The Shots Heard Round Richmond
Richmond, Virginia. Formerly, the home of the largest slave-trading center in the Upper South and the capital of the Confederacy during the American Civil War. Currently, the site of protests against police brutality and racial injustice, with activists removing or refacing Confederate monuments. The Chief Judge of the United States Court of Appeals for the Fourth Circuit recently said: “As a country, we are in a moment of reckoning.” See United States v. Curry, No. 18-4233 (Decided: July 15, 2020, Amended: July 16, 2020) (Gregory, C.J., concurring at 38).
United States v. Curry is a case stemming from the suspicionless stop of a pedestrian by the Richmond Police Department less than one minute after multiple gunshots were fired in a high crime area of Richmond. It is a fascinating opinion for a myriad of reasons. Read More…
MSBA Supreme Court panel will be online on July 27
By Steve Klepper (Twitter: @MDAppeal)
A highlight of the year for the MSBA Appellate Practice Committee is the annual Supreme Court Term in Review panel in Ocean City. Although COVID canceled this year’s MSBA Legal Summit, I’m pleased to report that the panel will be moving online. The registration link is here.
We have a terrific all-#AppellateTwitter lineup, with Jaime Santos (@Jaime_ASantos), partner with Goodwin’s Appellate Litigation practice, and co-host of the Strict Scrutiny podcast (@StrictScrutiny_); Lindsay Harrison (@LinzCHarrison), partner with Jenner & Block’s Appellate & Supreme Court group; and Amir Ali (@theamirali), Deputy Director of the Supreme Court and Appellate Program at the MacArthur Justice Center, and director of the Criminal Justice Appellate Clinic at Harvard Law School.
The event will be Monday, July 27, at 10:00 a.m. CLE credit is available, and the event is $29 for MSBA members and $59 for non-MSBA members
July 2020 Maryland Certiorari Grants
By Steve Klepper (Twitter: @MDAppeal)
Yesterday, the Court of Appeals granted seven certiorari petitions. I’ll be counting three of those petitions as one because they were on petitions filed by the State from the same Court of Special Appeals opinion, with all three petitions presenting the same questions relating to jury nullification.
The cases have been scheduled for argument during the Court’s December 2020 sitting.
Court of Special Appeals expands the boundaries of the tort of wrongful termination
In a case of first impression in Maryland, the Court of Special Appeals went where California’s courts have refused to go, holding “that the tort of wrongful termination may lie when an employer decides to terminate an employment relationship by declining to renew an employment agreement for which the parties anticipated the reasonable possibility of renewal.” Miller-Phoenix v. Balt. City Bd. of Sch. Comm’rs, CSA-REG-209-2019, 2020 WL 2781833, at *3 (May 29, 2020). Building on the Court of Appeals’ decisions in Adler v. Am. Standard Corp., 291 Md. 31 (1981) and Ewing v. Koppers Co., 312 Md. 45 (1988), the Court of Special Appeals gave Maryland employers the following message. If an employer allows an employment relationship to terminate—and the employer’s motivation for that termination contravenes some clear mandate of public policy—the terminated employee may have a claim for wrongful termination. Read More…
The Singular “They” in Legal Writing
By Steve Klepper (Twitter: @MDAppeal)
There are few writing conventions as cumbersome as “he or she.” It’s not natural English. If you were to see the silhouette of a backlit person on the street, would you ask, “Who is he or she?” Or, like a normal person, would you ask, “Who are they?”
Nevertheless, teachers and professors drilled into me that the singular “they” was barbarism. The one exception was a common phrase like “to each their own,” because “to each his or her own” was an awkward bridge too far. “He or she” was necessary to be both inclusive and grammatically correct, even as writing otherwise moved in the direction of natural language.
This issue arises frequently in legal writing, which often involves discussions about a hypothetical individual, such as the “reasonable person.” I’ve used tricks to avoid the “he or she” problem. “If a Marylander wishes to apply for a license, he or she must first do X,” easily becomes “If Marylanders wish to apply for licenses, they must first do X.” But that work-around can be awkward, especially when overused.
It’s also a cop out. My family (traditional and chosen) includes non-binary people who use they/them pronouns. It’s important to non-binary people that we use their correct pronouns. It can cause them genuine distress to insist on using binary pronouns.
I’m sure some will read this post and cry “political correctness!” When it comes to legal writing, however, it’s a matter of legal correctness. Read More…
The Race to Find Justice
On June 9, 2020, Chief Judge Mary Ellen Barbera of the Maryland Court of Appeals issued a Statement on Equal Justice under Law. The poignant statement was issued in the midst of the protests that spread like wildfire across the nation, emboldening individuals to stand up and be heard about the racial injustices that have been plaguing communities of color for centuries.
Chief Judge Barbera recognized that injustices against people of color are not new and that sadly, little progress has been made to eliminate racial disparities. Read More…
E-filing by MDEC becomes mandatory for appeals from all Maryland counties on July 1
By Steve Klepper (Twitter: @MDAppeal)
Yesterday, the Court of Appeals approved changes to the Maryland Rules that, as of July 1, 2020, will require all attorneys to file through the MDEC system in all appeals, including from circuit courts in the remaining non-MDEC counties (Baltimore City, Montgomery County, and Prince George’s County). Read More…
Maryland Reclamation Associates v. Harford County V: Herein of Litigant Fallibility, Judicial Infallibility, and the Demise of a $45 Million Judgment
The odyssey of Maryland Reclamation Associates (“MRA”) to construct and operate a rubble landfill in Harford County began in August 1989. It shortly ran into legislative, regulatory and judicial hurdles, leading to 30 years of administrative and judicial litigation. MRA’s 30 year saga continued with a recent and now fifth Court of Appeals decision in this story. In “MRA V” (Opinion, Maryland Reclamation Assocs. v. Harford C’ty, No. 52, September Term 2019 (Md. decided Apr. 24, 2020)), in an 80 page opinion, the Court of Appeals nullified a $45,076,420 verdict for MRA in an inverse condemnation action that MRA brought after being unable to secure zoning variances required for the landfill. The court rejected the Court of Special Appeals’ own determination that MRA had exhausted its administrative remedies before bringing its action and ruled that MRA’s action should be dismissed for failure to exhaust administrative remedies. Though MRA did stumble some over the last 30 years, the Court of Appeals in MRA V reached an arguably justified prospective rule of procedure in condemnation cases but questionably did so in applying that rule to MRA. Read More…
June 2020 Maryland Certiorari Grants
Today the Court of Appeals of Maryland granted certiorari in two cases, both on petitions by the State in criminal cases. Read More…
“The Times, They are a-Changin”—New Proposed Rules to Streamline Maryland Appeals, Foretell Major Changes
By Michael Wein
Songwriter Bob Dylan has been cited in at least two (2) appellate cases in Maryland and one United States Supreme Court case.[1] So with that topical reference to the Nobel Prize poet laureate Dylan, it makes sense to spend some time, (even when it’s “a-changin”), on what was proposed and passed as the 203rd Report by the Maryland Rules Committee on February 28, 2020, and presently before the Maryland Court of Appeals. Careful attention by regular appellate practitioners are a given, but even trial practitioners may want to prepare for appeals earlier, as the proposed Rules, are a sea change in Maryland, even if they seem to follow the Fourth Circuit’s model. At the very least, trial counsel should consider contacting qualified Maryland appellate counsel much earlier for assistance. Read More…
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