Why Maryland Should Allow 28 Days for Post-Trial Motions
What attracts many lawyers to appellate practice—besides an unusual appetite for legal writing and a general distaste for contentious discovery—is the confidence that fire drills and surprises rarely occur. Appellate briefing deadlines and oral arguments are normally set months in advance, and extensions are liberally granted. Appellate lawyers often seem to be nicer (albeit nerdier) people. And everyone on appeal is bound by the trial-court record. No juries and no witnesses. Just the lawyers and a panel of judges applying the law to the settled facts on record.
This dynamic of unharried research and rules-driven deliberation often yields superior legal analysis, not because appellate lawyers are smarter than other litigators but because they usually have the time to reflect on an issue and get it right. They also know that opposing counsel and reviewing judges will have time to carefully consider whatever they write and say. Any missteps or misrepresentations will most likely be noticed and exposed.
Read More…Rules or Rulings: When Can an Agency Decide?
Regulatory agencies are often presented with the big issues of the day in different ways. A matter of policy — and controversy — may arise when an agency is requested to make a new regulation or rule, asked to award grants or funding, tasked with overseeing government projects, or resolving administrative complaints. Modern advocates see numerous potential paths to the desired outcome and employ multi-pronged strategies to try to get there.
Obviously, to those advocates, and the stakeholders and public affected, the policy that eventually results matters a lot. To the agencies — and the administrative lawyers who deal with them — how they consider the policy, and what procedures are used, also matter a lot. What power an agency has to pick the posture, forum, and mechanisms in which to consider disputed issues recently generated a split Appellate Court decision in In the Matter of Maryland Office of People’s Counsel, et al., that establishes some limitations on that discretion.
Read More…Denial of Right to Public Trial or De Minimis Violation?
In March 2024, the Supreme Court of Maryland (SCM) granted the State’s petition for certiorari in State v. Scarboro, ACM No. 1646 (Sept. Term 2022), SCM No. 4 (Sept. Term 2024), an unreported decision by Chief Judge Wells. The State’s petition presented the following question: when an appellant claims a Sixth Amendment violation of the right to a public trial based on the trial court’s ostensible denial of courtroom access, does the burden lie with appellant to establish preliminarily that the courtroom closure is significant enough (i.e. not “de minimis”) that it implicates the constitutional right and requires analysis under the four-part test articulated in Waller v. Georgia, 467 U.S. 39, 48 (1984)?
It is the first time in over 30 years that the Supreme Court will hear a case involving the right to a public trial, since its 1992 decision in Watters v. State, 328 Md. 38 (1992). In Watters, the SCM found a violation of the right to a public trial after a deputy sheriff, citing an overcrowded courtroom, prevented the public, the press, and members of the defendant’s family, from entering the courtroom for an entire morning during which voir dire and jury selection occurred. The SCM held that this was not a de minimis violation.
Read More…MSBA to Hold Networking Event and Panel Discussion on Impact Decisions of Maryland’s Appellate Courts
On Wednesday, April 3, 2024, the Litigation Section Appellate Practice Committee of the Maryland State Bar Association will host a networking event, followed by a panel discussion on several impact decisions of the 2023 term. Panelists will include civil and criminal appellate practitioners.
The event will be held at the Robert C. Murphy Courts of Appeal building in Annapolis and begins at 5:30 p.m. Panelists include:
- The Honorable J. Bradford McCullough,
Circuit Court for Montgomery County - Douglas Nivens, II, Esq.
Office of the Public Defender, Appellate Division - Rachel Marblestone-Kamins, Esq.
Office of the Public Defender, Appellate Division - Jer Welter, Esq.
Chief Criminal Appeals Division, Maryland Office of the Attorney General
For more information and to register, visit the MSBA website.
March 2024 Maryland Certiorari Grants
On Monday, the Supreme Court of Maryland granted review in two cases.
Read More…Vivian V. Simpson (1903 – 1987): From “a young woman not readily submissive to rules and regulations,”[1] to preeminent lawyer, bar president, and first female secretary of state for Maryland.
Early experiences with the judicial system are often formative and a catalyst for pursuing the practice of law and public service. In honor of Women’s History Month, this post will feature one such person – Vivian V. Simpson.
Read More…The History of Family Relations on the Maryland Appellate Courts
On February 8, 2024, Governor Wes Moore appointed the Honorable Stephen Kehoe to fill the vacancy that his older brother, the Honorable Christopher Kehoe, created when he took senior status in August of last year. This judicial family affair led me to wonder whether there were other familial relationships amongst the judges on the appellate courts.
After Google and Wikipedia proved only marginally helpful, I decided to consult the real expert of Maryland judicial history—Chief Justice Joseph M. Getty. Unlike the supposed all-knowing internet, Chief Justice Getty did not disappoint. He offered three examples of blood relatives that have served on the Court as well as two additional pairs of judges who were related by marriage. Those judges are discussed below, with my thanks to Chief Justice Getty for his kind assistance.
Read More…Whren, Whren, Go Away…: Could the Days of the “Pretextual Traffic Stop” Be Numbered?
By Tia L. Holmes[*]
The “pretextual traffic stop”[1] issue appears to be on the minds of more and more lawyers and judges these days. The issue stems from a policing practice that was approved by the United States Supreme Court in Whren v. United States, 517 U.S. 806 (1996).[2] For decades, critics have expressed concern that Whren distorted or largely ignored the Fourth Amendment jurisprudence that preceded it, gutted Fourth Amendment protections for drivers and passengers, and authorized racial profiling[3] on America’s roadways.[4] These days, it is common to find briefs, scholarly works, and dissenting opinions decrying the policing practice. Even during an oral argument, it is difficult to avoid a discussion about pretextual traffic stops when the circumstances of a traffic stop are at issue.
Last year, I authored a post discussing Judge Dan Friedman’s concurrence in Snyder v. State, 2023 WL 1497289 (Feb. 3, 2023), in which he expressed his view that “Whren was wrong when it was decided in 1996 and remains both wrong and dangerous today.” My dedication to this issue has revealed that Judge Friedman is not alone. He joins dissenting judges throughout the country who also are concerned about Whren’s ongoing effects.[5] But judges have not only dissented. At least two states have declared pretextual traffic stops unconstitutional and departed from Whren on state constitutional grounds.[6] So, what does this mean for Maryland?
Read More…Robert Badinter: Homage to a Visionary Advocate Across the Atlantic
Robert Badinter, a French lawyer, politician, and author, widely known across the Atlantic for his powerful advocacy and activism against the death penalty, died last week in France. Here in the United States, his death has largely gone unnoticed outside of the capital defense community. Still, there are few, if any, in France who do not recognize his name and mourn the loss of his voice. As the homages have poured in over the last several days, I wanted to share my thoughts as a French native and attorney about the legacy of a man whose accomplishments in the fields of human rights and civil liberties demonstrate the full potential of the art of advocacy.
Read More…February 2024 Maryland Certiorari Grants
On Friday, the Supreme Court of Maryland granted review in one criminal case and two civil cases.
Read More…
Maryland Appellate Blog 