Save time and money by appealing in banc
By John Grimm
I recently posted about appeals in District Court of Maryland cases, including lesser-known appellate options. Maryland also allows for an unusual type of appeal from circuit court decisions — the in banc appeal. Article 4, § 22 of the Maryland Constitution allows, with some exceptions, a party who loses “any trial conducted by less than three Circuit Judges,” to request review “in banc” (and yes, for the pedantically inclined, the term of art is “in banc,” not the more common “en banc”) by three circuit court judges, in lieu of an appeal to the Court of Special Appeals.
June 2016 Maryland Certiorari Grants
Those lazy, hazy, crazy days of summer are here, but the Court of Appeals of Maryland is still hard at work, cranking out another batch of certiorari grants. Does heading out into the stifling, stuffy heat make you feel like you’re suffocating? Well, have hope: The Court is going to figure something out about toxic air pollutants in commercial parks. Also in the slate: questions about voir dire, searching for records subject to the Public Information Act, and the writ of actual innocence. See the full lineup after the jump.
State v. Braverman: $5 million fee award here today, gone tomorrow
In an opinion featuring forceful and direct language, the Court of Special Appeals recently reminded us that the “American Rule” regarding attorneys’ fees remains alive and well in Maryland. In 2007, 49 plaintiffs, led by William Braverman and Stanley Goldberg, sued the State of Maryland, challenging the constitutionality of recently enacted legislation affecting the use of “ground leases” in Maryland. After several years of litigation – including removal to federal court followed by a remand to state court, an effort to change venue, certification as a class action, and a trip to the Court of Appeals – the plaintiffs succeeded in their attack on that legislation. See State v. Goldberg, 437 Md. 191 (2014). The plaintiffs then filed a fee petition in the circuit court, which, after an evidentiary hearing, ordered the State to pay $5 million in fees. But the joy of that victory was short-lived, as the Court of Special Appeals, in State v. Braverman, No. 429 Sept. Term (June 1, 2016), reversed the circuit court’s award as running afoul of the American Rule.
COSA Dissent Watch: Credibility and Contradiction in a “Sham Affidavit”
The case: Davis v. Lewin Realty, III, Sept. Term 2015, No. 0420 (May 25, 2016) (unreported)
The questions: Can a court assess credibility in striking a “sham affidavit” pursuant to Md. Rule 2-501? In the context of that rule, how specific do statements have to be for a court to find them contradictory? Is it a materially inconsistent for a witness to recall facts in a later affidavit that she could not recall in an earlier deposition?
Shapiro v. McManus: Round Two for the Constitutionality of Maryland’s 2011 Congressional Redistricting
Shapiro v. McManus, No. 14-990, 136 S. Ct. 450 (decided Dec. 8, 2015), started as a challenge, on First Amendment grounds, to Maryland’s 2011 congressional redistricting. It appears, however, that Maryland and Supreme Court watchers nationwide will need to wait before the Court potentially sheds light on the lawfulness of that or other First Amendment challenges to congressional and state legislative redistricting.[1] In Shapiro, a unanimous Supreme Court ruled only that the Fourth Circuit Court of Appeals erred in affirming the District Court’s decision that it was not required under the Three-Judge Court Act, codified at 28 U.S.C. § 2284, to convene a three-judge panel to consider Petitioners’ First Amendment challenge to the 2011 redistricting. Further, because the Court has already summarily and unanimously upheld an equal-protection challenge to Maryland’s 2011 redistricting, see Fletcher v. Lamone, 831 F. Supp. 2d 887 (D. Md. 2011), aff’d 133 S. Ct. 29 (2012), it seems unlikely that Shapiro will clarify the standards applicable to a constitutional challenge to redistricting.
Governor appoints Getty to Court of Appeals, Geter and Beachley to Court of Special Appeals
By Steve Klepper (Twitter: @MDAppeal)
Governor Larry Hogan today announced three appointments to the Maryland appellate courts. The governor’s Chief Legislative Officer, Joseph Getty, will fill the vacant high court seat reserved for residents of the third appellate district (Allegany, Carroll, Frederick, Garrett, Howard, and Washington counties). Getty is 64 years old. Unless the mandatory retirement age is increased from 70, the seat will become vacant in another six years. Don’t expect the sort of fireworks from the last time a governor appointed his CLO to the Court of Appeals. Read More…
Maryland Court of Appeals continues its cautious approach to finding implied private causes of action
On May 20, 2016, in Fangman v. Genuine Title, LLC, a case certified from federal court, the Maryland Court of Appeals held that Md. Code Ann., Real Prop. (“RP”) § 14-127 – which generally prohibits kickbacks and similar arrangements with respect to real-estate settlement business – does not create a private cause of action. Judge Watts wrote the opinion for the unanimous Court, which continued a winning streak in the Court of Appeals for defendants arguing against recognizing implied private rights of action.
May 2016 Maryland Certiorari Grants
The Court of Appeals of Maryland has posted its certiorari grants from its May 19 conference. This month’s list is unusually heavy on civil cases, with only one criminal appeal compared to four civil appeals. Perhaps most notably, Seley-Radtke v. Hosmane addresses the burden of proof in defamation actions brought by private individuals. The full list appears after the jump. Read More…
Non-Mutual Collateral Estoppel: A Shield, but Now Clearly Also a Sword
Last summer, I reviewed the decision of the Court of Appeals in Shader v. Hampton Improvement Ass’n, Inc., 443 Md. 148 (2015), and the decision of the Court of Special Appeals in Garrity v. Maryland State Bd. of Plumbing, 221 Md. App. 78 (2015), and posed the following question: In addition to being used defensively as a shield, may non-mutual collateral estoppel be used offensively as a sword? In Garrity, the Court of Special Appeals had embraced the use of offensive non-mutual collateral estoppel, at least in the context of successive proceedings brought by separate administrative agencies. But I noted that the Court of Appeals on a number of occasions had neither embraced nor rejected offensive use of the doctrine, and, in Shader, had skirted the question, holding that the case did not require an answer to it. I suggested that the issue needed to make its way back to our highest court so that the Court could have the final word on the subject. Having granted certiorari in Garrity, the Court of Appeals a few weeks ago issued an opinion permitting offensive non-mutual collateral estoppel.
Do not overestimate the exceptions to the exhaustion of administrative remedies
When evaluating a new case, the focus often relates to the merits of the claim: Is your client credible? Are there witnesses who can corroborate your client’s position? Are there documents that substantiate the claim? What legal theories apply? Has the statute of limitations run yet?
All of these elements play a significant role in advising a client and deciding to pursue the case. When handling matters before administrative agencies, however, it also is essential to consider the hierarchy of remedies that are available. Some administrative remedies must be pursued before filing a complaint in court, while others may proceed concurrently or without affecting other legal processes. Knowing where to go first can be tricky, as two police officers learned the hard way.
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