dramatic restructuring in the past few years. Up through 2013, the Rule specified that “[e]xcept with the permission of the Court of Appeals a petition [for writ of certiorari] shall not exceed 25 pages.” Given that 1.5 spacing was permitted then, a petition for certiorari could comfortably fit in 9,000 words.

The page limit was changed in 2014 to 15 pages. (I had argued to the Court in November 2013 that the proposed change to 15 pages was “a bridge too far” and for several practical and policy reasons should be 20 pages instead.) Beginning earlier this year, the limit of 15 pages was “substituted” with 3,900 words. That makes certiorari petitions presently about 60 percent smaller (at least, in word count) than what was permitted in 2013.

While these changes in petition size are at least delineated in Maryland law under Md. Rule 8-303, most other aspects of the certiorari process are not — or are as difficult to discern and discover as Horcruxes. The following questions about certiorari petitions, for example, are not specifically discussed in the Maryland Rules, despite the publication of comparable rules or procedures by the U.S. Supreme Court on its website.

1. What size limits are there for answers to certiorari petitions?

Unknown, as the only mention of an “answer” can be found in Md. Rule 8-303(d), which states that, “[w]ithin 15 days service of the petition, any other party may file an original and seven copies of an answer to the petition stating why the writ should be denied.” Nothing about size.

For some, it might seem that answers would be shorter than petitions for certiorari, or, at least, that respondents would have limitations that are at least equivalent to those of petitioners. But the Rules don’t impose the same arguably draconian word limitations that apply to petitioners. As such, answers don’t have run the same risk as petitions of being so abbreviated that they do not discuss some critical procedural and testimonial facts necessary for the Court of Appeals to review.

2. Do the new size limitations for certiorari petitions require a “Certification of Word Count and Compliance with Rule 8-112”? Probably, but it’s not specified. The certification requirement can be found in Rule 8-503, and thus certainly applies to “briefs” in both the Court of Special Appeals and Court of Appeals. If one construes a “brief” to include certiorari petitions, then it applies. However, there’s no cross-reference in Rule 8-503 with Rule 8-303. As a matter of practice, and because such a certification is easy to include at the end of a certiorari petition (and is not included in the overall word count), I include it, but there’s no definite requirement in the Maryland Rules.

3. Can a petitioner file a “response to answer to certiorari petitions,” and, if so, what are the requirements? In practice, a petitioner can file a response to an answer to certiorari petition. This may be the most “hidden” Horcrux of certiorari petitions, because there’s no Maryland Rule specifying it. SeePaul Mark Sandler and Andrew Levy, Appellate Practice for the Maryland Lawyer (State and Federal), MSBA (4^th 2014) at 379 (attorneys William Murphy and John Connolly noting that “[t]he Maryland rules do not address whether a reply to an answer may be filed, and Md. Rule 8-303(f) might suggest that the court does not expect to receive reply briefs. But the clerk’s office reports that reply briefs are accepted for filing…”). This question poses additional difficulties based on the present iteration of the Maryland Rules.

(A) What time limits are there for filing? This is unknown, though obviously before a certiorari petition is granted or denied. As an analogy, the U.S. Supreme Court has, in addition to the formal Rules 15.6 and 33.1 regarding responses to certiorari answers, an informal practice on the “best time” to file that coincides with the transmittal of the case to a specified certiorari conference.

(B) Are there any word limits? As for answers to petitions, none are specified, and the correct response to the question is therefore, “None.” But see U.S. Supreme Court Rule 33.1(g)(iii) (permitting 3,000 words for “Reply Briefs on Certiorari”); compare with Federal Rule of Appellate Procedure (FRAP) 32(a)(7)(B)(2)(noting “[a] reply brief is acceptable if it contains no more than half of the type volume specified in Rule 32 (a)(7(B)(i)”) [for Opening Briefs].”

(C) Is it subject to the new “certification requirement”? Probably, for the same reasons discussed in No. 2.

Particularly given the significant restructuring of certiorari petitions in the past three years, these issues justify a renewed review by the Maryland Rules Committee to make the “in practice” Rules (including the recent adoption of word limits and certifications for briefs) both consistent for and transparent to attorneys, litigants, and courts. The Maryland Court of Appeals has since the beginning of Chief Judge Barbera’s tenure adopted several practices like the certiorari procedures in the U.S. Supreme Court. As such, in making recommendations for rules changes to the Maryland Court of Appeals, the Maryland Rules Committee could start by considering adopting the Supreme Court Rules, which already cover nearly all the nonexistent or ambiguously defined rules currently governing Maryland’s certiorari practice.

Revisiting word limits should also be on the table. As covered by the New York Times, the federal judiciary will, as of Thursday, December 1, adopt a 13,000-word limit (reduced from 14,000) for opening and responding briefs. The original proposal of reducing the limit to 12,500 words caused extensive debate within and opposition by large firms with federal appellate practices.

But compare those to Maryland’s limits, which, though premised on the Federal Rules, are now very much out of sync with them. The Court of Special Appeals is currently subject to a 9,100-word limit for briefs (about a 30 percent reduction from 2013), and certiorari petitions — after two size reductions in three years — are about 60 percent smaller than what was permissible in 2013. Given that the U.S. Supreme Court, with 10 times the number of certiorari applicants, permits, per USSC Rule 33, up to 9,000 words (which is comparable to the old Maryland certiorari size limit), the Rules Committee’s review should also potentially include determining if the 3,900-word limit remains appropriate.

Michael Wein is an attorney in Greenbelt whose practice concentrates on appellate, civil, and criminal litigation. He can be reached at weinlaw@hotmail.com.