Archive by Author | MdAppBlog

“The Times, They are a-Changin”—New Proposed Rules to Streamline Maryland Appeals, Foretell Major Changes

By Michael Wein

Songwriter Bob Dylan has been cited in at least two (2) appellate cases in Maryland and one United States Supreme Court case.[1] So with that topical reference to the Nobel Prize poet laureate Dylan, it makes sense to spend some time, (even when it’s “a-changin”), on what was proposed and passed as the 203rd Report by the Maryland Rules Committee on February 28, 2020, and presently before the Maryland Court of Appeals. Careful attention by regular appellate practitioners are a given, but even trial practitioners may want to prepare for appeals earlier, as the proposed Rules, are a sea change in Maryland, even if they seem to follow the Fourth Circuit’s model. At the very least, trial counsel should consider contacting qualified Maryland appellate counsel much earlier for assistance. Read More…

Does substituted service on SDAT violate due process? Mayor & City Council v. Prime Realty

By Brad McCullough

Business entities such as corporations, limited partnerships, and limited liability companies must have a resident agent in Maryland who is authorized to accept service of process. If an entity fails to abide by its statutory obligations regarding maintenance of a resident agent, or if good faith efforts to serve the resident agent fail, the Maryland State Department of Assessments and Taxation may be served in the resident agent’s stead. Does that service on SDAT, however, comport with due process? Does it matter if the party trying to serve the resident agent knows that the resident agent’s official address might be wrong and might know the resident agent’s actual address? In that situation, does service on SDAT satisfy due process? The Court of Appeals was recently faced with these questions in Mayor & City Council of Balt. v. Prime Realty Assocs., Inc., No. 53, Sept. Term, 2019, 2020 WL 2460110 (May 12, 2020). In its opinion, the Court essentially created a “safe harbor” for a party that makes substituted service on SDAT in strict compliance with the applicable rule of procedure. Yet the Court also hinted that the safe harbor might disappear if the serving party has actual knowledge that the resident agent’s address listed with SDAT is wrong. That answer, however, must await another day. Read More…

Friendly Fire: A Jurisdictional and Ethical Look at the D.C. Circuit’s Surprising Order that a Trial Judge Respond to a Legal Challenge to His Ruling

By John Grimm and Amy Richardson

Earlier this month, U.S. District Judge Emmet Sullivan made headlines when he appointed a retired federal judge to oppose the Government’s motion to dismiss its criminal case against former National Security Advisor Michael Flynn, and to make a recommendation as to whether to hold Flynn in criminal contempt for perjury.[1] The move was universally regarded as highly unusual. But, while prosecutors’ motions to dismiss charges are generally granted without much fanfare, the Federal Rules of Criminal Procedure do require leave of court,[2] so Judge Sullivan must approve the withdrawal. Read More…

What it’s Like to Argue an Appeal from Home

By John Grimm

Practicing law these days reminds me of the apocryphal ancient curse, “may you live in interesting times.” The times are definitely interesting, and one interesting thing I did earlier this month is argue an appeal from my living room.[1] For the foreseeable future, it seems that the Maryland appellate courts will be operating remotely with oral arguments being handled by video conference, so I wanted to share my thoughts on the experience. Read More…

Maryland Judiciary Case Search now includes appellate dockets

As of today, the public can search Maryland appellate dockets through Maryland Judiciary Case Search, the site long used for searching trial court filings. Hopefully, this development will lead to Maryland appellate dockets being searchable in Westlaw. Read More…

May 2020 Maryland Certiorari Grants

The Maryland Court of Appeals has posted three new certiorari grants. It also recently accepted a certified question from the U.S. District Court for the District of Maryland. The four cases, with questions presented, are listed below.

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What Kim Kardashian and Prince William Can Teach Us About Remote Oral Arguments

By Derek Stikeleather

The COVID-19 pandemic has given us all innumerable “new normals.” Even appellate practitioners, whom the Daily Record recently described as “relatively unscathed” by the pandemic, have had to change how they conduct business. This is especially so when it comes time to present oral arguments. Read More…

COVID-19 pandemic presents issues of contract interpretation—how have Maryland appellate courts recently handled those issues?

By Brad McCullough

The COVID-19 pandemic has affected every facet of our lives and has raised many legal issues. Every day, lawyers’ e-mail inboxes are bombarded with messages touting webinars and publications addressing those issues. Does your insurance policy cover business disruption caused by the pandemic? Does the pandemic implicate the force majeure provision in a contract? Is a party’s performance of a contract excused by principles of impossibility, impracticability, or frustration of purpose? Those are hot legal issues at the moment, but ultimately those issues will be resolved by application of fundamental legal principles. Foremost among those principles are rules of contract interpretation. Whether a particular force majeure provision in a contract covers pandemics, or whether a specific insurance policy covers losses arising from a disruption of business caused by the pandemic, are questions that will be answered by interpreting the specific contractual provisions in play. Similarly, whether the purpose of a contract has been frustrated, or its performance made impossible, will hinge on the intent and expectations of the parties, as reflected by the terms of their contract. How do Maryland’s appellate courts address those issues? Two recent decisions, one by the Court of Appeals and another by the Court of Special appeals, provide some insight. Read More…

Facing Type: A Tour of the Court of Appeals’ List of Suggested Fonts for Briefs

By John Grimm

The Daily Record recently informed me that the Governor’s stay at home order has left appellate lawyers “generally unscathed.”[1]  “Indeed,” I thought to myself, while downstairs my eleven-month-old patiently waited a full workday as I edited a brief.  Actually, working from home has left at least this appellate lawyer a bit scathed, so I’ve had little time to study the appellate news lately.  And what news there is seems to be all about courts’ new emergency procedures anyway, so in this post, I am going to address a topic that is irrelevant to current events, but which is a preoccupation for many appellate lawyers: typography. Read More…

Washington Post v. McManus and Clear Channel v. Department of Finance:  Important Lessons from Maryland’s State and Federal Court’s in Assessing Content and Means Based Abridgements of Speech

By Alan B. Sternstein

Two First Amendment cases recently decided in state and federal courts in Maryland interestingly parallel each other factually but reach different results as to the constitutionality of the governmental actions challenged in each case.  The facts and First Amendment issues in Clear Channel Outdoor, Inc. v. Department of Finance, No. 2910 (Md. App. Sept. Term, 2018) (“Clear Channel”),  which the Court of Special Appeals decided on January 29, 2020, bear a useful and instructive comparison to those in the Fourth Circuit’s decision in Washington Post v. McManus, No. 19-1132 (4th Cir. Dec. 6, 2019) (“Washington Post”), which was the subject of a post earlier this year on the Maryland Appellate Blog.  Read More…