Seventeen Days to Go and Two Potential Blockbuster Maryland Court of Appeals Cases Left to Decide!
By Michael Wein
It’s time for the Annual* “Blockbuster” Court of Appeals decision watch. Three years ago, with about one week to go before the Maryland Court of Appeals’ self-imposed deadline of August 31st for deciding all cases in the term, the Court had only four cases left to decide. Two years ago, with two weeks before the Court’s deadline, there were 11 decisions left undecided. With a little more than two weeks to go before this year’s deadline, nine (9) decisions remain undecided, per the “Pending Cases” page on the Court of Appeals’ web site, with four (4) of those cases related to the topic of juvenile life sentences (that will likely involve some form of consolidated opinion, or opinions that will cross-reference each other). Of these 9 cases, one is civil, five are criminal, and three involve an Attorney Grievance matter. A listing of these cases’ Questions Presented from the Court of Appeals’ website, can be found at the bottom of this post.
There is one remaining scheduled Certiorari conference this year, on Thursday, August 23, 2018. To the extent any of these 9 cases are still pending then, this conference will likely be an opportunity “workshop” for those few remaining cases to iron out differences as well as give hard deadlines for any remaining decisions, including any concurrences or dissenting opinions. Two cases stand out, as being potential “blockbusters,” which are similar to the United States Supreme Court’s knack for having its most closely decided and important cases determined at the end of its regular June Term.
The first is People’s Counsel v. Public Service Commission, which had its oral argument on October 10, 2017. In an unreported opinion, the Court of Special Appeals affirmed the Public Service Commission’s approval of the merger between Exelon and Pepco Holdings Inc. (PHI). This is the only case pending from 2017 (with the unsurprising exception of the four (4) Juvenile Life sentence cases heard on one day in February 2018, all of the remaining pending cases postdate April 2018). While seemingly a below-the-radar public and legal issue, and not necessarily appearing to be the most interesting, the important Questions Presented may have broad impact in Maryland (and may include monies returned indirectly back to the Maryland taxpayers, in the event that it be determined that Exelon’s funds used to purchase the utility should not purely go back to the shareholders).
It is also maybe noteworthy that this case has some similarities to a series of discussions, objections, and reversals to the same merger that took place in D.C. The D.C. Court of Appeals ultimately upheld the merger, including an escrow demand approved by the Commission for energy efficiency for D.C. residents (and found by that court to be belatedly objected to by the District of Columbia government), which appears to be similarly argued as one issue in this case, to the extent to whether the “gained” profits can or should be “shared” with more than the PHI shareholders, but the general public of PEPCO users.
The People’s Counsel case, being the only one pending this long, and four months longer than any other case this Term therefore has similarities to, and harkens back to, this Blog’s selection of the Kulbicki v. State case, as the “blockbuster” of the 2013 Term. Kulblicki was a 4-3 decision in the Maryland Court of Appeals, which the Supreme Court granted Cert and summarily reversed.
The second “blockbuster” is less surprising, but are the four (4) interrelated Questions Presented, involving the United States Supreme Court’s determinations in Graham v. Florida, 560 U.S. 48 (2010) and Miller v. Alabama, 132 S.Ct. 2455 (2012), made retroactive by Montgomery v. Louisiana, 136 S.Ct. 718 (2016). Broadly speaking, these Supreme Court decisions permit juveniles under the age of 18 sentenced to life imprisonment, be given an opportunity to argue that they should be released from jail at some point, without a “mandatory” life imprisonment at the outset of their cases. This has led to a number of legal issues and cases for states, not just Maryland, to sort out.
As I previously discussed in a post on a strong Supreme Court Certiorari petition of Bostic v. Dunbar from the Missouri Supreme Court, which was ultimately denied, a majority of states have acknowledged the trend applying these Supreme Court decisions to lengthy “years” sentences. This legal issue was not specifically identified as permitting “equivalent to life” sentences being entitled to Eighth Amendment relief, as was decided previously by the Supreme Court. Had the Supreme Court granted certiorari in Bostic, it was directly related to the legal issues in one of the Maryland pending cases, McCullough v. State. McCullough involves whether, in the context of a “100-years” sentence, the juvenile may argue for his release, even though the sentence is not a “life without possibility of parole” (which is now unconstitutional when applied to juveniles under 18 years old at the time of their crime).
But even if one were to assume that lengthy 100-year sentences “pass” the line to be considered life without possibility of parole, and that there should be a line…where does such a line begin? Should it be when the convicted juvenile will not get out before they are 80 years old? 70 years old? 60? Does it make a difference that the trial judge specifically states that they intend to give a life sentence, even if that life sentence is expressed in years? Different states have given different answers on where the line is drawn. It’s not always easy being an appellate judge, to craft what may end up being a hard and fast rule for trial judges to potentially apply to some juvenile offenders convicted of serious crimes, but not others. Depending on how the Court of Appeals decisions are drafted, it would not be surprising if Certiorari with the United States Supreme Court will be sought, though with Bostic being denied (involving a juvenile who would not be released before he was 112 years old), it may be that the Supreme Court does not presently have 4 Justices interested in granting Certiorari.
Reynolds v. State is the sole remaining criminal case, outside of the juvenile cases, with the verbatim Questions Presented below involving “post-arrest, post-Miranda silence” and oral argument on May 8, 2018. This case may be pending simply because the oral arguments were 3 months ago, and not because of it being subject to significant dissent in the Maryland Court of Appeals.
Similarly, the three pending AGC cases of Jalloh, Lang & Falusi, and Powell, with arguments in April and June 2018, do not at this time suggest any major legal issues being argued, particularly as most Attorney Grievance cases are fact-specific and related to the potential discipline of the individual attorneys.
If you noticed the asterisk on the word Annual, and been wondering with baited breath why this piece was not done last year…well, last year, the Court of Appeals appeared to have issued opinions on all their earlier argued cases, with really only some May and June arguments left to be decided. The only real potential “blockbuster” case outstanding was the Doe v. Alternative Medicine case, involving Maryland’s medical marijuana program distribution licenses. While a unanimous decision on that case with significant amici input was issued on August 25, 2017, it followed a July 28, 2017 per curiam opinion, that had settled earlier what the ruling would be. A blog post on “No Blockbusters Left to Decide This Year” was contemplated, but ultimately determined to be as unnecessarily spurious as a youtube link to an entire island in Japan being full of bunny rabbits.
People’s Counsel v. Public Service Commission (Argument October 10, 2017)
Public Utilities – 1) Did the Public Service Commission make an error of law by failing to conclude that the premium that PHI’s shareholders received as a result of its acquisition by Exelon Corp. violated § 6-105 of the Public Utilities Article and the regulatory compact governing the obligations and rights of monopolistic utilities in that it harmed customers and was inconsistent with the public interest? 2) Does the Commission’s unexplained conclusion that allegations of harm to the distributed generation and renewable energy markets resulting from Exelon’s acquisition of PHI were “speculation” render the Commission’s decision to approve the acquisition arbitrary and capricious?
Juvenile sentencing cases (Argument February 6, 2018)
Bowie v. State
Criminal Procedure – 1) Does a juvenile nonhomicide inmate have standing to challenge his life sentence under Graham v. Florida, 560 U.S. 48 (2010), and its progeny? 2) Are life sentences for nonhomicide crimes committed by a child unconstitutional because Md. Law does not afford the “meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation” required by Graham?
Carter v. State
Criminal Procedure – 1) Does a juvenile homicide inmate have standing to challenge a life sentence he is presently serving based on Miller v. Alabama, 132 S.Ct. 2455 (2012), and Montgomery v. Louisiana, 136 S.Ct. 718 (2016), on the theory that the sentence does not afford him a meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation and the sentencing judge did not comply with the process set forth by those cases to insure that such a sentence is only imposed on the rare incorrigible juvenile offender, and is such a challenge ripe for review? 2) Do life sentences imposed on juvenile offenders in Md. afford them a meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation? 3) If so, did the sentencing judge consider the distinctive and mitigating aspects of youth in the manner required by Miller and Montgomery (and made retroactive by the latter) to ensure that such a sentence was imposed only on the rare incorrigible juvenile homicide offender?
McCullough v. State
Criminal Procedure – 1) Does the reasoning of Graham v. Florida, 560 U.S. 48 (2010), and its progeny apply to a 100-year sentence that is the aggregate of shorter sentences for multiple crimes committed during the same incident? 2) If so, did the 100-year sentence in this case afford the juvenile nonhomicide offender the “meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation” required by Graham? 3) May challenges to parole policies be raised as a Motion to Correct an Illegal Sentence?
State v. Clements
Criminal Procedure – 1) Did CSA err in dismissing Petitioner’s appeal? 2) Did the trial court err in considering, and granting, Respondent’s motion to set aside an “illegal” sentence?
Attorney Grievance v. Jalloh (Argument April 4, 2018)
Attorney Grievance v. Lang & Falusi (Argument April 9, 2018)
Reynolds v. State (Argument May 8, 2018)
Criminal Law – Was Petitioner denied due process when the trial court permitted the prosecutor to question him about “what he did not tell the police” about his alibi defense, even though the omissions were a result of Petitioner’s post-arrest, post-Miranda invocation of silence and were not inconsistencies with his trial testimony?
Attorney Grievance v. Powell (Argument June 1, 2018)