Argument Panel: Proposed New Rule on Citing Unreported ACM Opinions
“After much debate,” the 214th Report of the Maryland Rules Committee proposes to amend Rule 1-104, which has long prohibited citation to unreported Maryland appellate decisions as precedent or as persuasive authority. The new Rule 1-104(a)(2)(B) would provide that, unless “designated as a per curiam opinion, an unreported opinion of the Appellate Court issued after [effective date of Rule] may be cited for its persuasive value only if no reported authority adequately addresses an issue before the court.” The comment period ends March 1, 2023, and the proposal will then go to the Supreme Court of Maryland for its consideration.
In what is hopefully the first of a recurring feature, we’ve polled our editorial board to get their views of the new rule.
Read More…Maryland Supreme Court to Consider New Rules Allowing For First Time, Full Citation For Persuasive Value to Most Unreported Opinions
By Michael Wein
For the first time, the Maryland Rules Committee has recommended Unreported Opinions in Maryland be cited for “persuasive value” under Maryland Rule 1-104. Part of the given Rule change’s rationale, was the Maryland Supreme Court does not consider itself as limited in citations, as at Maryland’s intermediate Appellate Court of Maryland. See Blog post dated 2/19/2020 discussing apparent contrary use of unreported opinions by Maryland Supreme Court. There remains some uncertainty as to the final version, as described below. This comes after a September 2022 Rules committee meeting, became publicly available about 2 weeks ago, as part of the 214th Report. The listed deadline for Comment to the Maryland Supreme Court is on March 1, 2023, with an open meeting scheduled for March 23, 2023.
The concerns about reforming Maryland’s Unreported Opinion Rule are long-running and also previously discussed in previous posts here (on recent Maryland Supreme Court decision), here (on 2015 Rules proposal to allow them on Case Search, but restricting their use from other jurisdictions for first time), and here (Rules Committee dropping 2015 restrictions after criticism). The Federal Courts got rid of any Local Rules with a prohibition against citations for persuasive value back on January 1, 2007. This present iteration, is the first time the Rules Committee has proposed doing away with the unreported opinion citation Rule.
However, with 15 years of Federal appellate Courts managing the Rule change, the Rules Committee, has chosen to not follow the Federal model of a simple removal of the prohibition as all Federal Circuit Courts of Appeal now have, with citations available online. Instead, like the 2015 version, the Maryland Rules Committee seems to exchange more transparency for “granting” unreported opinion citations, by creating a much more complex Rule in its place.
Read More…February 2023 Maryland Certiorari Grants
On Thursday February 23, 2023, the Supreme Court of Maryland granted review of one family law case. The certiorari grant, with links to the Appellate Court of Maryland opinion under review, are below.
Read More…Law on Imperfect Self-Defense is Still… Imperfect
Back in November 2016, less than two weeks before I left the Appellate Blog for a long foray as a Governor’s Office lawyer, I wrote my final post about the Court of Special Appeals’ decision in Porter v. State and the panel’s struggles with imperfect self-defense. How odd, then, that in my return more than six years later, the first split Appellate Court decision I come across is… a panel applying Porter and struggling with imperfect self-defense. With that coincidence, I guess I’ll just pick up where I left off.
To set the stage — when proven, imperfect self-defense negates the element of malice, which drops a murder charge to voluntary manslaughter. At least in Maryland, it comes into play when the perpetrator was not the “aggressor” and had the subjective beliefs, no matter how unreasonable, that:
- a potential assailant posed an imminent or immediate danger of serious bodily harm;
- the amount of force used to respond was necessary; and
- retreat was not safe.
To generate a jury instruction on imperfect self-defense, a defendant need only produce “some evidence” of these subjective beliefs.
Read More…Judges Don’t See it the Same on Speed, Stopping, and Suspicion
Of counsel, McAllister, DeTar, Showalter & Walker
Reasonable suspicion under the Fourth Amendment is a treadmill issue for appellate courts, and the constant churn of opinions usually involves judges’ different attempts to articulate what exactly is, and what should be, suspicious about human behavior. Those questions are far from easy. Every judge — every person, really — may have different thresholds about when something becomes reasonably suspicious.
The task often involves adding up a bunch of small details about a police encounter, each of which may be only a little bit suspicious, and determining whether they cross that varying threshold. A good case in point is the recent Snyder v. State, App. Ct. of Md., Sept. Term 2021, No. 1127 (Feb. 3, 2023), which suggests that strategy by the State may not always be effective. There, the State sought to satisfy the Fourth Amendment by throwing a bunch of suspicion spaghetti against the wall. Peeling it off one by one, the Appellate Court majority found it wasn’t enough — but there was one sticky noodle that triggered a dissent.
Read More…South Carolina Judge Confirmed to Fourth Circuit
Today, the U.S. Senate confirmed DeAndrea Benjamin to the U.S. Circuit Court of Appeals for the Fourth Circuit. Prior to her appointment she served as a trial judge for South Carolina.
Read More…Rereading Washington v. State after Tyre Nichols’ Homicide
A week ago, I wrote about Tyrie Washington v. State of Maryland, a decision by the Supreme Court of Maryland filed on December 19, 2022, which held that unprovoked flight in a high-crime neighborhood provides reasonable articulable suspicion to conduct a Terry stop.
Last week, like most people in the United States and abroad, I followed with horror the events leading to Tyre Nichols’ homicide.
Tyre Nichols’ flight from police was provoked by his fear and their brutality. His homicide is a painful reminder of why innocent people fear the police, especially uniformed officers patrolling high-crime neighborhoods. In Washington, the SCM precisely and explicitly recognized that reality while upholding that “unprovoked flight” in a high-crime neighborhood is a sufficiently compelling factor to justify a Terry stop. After watching body camera footage of Tyre Nichols’ visceral fear of the police in the minutes before his death, I reread the SCM’s decision in Washington. How can flight provoked by a legitimate fear of police justify the detention for criminal investigation of a citizen?
Read More…
Maryland Appellate Blog 