Archive | Analysis RSS for this section

Maryland Certiorari Statistics, 2018 Term: The Numbers Behind the Declining Grant Rate

By Steve Klepper (Twitter: @MDAppeal)

The Maryland Court of Appeals has been granting fewer certiorari petitions this term. Now we have some numbers to help analyze that decline.

For two years now, I’ve tracked the Court of Appeals’ petition docket. The judiciary’s annual statistical reports give the overall grant rate for civil and criminal certiorari petitions. Because the majority of petitions each year are filed pro se, the overall statistics are not terribly helpful for lawyers in advising their clients regarding the odds of certiorari.

Refining my approach from last year, I have compiled the statistics for the 2018 Term (petitions filed 3/1/2018 to 2/28/2019), alongside revised statistics for the 2017 Term (petitions filed 3/1/2017 to 2/28/2018). Read More…

Corporations Need Counsel

By Karen Federman Henry

It’s not really new—corporations cannot participate in court proceedings without an attorney.  The same concept applies to the otherwise informal process before an administrative agency.  So what should a corporation do when its counsel withdraws from an administrative proceeding?  The Court of Special Appeals recently answered the question in an unreported decision—retain counsel or say something to preserve the issue for further review.

Read More…

Lamone v. Benisek: Round Three in the Supreme Court for Partisan Gerrymandering Challenges to Maryland’s Sixth Congressional District

By Alan B. Sternstein

The Supreme Court will hear oral argument on March 26, 2019 for the third time in the ongoing legal challenge to the 2011 changes in Maryland’s Sixth Congressional District.  Lamone v. Benisek, No. 18-726 (“Benisek”).[1] Boundary changes to the Sixth District were made after the 2010 census, and Appellees in Benisek successfully challenged before a three-judge panel of the federal district court below the changes as retaliation for their voting as Republicans in the Sixth District during past general elections.  Benisek will be argued in conjunction with Rucho v. Common Cause, No. 18-422 (“Rucho”), in which, in addition to the First Amendment grounds asserted in Benisek, Appellees successfully challenged before another three-judge court, on Equal Protection grounds, South Carolina’s Congressional redistricting after the 2010 census.[2] Read More…

McLaughlin Opinion Provides Valuable Guidance After Final Judgment Rule Sinks Another Maryland Appeal

By Derek Stikeleather

A recent foreclosure action in the Court of Special Appeals presented Judge Arthur with the opportunity to cleanly explain one of the more maddening—and anxiety-producing—rules of appellate practice, the Final Judgment Rule. See McLaughlin v. Ward, No. 1827, September Term 2017 (Jan. 30, 2019). The rule begins with a simple premise: one cannot appeal a trial court’s ruling until the court has entered a final judgment that resolves every claim in the case. See Md. Code Ann., Cts. & Jud. Proc. § 12-301. Yet, the rule has exceptions. And it is those exceptions that bedevil practitioners (and courts) as they grapple with proper application of the rule and try to avoid noting an appeal too early or—even worse—too late.

Read More…

Court of Special Appeals Rules for Adverse Possessor in Dispute About a Property on the Ocean City Boardwalk

By Jonathan Biran

On December 21, 2018, in Nathans Associates v. The Mayor and City Council of Ocean City, the Court of Special Appeals handed the descendants of Nathan Rapoport a big victory, preventing Ocean City from kicking Nathans Associates out of a property the Rapoport family has continuously occupied and controlled since 1912 (the “Nathans Property”).  In so doing, the Court reversed a trial verdict for Ocean City issued by retired Maryland Court of Appeals Judge Dale R. Cathell.  This case is a cautionary tale for anyone who has the burden of proof to show that a modern-day building is located at a particular point on an old plat in a town’s records. The case is also interesting because of a motion to recuse that Nathans Associates made during the trial, after Ocean City introduced a letter that Judge Cathell wrote to Mr. Rapoport in 1972 when Judge Cathell was the City Solicitor of Ocean City.  The Court of Special Appeals found no abuse of discretion in Judge Cathell’s denial of Nathans Associates’ recusal motion.

Read More…

Partlow Decision Shows That Maryland Closely Guards Scope of Tort Defendants’ Duty

By Derek Stikeleather

One of the Court of Appeals’ more notable decisions from 2018 is Kennedy Krieger Institute, Inc. v. Partlow, 460 Md. 607 (2018), which analyzed the scope of a Maryland tort defendant’s duty of care. The Partlow court was asked whether medical researchers at Kennedy Krieger[i] owed a duty of care not only to participants in its medical research study on lead-paint abatement but also to a participant’s sibling, who was not part of the study. With compelling arguments from both sides, the court split 4-3, holding that the researchers owed a duty to the non-participating sibling.

Read More…

Defense counsel’s opening statement didn’t open the door – Ford v. State

By Brad McCullough

Suppose defense counsel in a homicide trial gives an opening statement suggesting that the victim had been the aggressor and had initiated the fight that ultimately led to his death. Does that opening statement open the door to permit the prosecution, in its case-in-chief, to introduce evidence showing the victim’s character trait for peacefulness? That was one of the issues facing the Court of Appeals in Ford v. State, No. COA-REG-0011-2018 (Oct. 26, 2018).[i] In an opinion authored by Judge Shirley Watts, the Court held that defense counsel’s opening statement had not opened the door and that the trial court erred in allowing the State to introduce the character evidence in its case-in-chief. But the defense victory was pyrrhic, as the Court also held that the error was harmless and thus affirmed the conviction for second-degree murder.

Read More…

Taxpayer Standing Cases Pending Yet Again in the Court of Appeals:  Herein, About Whose Interest Is It Anyways?

By Alan B. Sternstein

The Court of Appeals is poised once again to tackle the subject of standing in Maryland courts, particularly the doctrine of so-called “taxpayer standing.”[1]  Four relatively recent and lengthy decisions by the Court have already addressed the matter at length, including the related “property owner standing,” doctrine.  Anne Arundel County v. Bell, 442 Md. 539, 113 A.3d 639 (2015); State Center, LLC v. Lexington Charles Ltd. P’ship, 438 Md. 451, 92 A.3d 400, 458 (2014); 120 West Fayette St., LLLP v. Mayor and City Council of Baltimore, 426 Md. 14, 43 A.3d 355 (2012) (“Superblock III”); and 120 W. Fayette St., LLLP v. Mayor and City Council of Baltimore, 407 Md. 253, 964 A.2d 662 (2009) (“Superblock I ”).  Two new appeals raise issues showing the lack of clarity that remains regarding taxpayer standing in Maryland.  Read More…

When does a statute abrogate the common law and when may an arbitration award be vacated due to legal error?

By Brad McCullough

In 1793, the General Court of Maryland – which from 1776 to 1806 exercised both general and appellate jurisdiction – held that an arbitration award could be set aside for reasons “apparent on the face of the award.” Dorsey v. Jeoffray, 3 H & McH. 81 (Md. 1793). In the ensuing years, and well into the Twentieth Century, the Court of Appeals followed that general principle, holding that an arbitrator’s “gross and manifest” mistake can lead a court to set aside an award, Roloson v. Carson, 8 Md. 208, 220-21 (1853), and that an award may be set aside if there is a mistake of fact or law appearing on the face of that award, Parr Constr. Co. v. Pomer, 217 Md. 539, 544 (1958).

In 1965, however, Maryland adopted the Uniform Arbitration Act, Md. Code Ann., Cts. & Jud. Proc. §§3-201 et seq., which contains five specific grounds for vacating an arbitration award, but a manifest mistake of law is not among them. In the years following adoption of the Act, Maryland courts continued to rule – in cases not governed by the Act – that an arbitration award could be set aside for manifest disregard of the law. Baltimore Cty. Fraternal Order of Police Lodge No. 4 v. Balt. Cty., 429 Md. 533, 564 (2012); Downey v. Sharp, 428 Md. 249, 265 (2012); Board of Educ. of Prince George’s Cty. v. Prince George’s Cty. Educators’ Ass’n, 309 Md. 85, 101-02 (1987). But what about those cases covered by the Act? May an award in one of those cases be vacated for manifest disregard of the law? Or may an award in a case covered by the Act be disturbed only if based on a ground specified by the Act? In WSC/2005 LLC v. Trio Ventures Assocs. (Md. July 30, 2018), the Court of Appeals answered that question. Read More…

Identifying Public Records

By Karen Federman Henry

Whether you advise a government entity or seek information from a government for your private client, the Maryland Public Information Act (MPIA) provides a useful tool for access to public records. Although many requests seek documents that everyone agrees are public information, the exceptions to disclosure and evolution of an array of electronic information that might constitute a public record can pose dilemmas for the government and the requester.

Two appellate decisions that came out during the summer highlight some of the nuances that arise with identifying public records and public employment generally. In Lamson v. Montgomery County, the Maryland Court of Appeals revisited the issue of when a supervisor’s notes become a public record. Read More…