Archive | Uncategorized RSS for this section

May 2022 Maryland Certiorari Grants

On Friday, the Court of Appeals granted cert in these four cases:

Ernest and Maryann Elsberry v. Stanley Martin Companies, LLC  – Case No. 6, September Term, 2022 (Unreported CSA Opinion by Zarnoch, J.)

Issues – Real Property – 1) May a court rely on legislative history unrelated to the specific statutory text at issue to override the consumer protections granted in the plain language and tabulation of Md. Code § 14-117(a)(3) of the Real Property (“RP”) Article, an unambiguous remedial statute? 2) Did CSA violate Article III, Section 29 of the Maryland Constitution by using the title of the bill “Prince George’s County – Deferred Water and Sewer Charges Homeowner Disclosure Act of 2014” to contradict the plain language of RP § 14-117(a)(3)(ii)?

Read More…

MSBA Panel Reviews Recent Notable Maryland Appellate Decisions

By Derek Stikeleather

On April 13, the MSBA’s Appellate Section hosted its annual program on recent notable Maryland appellate decisions. I was pleased to moderate (via Zoom) three panelists: Judge Gary Bair (retired), Carrie Williams of the OAG’s Criminal Appeals Division, and Kamil Ismail. The panel discussed six recent decisions:

Leidig v. State, 475 Md. 181 (2021): The Leidig opinion held that Article 21 of the Maryland constitution provides even broader protection than the Confrontation Clause of the Sixth Amendment. It held that a criminal defendant whose DNA was taken from blood spilled at a crime scene had the right to confront the author of the DNA report that identified him. Applying the fractured opinions from the Supreme Court’s 2012 Williams v. Illinois decision, Judge Biran and Judge Watts discussed conflicting styles of Confrontation Clause analysis including DNA analysis that was “nonaccusatory” and analysis marked by “formality and solemnity.” Noting the strong influence of retired Judge Eldridge in Maryland’s Sixth Amendment jurisprudence as well as the recent arrival of four new judges on the Court of Appeals, Judge Bair explained that Article 21 renders a DNA report “testimonial” if the report’s author would reasonably understand that the report’s primary purpose would be to establish facts potentially relevant to future prosecutions.

Read More…

Governor Appoints Matthew J. Fader as New Chief of the Court of Appeals

Today, the day after Chief Judge Joseph Getty‘s 70th birthday and formal retirement from the State’s highest court, Governor Larry Hogan appointed Judge Matthew J. Fader to succeed him, as the next Chief Judge of the Court of Appeals. In the same press release, quoted in full below, the Governor also officially designated Judge E. Gregory Wells as Chief Judge of the Court of Special Appeals:

Governor Larry Hogan today swore in Judge Matthew J. Fader as Chief Judge for the Court of Appeals, and officially designated Judge E. Gregory Wells as Chief Judge for the Court of Special Appeals.

“I am proud to designate Judge Fader and Judge Wells to preside over the state’s highest courts,” said Governor Hogan. “They are both highly respected and experienced jurists who serve with distinction and an unwavering dedication to the law.”

In total, the governor has made 163 judicial appointments during his tenure. He has focused on ensuring that the composition of the courts better reflects the diversity of the state. Earlier this week, he swore in Judge Angela M. Eaves as the first Hispanic to serve on the Court of Appeals. Today, Judge Wells became the first African American to serve as chief judge of the Court of Special Appeals, and the first openly LGBTQ person to serve as chief judge of either of Maryland’s appellate courts.

Read More…

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.
Read More…

691 text messages—a tale of authenticity, relevance, and hearsay.

By Brad McCullough

The Court of Special Appeals recently faced a case where 691 text messages played a significant role in the conviction of a defendant charged with drug offenses. Challenging the admission of those messages at trial, the defendant raised issues of authenticity, relevance and prejudice, and hearsay. Having failed in his efforts at trial, he appealed. But he fared no better in the Court of Special Appeals than he had in the Circuit Court for Talbot County, as the appellate court affirmed his conviction. Sykes v. State, No. 2132, Sept. Term, 2019 (Nov. 18, 2021). 

Read More…

Four Apply for Maryland Court of Appeals

Three appellate judges and one lawyer have applied for the Court of Appeals vacancy that will arise when Chief Judge Joseph M. Getty turns 70 this coming April. This seat on the State’s highest court is for the Third Appellate Judicial Circuit, which includes Allegany, Carroll, Frederick, Garrett, Howard and Washington Counties. The applicants are:

Read More…

When can a haircut amount to destruction or concealment of evidence?

By Brad McCullough

When can a haircut amount to destruction or concealment of evidence? That question was before the Court of Special Appeals in Rainey v. State, No. 3094, Sept. Term 2018 (Sept. 28, 2021). The defendant was charged with murder. At the time of the slaying, he sported long dreadlocks, but when he was arrested, his hair was close-cropped. As the appellate court noted, the Court of Appeals has said “that a jury may infer consciousness of guilt if a defendant alters his appearance after the commission of a crime.” But Maryland does not have a pattern jury instruction that covers that issue. At trial, the prosecution did not propose a customized jury instruction, but instead asked the circuit court to give the pattern jury instruction that covers destruction or concealment of evidence. The court gave that instruction and the jury returned a guilty verdict. Did the trial court err in giving that instruction? Does cutting hair destroy evidence?  

Read More…

Conditional Cross-Appeals After Korotki

By Barnett Harris (Twitter: @BarnettHarris_)
Guest Contributor[*]

A new decision from the Court of Appeals says that even when you think you’ve won you must file a conditional cross appeal or risk losing the whole thing. The Court of Appeals recently ruled that an individual who failed to file a conditional cross appeal could not revisit that determination on remanded because that determination is considered a “final judgment” under Maryland law—which resulted in a million-dollar judgment going to zero. The decision will likely have broad implications for the Maryland bar.

The case, MAS Assocs., LLC v. Korotki, centered on a dispute over a business arrangement. Harry Korotki invested both his time and $275,000 in the business. When the business broke up, Korotki filed suit. Korotki’s principal claim was that he was a partner in the business: that the money he invested was the purchase of a share, the work he performed was as a partner, and that on termination, he was he entitled to the value a share of the business. Korotki argued in the alternative that he was an employee of the business and the $275,000 he gave was a loan to the business. As a result, Korotki’s alternative argument was that he was owed repayment of the loan and wages.

Read More…

October 2021 Maryland Certiorari Grants

Today, the Maryland Court of Appeals granted certiorari in these five cases:

Nicholas Jabbar Williams v. State of Maryland – Case No. 37, September Term, 2021 (Reported CSA Opinion by Ripken, J.)

Issues – Criminal Law – 1) Did CSA err in finding the verdict was not impermissibly inconsistent?  2)  In what circumstances does the no-impeachment rule set forth in Maryland Rule 5-606(b) yield to a defendant’s constitutional rights and a jury’s true verdict?  3)  Did CSA err in holding there was sufficient evidence to convict Petitioner of second-degree murder and possession of a firearm by a person younger than twenty-one?

Anne Arundel County, Maryland v. 808 Bestgate Realty, LLC – Case No. 38, September Term, 2021 (Unreported CSA Opinion by Kenney, J.)

Issue – Local Codes – 1) Is CSA’s interpretation of § 17-11-207 of the Anne Arundel County Code in conflict with the County Charter and the County budget process as it relates to the funding of public improvements?

Read More…

The Proliferation of Dissents from the Denial of Rehearing En Banc

By Megan E. Coleman

Each week my email inbox receives links to published opinions released by the Fourth Circuit. When I saw the link for Jane Doe v. Fairfax County School Board, No. 19-2203, I almost did not click on it. It was an order denying rehearing en banc and my first thought was, what could be enlightening about that? Luckily, I thought twice. After all, the Fourth Circuit decided to publish this order, so there must be more to it. Indeed, there was.

The first line of the order reads as one would expect: “The court denies the petition for rehearing en banc.” But what follows is an unexpected exchange between a concurring opinion and two dissenting opinions in which the concurrence writes to “confront” the dissent about a practice that is appearing with more frequency in the Fourth Circuit – dissenting from denials of rehearing en banc.

Read More…