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What Kim Kardashian and Prince William Can Teach Us About Remote Oral Arguments

By Derek Stikeleather

The COVID-19 pandemic has given us all innumerable “new normals.” Even appellate practitioners, whom the Daily Record recently described as “relatively unscathed” by the pandemic, have had to change how they conduct business. This is especially so when it comes time to present oral arguments. Read More…

COVID-19 pandemic presents issues of contract interpretation—how have Maryland appellate courts recently handled those issues?

By Brad McCullough

The COVID-19 pandemic has affected every facet of our lives and has raised many legal issues. Every day, lawyers’ e-mail inboxes are bombarded with messages touting webinars and publications addressing those issues. Does your insurance policy cover business disruption caused by the pandemic? Does the pandemic implicate the force majeure provision in a contract? Is a party’s performance of a contract excused by principles of impossibility, impracticability, or frustration of purpose? Those are hot legal issues at the moment, but ultimately those issues will be resolved by application of fundamental legal principles. Foremost among those principles are rules of contract interpretation. Whether a particular force majeure provision in a contract covers pandemics, or whether a specific insurance policy covers losses arising from a disruption of business caused by the pandemic, are questions that will be answered by interpreting the specific contractual provisions in play. Similarly, whether the purpose of a contract has been frustrated, or its performance made impossible, will hinge on the intent and expectations of the parties, as reflected by the terms of their contract. How do Maryland’s appellate courts address those issues? Two recent decisions, one by the Court of Appeals and another by the Court of Special appeals, provide some insight. Read More…

Facing Type: A Tour of the Court of Appeals’ List of Suggested Fonts for Briefs

By John Grimm

The Daily Record recently informed me that the Governor’s stay at home order has left appellate lawyers “generally unscathed.”[1]  “Indeed,” I thought to myself, while downstairs my eleven-month-old patiently waited a full workday as I edited a brief.  Actually, working from home has left at least this appellate lawyer a bit scathed, so I’ve had little time to study the appellate news lately.  And what news there is seems to be all about courts’ new emergency procedures anyway, so in this post, I am going to address a topic that is irrelevant to current events, but which is a preoccupation for many appellate lawyers: typography. Read More…

Washington Post v. McManus and Clear Channel v. Department of Finance:  Important Lessons from Maryland’s State and Federal Court’s in Assessing Content and Means Based Abridgements of Speech

By Alan B. Sternstein

Two First Amendment cases recently decided in state and federal courts in Maryland interestingly parallel each other factually but reach different results as to the constitutionality of the governmental actions challenged in each case.  The facts and First Amendment issues in Clear Channel Outdoor, Inc. v. Department of Finance, No. 2910 (Md. App. Sept. Term, 2018) (“Clear Channel”),  which the Court of Special Appeals decided on January 29, 2020, bear a useful and instructive comparison to those in the Fourth Circuit’s decision in Washington Post v. McManus, No. 19-1132 (4th Cir. Dec. 6, 2019) (“Washington Post”), which was the subject of a post earlier this year on the Maryland Appellate Blog.  Read More…

Fourth Circuit Fires Away at Defective Felon-in-Possession Convictions

By Stuart BermanGuest Contributor

In June 2019, the Supreme Court held in Rehaif v. United States, 139 S.Ct. 2191 (2019), that in federal prosecutions of illegal aliens for knowingly possessing a firearm, the government “must show that the defendant knew he possessed a firearm and also that he knew he had the relevant status when he possessed it.” As expected, Rehaif was quickly applied to other categories of “prohibited persons,” including one of the most commonly-prosecuted federal crimes, “felon in possession” – knowing possession of a firearm that had moved in interstate or foreign commerce by a person previously convicted of a crime punishable by more than one year of imprisonment, under 18 U.S.C. § 922(g)(1).

The trickier issue was whether Rehaif would be applied retroactively. Read More…

Update: Maryland Court of Special Appeals, For Now, Appears to Adopt Televised “Zoom” Oral Arguments for Public, and Other Appellate Court Developments

By: Michael Wein

As a previous piece last week noted,  the four (4) appellate courts potentially affecting Maryland practitioners postponed their March and/or April oral arguments, because of the coronavirus health crisis.  We now have more information on what three (3) of the courts have adopted, as at least interim solutions, while retaining some flexibility of a “wait and see” approach depending on the status of the crisis in early May. Read More…

Oral Arguments Postponed Left and Right Due to Coronavirus…At Least in Maryland, How Long Should this Last?

By: Michael Wein

It began with court and jury trials being postponed throughout the State of Maryland.  But the past 10 business days have seen a remarkably swift progression in the postponement of appellate oral arguments in all Maryland and related Federal Courts due to the novel coronavirus. Read More…

POSTPONED: Maryland Impact Decisions 2020

UPDATE, March 12, 2020: The previously scheduled April 1 event, “Recent Impact Decisions of the Maryland Appellate Courts” has been taken off the calendar due to COVID-19 concerns. We hope to reschedule the event and, if so, will re-post the event on the blog.

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…

Workers paid a “day rate” instead of by the hour, calculating their overtime compensation, and the Maryland Wage and Hour Law and the FLSA

By Brad McCullough

How should an employer compute overtime pay for a worker paid by the day instead of the hour? In an opinion authored by Judge Kevin Arthur, Maryland’s Court of Special Appeals addressed that question in Poe v. ISEI Md. Corp., 243 Md. App. 243 (2019). Leonard Poe worked in the trash-hauling business, where he was paid a “day rate.” That form of “compensation is common in the trash-hauling industry, because it motivates employees to work quickly and efficiently: the sooner the employees finish the job, the greater their rate of pay.” Id. at 245. If Poe worked over forty hours in a week, both the Maryland Wage and Hour Law and the federal Fair Labor Standards Act entitled him to receive overtime. When that happened, his employer, IESI, relied on a federal regulation in calculating how much overtime it owed Poe. He disagreed with that mode of calculation, however, and sued IESI, “claiming that the federal regulation was inconsistent with the Maryland Wage and Hour Law and that, in relying on the federal regulation, IESI had understated the amount of overtime compensation he was due under State law.” Id. The trial court ruled for IESI, granting its motion for summary judgment, and the Court of Special Appeals affirmed that decision. In reaching that conclusion, the Court of Special Appeals examined the pertinent federal and state statutes and regulations, and held that the employer and the trial court had properly relied on the federal regulation and that IESI had paid Poe the right amount of overtime. Read More…