Archive | June 2020

The Singular “They” in Legal Writing

By Steve Klepper (Twitter: @MDAppeal)

There are few writing conventions as cumbersome as “he or she.” It’s not natural English. If you were to see the silhouette of a backlit person on the street, would you ask, “Who is he or she?” Or, like a normal person, would you ask, “Who are they?”

Nevertheless, teachers and professors drilled into me that the singular “they” was barbarism. The one exception was a common phrase like “to each their own,” because “to each his or her own” was an awkward bridge too far. “He or she” was necessary to be both inclusive and grammatically correct, even as writing otherwise moved in the direction of natural language.

This issue arises frequently in legal writing, which often involves discussions about a hypothetical individual, such as the “reasonable person.” I’ve used tricks to avoid the “he or she” problem. “If a Marylander wishes to apply for a license, he or she must first do X,” easily becomes “If Marylanders wish to apply for licenses, they must first do X.” But that work-around can be awkward, especially when overused.

It’s also a cop out. My family (traditional and chosen) includes non-binary people who use they/them pronouns. It’s important to non-binary people that we use their correct pronouns. It can cause them genuine distress to insist on using binary pronouns.

I’m sure some will read this post and cry “political correctness!” When it comes to legal writing, however, it’s a matter of legal correctness. Read More…

Despite Video, Court of Appeals Can’t Reach Consensus on Police Use of Deadly Force

By Derek Stikeleather

The use of deadly force by police officers in the line of duty has never been uncontroversial. But the police killing of George Floyd in Minneapolis on Memorial Day weekend has sparked an unprecedented national—even global—protest movement to re-examine the use of deadly force by police and the role of lawful police violence in perpetuating systemic American racism. Mr. Floyd’s killing was extraordinary in its stark inhumanity. But it galvanized millions because of its terrible familiarity to too many Americans who see police resort to deadly force in situations that often erupt from relatively minor infractions.

A Fourth Circuit panel recently captured the national mood when it declared, “This has to stop.” Estate of Jones v. City of Martinsburg (4th Cir. June 9, 2020). The Jones decision reversed a trial court’s ruling that had awarded qualified immunity to five Martinsburg, West Virginia, police officers who had killed a mentally ill homeless Black man by shooting him 22 times. The killing occurred shortly after one of the officers had stopped the man for walking in the road.

Like every American state, Maryland is deeply engaged in this difficult national conversation. State and federal laws have long recognized and accommodated the fact that officers must make split-second decisions on the use of force when running into unstable and often dangerous situations. The law does not limit them to using only the level and type of force that 20/20 hindsight later reveals as optimal. But society has also grown increasingly wary of rules and systems that seem to leave police officers unaccountable and even embolden some to brutalize citizens with impunity. Much of this sea-change in public opinion has been driven by the sudden ubiquity of cell phone, bodycam, and other video evidence—and social media platforms that facilitate “viral” dissemination—that brings these violent encounters into public view.

In this moment of intense national reflection, Maryland’s Court of Appeals recently handed down a 4-3 decision that captures the complexity of crafting and applying legal rules to properly regulate police conduct—even when an encounter is video recorded. Estate of Blair v. Austin, No. 35, September Term 2019 (June 2, 2020). Read More…

The Race to Find Justice

By Megan Coleman

On June 9, 2020, Chief Judge Mary Ellen Barbera of the Maryland Court of Appeals issued a Statement on Equal Justice under Law. The poignant statement was issued in the midst of the protests that spread like wildfire across the nation, emboldening individuals to stand up and be heard about the racial injustices that have been plaguing communities of color for centuries.

Chief Judge Barbera recognized that injustices against people of color are not new and that sadly, little progress has been made to eliminate racial disparities. Read More…

E-filing by MDEC becomes mandatory for appeals from all Maryland counties on July 1

By Steve Klepper (Twitter: @MDAppeal)

Yesterday, the Court of Appeals approved changes to the Maryland Rules that, as of July 1, 2020, will require all attorneys to file through the MDEC system in all appeals, including from circuit courts in the remaining non-MDEC counties (Baltimore City, Montgomery County, and Prince George’s County). Read More…

Maryland Reclamation Associates v. Harford County V: Herein of Litigant Fallibility, Judicial Infallibility, and the Demise of a $45 Million Judgment

By Alan B. Sternstein

The odyssey of Maryland Reclamation Associates (“MRA”) to construct and operate a rubble landfill in Harford County began in August 1989. It shortly ran into legislative, regulatory and judicial hurdles, leading to 30 years of administrative and judicial litigation. MRA’s 30 year saga continued with a recent and now fifth Court of Appeals decision in this story. In “MRA V” (Opinion, Maryland Reclamation Assocs. v. Harford C’ty, No. 52, September Term 2019 (Md. decided Apr. 24, 2020)), in an 80 page opinion, the Court of Appeals nullified a $45,076,420 verdict for MRA in an inverse condemnation action that MRA brought after being unable to secure zoning variances required for the landfill. The court rejected the Court of Special Appeals’ own determination that MRA had exhausted its administrative remedies before bringing its action and ruled that MRA’s action should be dismissed for failure to exhaust administrative remedies. Though MRA did stumble some over the last 30 years, the Court of Appeals in MRA V reached an arguably justified prospective rule of procedure in condemnation cases but questionably did so in applying that rule to MRA. Read More…

June 2020 Maryland Certiorari Grants

Today the Court of Appeals of Maryland granted certiorari in two cases, both on petitions by the State in criminal cases. Read More…

“The Times, They are a-Changin”—New Proposed Rules to Streamline Maryland Appeals, Foretell Major Changes

By Michael Wein

Songwriter Bob Dylan has been cited in at least two (2) appellate cases in Maryland and one United States Supreme Court case.[1] So with that topical reference to the Nobel Prize poet laureate Dylan, it makes sense to spend some time, (even when it’s “a-changin”), on what was proposed and passed as the 203rd Report by the Maryland Rules Committee on February 28, 2020, and presently before the Maryland Court of Appeals. Careful attention by regular appellate practitioners are a given, but even trial practitioners may want to prepare for appeals earlier, as the proposed Rules, are a sea change in Maryland, even if they seem to follow the Fourth Circuit’s model. At the very least, trial counsel should consider contacting qualified Maryland appellate counsel much earlier for assistance. Read More…

Does substituted service on SDAT violate due process? Mayor & City Council v. Prime Realty

By Brad McCullough

Business entities such as corporations, limited partnerships, and limited liability companies must have a resident agent in Maryland who is authorized to accept service of process. If an entity fails to abide by its statutory obligations regarding maintenance of a resident agent, or if good faith efforts to serve the resident agent fail, the Maryland State Department of Assessments and Taxation may be served in the resident agent’s stead. Does that service on SDAT, however, comport with due process? Does it matter if the party trying to serve the resident agent knows that the resident agent’s official address might be wrong and might know the resident agent’s actual address? In that situation, does service on SDAT satisfy due process? The Court of Appeals was recently faced with these questions in Mayor & City Council of Balt. v. Prime Realty Assocs., Inc., No. 53, Sept. Term, 2019, 2020 WL 2460110 (May 12, 2020). In its opinion, the Court essentially created a “safe harbor” for a party that makes substituted service on SDAT in strict compliance with the applicable rule of procedure. Yet the Court also hinted that the safe harbor might disappear if the serving party has actual knowledge that the resident agent’s address listed with SDAT is wrong. That answer, however, must await another day. Read More…