“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.

Please note, that while this passed the Rules Committee only 2 weeks before the abrupt courthouse shutdowns, and while everyone’s focus should rightly be on the present COVID-19 Emergency,[2] the Court of Appeals will be dealing with these new Appellate Rules, even though probably delayed for a few months. These Rules, simplified, will essentially adopt the practice of the federal Fourth Circuit Court of Appeals’ method of first, having the appeal briefs filed, before any oral argument calendar is decided. This is done usually with an Appellant Brief filed about two to three months after the finalized appeal, and the initial schedule issued in the Fourth Circuit. [3]

In contrast, Maryland has for many years, first determined when the month of arguments will take place (whether decided on Briefs or through oral arguments), and provided great flexibility in Brief filings. The exact length of time before the calendared argument month varies, but it typically has been as been about 9 months after the appeal has been calendared. In particular busy times, this could be more than a year. Since the Court of Special Appeals’ mediation program began, this is done after a decision made to proceed without any mediation conference, (or mediation has been completed unsuccessfully), starting the time period for ordering transcripts. Thus, generally speaking when an appeal has been noted in the lower court, expect about a year before oral arguments.

So the new Proposed Rules, which I initially expected to be in a hearing before the Maryland Court of Appeals this Fall, may now be delayed to late 2020, to possibly take effect some time in 2021. These seek to “streamline and shorten the scheduling of cases for argument in the Court of Special Appeals. [However] [d]ue to postponements that occur during that period…which are not infrequent, gaps appear in the argument dockets that cannot be filled by substituting other cases…” Proposed Rule, Reporter Note, pg. 7. Thus, the proposed Rules, would typically limit to one thirty (30) day time the parties may “stipulate” an extension of time between themselves before the Briefs may be due, without explanation needed. However, as written, under the Proposed Rule 8-502(b)(2), this can be extended afterwards only for “good cause.” This is even if, at the present, the time for arguments, will still usually be the nine to 12 month window. In other words, appellate Briefs will be due, much more quickly in Maryland. [4]

I have come around, that the changes proposed by the Rules Committee, are ultimately a good idea. Nevertheless, I question and have identified at least three (3) problems with these Rules, that should be clarified and considered.

First, it appears that Maryland has essentially adopted wholesale a lot of the methods of the Fourth Circuit. That’s all well and good for attorneys familiar with Fourth Circuit procedure, but federal cases tend to either have trial attorneys who are organically familiar with appeals, appellate attorneys that wisely are on “standby” in large cases, or they arise from larger firms that have an appellate practice that can more easily accommodate the quicker schedule for Briefing. Maryland does not typically have that.

Instead, in Maryland, it is not unusual for there to be months, before the potential client as Appellant, having concluded that trial counsel should not handle the appeal (or the trial counsel has specified that they don’t handle appeals), to then seek obtaining appellate counsel. Thus, simply adopting a 30 day extension/stipulation deadline, when it was not unusual under the previous (and still existing) Rules for Stipulations between Appellants and Appellees’ counsels for even six (6) months time (usually due to the counsel’s busy schedule), will not be an easy transition. It is also going to mean more litigants, usually Appellants, are going to be unable to secure qualified appellate counsel in time, and the appeal dismissed. It is accurate, that the current system, is a bit too lenient in these Stipulations, even though the main reasons typically revolve around the attorneys’ schedule, and that there may be fewer attorneys than there should be in Maryland who regularly practice in appellate practice. As a compromise, the Maryland Court of Appeals should consider adopting a reasonably flexible 90 day period time, for generally permitting stipulations of extensions of time, beyond the 30 daytime presently being recommended, or at least permit more flexibility than the actual “good cause” definition which may be subject to varying strict determinations (particularly in criminal versus civil cases). Perhaps a 30 day stipulation extension deadline would work in the future, but I am concerned, it is too much of a change, from what presently exists in Maryland, and more a function that the Rules committee simply adopted what the Fourth Circuit has as a procedural Rule. Change is good. Sudden change, particularly when creating laws and Rules, can be chaotic, and often leads to injustice.

Second, the Rules fail to account for the “interim” period, until the new Rules are potentially adopted and take effect, most likely some time in 2021. This, unfortunately, will have some cases in “limbo” between the new and old Rules, causing some anxiety, and unfair prejudice, without clear guidelines from the Court. Perhaps a discussion by Chief Judge Matthew Fader of the Court of Special Appeals on the Court of Special Appeals’ web site, could clarify how these would be affected in practice. However, since the actual specifics are unknown, and they are not in the Proposed Rules, it behooves either a more specific Rule, or at least that the actual effective date of the new Rules, need to be postponed to a later date, so that the time period is fully adequate, to account for the transition “interim” period.

Third, is that the Rules when proposed on or about February 28, 2020, failed to account for the three non-MDEC jurisdictions, (Prince George’s, Montgomery, and Baltimore City), not being MDEC for appeals, and thus, creating a potential significant disparity in the treatment and time tables of those counties versus MDEC counties. However, a recently proposed Rule change, to go before the Maryland Court of Appeals on June 17, 2020, will update the March 17, 2020 Emergency COVID-19 Order, permitting MDEC filings on appeals in these jurisdictions, to become part of the regular Rules. This appears to mostly obviate this concern.

While it is unclear when the Maryland Court of Appeals will now seek to address the new proposed Appellate Rules, because of COVID-19, it is reasonable to assume it has been delayed for at least a few months until later in 2020. In the meantime, Maryland attorneys need to be already familiar with the “streamlined” timetable that exists in Fourth Circuit federal appeals, or become prepared to have future Maryland appeals, be done on a stricter timetable, which may mean bringing in appellate counsel to assist or be made aware of the potential appeal issues, much sooner, than presently exists.

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

[1] See Pacheco v. State, 465 Md. 311, 316 (2019) (CJ Barbera)(citing Bob Dylan, The Times They Are a-Changin’ ; Miller v. State, 207 Md. App. 453, 465, 53 A.3d 385, 392 (2012) (J. Charles Moylan)(same); Sprint Commc’ns Co., L.P. v. APCC Servs., Inc., 554 U.S. 269, 300–01 (2008)(CJ Roberts, Dissenting)(quoting “When you got nothing, you got nothing to lose.” Bob Dylan, Like A Rolling Stone, on Highway 61 Revisited (Columbia Records 1965).) Additionally, an interesting historical fact, is that Judge Charles Moylan, was the Deputy State’s Attorney who prosecuted a William Zantzinger, immortalized in a different Dylan song, “Lonely Death of Hattie Carroll” which was on the “Times They Are a-Changing” Album.

[2] And of immediate thought, I never thought I’d be reading news articles on whether the “Insurrection Act” may be activated in the United States.

[3] The present Rules, don’t specify if the Court of Special Appeals, plans to adopt at present, the stringent guidelines for actually having oral arguments, as exists presently in the Fourth Circuit, with the vast majority of decisions decided on Brief.

[4] There is another very important Rules change, that will also go into effect, which would allow for pro se litigants to essentially argue their appeals, using prepared Forms. See Proposed Rule 8-502(9). This signals apparently that the Court of Special Appeals, has determined to adopt the Fourth Circuit method, of permitting “informal briefs” under local Rule 46(f). This also somewhat plays into the concerns of Maryland appellate counsels being contacted by clients of “limited means” who may want or need assistance on a civil matter, but it takes time for them to afford hiring counsel, or obtaining counsel for a lower retainer than more experienced counsels may demand. With the more “streamlined” Rules, and without advanced assistance by appellate counsels, this will be much more frequently play out, with pro se “informal briefs” as the method by which, the parties who possibly can obtain counsel, will ultimately end up handling the appeal.

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