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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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Congress Considers Creating New Federal Appellate Seats, and the Usual Political Arguments Emerge.

By John Grimm

The House Judiciary Committee recently held a hearing to consider creating additional federal judgeships, including the addition of new appellate-court seats.[1] The hearing revealed bipartisan concern that rising caseloads—and the growing backlogs they produce—threaten litigants’ access to the courthouse. At the appellate level, courts have grappled with increasing workloads by giving more power to staff attorneys to manage low-profile cases. Witnesses also cited curtailed oral arguments and a proliferation of unpublished decisions as casualties of appellate court overload.

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The Singular “They” Reaches the White House, But Not the Appellate Courts

By Steve Klepper (Twitter: @MDAppeal)

Within hours of his inauguration, President Biden signed his Executive Order on Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation. The Executive Order began:

Every person should be treated with respect and dignity and should be able to live without fear, no matter who they are or whom they love. Children should be able to learn without worrying about whether they will be denied access to the restroom, the locker room, or school sports. Adults should be able to earn a living and pursue a vocation knowing that they will not be fired, demoted, or mistreated because of whom they go home to or because how they dress does not conform to sex-based stereotypes. People should be able to access healthcare and secure a roof over their heads without being subjected to sex discrimination. All persons should receive equal treatment under the law, no matter their gender identity or sexual orientation.

Focus on the first sentence. It uses the singular “they,” instead of “he or she,” to refer to an indeterminate person. That’s no coincidence in an order addressing discrimination based on gender identity.

The phrase “he or she” rests on the erroneous assumption that everyone is either a “he” or a “she.” Non-binary individuals do not identify as men or women. The easy fix is to write in plain English and use the singular “they,” just like the White House does.

I’ve written on this issue before—urging judges to abandon “he or she” and expressly embrace the singular “they” (in the same way they endorsed the “cleaned up” parenthetical). My proposal made no headway, so far as I can tell. The phrase “he or she” continues to appear regularly in Maryland appellate opinions. In the words of Arlo Guthrie, however, “I’m not proud … or tired.”

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Can Maryland Courts Affirm Summary Judgment on Alternative Grounds?

By Derek Stikeleather

Law is complicated. I often need to remind myself that, if law was easy to understand and apply, no one would need attorneys. To efficiently analyze legal problems and resolve cases, courts and practitioners naturally rely on general legal rules and principles. Such analytical shortcuts are invaluable—when they fit the case—because they provide clear, correct guidance. But for any general legal rule, the proverbial devil is not so much in the details as in the exceptions to the rule.

Practitioners must be able to not only recognize and recite general legal rules but also identify each rule’s limits to know when to ask appellate courts to reject the general rule and apply an exception. This article examines one general rule that shapes Maryland appeals from orders entering summary judgment: Do not affirm summary judgment on grounds different from those the trial court relied on.

Maryland’s appellate courts are quick to cite the general rule that they will not affirm summary judgment on grounds that differ from the trial court’s reasons. The general rule aligns with the principle of limiting appellate courts to reviewing final judgments rather than preempting trial courts and creating their own alternative final judgments. The reasoning holds that if a trial court improperly granted summary judgment, any alternative basis for summary judgment should initially be resolved by the trial court. Affirming summary judgment on alternative grounds would effectively end a plaintiff’s case without an affirmed adverse ruling from the trial court.

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Maryland’s COA and COSA should become SCOA and COGA

By Steve Klepper (Twitter: @MDAppeal)

Before COVID cut the 2020 Session short, the Maryland General Assembly was once again considering a constitutional amendment to change our highest court’s name from the Court of Appeals of Maryland to the Supreme Court of Maryland. As for our intermediate appellate court, the Court of Special Appeals, proponents were considering one of two alternatives—the Maryland Appellate Court or the Appellate Court of Maryland. The name-change movement appeared to be gaining real traction, and I would expect to see renewed proposals.  

The legal historian in me likes the link to the Court of Appeals’ storied past, just like I love the judges’ red robes. But the name is confusing. In nearly all states, the highest court is called the “Supreme Court of [state],” and the intermediate appellate court is called the “Court of Appeals of [state].” Those names are descriptive and intuitive.

Our courts’ names, while nowhere near as confusing as New York’s, are confusing to Marylanders and non-Marylanders alike. There’s nothing intuitive about a system where we call our highest court the Court of Appeals and our intermediate court the Court of Special Appeals. I often have to remind my clients (lawyers and laypeople alike) which court is which. My very first post on this blog collected instances of Maryland federal courts accidentally referring to the Court of Appeals as the Maryland Supreme Court. And when I Tweet about Maryland appeals, I usually refer to the Court of Appeals as the “Maryland high court,” largely to avoid confusion.

But I have concerns about the proposed names, as a matter of practice and historical continuity. My proposal would be to rename them as follows:

  • The Supreme Court of Appeals of Maryland
  • The Court of General Appeals of Maryland
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