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January 2023 Maryland Certiorari Grants

On Friday afternoon, the Supreme Court of Maryland granted review in one criminal and two civil appeals. The certiorari grants, with links to the Appellate Court of Maryland opinions under review, are below.

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December 2022 Maryland Certiorari Grants: Supreme Edition

By Steve Klepper (Twitter: @MDAppeal)

Yesterday, the Supreme Court of Maryland held its first conference under its new name. From that conference emerged the first post-name change opinion, Tapestry, Inc. v. Factory Mutual Insurance Company, authored by Chief Justice Matthew Fader for a unanimous Court. For another answer to a future trivia question, the Appellate Court of Maryland issued its first unreported opinions today under its new name, and the first to be posted was Judge Shaw’s opinion in Hawley v. Greer.

The conference also produced only one certiorari grant, Gerstein v. Rocon, LLC, and the Court’s statement of the Issues Presented reflects that the “CSA” is now the “ACM.”

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Certiorari Granted from Sharply Divided COSA Over the Right to Counsel

By Isabelle Raquin

The Court of Appeals will hear argument in State v. Clark, 255 Md. App. 327 (2022), the latest of a series of postconviction cases involving whether a presumption of prejudice applies when a trial court orders a testifying defendant not to communicate with their counsel during a break in the trial. The question sharply divided the COSA, with the Hon. Kathryn Graeff writing for the majority that the U.S. Supreme Court’s presumption of prejudice for the deprivation of counsel did not apply where trial counsel failed to object and the defendant did not produce sufficient evidence at the postconviction hearing that he would have conferred with counsel but for the erroneous order.  In a lengthy dissent, the Hon. Douglas Nazarian concluded the importance of the fundamental right to counsel required the presumption of prejudice and that the defendant should not resurrect his right after the trial court’s order depriving him of such right, in order to demonstrate he has been prejudiced. 

This case turns on the application of the rule enunciated in Geders v. U.S., 425 U.S. 80 (1976) – a  case on direct appeal – to a postconviction case governed by the principles of Strickland v. Washington, 466 U.S. 668 (1984).  In Geders, the Supreme Court held that the trial court’s order preventing a defendant from consulting his counsel about anything during a 17-hour overnight recess between his direct and cross-examination deprived him of his right to the assistance of counsel guaranteed by the Sixth Amendment. In Geders, the trial attorney had objected to the Court’s order. Geders applied a presumption of prejudice and ordered a new trial.  But what if trial counsel does not object?  That is Mr. Clark’s case.  

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November 2022 Maryland Certiorari Grants

On Friday afternoon, the Court of Appeals of Maryland granted review in two criminal and three civil appeals. The certiorari grants, with links to the Court of Special Appeals opinions under review, are below.

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October 2022 Maryland Certiorari Grants

On Friday, the Maryland Court of Appeals granted certiorari in two appeals, one civil and one criminal.

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Appellate Standing in Maryland’s Mail-In Ballot Dispute

By Steve Klepper (Twitter: @MDAppeal)

On Friday, the Maryland Court of Appeals granted the State Board of Elections’ petition for immediate review of the challenge by Delegate Daniel Cox to the circuit court order allowing the canvassing of mail-in ballots to begin on October 1 instead of November 9. The Court of Appeals expedited the appeal, with both sides’ briefs due Tuesday, and oral argument on Friday, October 7.

The questions presented are:

In re: Petition for Emergency Remedy by the Maryland State Board of Elections – Case No. 21, September Term, 2022
Issues – Election Law – 1) Did the trial court correctly rule that the remedy sought under Md. Code § 8-103(b)(1) of the Election Law (“E.L.”) article comports with the principle of separation of powers because the remedy, an adjustment to the electoral calendar, is a function routinely entrusted to the judicial branch? 2) Did the trial court correctly rule that the incoming volume of mail-in ballots and inadequate time frame in which to process them constitute “emergency circumstances” that “interfere with the electoral process” as those terms are used in E.L. § 8-103(b)(1)?

Election Law § 8-103(b)(1) provides, without elaboration: “If emergency circumstances, not constituting a declared state of emergency, interfere with the electoral process, the State Board or a local board, after conferring with the State Board, may petition a circuit court to take any action the court considers necessary to provide a remedy that is in the public interest and protects the integrity of the electoral process.”

The State Board’s petition notes that the trial court allowed Delegate Cox, the Republican nominee for governor, to intervene as a matter of discretion, not right. The State Board welcomed his participation. A footnote states: “Delegate Cox’s intervention in the case mooted any concerns or controversies regarding the justiciability of the one-party proceeding.”

I don’t see the concern about justiciability in the circuit court. The Maryland Constitution has no “case or controversy” clause, and the State Board did not petition under a statute, such as the Declaratory Judgment Act, that requires an actual controversy. Many matters are justiciable in circuit courts when no controversy exists. For example, circuit courts decide uncontested petitions for adult name changes and can even waive the requirement of publication that would give notice to anyone who might object.

On the other hand, although I may well be missing something, I have trouble seeing why Delegate Cox has standing to appeal. Appellate jurisdiction requires a notice of appeal filed by a person aggrieved by the order or judgment, under the usual principles of legal standing. See Buchwald v. Buchwald, 175 Md. 103, 114 (1938). Standing requires a wrong different in character and kind from that suffered by the public generally.

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September 2022 Maryland Certiorari Grant

The Maryland Court of Appeals granted certiorari in one case following its September 22 conference.

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July 2022 Maryland Certiorari Grants

The Maryland Court of Appeals today granted review in two criminal appeals.

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June 2022 Maryland Certiorari Grants

The Maryland Court of Appeals on Friday granted review in three cases.

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May 2022 Maryland Certiorari Grants

On Friday, the Court of Appeals granted cert in these four cases:

Ernest and Maryann Elsberry v. Stanley Martin Companies, LLC  – Case No. 6, September Term, 2022 (Unreported CSA Opinion by Zarnoch, J.)

Issues – Real Property – 1) May a court rely on legislative history unrelated to the specific statutory text at issue to override the consumer protections granted in the plain language and tabulation of Md. Code § 14-117(a)(3) of the Real Property (“RP”) Article, an unambiguous remedial statute? 2) Did CSA violate Article III, Section 29 of the Maryland Constitution by using the title of the bill “Prince George’s County – Deferred Water and Sewer Charges Homeowner Disclosure Act of 2014” to contradict the plain language of RP § 14-117(a)(3)(ii)?

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