Espina v. Jackson: Marbury v. Madison Revisited?
In Marbury v. Madison, 5 U.S. 137 (1803), Chief Justice John Marshall laid the cornerstone for this country’s view of judicial power, particularly as it relates to the powers of correspondent branches of government, in the case of the federal government, Congress and the President. There, in deciding whether the U.S. Supreme Court had jurisdiction to consider William Marbury’s petition to compel Secretary of State James Madison’s delivery of Marbury’s judicial commission by John Adams, Marshall’s opinion held that Madison’s withholding the commission was illegal. Sidestepping a confrontation with the executive branch, however, Marshall held that Marbury’s petition was not within the Court’s jurisdiction and denied it. Marshall ruled that the Judiciary Act of 1789, under which Marbury had brought his action, unconstitutionally expanded the Court’s Article III original jurisdiction, observing as a seeming aside that
It is emphatically the province and duty of the Judicial Department to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret that rule. If two laws conflict with each other, the Courts must decide on the operation of each.
So, if a law be in opposition to the Constitution, if both the law and the Constitution apply to a particular case, so that the Court must either decide that case conformably to the law, disregarding the Constitution, or conformably to the Constitution, disregarding the law, the Court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty. If, then, the Courts are to regard the Constitution, and the Constitution is superior to any ordinary act of the Legislature, the Constitution, and not such ordinary act, must govern the case to which they both apply.
5 U.S. at 177-78.
Final Judgments — An Ongoing Dilemma
Other than failing to preserve an issue or note an objection at the proper time, one of the main causes of paranoia in appellate practitioners is the need for a final judgment. During the past 20 years, the appellate courts have routinely admonished litigators that they must have a final judgment to obtain appellate review. The simplest final judgment occurs when a case has been tried and a jury rendered its verdict. In other situations, many of us refer to the Maryland Code to identify the status of a case — does it resolve all of the issues? Are the parties “out of court”? Does the case satisfy the criteria for an interlocutory appeal? Is it a collateral order?
Rules Committee to Recommend Putting Maryland Unreported Opinions Online, But Expanding Restrictions on Use of Other Unreported Decisions
By Michael Wein
As detailed in a previous post of mine from February, the underpinnings of unreported opinions differ substantially in Maryland from those in other state and federal courts. I argued that having about 90 percent of appellate opinions from the Court of Special Appeals not available online seemed at odds with the Judiciary’s stated goal of being accessible to the public. To help remedy this, the Maryland Daily Record has begun publishing unreported opinions for subscribers, making it easier for attorneys to understand the appellate courts.
The Court of Special Appeals on Vexing Text
Do you have bad writing habits that detract from your appellate briefs? Perhaps the arrogant, pompous jerks out there don’t think so. Irregardless, to expose a few annoying tendencies of brief writers, we went to their audience. In this feature of first impression, five Court of Special Appeals judges shared their least favorite words, phrases, idioms, and other writing practices that they frequently encounter in appellate briefs. See Kuzmin v. Thermaflo, Inc., 2009 WL 1421173 at *2 n. 6 (E.D. Tex. May 20, 2009) (“By submitting a poorly written brief, the attorney fails the Court as well as the client.”). Read on to see why this paragraph would drive the members of that Honorable Court nuts.
March 2015 Maryland Certiorari Grants
Once again, it’s time for your friendly neighborhood certiorari grants. Sadly for this blog’s traffic, the Court of Appeals hasn’t heeded our bypass suggestions in Syed v. State. (Yet.) (Update: Probably because of this odd opinion.)
The grants, with questions presented, appear after the jump. Read More…
A Few Thoughts on Adnan Syed’s Opening Brief
By Steve Klepper (Twitter: @MDAppeal)
[Update: A reader, David Lease, pointed out to me the 4-3 decision in Stachowski v State, 416 Md. 276(2010), which appears to negate the possibility of bypass. Thanks to David and boo to Stachowski .]
I had a chance today to read Adnan Syed’s opening brief, filed Monday in the Court of Special Appeals. I have two quick thoughts. Read More…
Caught between a rock and a hard place: Court of Special Appeals lacks jurisdiction of county hearing officer’s decision
In Ross Contracting, Inc. v. Frederick County, No. 977, Sept. Term 2103 (Md. Ct. Spec. App. Feb. 2, 2015), a contractor, whose efforts to replace a bridge were impeded by the unexpected discovery of hard rock, was further frustrated when it learned that it had landed in a hard place – an appellate court that lacked jurisdiction over the contractor’s dispute with Frederick County. The case serves as a reminder “‘that appellate jurisdiction, except as constitutionally authorized, is determined entirely by statute, and that, therefore, a right of appeal must be legislatively granted.’” Slip Op. at 10 (quoting Prince George’s Cnty. v. Beretta U.S.A. Corp., 358 Md. 166, 173 (2000), quoting Gisriel v. Ocean City Bd. of Supervisors of Elections, 345 Md. 477, 485 (1997)) (other citation omitted).
February 2015 Link Round-Up
A big case out of the Court of Appeals earlier this year didn’t get any play here on the Blog, but generated a bit of fallout discussion elsewhere in the online Maryland legal community last month, including write-ups by Ann Marie Mehlert of Lerch, Early & Brewer and Catherine A.B. Simanski of Rollins, Smalkin, Richards & Mackie. Described by Catherine in her post as arising from “a feud of ‘Hatfields and McCoys’ proportions over parking spots situated between a condo association and a homeowner’s association,” Falls Garden Condominium Ass’n, Inc. v. Falls Homeowners Ass’n, Inc., Md. Ct. App., No. 30, Sept. Term 2014 (Jan. 27, 2015), grabbed some attention by holding that a letter of intent (that’s an “LOI” among acronym-savvy attorneys) for a settlement agreement was still binding on the parties even though they couldn’t eventually agree on the terms of a lease that was meant to satisfy the proposed settlement. In analyzing the outcome, Ann Marie offered that most real-estate professionals “have always viewed the LOI as an efficient means to get business terms out on the table and agreed to before negotiating a lease” and “usually understand that the LOI is non-binding.”
Baltimore County v. Baltimore County FOP Lodge 4: Applying the Law of “The Law of the Case”
“Law of the case” is a doctrine that tends to be loosely thrown around by attorneys who vaguely feel that some fact or principle should be treated as established for the remainder of their litigation, but don’t quite know why. For appellate practitioners — especially those who get involved in particularly contentious and protracted lawsuits — it’s good to get an occasional refresher on how the principle actually works. The Court of Special Appeals recently provided just such a primer in Baltimore County, Maryland v. Baltimore County Fraternal Order of Police, Lodge No. 4, Sept. Term 2013, No. 1904/Sept. Term 2014, No. 99 (Dec. 17, 2014), a case that should cause all lawyers readying an appeal to think a little deeper about what issues they need to raise and what relief they want to seek.
Why Government Lawyers Must Do Better: The Fourth Circuit Blasts the EEOC for “Disappointing Litigation Conduct”
By Derek Stikeleather and Melissa Loureiro
Government lawyers enjoy the tremendous goodwill that flows from the common perception that, because they represent the public rather than self-interested private parties, they are more honest and forthcoming in giving courts not just the truth but the whole truth. Although all attorneys have a duty of candor to the court and a duty to zealously represent their clients, every lawyer strives to be seen as more credible than opposing counsel. When the client in a criminal or civil case is the United States of America, the attorney has already taken the high ground because the public and the judiciary often expect greater candor from government attorneys, even when it could potentially harm their case.
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