Fourth Circuit holds that it can dismiss an untimely criminal appeal sua sponte, but should do so only in very limited circumstances.
In United States v. Oliver, the Fourth Circuit recently held that the Court has the inherent authority to dismiss an untimely criminal appeal sua sponte. As a general rule, the Court said, it will not use that authority; instead, it will rely on the government to raise an objection based on untimeliness. In rare cases, however, an untimely appeal can implicate judicial interests to such an extent that not intervening would harm the court as an institution. Only in such circumstances will the Fourth Circuit exercise its authority to dismiss a criminal appeal where the government has forfeited or waived its objection. Read More…
SCOTUS vindicates 2008 Judge Wilner opinion on tolling of limitations
By Steve Klepper (Twitter: @MDAppeal)
On Monday, in Artis v. District of Columbia, the Supreme Court of the United States resolved a division of authority on the meaning of 28 U.S.C. § 1367(d). Under § 1367(d), when a federal court exercises supplemental jurisdiction over a state-law claim, the limitations period on that claim “shall be tolled while the claim is pending and for a period of 30 days after it is dismissed unless State law provides for a longer tolling period.”
Justice Ginsburg, writing for the five-justice majority, noted a division of authority on the application of the statute:
The high courts of Maryland and Minnesota, along with the Sixth Circuit, have held that §1367(d)’s tolling rule pauses the clock on the statute of limitations until 30 days after the state-law claim is dismissed. See In re Vertrue Inc. Marketing & Sales Practices Litigation, 719 F. 3d 474, 481 (CA6 2013); Goodman v. Best Buy, Inc., 777 N. W. 2d 755, 759–760 (Minn. 2010); Turner v. Kight, 406 Md. 167, 180–182, 957 A. 2d 984, 992–993 (2008). In addition to the D. C. Court of Appeals, the high courts of California and the Northern Mariana Islands have held that §1367(d) provides only a 30-day grace period for the refiling of otherwise time-barred claims. See Los Angeles v. County of Kern, 59 Cal. 4th 618, 622, 328 P. 3d 56, 58 (2014); Juan v. Commonwealth, 2001 MP 18, 6 N. Mar. I. 322, 327 (2001).
Maryland found itself on the winning side of that division of authority, Read More…
January 2018 Maryland Certiorari Grants
The Court of Appeals has granted 5 writs since our last certiorari post:
Schneider Electric in the Court of Appeals – So Much for Efficient Resolution of Surety Bond Disputes and Policies Favoring Arbitration over Litigation
Deciding in favor of litigation over arbitration, the Court of Appeals, in Schneider Elec. Bldgs. Critical Systems, Inc. v. Western Surety Co., 454 Md. 698, 165 A.3d 485 (2017) (“Schneider Electric”), affirmed a decision of the Court of Specials Appeals, discussed in this blog on June 26, 2017.
Schneider Electric Buildings Critical Systems, Inc. (“Schneider”), a contractor, had been given a performance bond by NCS, its subcontractor. Despite their Master Subcontractor Agreement requiring dispute resolution by arbitration, and the performance bond, issued by Western Surety Company (“Surety”), binding NCS and the Surety “jointly and severally . . . to [Schneider] for the performance of the Construction Contract, which is incorporated herein by reference[,]” the Court of Appeals followed the intermediate appellate court in ruling that the Surety could choose litigation and need not participate with NCS in the arbitration that Schneider brought. Read More…
Why The Baltimore City Circuit Court May Transfer More Tort Cases in 2018
By Derek Stikeleather
A recent Court of Appeals opinion has shaken one of the main pillars that plaintiffs have rested on when resisting transfers to a more convenient forum—deference to the plaintiff’s chosen venue. Univ. of Maryland Med. Sys. Corp. v. Kerrigan, — A.3d —-, 2017 WL 5711857 (Md. Nov. 28, 2017). By expressly holding that trial judges owe little deference to a plaintiff’s chosen venue when no plaintiff resides there, the Kerrigan opinion significantly weakens plaintiffs’ ability to secure the most plaintiff-friendly venues in any case that involves multiple venues. Read More…
What was the “First” Appellate Court in the Colonial Americas?
By Michael Wein
With the coming New Year, reflection and reexamination on the past is natural, to understand and fully appreciate the challenges and hopes for the coming year. At least in Maryland, the history of “appeals” has not been the focus of determinate scholarly debate, internally, or in comparison to other jurisdictions. For example, did you know that appellate courts in the Colonial Americas may have preexisted Thanksgiving, and that the first appellate court continues to be the subject of debate?
If this were the game show Jeopardy! and the “Answer” was “[t]his was the first appellate court established in the Western Hemisphere,” many people might instinctively say the United States Supreme Court. However, it is certainly not the Supreme Court, as part of the U.S. Constitution, Congress’ 1789 Judiciary Act, and a first “session” with Justices in 1790. Instead, the correct response choices include not only Massachusetts (including Plymouth and Massachusetts Bay colonies), but also Maryland, Virginia, and Pennsylvania in North America, and the Real Audiencia in Latin America. These are all “colonial” appellate courts tracing to at least the 1600s, well-before the Supreme Court. A brief description of each contender follows.
Read More…
December 2017 Maryland Certiorari Grants
Seasons greetings from the Maryland Appellate Blog! Is there a better gift than news of freshly-granted writs of cert? You be the judge—the Court of Appeals of Maryland granted seven today. Read More…
#AppellateTwitter’s “cleaned up” craze hits Maryland
By Steve Klepper (Twitter: @MDAppeal)
If you’re on Twitter, you may have come across the campaign by Jack Metzler (@SCOTUSplaces) to convince attorneys and judges to use a new parenthetical. Metzler has found remarkable success in a short time, and that success is now official in Maryland.[*]
Two reported opinions of the Maryland Court of Special Appeals, released on Friday and Monday, included the parenthetical “(cleaned up)” at the end of a citation and dropped a footnote to explain this strange new creature. Read More…
Maryland’s top court will review order directing investigation of Clinton attorneys
On Friday, the Maryland Court of Appeals posted two more certiorari grants. One is Attorney Grievance Commission v. Clevenger. When the trial court ruled in September, Chase Cook of the Capital Gazette described the ruling under review:
Circuit Court Judge Paul F. Harris Jr. ruled Monday after a short hearing in Annapolis that the Attorney Grievance Commission and Office of Bar Counsel Maryland Office of Bar Counsel must investigate attorneys David E. Kendall, Cheryl D. Mills and Heather Samuelson. All three are licensed to practice in Maryland and could face professional sanctions if the commission determines there are guilty of misconduct.
Ty Clevenger, a Texas attorney who lives in New York, filed the complaint, saying they deleted thousands of emails related to a private email server Clinton used during her time as Secretary of State. He argued they engaged in misconduct by destroying evidence.
In granting review, the Court of Appeals bypassed the Court of Special Appeals. The full list of certiorari grants, including questions presented, appears after the jump. Read More…
Event: Maryland Impact Cases, November 28
On the evening of Tuesday, November 28, 2017, the MSBA Section of Litigation and its Appellate Practice Committee will be presenting a panel, Maryland Impact Cases, at the Court of Appeals courtroom in Annapolis. The panel includes the always-entertaining Senior Judge Glenn T. Harrell, Jr., alongside Carrie Williams (Chief of the OAG’s Criminal Appeals Division) and Tim Maloney.
Please join us for an evening of networking, dialogue, and presentations discussing recent impact decisions from Maryland’s appellate courts. You can register here.
Information is below:
Robert C. Murphy Courts of Appeal Building
Fourth Floor
361 Rowe Boulevard
Annapolis, MD 21401
5:30 – 6:30 p.m. Social Hour Reception – Foyer to the Courtroom
Cash Bar (Beer & Wine) & Hors D’oeuvres
6:30 p.m. – 7:30 p.m. – Court of Appeals Courtroom
Speaker Presentations and Audience Questions
$20.00 for MSBA Litigation Section Members
$35.00 for others
Please register at this link http://www.msba.org/Events/Section_Events/Maryland_Impact_Cases_112817.aspx
or by mailing your check payable to the MSBA, Attention: Angela Munro, 520 West Fayette Street, Baltimore, Maryland 21201.
Hurry because space is limited.
Maryland Appellate Blog 