Archive | June 2021

Biden to Nominate Virginia SG Heytens to Fourth Circuit

President Biden today announced his fifth round of judicial nominees, including Virginia Solicitor General Toby Heytens, his first nominee to the Fourth Circuit. The announcement states:

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Maryland Certiorari Statistics, 2020 Term

By Steve Klepper (Twitter: @MDAppeal)

For the fourth straight year, I’ve tracked the Court of Appeals’ petition docket. The judiciary’s annual statistical reports give the overall grant rate for civil and criminal certiorari petitions. Because unrepresented (pro se) parties file the majority of petitions each year, however, the overall statistics are not terribly helpful for lawyers in advising their clients regarding the odds of certiorari.

Below are the statistics for the Court’s 2020 Term (petitions filed 3/1/2020 to 2/28/2021), alongside the statistics for the 2019 Term (petitions filed 3/1/2019 to 2/29/2020) and the 2018 Term (petitions filed 3/1/2018 to 2/28/2019).

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Meet the Applicants for the Court of Appeals (Montgomery County)

Six applicants (two appellate judges, three trial judges, and one private practitioner) have applied for the Court of Appeals vacancy created by the upcoming retirement of Chief Judge Mary Ellen Barbera, who reaches mandatory retirement age this September. Applicants must be residents of Montgomery County.

The Appellate Judicial Nominating Commission will meet on August 2, 2021, and forward nominees to Governor Larry Hogan.

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The Future of Daubert in Maryland

By Derek Stikeleather

I revisit my favorite Maryland Appellate Blog topic, the admissibility of expert testimony in Maryland courts, because it continues to generate fresh, important questions for judges and practitioners. With the Court of Appeals formally adopting Daubert as the standard for construing Maryland Rule 5-702 in all state courts, see Rochkind v. Stevenson, 471 Md. 1 (2020), Federal Rule of Evidence 702 has become, for all intents and purposes, as relevant as Maryland Rule 5-702. This is so because courts cannot adopt Daubert without adopting FRE 702.

But the unusual historical interplay between the Supreme Court’s 1993 Daubert decision and the original FRE 702 can obscure FRE 702’s primacy in a Daubert analysis. The 2020 Rochkind decision—by nominally adopting “Daubert” rather than FRE 702—similarly risks confusion if Maryland courts try to “apply Rochkind/Daubert.” Maryland courts and practitioners must be clear-eyed that, in all expert challenges, they are now applying Maryland Rule 5-702 and FRE 702. And both rules continue to evolve.

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June 2021 Maryland Certiorari Grants

The Court of Appeals today granted certiorari in three criminal appeals and three civil appeals.

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Recoverable damages for killing a pet.

By Brad McCullough

The Court of Appeals was recently faced with a tragic case involving the senseless slaying of a dog and the resulting spirited debate over the interpretation of a statute that addresses damages for the injury or death of a pet. In Anne Arundel Cty. v. Reeves, No. 68, Sept. Term, 2019 (Md. June 7, 2021), Chief Judge Barbera authored the majority opinion, holding that the statute unambiguously limits compensatory damages to the amount specified by that statute and does not allow recovery of noneconomic compensatory damages for the tortious injury or death of a pet. In a forceful dissent, Judge Hotten urged a broader reading of that statute that would allow recovery of noneconomic compensatory damages for the grossly negligent killing of a pet.

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In-Person Appellate Oral Arguments Ended Suddenly with a Bang, and are Restarting Slowly with Anticipated Full Strength in the Fall.

By: Michael Wein

What happened in March 2020 was an abrupt departure for everyone, and a surprisingly long segue from normal.  This post provides an update.   As outlined in detail in previous posts for this Blog,  the Maryland and Federal Appellate Courts (which include Maryland), suddenly postponed Oral arguments in March 2020.  They also had the unenviable task transitioning to Remote Oral Arguments for the first time.  It’s been that way for about a year.

Assuming T.S. Eliot is a legal authority (he’s not, but fun to quote) and as a matter of transitive logic, a “bang” wouldn’t signify the end of the world…only a whimper.   Thus, there will be a resumption of normal. [1]

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The Institution of the Judiciary and Judicial Review, American Democracy’s Lifeline

By Alan B. Sternstein

Until recently, the social and political institutions of the United States long enjoyed, largely, the respect and the fealty of its citizenry. Though their raison d’etre vary, our institutions our schools, houses of worship, courts, legislatures and more all serve a common and fundamental function. They facilitate the conduct of orderly and rational discourse aimed at achieving consensus of purpose, in, importantly but not exclusively, matters of education, worship, governance, and commerce. Plainly, however, institutions do not guarantee discourse having such quality and effect. That depends, instead, on the character of each institution’s members. Given their essential function and the vital purposes, how is it that our most important institutions, those of government, have fallen so far in function and repute? Certainly bearing responsibility, at the federal and even state levels, has been the Supreme Court’s insensitivity to, if not abdication of, the unique position it occupies to protect our democratic form of government, which judicial proclivity is the subject of this post. We start first, though, with some political theory.

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