Odds and Ends

By Karen Federman Henry

Although its status as the intermediate appellate court may lead to skimming or skipping many of the decisions issued by the Court of Special Appeals, taking the time to review them can yield points of law that often go unnoticed.  This blog post captures a few recent issues that might otherwise have escaped your attention (especially if you are a purist and focus only on the Court of Appeals or United States Supreme Court).  The nuggets found in the intermediate appellate court deserve attention in modern law practice, because many days bring out-of-the-ordinary issues to our desks.

During April, the Court of Special Appeals discussed a new view of litter and sewage disposal in two separately reported decisions.  Early in the month, the Court concluded that two abandoned houseboats constituted litter in excess of 500 lbs., as defined by the Natural Resources Article, because the boats rested “in the mud in a state of disrepair.”  Roes v. State, 2018 WL1617645 (April 4, 2018).  The headnotes did not highlight this aspect of the case, but focused on criminal law (including the rule of lenity), maritime law, and the statutory construction of the principles.  Yet, the concept of an abandoned vessel as “litter” diverges from the usual concept of the trash that we see alongside highways or floating in rivers and lakes, or the piles of garbage dumped into landfills.  Later in the same month, the Court addressed the disposal of sewage and the need for a permit to do so.  While not calling it litter, the Court highlighted criminal law, adequate representation of council, and jury instruction issues, while applying statutory interpretation principles to evaluate whether the disposal of sewage without a permit was ongoing violation.  Shortall v. State, 2018 WL 1975557 (April 26, 2018). The headnotes in Shortall focused on criminal law, jury instructions, and ineffective counsel.

This month began with a number of unreported decisions, two of which may not be on your radar, but provide interesting points in 5 pages or less.  The first involved an individual’s effort to sue the Islamic Republic of Iran for the taking of real property owned by the person in Iran.  The case presented a question of whether the Foreign Sovereign Immunities Act, which ordinarily rendered Iran immune from suit, was overridden by the expropriation exception and, therefore, removed Iran’s immunity from suit in the United States.  The Court of Special Appeals held that Iran remained immune from suit and affirmed the circuit court’s dismissal of the complaint.  Asemani v. Islamic Republic of Iran, 2018 WL 2049693 (unreported May 2, 2018).

Last, but not least, we have an example of why patience is a virtue.  In a suit to establish paternity, the putative father sought to appeal two interlocutory orders directing him to submit to genetic testing and denying his motion to dismiss.  As we all know, those orders are not appealable, so the Court of Special Appeals took only two pages to remind all readers that appellate jurisdiction arises only after entry of a final judgment.  The limited exception to the rule requires that one of three exceptions exists:  an interlocutory order that is specifically appealable by statute; immediate appeals provided by Md. Rule 2-602; and interlocutory orders permitted under the collateral order doctrine.  None of the exceptions applied to Mr. Rhoe, so the Court dismissed the appeal.  Rhoe v. Montgomery County Office of Child Support Enforcement, 2018 WL 2138508 (unreported May 9, 2018).

These may not come up every day, but suggest that checking even the unreported decisions may yield useful information for those unusual issues.  And even though we cannot cite the unreported decisions, they often include references to reported cases that can be cited in court filings.