Archive | July 2022

Maryland Court of Appeals, in Irwin Industrial, Confirms Alternative Grounds for Summary Judgment, Typically Remain Unavailable to Argue in Appeals

By Michael Wein

The Court of Appeals’s recent decision in Irwin Industrial Tool Company v. Pifer (May 31, 2022, J. Watts) had as the main certiorari issue, on “[w]hether it was reversible error for the [Court of Special Appeals] to reverse the authenticity threshold applied by the Circuit Court for the admissibility of items purchased from the internet.”[i]  This encompassed about 36 pages of the 44-page unanimous decision authored by Judge Watts.  The case also featured the effective but tricky usage of demonstrative evidence at oral arguments, beginning at the 41st minute of the oral argument webcast.

However, Question Presented Two, on “[w]hether it was reversible error for the [Court of Special Appeals] to ignore the alternative grounds for summary judgment encompassed in the Circuit Court’s Order[,]” while only a few pages long, had important applications, beyond the case.  The ultimate decision confirms a reluctance by Maryland appellate courts to decide issues for the first time on appeal, especially when the trial court declines to clearly rest their decision on these alternative grounds.

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Appellate Practice Seminar in St. Mary’s County

The St. Mary’s County Bar Association will be holding an appellate practice seminar on August 5.

Date: Friday, August 5, 2022, 10 a.m. to 12:30 p.m.

Location: St. Mary’s County Courthouse, 41605 Courthouse Drive, Leonardtown, MD 20650

Judge Jonathan Biran, Court of Appeals
Chief Judge E. Gregory Wells, Court of Special Appeals
Judge Kevin Arthur, Court of Special Appeals
Senior Judge James Kenney, Court of Special Appeals
Diane Feuerherd, Miller, Miller & Canby
Steve Klepper, Kramon & Graham

Longtime readers will note that the event is heavy on Maryland Appellate Blog editors and alumni. Beyond Diane (blog manager) and Steve (editor-in-chief), Judges Biran and Arthur were both with the blog before joining the bench.

To RSVP for the event, email

July 2022 Maryland Certiorari Grants

The Maryland Court of Appeals today granted review in two criminal appeals.

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SCOTUS 9-0 on arbitration waiver standard.

By Brad McCullough

Much attention is given to the chasm that often exists between the Supreme Court’s rival factions and the divergent views espoused by the Justices, particularly in controversial hot-button issues. (That chasm was especially wide, and that attention reached a fever pitch, over the past week.) But not all cases before the Supreme Court involve such bitter divisions. In late May, the Court reached a 9-0 decision that resolved a split among the circuits in a case involving the Federal Arbitration Act. In an opinion authored by Justice Kagan, the Court held that a party waives her right to arbitration if she acts inconsistently with that right, even in the absence of prejudice to the opposing party. Morgan v. Sundance, Inc., No. 21-328 (U.S. May 23, 2022).

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The Majority, Concurring, and “Controlling” Opinions in the Supreme Court’s Decision of New York State Rifle & Pistol Ass’n Inc. v. Bruen

By Michael Wein

Last week, two blockbuster United States Supreme Court decisions were issued in Bruen and Dobbs.  This Post discusses the first,  New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 2022 WL 2251305, (U.S. June 23, 2022), published last Thursday.  Bruen primarily involved whether and to what extent the Second Amendment applied to New York’s very strict requirements for qualified applicants to obtain a carry permit, for gun possession outside the home. 

The label “majority opinion” and written by the Court’s primary author may not be considered the “controlling” opinion by the other federal or state courts. As discussed and previously examined in a prior Blog Post from 2013, the “Marks Rule” from Marks v. United States, 430 U.S. 188 (1977), guides how to identify the actual holdings in a “split” decision with multiple opinions; this Post dates back to Maryland’s consideration of comparative negligence in Coleman, and described the non-obvious difficulty in simply assuming or accepting the label given to what’s listed as the “Majority” Opinion.[i]  The Blog Post noted,

This construction [in Coleman] would comport with the definition [under Marks] of what is a “majority” opinion—in particular, that any opinion that is the “broadest rule” that has a “majority” of the judges, is to be construed as the majority opinion.   The Supreme Court has shown some creativity in this regard [for example, such as]  McConnell v. FEC, 540 U.S. 93 (2003), in making fractured rulings on the constitutionality of the Bipartisan Campaign Reform Act of 2002, issued three majority opinions for the different sections of the legislation.

The Supreme Court has displayed creativity similiar to McConnell in the recent Bruen case, though unlike Coleman, it’s not on the incorrect label being given, but what’s actually the nuanced “controlling” decision on application.  Broadly speaking, there is a Majority Opinion and authorship on Bruen, by Justice Thomas, which is controlling on the Constitutional impact, but for right now, the effect is limited.   This is a bit opaque on first glance, but was also noticed by some news outlets such as the Washington Post, which wrote articles focused on the Justice Kavanaugh Concurrence, joined by Chief Justice Roberts.  

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