Caught between a rock and a hard place: Court of Special Appeals lacks jurisdiction of county hearing officer’s decision
In Ross Contracting, Inc. v. Frederick County, No. 977, Sept. Term 2103 (Md. Ct. Spec. App. Feb. 2, 2015), a contractor, whose efforts to replace a bridge were impeded by the unexpected discovery of hard rock, was further frustrated when it learned that it had landed in a hard place – an appellate court that lacked jurisdiction over the contractor’s dispute with Frederick County. The case serves as a reminder “‘that appellate jurisdiction, except as constitutionally authorized, is determined entirely by statute, and that, therefore, a right of appeal must be legislatively granted.’” Slip Op. at 10 (quoting Prince George’s Cnty. v. Beretta U.S.A. Corp., 358 Md. 166, 173 (2000), quoting Gisriel v. Ocean City Bd. of Supervisors of Elections, 345 Md. 477, 485 (1997)) (other citation omitted).
February 2015 Link Round-Up
A big case out of the Court of Appeals earlier this year didn’t get any play here on the Blog, but generated a bit of fallout discussion elsewhere in the online Maryland legal community last month, including write-ups by Ann Marie Mehlert of Lerch, Early & Brewer and Catherine A.B. Simanski of Rollins, Smalkin, Richards & Mackie. Described by Catherine in her post as arising from “a feud of ‘Hatfields and McCoys’ proportions over parking spots situated between a condo association and a homeowner’s association,” Falls Garden Condominium Ass’n, Inc. v. Falls Homeowners Ass’n, Inc., Md. Ct. App., No. 30, Sept. Term 2014 (Jan. 27, 2015), grabbed some attention by holding that a letter of intent (that’s an “LOI” among acronym-savvy attorneys) for a settlement agreement was still binding on the parties even though they couldn’t eventually agree on the terms of a lease that was meant to satisfy the proposed settlement. In analyzing the outcome, Ann Marie offered that most real-estate professionals “have always viewed the LOI as an efficient means to get business terms out on the table and agreed to before negotiating a lease” and “usually understand that the LOI is non-binding.”
Baltimore County v. Baltimore County FOP Lodge 4: Applying the Law of “The Law of the Case”
“Law of the case” is a doctrine that tends to be loosely thrown around by attorneys who vaguely feel that some fact or principle should be treated as established for the remainder of their litigation, but don’t quite know why. For appellate practitioners — especially those who get involved in particularly contentious and protracted lawsuits — it’s good to get an occasional refresher on how the principle actually works. The Court of Special Appeals recently provided just such a primer in Baltimore County, Maryland v. Baltimore County Fraternal Order of Police, Lodge No. 4, Sept. Term 2013, No. 1904/Sept. Term 2014, No. 99 (Dec. 17, 2014), a case that should cause all lawyers readying an appeal to think a little deeper about what issues they need to raise and what relief they want to seek.
Why Government Lawyers Must Do Better: The Fourth Circuit Blasts the EEOC for “Disappointing Litigation Conduct”
By Derek Stikeleather and Melissa Loureiro
Government lawyers enjoy the tremendous goodwill that flows from the common perception that, because they represent the public rather than self-interested private parties, they are more honest and forthcoming in giving courts not just the truth but the whole truth. Although all attorneys have a duty of candor to the court and a duty to zealously represent their clients, every lawyer strives to be seen as more credible than opposing counsel. When the client in a criminal or civil case is the United States of America, the attorney has already taken the high ground because the public and the judiciary often expect greater candor from government attorneys, even when it could potentially harm their case.
“Soft Precedent”: Unpublished Opinions in Fourth Circuit Culture
By Steve Klepper (Twitter: @MDAppeal)
Getting argument before the Fourth Circuit is hard. Oral argument is a precondition for a published decision under its local rules. Even in cases where the court hears argument, there remains a strong chance that the opinion will be unpublished – even if there is a dissent.
From 2007 through 2014, the Fourth Circuit issued 259 opinions in which a judge dissented in full from the majority opinion. Seventy-four (28.6 percent) of those opinions were unpublished. In turn, 21 of those majority opinions were per curiam. During that same period, the Fourth Circuit issued 46 majority opinions that drew a partial dissent. Twelve (26.1 percent) of them, including three per curiam majority opinions, were unpublished. Read More…
In Maryland, interpreting cell phone records now requires expert testimony
With apologies to Bob Dylan, you may not need a weatherman to know which way the wind blows[1], but you need an expert witness to know which way a cell phone call goes. In State v. Payne & Bond, No. 85, Sept. Term, 2013 (Md. Ct. App. Dec. 11, 2014), the Court of Appeals – in a majority opinion written by Judge Lynne Battaglia and joined by three other judges[2] – built on its earlier decisions in Ragland v. State, 385 Md. 706 (2005), and State v. Blackwell, 408 Md. 677 (2009), and held that a detective “needed to be qualified as an expert under Maryland Rule 5-702 before being allowed to testify as to his process for determining the communication path of [the defendants’] cell phones,” as well as his conclusion that two specific cell towers “were the most pertinent to the case.” Slip Op. at 3. Under the Court’s holding and rationale, testimony interpreting technical data that is unfamiliar to a lay person and based on specialized knowledge or experience – and conclusions based on that data – must come from a witness who is proffered and qualified as an expert.
Argument Preview: The Causation Requirement for Liability Insurance Policies
By Steve Klepper (Twitter: @MDAppeal)[*]
[Update: The Court’s April 21 opinion ruled for the insurer on the causation issue and declined to reach the other questions presented.]
On February 5, 2015, the Court of Appeals of Maryland will hear argument in an insurance coverage action, Maryland Casualty Co. v. Blackstone International. If you’re not an insurance coverage practitioner, the questions presented are not likely to make much sense to you. Whichever way the Court of Appeals rules, however, the opinion is likely to draw national attention in insurance coverage circles.
Fourth Circuit Tackles Federal Preemption in Bottled-Water Labeling Claim
From a distance, the federal-preemption doctrine seems rather straightforward – states can regulate virtually anything unless the federal government has put it off-limits. In practice, however, the doctrine is anything but simple, and the line between preempted and non‑preempted claims can be hard to find. In the context of FDA-regulated products, such as food, prescription drugs, and medical devices, defendant manufacturers/sellers are quick to point to the Supreme Court’s Buckman opinion for the proposition that state-law claims involving FDA-regulated products are completely preempted. See Buckman Co. v. Plaintiffs’ Legal Comm., 531 U.S. 341 (2001). But plaintiffs are just as quick to point to the Supreme Court’s opinion in Medtronic v. Lohr, 518 U.S. 470 (1996), to argue that states are perfectly free to regulate the same products. Despite the controlling effect of both precedential decisions, in the vast majority of cases where preemption is argued, there is a correct answer under existing law. It just usually takes careful analysis to find.
Montgomery County v. Fraternal Order to Address Government’s Role at the Ballot Box
By Alan Sternstein*
In Montgomery County v. Fraternal Order of Police, No. 175 (Md. Ct. App. 2014), the Maryland appellate courts will confront for the first time the evolving doctrine of official speech. Official speech is any statement by a branch or entity of government or an individual acting in official capacity. It may be made in multiple forms, including oral, written, and electronic. Until more recent times, official speech has largely been an unquestioned prerogative of government. Governments need to communicate with their citizenry to exercise powers and effect programs, no less than individuals need to communicate with each other in order to achieve important or vital ends. The increase in partisanship at all levels of government, however, has turned an increasingly critical eye toward the lawful scope of official speech, with particular respect to its means of exercise and intended ends. The result has been judicial challenges regarding the reach of and external limits on official speech.
Hiob: Nothing Is Over Until the Court Decides It Is
In the comedy film classic Animal House, Delta Tau Chi pledge-master, and future U.S. Senator, John Blutarsky[1] asks and then answers a crucial question: “Did you say ‘over’? Nothing is over until we decide it is.” Judge Robert McDonald recently gave similar advice to the Maryland bar. In Hiob v. Progressive Am. Ins. Co., Case No. 4, Sept. Term 2014 (Md. Nov. 20, 2014), Judge McDonald explained that there is no appealable judgment until there is both (1) a final judgment that is (2) also set forth in a separate document signed by a judge or the clerk and entered on the court docket. Thus, even if there is a final adjudication on all claims involving all parties, that final judgment is not appealable until the court enters and dockets a separate document, signed by a judge or the clerk, evidencing that final judgment. In short, nothing is over (and appealable) until the trial court says it is.
Maryland Appellate Blog 