Juror #4 and Me: A Tale of Trial on Remand
By Steve Klepper (Twitter: @MDAppeal)
On Friday, February 28, I finally had a chance to talk with my lovely wife, Meredith, about what had been on her mind for past 1½ weeks. From February 20 through 28, Meredith wasn’t just a mother, an R.N., and a graduate student. She was also Juror #4, in front of Judge M. Brooke Murdock of the Circuit Court for Baltimore City. Read More…
New 2014 Appeal Rules that You May Not Find in Your Hardcopy Rules Book
By Michael Wein
I’m sure there are some Maryland attorneys who, like me, look forward to receiving a hardcopy of the two-volume Maryland Rules from Lexis annually around Christmas. The hardcopy is supposed to catalogue the most updated Rules. Unfortunately, it appears that the new Rules from the late November 2013 Court of Appeals meeting, which took effect on January 1, 2014, were omitted. Therefore as a courtesy, I am reiterating that readers, before filing their certiorari, merits, or amici briefs, should review the actual Rules that took effect on January 1. Read More…
Maryland General Assembly Abrogates Court of Appeals Decision Imposing Strict Liability on Pit Bull Owners and Their Landlords
Yesterday, Governor O’Malley signed SB247, officially abrogating the 4-to-3 decision in Tracey v. Solesky, 427 Md. 627 (2012), which imposed strict tort liability on pit bull owners, and on their landlords, for injuries caused by pit bulls. Read More…
The Most Important Part of an Appellant’s Fourth Circuit Brief (Is Not What You Think It Is)
By Steve Klepper (Twitter: @MDAppeal)
Inconspicuously placed at the conclusion of Fourth Circuit Local Rule 34(a) is a provision that “parties may include in their briefs at the conclusion of the argument a statement setting forth the reasons why, in their opinion, oral argument should be heard.” Forget the word “may.” The Local Rule 34(a) statement is, I submit, the most important part of an appellant’s brief. Read More…
Government Practice—A Different Perspective
[Editor’s note: We’re happy to present the first post by the newest member of our editorial board.]
As an attorney representing a local government, I enjoy a unique opportunity to delve into a wide array of legal issues. The work itself can range from litigation to administrative hearings to legislative drafting to advising public officials, agencies, and departments as they seek to achieve goals that enhance the interests of the community. While the individual tasks and topics presented may not differ from those seen in private practice, the nature of the client has an impact on the manner of giving advice and providing representation. Read More…
Supreme Court Abrogates Fourth Circuit Rule on Time to Appeal Contractual Attorney’s Fee Award
Until this morning, the following rule prevailed in the Fourth Circuit:
[A] claim for legal costs based on a contractual provision that is not limited to expenses incurred during the underlying litigation is an element of damages to be proved at trial under the substantive law governing the action, see Fed.R.Civ.P. 54(d)(2), 58(c), and that a judgment that leaves open such a claim is not final and appealable.
Carolina Power & Light Co. v. Dynegy Marketing & Trade, 415 F.3d 354 (2005)
No more. This morning, the Supreme Court cited Carolina Power as standing on one side of a circuit split, and the Court unanimously went the other way: “Whether [a] claim for attorney’s fees is based on a statute, a contract, or both, the pendency of a ruling on an award for fees and costs does not prevent, as a general rule, the merits judgment from becoming final for purposes of appeal.” Ray Haluch Gravel Co. v. Central Pension Fund, __ U.S. __ (Jan. 15, 2014).
Anyone litigating contract actions in the Fourth Circuit should take note. Decisions from the Third, Eighth, and Eleventh Circuits also were cited on the losing side of the circuit split.
The 4th Circuit Bids Farewell to the Separate Statement of Facts
The Fourth Circuit recently gave notice of its amendment to Local Rule 28(f) in order to conform to amendments to Federal Rule of Appellate Procedure 28. The amendments to the federal rule eliminate the Statement of Facts as a separate section of a federal appellate brief. Of course, the Fourth Circuit isn’t doing away with a recitation of the facts, it is just following the new federal rule, under which the Statement of the Case and the Statement of Facts are now consolidated into one section of the brief that is to provide a “concise statement of the case setting out the facts relevant to the issues submitted for review, describing the relevant procedural history, and identifying the rulings presented for review, with appropriate references to the record.” Given these changes to Fed. R. App. P. 28, the Fourth Circuit is amending its Local Rule 28(f) to eliminate the reference to the Statement of Facts and to describe the factual statement to be included by counsel in the statement of the case. Specifically, the local rule now requires that the Statement of the Case “include a narrative statement of all of the facts necessary for the Court to reach the conclusion which the brief desires, with references to the specific pages in the appendix that support each of the facts stated.”
Certified Questions to the Court of Appeals Now Online
By Michael Wein
Certified questions are an irregular part of Court of Appeals practice (averaging about 3-5 per year), usually from a Maryland Federal District Court judge or a Fourth Circuit panel asking the Maryland Court of Appeals to opine on an unsettled (but dispositive) issue of Maryland law. Theoretically any jurisdiction, state or federal, in the United States could certify a question for the Court of Appeals to decide under the Maryland Uniform Certification of Questions of Law Act, found at sections 12-601 to 12-613 of the Courts and Judicial Proceedings Article. Before the recent web revamp about three months ago, unless you were a litigant in the case, it was difficult to know just from checking the judiciary web site, what, if any, certified questions were being considered in the Court of Appeals. Usually the first notice was when the case appeared on the online oral argument schedule. Read More…
SCOTUS Retirements: The Carrot and the Stick
By Steve Klepper (Twitter: @MDAppeal)
Yesterday, I had the pleasure of sitting on a Supreme Court Term preview panel at my alma mater, Goucher College, with Associated Press Supreme Court reporter Jesse Holland and political science Professor Nina Kasniunas. Inevitably, the question arose as to why Justice Ruth Bader Ginsburg isn’t choosing to retire while Democrats control the White House and the Senate. Robert Barnes’ delightful piece, The Question Facing Ruth Bader Ginsburg: Stay or Go?, appearing in today’s Washington Post Magazine, gives some insight into this most personal of decisions. Read More…
Not to Worry: A Comment on Today’s Dissent in Ray v. State
By Steve Klepper (Twitter: @MDAppeal)
(This post has been updated to address some points I overlooked in my original post. The irony.)
Today the Court of Appeals, in Ray v. State, issued useful guidance on the limits on an appellate court’s discretion under Md. Rule 8-131(a) to consider the merits of a waived claim. The five-judge majority, in an opinion by new Chief Judge Barbera, held that the Court of Special Appeals, in an opinion by new Court of Appeals Judge Watts, erroneously reached the merits of the defendant’s claim in Ray v. State, 206 Md. App. 309 (2012).
Two judges dissented. The dissent “agree[d] that the Court of Special Appeals erred in concluding that the matter was a proper subject of appellate review.” Nevertheless, the dissent “disagree[d] with the Majority’s failure to vacate the Court of Special Appeals’ holding about the merits of Ray’s Fourth Amendment claim—a decision that rests on an expanded and worrisome interpretation of Maryland v. Pringle, 540 U.S. 366, 124 S. Ct. 795 (2003) …. This means that the Court of Special Appeals’ holding will be applied by trial courts until the next time this Court decides a case applying Pringle in a similar context.”
Not to worry. The decision of the Court of Special Appeals on the merits of the question is now only dicta:
A Court of Special Appeals’ opinion underlying a judgment, which is reversed or vacated in its entirety by this Court on another ground, may, depending upon the strength of its reasoning, constitute some persuasive authority in the same sense as other dicta may constitute persuasive authority. Nonetheless, analytically the intermediate appellate court’s opinion is only dicta because it no longer supports or reflects a viable appellate judgment. Accordingly, such an opinion is not a precedent for purposes of stare decisis.
West v. State, 369 Md. 150, 797 A.2d 1278, 1282 (2002).
The wrinkle in Ray is that the Court of Appeals ultimately affirmed the judgment below, since the Court of Special Appeals had ruled against the defendant on the merits of the question that it should not have reached. But the principle in West still should prevail—since the Court of Special Appeals erred in reaching the question in the first place, its discussion on the merits is dicta.
Nevertheless, there is some potential for confusion, since a not-too-close review of the procedural history of the case would show “affirmed.” I’ve even seen practitioners, and occasionally judges, cite as precedential a case with the signal “reversed on other grounds,” without recognizing that the opinion below was rendered dicta. The lesson, though, is that one should always carefully review the procedural history of the case, rather than just being content that Westlaw or LEXIS shows the decision was affirmed.
But I do believe that that the dissent in Ray v. State is properly labeled a “concurrence,” since the opinion concurs with the disposition of the case by the Court of Appeals.
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