Supplemental Authority Letters and Other Unwritten Maryland Appellate Rules
By Steve Klepper (Twitter: @MDAppeal)
Ever since this blog launched in 2013, I’ve received fairly regular calls and emails asking about arcana of Title 8 of the Maryland Rules, governing procedure in the appellate courts. Perhaps the most frequent question is how to notify a Maryland appellate court of new on-point authorities.
In the federal appellate courts, the answer is simple. You file a Rule 28(j) letter:
Citation of Supplemental Authorities. If pertinent and significant authorities come to a party’s attention after the party’s brief has been filed—or after oral argument but before decision—a party may promptly advise the circuit clerk by letter, with a copy to all other parties, setting forth the citations. The letter must state the reasons for the supplemental citations, referring either to the page of the brief or to a point argued orally. The body of the letter must not exceed 350 words. Any response must be made promptly and must be similarly limited.
Maryland Rule 8-504, our equivalent of the federal Rule 28, lacks any provision for supplemental authorities. Does that mean supplemental authorities are forbidden? Or must you move for leave? Do the supplemental authorities take the form of a letter or a supplemental brief?
Based on anecdotal evidence, I’ve usually suggested filing a letter that conforms with Rule 28(j), including the 350-word limit. Appellate MDEC includes a “Correspondence” filing code. Still, I’ve warned not to file supplemental authority letters unless there’s real cause. There are lawyers in federal appeals who file Rule 28(j) letters for every case they might have added to a string-cite, and such letters do not help their cause.
Last week, Judge Nazarian of the Court of Special Appeals posted a Twitter thread on this very subject. He said, in retweeting Raffi Melkonian’s pointers on Rule 28(j) letters:
The Maryland Rules do not contain a counterpart to Federal Rule of Appellate Procedure 28(j), but these general principles work here too. The supplemental authority letter or motion is not under-used here, and shouldn’t be used to add cases you should have found before. It is good and important to bring *new* authority or developments to our attention. Keep it short, and don’t re-argue the points in your brief or from [oral argument]. Tell us why the new thing matters or what it changes or doesn’t, as the case may be. If, on the other hand, the Court asks during or after argument for supplemental briefing—and we do, from time to time—you shouldn’t feel quite so constrained. But please stick to the parameters we give you, usually a specific issue or development.(Cleaned up.)
Court of Special Appeals Judge Friedman replied: “Friedman, J. concurring.”
The advent of appellate e-filing has confirmed that there are other submissions that have filing codes but lack a corresponding rule authorizing and defining them. Appellate MDEC’s filing codes include, for example: (1) the “Motion Reply,” for addressing points raised in an opposition memorandum (not mentioned in Rule 8-431, Motions); and (2) the “Petitioner Reply,” for addressing points raised in a respondent’s answer to a certiorari petition (not mentioned in Rule 8-303, Certiorari Procedure).[*]
These informal procedures reflect that there are times when replies are critical. If a respondent erroneously argues that the petitioner waived a point raised in a certiorari petition, the reply is the means to identify where the petitioner preserved the point.
So why don’t we have actual on-point rules? I can offer only an educated guess—that the courts believe that such rules would encourage more filings that are often unhelpful. Once a court’s rules give parties the option of filing a document, all too often attorneys view the filing as necessary to meet the standard of care. If you review the local rules of federal district courts, you’ll see instances around the country where courts say movants should not file reply memoranda in the ordinary course. But if you talk with practitioners in those jurisdictions, they’ll usually tell you that movants file replies in the ordinary course. Unnecessary filings can burden courts and increase expenses for clients who pay by the hour.
Still, uncertainty has a cost. When the rules give no clear answer whether a filing is authorized, or what requirements apply, the duty of diligence can force attorneys to spend undue time navigating the uncertainty. I usually get a call or email after a lawyer has spent far too long trying to find a clear answer. I know for a fact there are attorneys who have failed to file Petitioner Replies, believing them unauthorized, and therefore not responded to questionable claims of waiver. There is a further cost when opposing parties move to strike such filings as unauthorized.[†] Courts may not be aware of these costs, but they’re significant.
On balance, I think the better solution would be to eliminate uncertainty through rules expressly authorizing supplemental authority letters, Petitioner Replies, and Motion Replies, while imposing limits on those submissions. The rules (or accompanying committee notes) could specify that such filings are unnecessary, and that the Court may rule at any time before receiving a reply.
Word limits are key. If the rules restricted supplemental letters to 350 words, and Petitioner Replies and Motion Replies to 1,000 words, the burden on the courts and the expense to clients would be minimal. Such limits would be proportionate to the proper purposes for such submissions. Even if the number of these filings increased, the submissions would be more concise, better focused, and more likely to be helpful.
[*] See William J. Murphy & John J. Connolly, Petitions for Certiorari—View from the Bar, in Appellate Practice for the Maryland Lawyer: State and Federal 455, 462 (5th ed. 2018) (“The 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, although the office does not wait for a reply before bundling the petitions and transmitting them to the judges.”).
[†] I speak from experience. In 2014, the State’s answer to my client’s certiorari petition claimed that my client had waived an argument. I filed a reply to identify the precise point in the record where my client preserved the argument. The State then moved to strike the reply: “Allowing additional filings from the petitioner outside the Rules is unfair to the respondent and, more importantly, unfair to other petitioners who follow the procedures set forth in 8-303. This Court’s certiorari docket is limited, and allowing additional pleadings not only gives the rule-breaking petitioner an improper extra argument, but it also encourages other petitioners to violate the rules as well.” I then had to spend several hours preparing a response to the motion to strike, including citing the fourth edition of the Appellate Practice treatise.