691 text messages—a tale of authenticity, relevance, and hearsay.
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…Twelve Apply for Court of Appeals Vacancy (Harford and Baltimore Counties)
Following re-advertisement of the vacancy, “at the request of the Governor in order to attract as broad a field of candidates as possible consistent with his commitment to diversity and outreach,” six judges and six lawyers are now applying for the Court of Appeals vacancy that will arise when Judge Robert McDonald turns 70 this coming February.
The applicants are:
Read More…November 2021 Maryland Certiorari Grants
Last week, the Court of Appeals granted review in two criminal cases and three civil cases. It posted the questions presented this afternoon, and we’ve posted them below with links to the Court of Special Appeals decisions under review.
Judge Gould is recused from the three cases involving reported opinions, because he participated in the Court of Special Appeals’ vote to report the opinions.
Read More…In NRG Energy v. Public Service Commission, the Court of Special Appeals Hints at an Intriguing Question of Administrative Deference, but Leaves it Unanswered for Now.
By John Grimm
About a month ago, the Court of Special Appeals handed down a reported opinion in NRG Energy v. Public Service Commission, Sept. Term, 2020, No. 1181, — Md. App. —, 2021 WL 4704825.[i] The case involved a dispute over the rates Baltimore Gas and Electric (“BGE”) can charge for electric service.
Without getting too far into the details—because they’re not relevant for the issues I find most interesting about this case—when the General Assembly de-regulated the electric market in the late 90s and early 2000s, it allowed BGE to keep a monopoly on the service of delivering electricity, but opened the market for competition on the product of electricity. For those consumers who cannot or do not select a provider, however, BGE must offer a fall-back service, whose rates are set in tariffs approved by the Public Service Commission (“PUC”). The formula for setting those rates is complicated, and it includes some open-ended factors such as an “administrative adjustment,” but the overall goal of the rate is to approximate reasonable market rates.
A lengthy series of administrative proceedings ensued, at which BGE, the Maryland People’s Counsel, and a number of providers—comprising an “Energy Service Coalition”—offered economic analyses, and the PUC ultimately set a new rate. The private providers objected that the rate was too low, and filed a petition for judicial review, which ultimately made its way to the Court of Special Appeals.
Applying arbitrary and capricious review, the court held that except for two small exceptions—the PUC relied on a piece of evidence it said was unsupported, and apparently made a minor mathematical error—the court affirmed the decision. But what’s most interesting in this case is a question presented, but ultimately not answered, by the court: whether the PUC is “entitled to deference when addressing an issue of first impression on which it has yet to develop precedent, consistent rulings or expertise[.]”[ii]
Deference is an important topic in administrative law, that is often conflated with similar topics like the appropriate standard of review to apply to an agency’s decision. But, while arbitrary-and-capricious review, for example, focuses on the agency’s reasoning in reaching a decision, deference applies to an agency’s interpretation of its own statute.[iii] Deference is also an area where federal and Maryland administrative law differ somewhat.
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?
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…Seven Apply for Court of Appeals Vacancy (Harford and Baltimore Counties)
(Update: On October 21, 2021, the judiciary website posted: “This vacancy is being re-advertised at the request of the Governor in order to attract as broad a field of candidates as possible consistent with his commitment to diversity and outreach.” The deadline for additional applications is November 18.)
Three judges and four lawyers have applied for the Court of Appeals vacancy that will arise when Judge Robert McDonald turns 70 this coming February.
The applicants are:
Read More…Ten apply for Montgomery County COSA Seat
Five judges and five practitioners have applied for the vacancy created on the Court of Special Appeals when Governor Hogan elevated Judge Steven Gould to the Court of Appeals.
The applicants are:
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…
Maryland Appellate Blog 