Unreported Opinions Are Citable For First Time in Maryland on about 70% of Unreported Appellate Court of Maryland Decisions (and The World Did Not End)
By Michael Wein[*]
The Maryland Supreme Court approved a Rules Change (the specifics below), effective July 1, 2023, which for first time permits litigants to cite previous Appellate decisions for their “persuasive” value. These have generally been available online on the Maryland Judiciary’s website since May of 2015 and searchable since that time in the Maryland Daily Record, as well as Lexis and Westlaw. The proposed Rules presentation discussing this from February 2023 can be found on the Blog here.
Below is the final wording of Rule 1-104. (Without annotations)1
The Numbers in July, August, September, and October 2023 on Unreported Opinions Citable versus Per Curiam, Which Remain Uncitable
Beginning July 1, 2023, every unreported Opinion by the Appellate Court of Maryland (ACM) (formerly Maryland Court of Special Appeals), with the exception of per curiam decisions, states: “This is an unreported opinion. This opinion may not be cited as precedent within the rule of stare decisis. It may be cited for its persuasive value only if the citation conforms to Rule 1-104(a)(2)(B).”
Although the Maryland Supreme Court did not adopt all the recommendations of the Maryland Rules Committee, (again detailed below and a link to the zoom meeting here), there was a potential major exception to Rule 1-104 requested by the intermediate Appellate Court, and adopted by the Rules Committee, that still prohibits all citations to “Per Curiam” decisions. This was noted in the early blog piece, as a major potential loophole in the Rules proposal of it “Does not apply to Per Curiam Opinions in General (“Judge Per Curiam”).
Sixty-six (66) opinions were issued by the ACM in July 2023. For those who obtained unreported opinions during the month, signed by a member of the three-judge panel in the ACM, your case can now be cited by everyone in Maryland.
Not so for the twenty-one (21) cases listed as per curiam. Those, about one-third (31%) of all intermediate appellate court cases in July 2023, state: “*This is a per curiam opinion. Consistent with Rule 1-104, the opinion is not precedent within the rule of stare decisis nor may it be cited as persuasive authority.”
To be fair, nearly all per curiam opinions have been about 3-4 pages long. The vast majority appear to be quite simple to decide on appeal, and many share a similar origin coming from (1) self-represented/pro se parties and/or (2) done by a criminal defendant in a post-conviction and/or collateral proceeding.
In July, there were 21 Opinions, slightly less than one-third, signed by that most prolific writer amongst all appellate Judges, Judge Per Curiam. Sadly, Judge Per Curiam, (born with a last name, whose Latin word origin literally means “By the Court”), despite their prolific ability to write almost one-third of all ACM opinions, continues to be left out of Maryland Common Law. All Per Curiam decisions of the ACM now include the above disclaimer, confirming they are not permitted to be even cited as “persuasive authority.”
August 2023 displayed a different pattern. There were sixty-nine (69) ACM decisions issued. However, all of them had a listed “author” and none were listed as per curiam. There were other inconsistencies less apparent, which may have been a function of the Court having cases in the “pipeline” to being issued, but not incorporating the new applicable Unreported Rule. So for example, the Kent v. State case issued on August 17, 2023, has on the first page a reference to Md. Rule 1-104, but erroneously fails to follow the recently amended Rule, which permits citation for “persuasive” purposes, so long as it is not per curiam. See also, Villa v. State (Dec. Aug. 22, 2023); Wilson v. State (Dec. Aug. 22, 2023). It does not appear that any of these 69 appellate decisions were of the very short variety. They all tended to be at least 12 pages long, many in the 20-30 page range.
September 2023 appears to be a return to the pattern of July. There were 76 unreported decisions in the ACM, with 29 being listed as “per curiam.” That comes out to 38%, which may have been higher than July due to the absence of any per curiam in August. Interestingly, in October 2023, through October 27, 2023, there have been 50 decisions, but not a single decision was a “per curiam” opinion. This could suggest the Court is doing the Per Curiam opinions every other month, but it is too soon to tell for sure.
What Did the Maryland Supreme Court Adopt from the Rules Committee’s Recommendations?
So with the doughnut-sized hole presently entrenched on per curiam, what else happened from the Supreme Court of Maryland’s determinations on March on the Proposed Rule of 1-104?
The main second uncertainty, as described in my previous blog post, was how the Court would address,
“The Day of Enactment, and Whether It is Done from May 1, 2015 (when all Maryland Appellate Court opinions were put on the Maryland Judiciary Website, as well as Westlaw and Lexis) or Prospectively in 2023 or 2024.”
Self-evidently, the Court looked at the matter prospectively only, in eventually approving the date of enactment as July 1, 2023, on March 23, 2023. This requires some adjustment for those who may find a “public” Unreported Opinion from the Appellate Court of Maryland (formerly Maryland Court of Special Appeals), on Lexis or Westlaw. It seems unnecessarily complicated, any citations from an over 8-year span of May 1, 2015 to July 2023 should not be cited to at all in Maryland, no matter how persuasive. (Which perhaps if they are well reasoned, the underlying citations for these “gap” decisions, under Maryland’s common law, should be examined, to provide a potentially sufficient substitute)
While that is unfortunate, in the sense it would be preferable to cite all unreported opinions from Maryland’s ACM if they are online, it’s at least progress the ones after July 1, 2023, have this ability and protection. Nevertheless, the careful appellate and trial practitioner should take notice of when the opinion was issued, to determine whether it’s specifically proper to cite for “persuasive authority.”
“Trial Court Opinions are Now Subject to Restrictions for First Time.”
Originally, the Maryland Rules Committee sought to restrict all trial court opinions. It was pointed out by some comments to the Supreme Court, and Justice Watts in particular, there is a significant disparity in equal access to these decisions, and very little research and examination made on why the Maryland Rules Committee was seeking these to be restricted, when they have never been restricted before. (Maryland Rule 1-104, previously Md. Rule 8-114, has always been solely focused on appellate unreported decisions). Regardless, the Maryland Supreme Court denied efforts to expand the Rule to prohibit trial-level decisions, which could have encompassed all well-reasoned federal and state trial decisions.
“Ambiguous and Subjective Language Exists”
Quite a number of comments (including undersigned) were directed to the Rules Committee, and some before the Maryland Supreme Court, on how and why it chose to use the language of “[o]nly if no reported authority adequately addresses an issue before the court” in 1-104(b). [Emphasis Added] From the perspective of trying to limit the citations to the most “persuasive” of cases, with very similar facts or legal issues that have yet to be in a “Reported” opinion, this language is surprisingly toothless, given its subjectivity. Perhaps that was the point. Allow what is to be “persuasive” to be in the eye of the beholder. Since the ACM was significantly limiting other aspects of the Rule, the Supreme Court of Maryland, adopted the language the ACM requested for this issue, so long as it is not “per curiam” and issued after July 1, 2023.
What it Means That Most Unreported Appellate Decisions Opinions are Now Fully Citable for Persuasive Value?
Maryland has certainly improved its standing amongst States with the enactments permitting citations to Unreported opinions for Persuasive Value, beginning on July 1, 2023. Previously, Maryland was part of a “dwindling” 14 (now 13) States that completely prohibited all citations.2 They appear to have jumped above the 10 States with semi-iconoclastic policies considered “hybrid” and navigated into the median plurality of 18 States that permit citation for “persuasive value.” Id. Maryland has not yet joined the five (5) States which may “selectively” publish their opinions but all that are published are considered to be binding precedential value (Delaware, Louisiana, Ohio, Utah, and West Virginia), or a somewhat more generalized category of four (4) States that publish all opinions (Arkansas, Connecticut, Mississippi, and New York), of which those are all considered precedent as well. Id.
There nevertheless is a concern about the Per Curiam Exception “Rule” Becoming a “Doughnut Hole within a Doughnut Hole.”
I would make the argument that “percentage-wise,” the least interesting and easiest to justify affirming cases, which themselves lack difficulty in explaining the reasoning, should not be given “second-class” status. The truth is, the vast majority are easy to decide, and thus easy to affirm, and extremely unlikely to be cited by regular appellate practitioners for “persuasive value.” That doesn’t justify creating a loophole exception, just because they are not complicated. If they are uncomplicated, that should make it easier to incorporate them into Maryland’s expanding Common Law.
Those litigants with per curiam opinions, will naturally arise from both pro se civillitigants and/or incarcerated prisoners, also likely pro se, seeking collateral relief. In other words, there’s a significant chance, even if there was a legitimate appellate issue hidden there at ACM, what are the chances the appellate litigant will belatedly realize the wisdom to hire counsel to assist in the matter, for purposes of a Certiorari petition to the Supreme Court of Maryland? Not impossible, but highly unlikely. These are going to be the vast majority of Per Curiam decisions in the foreseeable future.
As part of the ending scene of the movie “Knives Out” Daniel Craig’s character (Detective Blanc) explained to Ana de Armas’ character, how something may not appear as it does on the surface, and that what may appear to be a “hole” may conceal an even larger and more central hole that gets at the truth of the matter. The per curiam exception, may have some practical benefits, and on its surface makes some sense. For example, the Supreme Court of Maryland, pointed out at the hearing on adopting the Rule, the Federal Fourth Circuit Court of Appeals, allows citation to all its unreported/unpublished decisions. However, semi-frequently those least meritorious and worthy of consideration, are basically affirmed in a one or two paragraph summaries at the Fourth Circuit, noting how the legal issues were considered and affirmed, sometimes only citing the Federal Trial Judge’s lower Court decision. The Maryland Supreme Court Justices noted with admiration, (on a Court nearly all served on at some time), that nearly all the ACM decisions are well-considered and may have significant pages explanation of 20 pages or more.
It appears that for now, the Supreme Court of Maryland has considered this to be close enough to the Fourth Circuit’s model, and exchanging the relatively longer decisions done at the ACM, in exchange for more “summary” dispositions, is worth following the ACM’s lead on per curiam. Thus, there’s a certain trust extended and given by Maryland’s Supreme Court, that well important legal cases and decisions will never be stuffed into the per curiam hole/category. If that changes, and some clearly meritorious legal or factual issues are inappropriately designated as per curiam, then perhaps after a few instances of this occurring, an Amendment to present Rule 1-104 would be in Order, to remove the Per Curiam exception, and just allow all ACM decisions to be cited for “persuasive” value.
[*] Michael Wein is an attorney in Greenbelt whose practice concentrates on appellate, civil, and criminal litigation. He can be reached at weinlaw@hotmail.com.
- Rule 1-104. Unreported opinions [Effective July 1, 2023]
(a) Opinions of the Appellate Courts of Maryland. —
(1) Not Precedent. — An unreported opinion of the Supreme Court or the Appellate Court is not precedent within the rule of stare decisis.
Cross references. — See Rule 8-605.1 regarding reporting of opinions of the Appellate Court.
(2) Citation. —
(A) Generally. — An unreported opinion of the Supreme Court or the Appellate Court may not be cited as precedent within the rule of stare decisis or, except as provided in subsection (a)(2)(B) of this Rule, as persuasive authority. An unreported opinion of either Court may be cited only (i) when relevant under the doctrine of the law of the case, res judicata, or collateral estoppel, (ii) in a criminal action or related proceeding involving the same defendant, (iii) in a disciplinary action involving the same respondent, or (iv) as persuasive authority as provided in subsection (a)(2)(B) of this Rule.
(B) Persuasive Authority. — Unless designated as a per curiam opinion, an unreported opinion issued on or after July 1, 2023 may be cited for its persuasive value only if no reported authority adequately addresses an issue before the court. The citation shall clearly identify the opinion as unreported and include the case number, term, and date the opinion was filed. An unreported per curiam opinion may not be cited as persuasive authority.
Committee note. — Unreported opinions issued after May 1, 2015 are available on the Judiciary website.
(b) Opinions issued by courts in other jurisdictions. — An unreported or unpublished opinion, order, or other decision issued by a federal court or by a court in a jurisdiction other than Maryland may be cited as persuasive authority if the jurisdiction in which the opinion was issued would permit it to be cited as persuasive authority or as precedent. The citation shall indicate whether the opinion is precedent in the issuing jurisdiction.
Cross references. — See MAS Associates v. Korotki, 465 Md. 457, 479 n.11 (2019) and Gambrill v. Bd. Of Educ. of Dorchester County, 252 Md. App. 342 (2021), rev’d on other grounds, 481 Md. 274 (2022) regarding the persuasive value of unreported or unpublished authority from courts in other jurisdictions.
(c) Attachment. — If a party cites an opinion, order, or decision that is not available in a publicly accessible electronic database, the party shall attach a copy of the cited document to the pleading, brief, or other paper in which the document is cited. ↩︎ - See Lauren Wood, Comment: Out Of Cite, Out Of Mind: Navigating The Labyrinth That Is State Appellate Courts’ Unpublished Opinion Practices, 45 U. Balt. L. Rev. 561, 569-571 (2016). ↩︎
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