On remand from SCOTUS, Maryland Court of Appeals summarily affirms CSA in Kulbicki
By Steve Klepper (Twitter: @MDAppeal)
We have a breaking update in our coverage of the long-running Kulbicki case. Ten weeks ago, the Supreme Court summarily reversed the decision of the Court of Appeals of Maryland in Kulbicki v. State, 440 Md. 33 (2014), which had found ineffective assistance of counsel on grounds that the Court of Appeals raised sua sponte. Read More…
The Love Song of J. Anthony Kennedy
By Steve Klepper (Twitter: @MDAppeal)
Last year for the holidays we here are the Maryland Appellate Blog brought you pictures of the adorable Sonia Soto-minor. This year’s silliness is The Love Song of J. Anthony Kennedy, a poem in the latest issue of The Green Bag. You can click here for the poem. Read More…
No “sandbagging” allowed – the purpose behind the preservation rule
No “sandbagging” allowed. That was a message conveyed by the Court of Appeals recently in Peterson v. State, 444 Md. 105 (2015). The Court explained that the purpose behind the preservation rule – i.e.¸ the rule that provides that appellate courts will review only those issues that were raised and preserved in the trial court – is to avoid unfairness and to prevent “sandbagging.” Id. at 126. If a litigant wants an appellate court to review and correct what that litigant sees as an erroneous ruling made by the trial court, the litigant must have given the trial judge a fair chance to make the correct ruling and to fix any mistakes that he or she made. In other words, the trial judge shouldn’t be “sandbagged.” And as one of the cases cited by the Peterson Court demonstrates, the concern for fairness applies also to opposing counsel. Robinson v. State, 410 Md. 91, 104 (2009); see also e.g. In re Kaleb K, 390 Md. 502, 513 (2006) (holding that petitioner’s argument was not preserved and that allowing petitioner to raise on appeal a new argument, which had not been raised and argued in the circuit court, “would result in ‘sandbagging’ the State and the trial . . . court, which is the precise result that Rule 8-131(a) was designed to avoid”).[1]
16 Nominated to Court of Special Appeals
It’s been quite a busy week on the judicial-appointments front: On Tuesday, Gov. Hogan elevated The Hon. Michele Denise Hotten to the Court of Appeals, and, today, nominations for the at-large Court of Special Appeals opening were announced. Although the deep pool of 27 applicants has been somewhat pared down, the governor is still faced with the difficult task of selecting only one of the 16 impressively credentialed finalists, half of which are sitting circuit-court judges. Of those, three on the Prince George’s County bench (Judge Alves, Judge Geter, and Judge Serrette) would, if it didn’t work out for the at-large bid, be eligible to vie for Judge Hotten’s vacancy.
Judge Michele Hotten Appointed to Court of Appeals
Today Maryland Governor Larry Hogan announced that he is elevating Judge Michele Denise Hotten, currently of the Court of Special Appeals, to fill the vacancy on the Court of Appeals created when Judge Glenn Harrell Jr. reached mandatory retirement age this past June.
Expert’s Review of Literature Now Leaves Less Discretion for Exclusion
[Editor’s Note: Portions of this post were previously quoted in “Lead Paint Evidence Clarified in Maryland; Causation, Injury Source Proof Distinguished,” Expert Evidence Report, Bloomberg BNA, Vol. 15, No. 21 (Nov. 9, 2015) (also available here).]
By finding that the circuit court in Roy v. Dackman, Md. Ct. App., Sept. Term 2015 (Oct. 16, 2015), abused its discretion by excluding lead-paint medical causation testimony, Maryland’s highest court seemed to curtail the wide discretion that trial judges typically enjoy when ruling on the admissibility of such testimony. In Roy, the plaintiff designated a board-certified pediatrician with “more than 20 years in practice,” Dr. Eric Sundel, to opine that the plaintiff had been exposed to lead more than a decade earlier at the defendants’ property and that the exposure had caused his alleged brain injuries. The trial court initially denied the defendants’ Rule 5-702 motion to exclude Dr. Sundel’s lead-source and medical causation opinions.
November 2015 Maryland Certiorari Grants
The new Adele record wasn’t the only exciting thing to be released Friday: The Court of Appeals also released a new round of certiorari grants! Check out the seven new cases — which include questions about tax refunds, administrative law, disability discrimination, and appellate review of suppression rulings — after the jump.
2015 Developments in Combating “Link Rot”
By Michael Wein
One of the consequences of the greater availability and ubiquity of legal opinions online is that authors can directly hyperlink to sources, including other online decisions, and thus provide immediate access to the source material. This has led to the unintended consequence of “link rot” in appellate decisions — that is, the inclusion of links that are no longer valid. As noted in a 2013 New York Times article, at that time, 49 percent of links in online U.S. Supreme Court decisions were inoperative.
Book Review: Jay Wexler’s “Tuttle in the Balance”
For the second straight year, the American Bar Association’s Ankerwyke imprint is releasing an entertaining novel for the U.S. Supreme Court enthusiast on your holiday shopping list. Last year’s release was David Lat’s Supreme Ambitions, a tale of intrigue among elite federal appellate law clerks competing for Supreme Court clerkships. This year’s treat is Jay Wexler’s Tuttle in the Balance, the story of a Supreme Court justice experiencing a delayed midlife crisis at age 62. Lat’s novel had an irreverent tone but did not play for laughs; in Tuttle in the Balance, however, the laughs come early and often.
COSA: Court of Substantial Agreement
Update (11/11/2015): I figured my “crude, imperfect manual count” would miss something, and, sure enough, I failed to catch a dissent in an unusual per curiam unreported opinion in Spencer v. State, Sept. Term 2014, No. 0493 (Oct. 2, 2015) (Nazarian, J., dissenting). That brings the totals to nine dissents in the 726 cases — which is still a rate of about 1 percent — and six of the 15 judges who wrote a dissent between May and October.
Between May 1, when unreported Court of Special Appeals opinions began being posted online, and the close of October, a half-year of complete decisions of the intermediate appellate court were, for the first time, made available to Maryland court-watchers. That’s a sufficient sample size to do a crude, imperfect manual count and generate some data about the rate of reporting. It’s also useful for a few observations about the infrequency of disagreement among the three-judge panels.
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