It’s not really new—corporations cannot participate in court proceedings without an attorney. The same concept applies to the otherwise informal process before an administrative agency. So what should a corporation do when its counsel withdraws from an administrative proceeding? The Court of Special Appeals recently answered the question in an unreported decision—retain counsel or say something to preserve the issue for further review.
A Necessary and Proper Post on the 200th Anniversary of McCulloch v. Maryland and the Upcoming Maryland Bicentennial Symposium
On March 6, 1819, exactly 200 years ago today, Chief Justice John Marshall issued his landmark McCulloch v. Maryland opinion, on behalf of a unanimous Supreme Court. On its face, McCulloch confirmed the federal power to create a national bank free from state taxation. But more enduring than the national bank’s charter (which expired by 1836) is the holding in favor of Congress’s implied powers, under the “Necessary and Proper” clause of the Constitution’s Article I, Section 8. Today, law students and elite legal minds alike continue to study the case and its lasting impact on our government framework and constitutional jurisprudence. Read More…
Here are the writs of certiorari granted by the Court of Appeals today:
State of Maryland v. Philip Daniel Thomas – Case No. 73, September Term, 2018
Issue – Criminal Procedure – As a matter of first impression, is a sentence imposed on remand legal if the new sentence imposes the same or fewer years of imprisonment but results in a later parole eligibility date than the original sentence? Read More…
McLaughlin Opinion Provides Valuable Guidance After Final Judgment Rule Sinks Another Maryland Appeal
A recent foreclosure action in the Court of Special Appeals presented Judge Arthur with the opportunity to cleanly explain one of the more maddening—and anxiety-producing—rules of appellate practice, the Final Judgment Rule. See McLaughlin v. Ward, No. 1827, September Term 2017 (Jan. 30, 2019). The rule begins with a simple premise: one cannot appeal a trial court’s ruling until the court has entered a final judgment that resolves every claim in the case. See Md. Code Ann., Cts. & Jud. Proc. § 12-301. Yet, the rule has exceptions. And it is those exceptions that bedevil practitioners (and courts) as they grapple with proper application of the rule and try to avoid noting an appeal too early or—even worse—too late.
Today’s cert grants will bring a wide variety of issues before the Court of Appeals, including: the method for obtaining appellate review of an incarceration sentence in light of the Justice Reinvestment Act of 2016; the authority of the Workers’ Compensation Commission to revise an incorrectly-calculated award; and whether statutory relocation benefits should be extended to tenants vacating government-owned property.
Happy New Year from the Maryland Appellate Blog!
Three new writs of certiorari start off our 2019:
(I) In re Santos Nohe Lopez Perez – Order granting an emergency petition for writ of certiorari and ordering the case be remanded to allow the petitioner to apply for special immigrant status, “with haste” and before his impending 21st birthday later this week (the Daily Record’s Steve Lash gives further coverage of this case, including a quote from Perez’s attorney – the Blog’s own EIC, Steve Klepper);
(II) Ronald F. Moser, et al. v. Kristi Heffington, et al. (COSA Reported Opinion by Judge D. Eyler) – Civil Procedure – 1) Did CSA err when it vacated the trial court’s denial of Respondent’s motion to stay in a case where: A) Respondent initiated the civil action for defamation; B) during the pendency of the civil action, Respondent was criminally indicted for the conduct at issue in the civil suit, yet Respondent had fully participated in all aspects of discovery both prior to and after the indictment, which discovery included her own deposition; and C) on the eve of trial, and four months after the indictment, Respondent filed an 11th hour motion to stay the civil trial on the grounds that she intended to invoke her Fifth Amendment privilege not to testify at the civil trial? 2) Did Respondent waive her Fifth Amendment privilege in the civil action by testifying at her deposition and providing other discovery responses without invoking the privilege, after she was on notice that the police were investigating her for the conduct at issue? 3) Given that Respondent had already answered questions at her deposition concerning the conduct at issue, did Respondent fail to preserve for review the denial of a stay of the civil action where she failed to proffer the questions as to which she intended to invoke her right to silence – which was necessary to determine if she could validly exercise the privilege or had waived it? 4) Did CSA unnecessarily decide a Constitutional question, i.e. whether the trial court had failed to fully consider Respondent’s Fifth Amendment right by not granting a stay of the civil action, after it learned that Respondent had been convicted of the very conduct that formed the basis of the alleged defamation, which rendered moot her defamation claim?
(III) State of Maryland v. John Schlick (COSA Reported Opinion by Judge Raker) – Criminal Law – Does a court lose revisory power over a criminal sentence “after the expiration of five years from the date the sentence originally was imposed,” as Maryland Rule 4-345(e) states, or does the court indefinitely retain “fundamental jurisdiction” to revise a sentence, which it is an abuse of discretion not to consider exercising, as CSA held below?
Brynja McDivitt Booth, Booth, Booth, Cropper & Marriner (Easton)
Joyce Elizabeth Jones, Jones & Suh, LLC (Church Hill)
Carla Lynn Knight, Lynn Knight Law (Centreville)
Jane Chace Miller, Law Office of Jane Chace Miller (Chester)
These four individuals join Christopher F. Drummond, Judge Christopher B. Kehoe, and Judge Brett W. Wilson, who each applied in August of 2018. The Commission intends to meet on January 14, 2019 to review these applications.
One of the Court of Appeals’ more notable decisions from 2018 is Kennedy Krieger Institute, Inc. v. Partlow, 460 Md. 607 (2018), which analyzed the scope of a Maryland tort defendant’s duty of care. The Partlow court was asked whether medical researchers at Kennedy Krieger[i] owed a duty of care not only to participants in its medical research study on lead-paint abatement but also to a participant’s sibling, who was not part of the study. With compelling arguments from both sides, the court split 4-3, holding that the researchers owed a duty to the non-participating sibling.
As previously reported on the Maryland Appellate Blog, Judge Sally D. Adkins’s retirement left a vacancy on the Court of Appeals, for the First Appellate Judicial Circuit. In August, three submitted applications for the seat – Christopher F. Drummond, Judge Christopher B. Kehoe, and Judge Brett W. Wilson. But, according to the Maryland Courts website, “[t]his vacancy is being re-advertised for new applicants.”
**Correction: As originally posted, this blog post incorrectly stated that the Appellate Judicial Nominating Commission had nominated all three existing applicants. In fact, the Commission has yet to make any nominations for this vacancy. This correction has been made.
For direct updates on the Appellate Judicial Nominating Commission’s consideration of applications for this vacancy and others, see the Maryland Courts website.