More March 2023 Maryland Certiorari Grants (Updated)
On March 7, 2023, the Supreme Court of Maryland granted review in an additional two cases (one criminal appeal and one civil appeal), which have been assigned for argument during the September 2023 Term. Those cases, with questions presented, are below. Also, on March 6, the Supreme Court granted review in one more case, an expedited civil appeal about whether a schoolteacher may serve on the Harford County Board of Education.
Read More…SCM to Hold Arguments Outside Annapolis Once Per Year
By Tia L. Holmes
On March 2, 2023, the Supreme Court of Maryland issued an Administrative Order declaring that the Court will sit temporarily outside of the City of Annapolis at least one day each term beginning with the September 2023 Term. In the Order, the Supreme Court designates secondary or post-secondary educational institutions within Maryland as their locations of choice. The Court will first sit at an institution located in the Fourth Appellate Judicial Circuit (Prince George’s County), which is represented by Justice Michele D. Hotten, and will rotate in numerical order of the circuits in the future terms. According to the Order, Justice Hotten will recommend an institution to host the oral arguments, and, upon approval of the full Court, the Court will sit at the recommended location.
Read More…Whren, Whren, Go Away . . .
By Tia L. Holmes[*]
Early last month, the Appellate Court of Maryland issued its unreported opinion in Snyder v. State, App. Ct. of Md., Sept. Term 2021, No. 1127 (Feb. 3, 2023). Snyder involved a pretextual traffic stop that the Court concluded was authorized by Whren v. United States, 517 U.S. 806 (1996). During the traffic stop, Mr. Snyder’s vehicle was searched, and the fruit of that search led to his arrest and subsequent conviction. The Court reversed Mr. Snyder’s conviction because the evidence that was used to convict him had been seized in violation of the Fourth Amendment. Concurring with the Court’s decision, Judge Dan Friedman wrote separately to express his views regarding Whren and to urge the Supreme Court of Maryland to abandon the failed federal doctrine established in Whren.
In a previous post about the Snyder opinion, Maryland Appellate Blog editor Chris Mincher left an open invitation for a discussion about Judge Friedman’s concurrence. I accepted his invitation because, in my opinion, Judge Friedman’s concurrence is the most important part of the Court’s decision.
Read More…Lessons After the First 60 Days of 2023 with the Appellate and Supreme Courts of Maryland
As most people know, in November 2022, Maryland voters approved a constitutional amendment changing the names of the appellate courts. On December 14, 2022, the switch flipped—the Court of Appeals became the Supreme Court of Maryland, and the Court of Special Appeals became the Appellate Court of Maryland. Judges of the Supreme Court of Maryland became “Justices.”
Whether you welcomed this change because it reduces confusion (“wait, so the Court of Special Appeals hears everything?”) or you were fine with the old names and saw no reason to upset the apple cart, the deed is done. Supreme Court of Maryland and Appellate Court of Maryland it is. The only question at this point is one that Steve Klepper wrote about back in December: how to refer to the appellate courts in the past tense?
When Steve wrote his post, the name change was not yet official, and the courts had offered no guidance. We thought perhaps there would be an official policy statement, or a style guide expressing preferences based upon the circumstances. To my knowledge, no such policy or statement of preferences has been issued. What we have now that we didn’t have in December, however, is opinions written by the courts under the new name regime. I have done an unofficial survey of the opinions (published and unpublished) written between December 14, 2022 and February 8, 2023. Here is what I learned:
Read More…Argument Panel: Proposed New Rule on Citing Unreported ACM Opinions
“After much debate,” the 214th Report of the Maryland Rules Committee proposes to amend Rule 1-104, which has long prohibited citation to unreported Maryland appellate decisions as precedent or as persuasive authority. The new Rule 1-104(a)(2)(B) would provide that, unless “designated as a per curiam opinion, an unreported opinion of the Appellate Court issued after [effective date of Rule] may be cited for its persuasive value only if no reported authority adequately addresses an issue before the court.” The comment period ends March 1, 2023, and the proposal will then go to the Supreme Court of Maryland for its consideration.
In what is hopefully the first of a recurring feature, we’ve polled our editorial board to get their views of the new rule.
Read More…Maryland Supreme Court to Consider New Rules Allowing For First Time, Full Citation For Persuasive Value to Most Unreported Opinions
By Michael Wein
For the first time, the Maryland Rules Committee has recommended Unreported Opinions in Maryland be cited for “persuasive value” under Maryland Rule 1-104. Part of the given Rule change’s rationale, was the Maryland Supreme Court does not consider itself as limited in citations, as at Maryland’s intermediate Appellate Court of Maryland. See Blog post dated 2/19/2020 discussing apparent contrary use of unreported opinions by Maryland Supreme Court. There remains some uncertainty as to the final version, as described below. This comes after a September 2022 Rules committee meeting, became publicly available about 2 weeks ago, as part of the 214th Report. The listed deadline for Comment to the Maryland Supreme Court is on March 1, 2023, with an open meeting scheduled for March 23, 2023.
The concerns about reforming Maryland’s Unreported Opinion Rule are long-running and also previously discussed in previous posts here (on recent Maryland Supreme Court decision), here (on 2015 Rules proposal to allow them on Case Search, but restricting their use from other jurisdictions for first time), and here (Rules Committee dropping 2015 restrictions after criticism). The Federal Courts got rid of any Local Rules with a prohibition against citations for persuasive value back on January 1, 2007. This present iteration, is the first time the Rules Committee has proposed doing away with the unreported opinion citation Rule.
However, with 15 years of Federal appellate Courts managing the Rule change, the Rules Committee, has chosen to not follow the Federal model of a simple removal of the prohibition as all Federal Circuit Courts of Appeal now have, with citations available online. Instead, like the 2015 version, the Maryland Rules Committee seems to exchange more transparency for “granting” unreported opinion citations, by creating a much more complex Rule in its place.
Read More…Law on Imperfect Self-Defense is Still… Imperfect
Back in November 2016, less than two weeks before I left the Appellate Blog for a long foray as a Governor’s Office lawyer, I wrote my final post about the Court of Special Appeals’ decision in Porter v. State and the panel’s struggles with imperfect self-defense. How odd, then, that in my return more than six years later, the first split Appellate Court decision I come across is… a panel applying Porter and struggling with imperfect self-defense. With that coincidence, I guess I’ll just pick up where I left off.
To set the stage — when proven, imperfect self-defense negates the element of malice, which drops a murder charge to voluntary manslaughter. At least in Maryland, it comes into play when the perpetrator was not the “aggressor” and had the subjective beliefs, no matter how unreasonable, that:
- a potential assailant posed an imminent or immediate danger of serious bodily harm;
- the amount of force used to respond was necessary; and
- retreat was not safe.
To generate a jury instruction on imperfect self-defense, a defendant need only produce “some evidence” of these subjective beliefs.
Read More…Judges Don’t See it the Same on Speed, Stopping, and Suspicion
Of counsel, McAllister, DeTar, Showalter & Walker
Reasonable suspicion under the Fourth Amendment is a treadmill issue for appellate courts, and the constant churn of opinions usually involves judges’ different attempts to articulate what exactly is, and what should be, suspicious about human behavior. Those questions are far from easy. Every judge — every person, really — may have different thresholds about when something becomes reasonably suspicious.
The task often involves adding up a bunch of small details about a police encounter, each of which may be only a little bit suspicious, and determining whether they cross that varying threshold. A good case in point is the recent Snyder v. State, App. Ct. of Md., Sept. Term 2021, No. 1127 (Feb. 3, 2023), which suggests that strategy by the State may not always be effective. There, the State sought to satisfy the Fourth Amendment by throwing a bunch of suspicion spaghetti against the wall. Peeling it off one by one, the Appellate Court majority found it wasn’t enough — but there was one sticky noodle that triggered a dissent.
Read More…South Carolina Judge Confirmed to Fourth Circuit
Today, the U.S. Senate confirmed DeAndrea Benjamin to the U.S. Circuit Court of Appeals for the Fourth Circuit. Prior to her appointment she served as a trial judge for South Carolina.
Read More…Rereading Washington v. State after Tyre Nichols’ Homicide
A week ago, I wrote about Tyrie Washington v. State of Maryland, a decision by the Supreme Court of Maryland filed on December 19, 2022, which held that unprovoked flight in a high-crime neighborhood provides reasonable articulable suspicion to conduct a Terry stop.
Last week, like most people in the United States and abroad, I followed with horror the events leading to Tyre Nichols’ homicide.
Tyre Nichols’ flight from police was provoked by his fear and their brutality. His homicide is a painful reminder of why innocent people fear the police, especially uniformed officers patrolling high-crime neighborhoods. In Washington, the SCM precisely and explicitly recognized that reality while upholding that “unprovoked flight” in a high-crime neighborhood is a sufficiently compelling factor to justify a Terry stop. After watching body camera footage of Tyre Nichols’ visceral fear of the police in the minutes before his death, I reread the SCM’s decision in Washington. How can flight provoked by a legitimate fear of police justify the detention for criminal investigation of a citizen?
Read More…
Maryland Appellate Blog 