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Maryland’s Discretionary Standard for Applications for Leave to Appeal

By Steve Klepper (Twitter: @MDAppeal)

Maryland has an unusual procedure for appeals in post-conviction cases. The losing party, whether the State or the criminal defendant, must apply for leave to appeal. Our intermediate appellate court, the Court of Special Appeals (COSA), has unreviewable discretion whether to grant merits review of the decision. Our high court, the Court of Appeals, lacks statutory authority to review COSA’s discretionary decision to deny merits review.[1] No rule, statute, or decision tells us what standard governs that exercise of discretion.

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Maryland Courts Spring Forward with In-Person Oral Arguments in March and New Appellate Rules for April 2022

(Update: On February 25, 2022, the Court of Appeals issued two notices regarding COVID-19 related protocols for oral arguments: (1) Protocols for oral arguments on March 3 & 4, 2022; and (2) Protocols for oral arguments on March 7 & 8, 2022).

By Michael Wein

It appears all the appellate Courts for Maryland are returning for in-person oral arguments by March 2022.  This has some déjà vu from a previous “optimistic” blog post, pre-Delta and pre-Omicron variant,  from June 2021.  There will hopefully not be any further quick and surprising Court shutdowns, as my August 2021 post relayed.  Additionally, as discussed below, new appellate Rules have been approved in the past month by the Maryland Court of Appeals, taking effect on April 1, 2022, applying to many upcoming appellate Briefs.

In-Person Oral Argument Updates

In the past few weeks, there has been an announcement of in-person orals in the following courts for Maryland practitioners:

  1. The Maryland Court of Special Appeals has posted “[t]he Court will hold its March 2022 oral arguments in-person at the Robert C. Murphy Courts of Appeal Building.  Counsel in cases scheduled for March arguments will receive notice from the Clerk with oral argument protocols.”  This is after a few months of Remote arguments due to the Omicron variant.
  2. The Federal Fourth Circuit Court of Appeals after a few months reverting to the Zoom hearings due to Omicron, will have in-person oral arguments for their March 8-11, 2022 Session, in Richmond, Virginia.
  3. The Maryland Court of Appeals has not yet specified if their March 2022 oral arguments are to be in-person.  However, with the Friday, Feb. 18, 2022’s Orders from Chief Judge Joseph Getty, the State of Maryland is resuming Phase 5 normal operations, including jury trials on March 7, 2022.  It would thus be unsurprising if an announcement is received any day.   It is possible that some of the oral arguments scheduled from March 3 through March 8, 2022, might be done remotely via Zoom, but my anticipation, particularly with the Court of Special Appeals’ announcement, they will all be done in-person, assuming the participating attorneys have confirmed availability, are not suffering COVID-symptoms, and are properly vaccinated.
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Maryland High Court Sets Deadline for Legislative Map Challenges, Appoints Special Magistrate

On Friday, the Court of Appeals of Maryland, which has original jurisdiction over challenges to legislative districting maps, issued an order setting a February 10 deadline for challenges to the map that the General Assembly adopted this month. Senior Judge Alan Wilner, who sat on the Court from 1996 to 2007 and now heads the Rules Committee, will serve as Special Magistrate.

The order’s key provisions are:

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Release on Bond Pending Criminal Appeals in Maryland

By Megan E. Coleman

There is a paucity of Maryland appellate opinions addressing the denial of bail pending an appeal after a criminal conviction. There exists one opinion in the Court of Appeals authored in 1970[1] and six opinions in the Court of Special Appeals authored between 1972 and 1984.[2]

By no means does this dearth of recent appellate cases indicate that defendants nowadays are getting bail pending appeal every time they ask for it. Rather, very few defendants ask for bail pending appeal, and those who do rarely seek appellate review after their request for release is denied.

Why is that? Why isn’t it more appealing to ask for an appeal bond?

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COSA Now Allows Citation to Other Courts’ Unreported Opinions

By Steve Klepper (Twitter: @MDAppeal)

Until today, the Court of Special Appeals had a policy “not to cite for persuasive value any unreported federal or state court opinion.” In footnotes in a pair of opinions issued today (links here and here), the Court of Special Appeals announced a change in policy:

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Barbera Court Goes 8-for-8 in Deciding Cases by Term’s End

By Steve Klepper (Twitter: @MDAppeal)

In October 2013, three months after becoming Maryland’s top judge, Chief Judge Mary Ellen Barbera announced a policy under which the Court of Appeals would decide every case the same term in which it heard argument. By August 31 each year, the Court would issue an opinion in all cases heard since the prior September 1.

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The Certified Questions Keep on Coming

By Steve Klepper (Twitter: @MDAppeal)

Maryland law allows federal courts to certify questions of state law to the Maryland Court of Appeals. Each annual term, going back to 2014, the Court of Appeals has heard between one and three cases on certification from the the U.S. Court of Appeals for the Fourth Circuit, the U.S. District Court for the District of Maryland, and the U.S. Bankruptcy Court for the District of Maryland.

Last week, in United States v. Dickson, the Fourth Circuit certified the following question to the Court of Appeals: “Under Maryland Law, can an individual be convicted of robbery by means of threatening force against property or threatening to accuse the victim of having committed sodomy?”

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Why We Can’t Have Nice Normal Things Like In-Person Appellate Oral Arguments

By Michael Wein[*]

[Editor’s update: The Court of Appeals September schedule now shows that it will be holding September arguments by videoconferencing.]

As a previous Post accurately stated on the date of June 9, 2021, “In-Person Appellate Oral Arguments Ended Suddenly with A Bang, and are Restarting Slowly with Anticipated Full Strength in the Fall,” things were looking very positive for regular appellate oral arguments in all Maryland-related State and Federal oral arguments by September or October of 2021 when the respective new Terms began. The Maryland Court of Special Appeals, Maryland Court of Appeals, and Fourth Circuit Court of Appeals had already taken steps towards in-person resumption of oral arguments. The United States Supreme Court had not committed yet, though this was unsurprising as their last oral arguments were in April 2021, with oral arguments beginning again in October 2021.

So for those who have been avoiding the internet and news for the last two months, this situation has become more complex. Most everyone in the United States since July, including judges and members of the Maryland Bar, have had an opportunity to become fully vaccinated. This at the very least, suggests that the virus, though contagious, will not lead to any worries about death or hospitalization when nearly the entirety of those who argue appeals, are done by attorneys.

However, the Delta Variant has somewhat altered things, and it is unclear what if any long-term effect this will have. As an update:

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Maryland appellate courts likely getting new names, maybe new building

By Steve Klepper (Twitter: @MDAppeal)

As Steve Lash reported at The Daily Record on Wednesday, the 2022 general election ballot will include a proposed constitutional amendment under which the Court of Appeals of Maryland would become the Supreme Court of Maryland, its members would be called “Chief Justice” and “Justice,” and the Court of Special Appeals would become the Appellate Court of Maryland.

Although the election is 19 months away, the amendment is overwhelmingly likely to win approval on November 8, 2022. By my count, 29 constitutional amendments have gone before Maryland voters since 1994, and voters have approved all but two. Nearly all have received at least two-thirds (67%) support. The only amendments to fail were controversial proposals to raise the judicial retirement age to 75 in 1994 (which came close to passage with 48% of the vote), and to allow “quick take” condemnation of property for redevelopment in Prince George’s County in 2000 (which garnered only 38% support). Only one other amendment came close to rejection—a 2002 amendment relating to emergency legislative powers won 50.6% approval.

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Supplemental Authority Letters and Other Unwritten Maryland Appellate Rules

By Steve Klepper (Twitter: @MDAppeal)

Ever since this blog launched in 2013, I’ve received fairly regular calls and emails asking about arcana of Title 8 of the Maryland Rules, governing procedure in the appellate courts. Perhaps the most frequent question is how to notify a Maryland appellate court of new on-point authorities.

In the federal appellate courts, the answer is simple. You file a Rule 28(j) letter:

Citation of Supplemental Authorities. If pertinent and significant authorities come to a party’s attention after the party’s brief has been filed—or after oral argument but before decision—a party may promptly advise the circuit clerk by letter, with a copy to all other parties, setting forth the citations. The letter must state the reasons for the supplemental citations, referring either to the page of the brief or to a point argued orally. The body of the letter must not exceed 350 words. Any response must be made promptly and must be similarly limited.

Maryland Rule 8-504, our equivalent of the federal Rule 28, lacks any provision for supplemental authorities. Does that mean supplemental authorities are forbidden? Or must you move for leave? Do the supplemental authorities take the form of a letter or a supplemental brief?

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