Late Sunday, the Court of Special Appeals updated its home page to announce a significant change to mitigate disruptions to Maryland appellate practice during the COVID-19 emergency. The largest volume of appeals come from the three jurisdictions that have yet to transition to Maryland Electronic Courts (MDEC): Baltimore City, Montgomery County, and Prince George’s County. As a result, appeals from those three circuit courts have been paper-only.
As of March 15, however, the Court will allow filings via MDEC, as an optional alternative to paper filing, in appeals from non-MDEC jurisdictions. Read More…
A federal district court’s order granting or denying an injunction, including a preliminary injunction, is immediately appealable under 28 U.S.C. § 1292(a)(1). The appellant may move under FRAP 8 for a stay or modification of the injunction pending appeal, if the district court issued one against the appellant, or for an injunction pending appeal, if the district court denied an injunction the appellant requested.
As fast as federal district judges typically hear requests for preliminary injunctions, the Fourth Circuit often acts even faster. After litigating emergency motions in the Fourth Circuit a few times, I thought I’d pass along some pointers. Read More…
20/20 Hindsight, in the Year 2020… Do Recent Maryland Court of Appeals’ Decisions Suggest It’s Time to Permit Citations to Unreported Opinions?
By: Michael Wein
Over the past two years, there has seen pointed recognition by the Court of Appeals of Maryland, on the issue of citing to unreported Maryland opinions, which make up about 90% of the Court of Special Appeals appellate decisions. Under Maryland Rule 1-104, unreported opinions cannot be cited in our appellate or trial courts as, precedent or as persuasive authority, but otherwise may be used under very specific conditions, such as “law of the case, res judicata, or collateral estoppel.”
The present incarnation of Md. Rule 1-104 (previously under Md. Rule 8-114) is as follows.
RULE 1-104. UNREPORTED OPINIONS
(a) Not Authority. An unreported opinion of the Court of Appeals or Court of Special Appeals is neither precedent within the rule of stare decisis nor persuasive authority.
(b) An unreported opinion of either Court may be cited in either Court for any purpose other than as precedent within the rule of stare decisis or as persuasive authority. In any other court, an unreported opinion of either Court may be cited only (1) when relevant under the doctrine of the law of the case, res judicata, or collateral estoppel, (2) in a criminal action or related proceeding involving the same defendant, or (3) in a disciplinary action involving the same respondent. A party who cites an unreported opinion shall attach a copy of it to the pleading, brief, or paper in which it is cited.
But this Rule puts Maryland in contrast with most other states, and the Federal Rules since at least 2007, which allow citations to unreported opinions as “persuasive” authority, when involving similar or identical legal and factual issues. Read More…
Few Maryland lawyers are accustomed to advance notice of which judges will be deciding their appeal. The Fourth Circuit and the Court of Special Appeals have traditionally kept the identities of three-judgment panels secret until the morning of argument. But the Court of Special Appeals will now be announcing panels 7 to 10 days before argument.
That lead time gives counsel an opportunity to make productive or counter-productive use of that information. In this post, I address what you must do, should do, and should not do when you learn who is on your three-judge panel. Read More…
Until now, the Maryland Court of Special Appeals (like the Fourth Circuit) has not disclosed the identities of the three judges hearing an appeal until the morning of argument. That is changing, beginning next month.
According to the Court’s May 2019 schedule:
This change comes just four months after Chief Judge Matt Fader took the reins at the Court of Special Appeals.
The timing of panel disclosure means that briefing will have closed by the time the parties learn which judges will be hearing their cases. Without leave of court, replies must be filed at least ten days before argument, under Rule 8-502(b).
By John Grimm
It’s no secret that the names of Maryland’s appellate courts are not to be taken literally: The Court of Special Appeals hears all appeals, while the Court of Appeals hears only special ones. Even lawyers admitted in Maryland who do not practice regularly in state court stumble over this nomenclature, and for non-lawyers or out-of-state lawyers (or even judges), the courts’ names provide little useful information about their roles in the Maryland judiciary.
By Steve Klepper (Twitter: @MDAppeal)
At this year’s bar convention, I took the opportunity to thank Senior Judge Irma Raker for something she did 12 years ago. When I lost the first Court of Appeals case that I argued, Judge Raker wrote a short solo dissent. It meant a lot to me as a young associate, having entered argument feeling like I would win, to know I’d convinced at least one judge.
There are a many different reasons why appellate judges write dissents or refrain from writing them. From a private practitioner’s standpoint, I tell judges that dissents are a powerful way to improve attorney-client relationships. Read More…
By a large majority, Americans favor term limits for Supreme Court justices. As Professor Orin Kerr has observed on Twitter: “Reminder: It is incredibly weird that how many Supreme Court picks a President gets depends on who decides to retire or who dies. 18-year terms would make so much more sense than life tenure. Every Prez would get two picks.” I agree with this idea. The devil, however, is in the details.
A constitutional amendment is necessary, and the mere perception of partisan advantage is likely to prevent ratification by the necessary 38 out of 50 states. A delayed effective date could help, even if it may not be enough for an amendment to get traction.
Still, I think it is worth at least starting a conversation on what a term-limits amendment might look like. Read More…
Appellate practitioners continuously debate the relative value of oral argument. Although most practitioners—and many appellate judges—agree that the quality of appellate briefing matters much more than the quality of oral advocacy, opinions vary considerably on how much oral argument helps. Some contend that oral argument is more trouble than it is worth. Others disagree, believing that oral argument not only often separates winning and losing on appeal but also increases everyone’s faith in the justice system. Both sides of the debate have some good points; I won’t try to declare a winner here.
One fact beyond debate is that federal appellate courts are holding significantly fewer oral arguments. Read More…
Supreme Court Circuit Split Watch – Fourth Circuit’s Decision in Kumar v. Sudan, on Proper Service of Foreign States in the U.S.
By Michael Wein
The Fourth Circuit Court of Appeals three weeks ago issued a reported opinion in Kumar et al. v. Sudan, addressing how and where a foreign country may be served under 28 U.S.C. § 1608(a)(3), which allows, in pertinent part, service by mail “requiring a signed receipt to be addressed and dispatched by the clerk of the court to the head of the ministry of foreign affairs of the foreign state.” This case traces to the U.S.S. Cole bombing in 2000, when 17 Navy sailors lost their lives in a terrorism act against the servicemen and women docked in Yemen. While al Qaeda claimed responsibility as the source of the bombing, Sudan’s material support for the terrorist organization, was a focus of civil suits holding the country responsible in the tragedy. As Sudan similarly did in the face of civil suits filed in the District Court for the District of Columbia, (tracing to the 1998 Embassy Bombings in Tanzania and Kenya also by al Qaeda), Sudan felt that the proper response was apparently to not respond at all.[i] Read More…