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.
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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.

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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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February 2022 Maryland Certiorari Grants

Today the Court of Appeals of Maryland granted certiorari in four cases. Those grants are in addition to a January 31 grant, also listed below.

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The Special Role of Revisor’s Notes in Maryland Statutory Interpretation

By Joseph Dudek
Guest Contributor*

On January 26, the Court of Special Appeals published its opinion in Gateway Terry, LLC v. Prince George’s County (slip op. here). In my former job with the Office of the Attorney General, I was arguing counsel for the County and the Clerk of the Circuit Court, defending certain transfer and recordation taxes.

I doubt that Gateway will make headlines outside the MSBA Real Property Section’s listserv. But I want to highlight an important doctrinal development and footnote that should bear on any statutory case that involves a law recodified during the grand recodification of the Maryland Code in the 1980s. In short, it is exceedingly important that attorneys arguing these cases review the recodification bill and the pre-recodification statute to truly understand the law.

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Hemphill v. NY: Statement’s Reliability Must be Tested by Cross-Examination, Not by Judicial Determination

By Megan E. Coleman

In Hemphill v. New York, Justice Sotomayor authored the Court’s 8-1 opinion holding that the trial court’s admission of a plea transcript containing testimonial statements by a non-testifying declarant, violated Hemphill’s Sixth Amendment right to confront this witness, notwithstanding the fact that the defense “opened the door” by presenting misleading information to the jury.

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Maryland High Court Sets Deadline for Legislative Map Challenges, Appoints Special Magistrate

On Friday, the Court of Appeals of Maryland, which has original jurisdiction over challenges to legislative districting maps, issued an order setting a February 10 deadline for challenges to the map that the General Assembly adopted this month. Senior Judge Alan Wilner, who sat on the Court from 1996 to 2007 and now heads the Rules Committee, will serve as Special Magistrate.

The order’s key provisions are:

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The Supreme Court’s Vaccine-Mandate Decision Illustrates the Ascendency of the “Major Questions” Doctrine in Administrative Law.

By John Grimm

Last week’s ruling in National Federation of Independent Business v. OSHA[1] was big news. The Court stayed the enforcement of OSHA’s rules requiring employers with more than 100 employees to be vaccinated against COVID-19, or else wear a mask and take a weekly test. Technically, the Court didn’t strike down the rules, but it found a strong likelihood of success on the merits (necessary for any stay of an agency rule pending review) which makes it difficult to envision any other result when the merits are finally heard.

The majority opinion—written per curiam so we don’t know the author—focuses on OSHA’s statutory authority. OSHA is empowered to promote “safe and healthful working conditions” by enacting rules that are “reasonably necessary or appropriate to provide safe or healthful employment.”[2]  The majority reasoned that COVID-19 is a universal hazard, not a workplace hazard, and held that OSHA’s mandate does not permit it to regulate public health crises just because they happen to affect workplaces.  In dissent, Justice Breyer examined the same statutory authority and administrative record to argue that the risk of COVID exposure is a workplace hazard that OSHA was entitled to regulate against.

There could be a robust academic debate over the majority and dissent’s arguments, but the most interesting aspect about the opinion for the future of administrative law is Justice Gorsuch’s concurrence.  All of the opinions recognized that agencies only possess power that Congress grants them, but Justice Gorsuch took the opportunity to elaborate on a particular nuance to that rule which he has written on before: the major questions doctrine.

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January 2022 Maryland Certiorari Grants

The Maryland Court of Appeals today granted certiorari in four civil cases and two criminal cases.

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Three COSA Judges Nominated for Vacancy on Court of Appeals (Howard County and Western Maryland)

The Appellate Courts Judicial Nominating Commission today nominated three sitting appellate judges 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 nominees are:

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