MSBA Panel Reviews Recent Notable Maryland Appellate Decisions
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:
Read More…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.
SCOTUS Resolves Circuit Split in § 1983 Claims, Dissent Claims Majority Created a New Tort
On April 4, 2022, the Supreme Court issued Thompson v. Clark, et al, No. 20-659, 596 U.S. ____ (2022), holding that to demonstrate a favorable termination of a criminal prosecution for purposes of the Fourth Amendment claim under 42 U.S.C. § 1983 for malicious prosecution, a plaintiff need not show that the criminal prosecution ended with some affirmative indication of innocence, rather, a plaintiff need only show that his prosecution ended without a conviction.
This holding resolved a split among the Courts of Appeals over how to apply the favorable termination requirement of the Fourth Amendment claim under § 1983 for malicious prosecution. Justice Kavanaugh delivered the opinion of the Court and was joined by Roberts, C.J, and Breyer, Sotomayor, Kagan, and Barrett, JJ. The opinion is characterized as resolving a “narrow dispute in this case concern[ing] one element of the Fourth Amendment claim under § 1983 for malicious prosecution.”
The problem with the majority’s opinion and holding, according to the dissent, is that the majority created a new tort altogether because the Fourth Amendment offers no protection for claims of malicious prosecution. The dissent was authored by Justice Alito, and joined by Thomas and Gorsuch, JJ.
The majority’s opinion is an easy read with a straight-forward holding that makes the plaintiff’s burden easier because the plaintiff no longer has to rely on the prosecutor or judge making a statement on the record about why the criminal charges were dismissed. But the dissent got me thinking – the majority may have impermissibly used the Fourth Amendment as a catch-all net to capture a malicious prosecution claim, when a malicious prosecution claim is distinct from an unreasonable seizure claim.
I will attempt to explain both sides and you can decide for yourself.
Read More…March 2022 Maryland Certiorari Grants, Batch 2
The Maryland Court of Appeals today granted certiorari in one additional case, the first to be assigned to its regular docket for its next term, starting September 1, 2022.
Read More…COSA Spotlight: The Honorable E. Gregory Wells
By Diane Feuerherd and Steve Klepper
In late February, we sat down via zoom with Judge Gregory Wells, to learn more about him, his path to the bench and his chambers in Prince Frederick. What we did not know at that time, was that Governor Hogan was preparing to announce, the day after our interview, that he is appointing Judge Wells to be the next Chief Judge of the court. In that role, he will succeed Chief Judge Matthew Fader, who will be elevated to the Court of Appels in April. That we were able to profile Judge Wells at such a moment was, in a word often and graciously used by him in this interview, “serendipitous.”
Read More…March 2022 Maryland Certiorari Grant, with an Update on Redistricting Cases
The Maryland Court of Appeals today granted certiorari in one case, a criminal appeal.
Read More…Maryland’s Discretionary Standard for Applications for Leave to Appeal
By Steve Klepper (Twitter: @MDAppeal)
Maryland has an unusual procedure for appeals in post-conviction cases. The losing party, whether the State or the criminal defendant, must apply for leave to appeal. Our intermediate appellate court, the Court of Special Appeals (COSA), has unreviewable discretion whether to grant merits review of the decision. Our high court, the Court of Appeals, lacks statutory authority to review COSA’s discretionary decision to deny merits review.[1] No rule, statute, or decision tells us what standard governs that exercise of discretion.
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:
- 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.
- 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.
- 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.
Judges Eaves and Fader to join Maryland high court, Judge Albright to COSA, Judge Wells new COSA chief
Today, Governor Hogan announced that he is appointing Harford County Circuit Court Judge Angela Eaves and Court of Special Appeals Chief Judge Matthew Fader for the vacancies on the Court of Appeals created by the upcoming retirements of Judge Robert McDonald and Chief Judge Joseph Getty.
As a result of Chief Judge Fader’s elevation, the Governor has announced his intention to appoint Judge Gregory Wells of the Court of Special Appeals to serve as that court’s new chief judge and Montgomery County Circuit Court Judge Anne Albright to the at-large vacancy.
Judge Eaves’ appointment is particularly notable. After the original seven applicants for Judge McDonald’s seat (reserved for residents of Baltimore County and Harford County) were all white, the Governor readvertised the vacancy to “attract as broad a field of candidates as possible consistent with his commitment to diversity and outreach.” Judge Eaves was one of five additional applicants, and she will now become Maryland’s first Afro-Latina appellate judge.
Also of note, Judge Wells will become the first African-American and first openly LGBTQ Chief Judge of Maryland’s intermediate appellate court.
Read More…Maryland high court grants expedited review of Prince George’s County redistricting case
On January 31, 2022, the Prince George’s County Circuit Court enjoined the implementation of the County Council’s controversial new map for council districts. See Rachel Chason, Prince George’s judge throws out divisive redistricting map approved by county council, Washington Post (Jan. 31, 2022).
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