Maryland Courts Spring Forward with In-Person Oral Arguments in March and New Appellate Rules for April 2022
(Update: On February 25, 2022, the Court of Appeals issued two notices regarding COVID-19 related protocols for oral arguments: (1) Protocols for oral arguments on March 3 & 4, 2022; and (2) Protocols for oral arguments on March 7 & 8, 2022).
By Michael Wein
It appears all the appellate Courts for Maryland are returning for in-person oral arguments by March 2022. This has some déjà vu from a previous “optimistic” blog post, pre-Delta and pre-Omicron variant, from June 2021. There will hopefully not be any further quick and surprising Court shutdowns, as my August 2021 post relayed. Additionally, as discussed below, new appellate Rules have been approved in the past month by the Maryland Court of Appeals, taking effect on April 1, 2022, applying to many upcoming appellate Briefs.
In-Person Oral Argument Updates
In the past few weeks, there has been an announcement of in-person orals in the following courts for Maryland practitioners:
- The Maryland Court of Special Appeals has posted “[t]he Court will hold its March 2022 oral arguments in-person at the Robert C. Murphy Courts of Appeal Building. Counsel in cases scheduled for March arguments will receive notice from the Clerk with oral argument protocols.” This is after a few months of Remote arguments due to the Omicron variant.
- The Federal Fourth Circuit Court of Appeals after a few months reverting to the Zoom hearings due to Omicron, will have in-person oral arguments for their March 8-11, 2022 Session, in Richmond, Virginia.
- The Maryland Court of Appeals has not yet specified if their March 2022 oral arguments are to be in-person. However, with the Friday, Feb. 18, 2022’s Orders from Chief Judge Joseph Getty, the State of Maryland is resuming Phase 5 normal operations, including jury trials on March 7, 2022. It would thus be unsurprising if an announcement is received any day. It is possible that some of the oral arguments scheduled from March 3 through March 8, 2022, might be done remotely via Zoom, but my anticipation, particularly with the Court of Special Appeals’ announcement, they will all be done in-person, assuming the participating attorneys have confirmed availability, are not suffering COVID-symptoms, and are properly vaccinated.
209th Report from the Maryland Rules Committee
Also in time for spring, following the Maryland Rules Committee proposals, the Maryland Court of Appeals adopted various new Rules in the 209th Report. This includes a number of new Rules, specifically applying to Title Eight for appeals. As noted on Page Three, the Court determined these “shall take effect and apply to all actions commenced on or after April 1, 2022 and, insofar as practicable, to all actions then pending[.]” There are three main categories of Rules changes for appeals.
New Rules on Word Limitations for Petition Filings and Supplemental Authority
The first category of changes involves a long-time concern on what “word limit” Rules apply to Certiorari Petitions in the Maryland Court of Appeals, and the process and word limits for submitted “Supplemental Authority” Filings. Previously, the only concrete Maryland Rule word limit for Petitions for Writ of Certiorari was 3900 words. Left silent, or missing, was any other “word limit” Rules, as well as if “Replies” to Petitions for Writ of Certiorari were permitted, as they were in practice, and is generally permitted in the United States Supreme Court. [i]
The new Rules now specify, both the “Answer” and a “[c]ross-[p]etition that answers a petition, shall not exceed 3,900 words.” Pg. 77. Also at pages 78-79, the New Rules effective April 1, 2022, include updated Md. Rule 8-303 (d) as follows.
(1) Time to File. Within 15 days after service of the petition or cross-petition, any other party may file an original and seven copies of an answer to the petition or cross-petition stating why the writ should be denied. If an amicus curiae brief is filed in support of the petition or cross-petition pursuant to Rule 8-511 (e), the deadline to answer is automatically extended to 15 days after service of the amicus curiae brief.
(2) Word Limits. Except with the permission of the Court of Appeals: (A) an answer to a petition shall not exceed 3,900 words, and (B) a reply to a cross-petition shall not exceed 1,500 words.
This clarifies what in practice, was the word limit for Answers, but technically previously did not have a specified “word limit.” This left open the possibility Answers could be as long as desired by the Respondent, though in practice, this was rarely done. Furthermore, this 3900-word limit applies for “cross-petitions.” (Presumably, this limit also exists as a single unit for 3900 words for “Answers and Conditional Cross-petitions”). There is also 1500-word limit now for “Replies” to “Cross-petitions.” Essentially, there is a fuller codified opportunity for when a Cross-Petition is filed, for a “Reply” by the original Petitioner of 1500-words.
Left out in the new Rules is whether “Replies” to Certiorari petitions are still permitted, as has been in practice previously. See, Endnote I; see also, previous Blog Post on “open” issues in Appellate practice. The new Rules strongly suggest that answer is now “No.”
When an Answer claims there are “vehicle” concerns against granting the Certiorari petition, such as an untimely appeal notice, or the issue wasn’t properly presented or preserved below, these concerns are appropriate in an Answer or Opposition to Petition for Writ of Certiorari. Previously, these concerns may be misstated, or over-stated, thus justifying a “Reply” to be filed.
The Maryland Court of Appeals during their meeting indicated this concern would be typically redressable, by the Court having access to the Electronic Record, to determine it efficiently themselves. The immediate problem with this contention, is right now, neither Prince George’s County nor Baltimore City (and Montgomery County is just starting MDEC), does not have an Electronic Record, though some parts may be locatable as part of electronic filings with the Maryland Court of Special Appeals. (Though for an appeal from the District Court to Circuit Court, and only allowing for Certiorari under Courts and Judicial Proceeding § 12-305, this possibility does not normally exist) Furthermore, it is possible that a rendition of the procedural facts or on-point case, would be considered so “wrong” or inaccurate, that a Petitioner feels a “Reply” is wholly necessary. Is there any relief?
The answer may be inferred by what was adopted by the Court as well to take effect in April, on Md. Rule 8-502, essentially adopting the Fourth Circuit’s Rule on citing new “supplemental authority.” This is limited to 350 words, and discussed as an “unwritten Rule” in a previous Blog Post. The new Rule, now written, notes “Upon receipt of a Notice of Supplemental Citation pursuant to subsection (e)(1) of this Rule, or on its own initiative, the Court may grant leave for, or direct the filing of, additional memoranda or supplemental briefs, and may require additional argument before, during, or after oral argument.”
Thus, Supplementary authorities are now more specifically codified, as compared to the previous lack of any direction or Rules. If it’s a very important Supplemental authority concern (such as a directly related United States Supreme Court decision), then a motion for Supplemental Briefs with word limits may be appropriate. This suggests, similar to requesting additional word limits motions are permitted under Maryland Rule 8-303 (b), if a Petitioner feels it’s quite justified, to “Reply” to an Answer, the solution is now to file a Motion. As inferred by the new Rules, this Motion should preferably seek no more than 1500 words for a regular Reply, comparable to the Reply length for “Cross-Petitions.”
New Rules on “Cross-Appeals”
Second, and as noted supra, is a much more detailed incorporation of “Cross-Appeal” and “Cross-Petition” Briefing into practice by the Maryland appellate courts. This can be seen readily, such as in the mainstay Rule of 8-303 for Certiorari Petitions, which now adds and includes the phrase “Petition or Cross-Petition.” Similarly, Cross-Appeal Briefs and Cross-Petition Briefs (when granted), now have their own color-coded category of Briefs—Purple for Cross-Appellants in the Maryland Court of Special Appeals, and orange for Cross-Petitioners in the Maryland Court of Appeals. [ii] Cases with a reasonable need to seek Cross-Appeals and Cross-Petitions, should take heed of these new more detailed requirements throughout the appellate Maryland Rules.
New Rules on Amicus Briefs
Third, is a general re-alignment of Amici Briefs, which reduces their length, but makes them easier to file in many circumstances, similar to the United States Supreme Court, especially at the “Cert-level stage.” [iii] There is no longer need for any permission, for “Cert-level” Amici Briefs, which need to be filed generally within seven days of a Certiorari Petition. As noted supra, should there be an Amicus Brief filed in a specific case, this also allows for additional time for an “Answer” to be provided by the Respondent.
Michael Wein is an attorney in Greenbelt whose practice concentrates on appellate, civil, and criminal litigation. He can be reached at email@example.com.
[i] See e.g., Paul Mark Sandler and Andrew Levy, Appellate Practice for the Maryland Lawyer (State and Federal), MSBA (4th 2014) at 379 (attorneys William Murphy and John Connolly noting that “[t]he 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…”); see also United States Supreme Court Rule 33.1(g)(iii) (permitting 3000 words for “Reply Briefs on Certiorari”); compare with, Federal Rule of Appellate Procedure (FRAP) 32(a)(7)(B)(2)(noting “[a] reply brief is acceptable if it contains no more than half of the type volume specified in Rule 32 (a)(7(B)(i)”) [for Opening Briefs, which would be 1950 words for Maryland Certiorari Petitions].”
[ii] The Court was playfully clear during the Committee hearing, this color selection had nothing to do with Maryland sports teams of the Baltimore Ravens and Baltimore Orioles having these same colors, on the comparably rare briefs that are “Cross-Briefs.” However, it is worth noting, the orange-colored Baltimore Oriole is also Maryland’s State Bird. And ravens, in addition to being the subject of famous Baltimorean Edgar Allen Poe’s poem, are part of the corvid-family of birds, and along with crows, generally considered to be the most intelligent bird species. So there are non-sports related bases for supporting both orioles and ravens. (Though ravens, the birds, aren’t known for being purple, outside football.)
[iii] Oddly, Maryland does not have the same Certification requirements as United States Supreme Court Rule 37.6, implemented decades ago, and designed to prohibit improper or dishonest gamesmanship in amici Briefs. Today, even the Supreme Court’s stricter and more specific Rules, are being more frequently evaded, such as through the “secretly drafted” Amicus Brief seeking to reverse President Biden’s election. This has led to recent Congressional legislative efforts to increase transparency on just this Rule.