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.
Yes, appeal options matter in state District Court
By John Grimm
One of the challenges of a criminal practice in the Maryland District Court is deciding how best to position your client for appeal. A typical day in the District Court can be a busy, if not hectic, affair, requiring lawyers to wrangle witnesses, work out plea deals, examine discovery, and, not uncommonly, meet and interview their clients for the first time. Although it can be hard to devote attention to preserving appellate issues, or even thinking about appellate strategy, the District Court’s unique jurisdictional status presents both appellate risks and benefits, and, during your trial preparation, it’s worth giving a little thought to what you’d want your criminal appeal to look like.
COSA Dissent Watch: Defining a “Collection Agency”
[Dissents in the Court of Special Appeals are, as we’ve noted here before, an infrequent thing — but quite useful. Many times, disagreement in the intermediate court portends consideration and resolution by the Court of Appeals, or highlights thorny issues that appellate practitioners can take up in future cases. In this new feature, the Blog tracks and analyzes split decisions at the Court of Special Appeals.]
The case: Old Republic Ins. Co. v. Gordon, No. 1020 (Sept. Term 2014)
The question: Did the circuit court err in its construction of the phrase “collection agency” under BR § 7-101(c)?
The facts: Old Republic Insurance Company sold Countrywide Home Loans a “credit insurance policy,” pursuant to which Old Republic would pay for losses caused by defaults in loans held by Countrywide; in return, Countrywide would subrogate its rights of recovery to Old Republic. Countrywide submitted a claim for Nancy Gordon’s default on her approximately $70,000 loan, and Old Republic paid it. Old Republic then exercised its subrogation rights to pursue repayment.
The company filed suit in circuit court and moved for summary judgment. Ms. Gordon opposed the motion on the grounds that, under Maryland law, Old Republic was barred from bringing its claims because it was acting as a collection agency subject to the Maryland Collection Agency Licensing Act but wasn’t licensed to do so. The court agreed and granted summary judgment to Ms. Gordon.
Rationales on the way for per curiam orders in the cases of officers charged in death of Freddie Gray
By Michael Wein
On March 8, the Maryland Court of Appeals issued two per curiam orders, found here and here, in the cases of the police officers charged in the death of Freddie Gray — yet the reasons underlying the orders (which permitted the State to have Officer William Porter testify, prior to his own retrial, against all his fellow officers) remain a mystery. As reported in various media outlets, that became a problem for the trial judge last week when, based on the per curiam orders, he granted the State’s request to have another officer testify as a witness before his trial. The defense counsels reserved the right to reargue the matter after the high court provided its rationales for the orders.
Maryland Appellate Blog 