Unreported Opinions Are Citable For First Time in Maryland on about 70% of Unreported Appellate Court of Maryland Decisions (and The World Did Not End)
By Michael Wein[*]
The Maryland Supreme Court approved a Rules Change (the specifics below), effective July 1, 2023, which for first time permits litigants to cite previous Appellate decisions for their “persuasive” value. These have generally been available online on the Maryland Judiciary’s website since May of 2015 and searchable since that time in the Maryland Daily Record, as well as Lexis and Westlaw. The proposed Rules presentation discussing this from February 2023 can be found on the Blog here.
Below is the final wording of Rule 1-104. (Without annotations)1
The Numbers in July, August, September, and October 2023 on Unreported Opinions Citable versus Per Curiam, Which Remain Uncitable
Beginning July 1, 2023, every unreported Opinion by the Appellate Court of Maryland (ACM) (formerly Maryland Court of Special Appeals), with the exception of per curiam decisions, states: “This is an unreported opinion. This opinion may not be cited as precedent within the rule of stare decisis. It may be cited for its persuasive value only if the citation conforms to Rule 1-104(a)(2)(B).”
Although the Maryland Supreme Court did not adopt all the recommendations of the Maryland Rules Committee, (again detailed below and a link to the zoom meeting here), there was a potential major exception to Rule 1-104 requested by the intermediate Appellate Court, and adopted by the Rules Committee, that still prohibits all citations to “Per Curiam” decisions. This was noted in the early blog piece, as a major potential loophole in the Rules proposal of it “Does not apply to Per Curiam Opinions in General (“Judge Per Curiam”).
Read More…October 2023 Maryland Certiorari Grants
On October 23, 2023, the Supreme Court of Maryland granted certiorari in three criminal cases. The certiorari grants, with links to the Appellate Court of Maryland opinions under review, are below.
Read More…Special Appellate Panel: Fonts
By Chris Mincher, John Grimm, and Joe Dudek
Three weeks ago, the Maryland Supreme Court dropped a brief-writing bombshell by announcing that, for the first time in 26 years, it is revising the list of approved fonts. The change was prompted by this letter from Joe Dudek, but also follows multiple instances of font commentary here on the Maryland Appellate Blog: Chris Mincher took a walk through the Court’s typography requirements, including fonts, way back in 2014, and former Blog editor John Grimm offered his take on the Court’s font choices more recently in 2020.
To mark this milestone, we’ve invited Joe (specially assigned) and John (recalled) to join Chris for a special edition of our “Appellate Panel” digital roundtable discussions.
Read More…Stillbirth or Murder, and the Evidence of Internet Searches Regarding Abortion
In Akers v. State (September Term 2022, No. 0925), the Appellate Court of Maryland will decide, among other issues, whether information about abortion, pregnancy ambivalence, and lack of prenatal care is relevant to determining how the death of an infant occurred. The question is important and novel as it implicates a woman’s reproductive rights in the context of a criminal case post–Dobbs v. Jackson Women’s Health Organization.
The facts of the case: The case arose out of Moira Akers’ unplanned pregnancy and death of her infant. Akers gave birth to an infant boy at her house. According to her, the child was stillborn. According to the State, the child was born alive and Ms. Akers suffocated her child. She was charged in the Circuit Court for Howard County with murder in the first degree, murder in the second degree, and child abuse resulting in death. Following a jury trial, Ms. Akers was convicted of second-degree murder and sentenced to 30 years imprisonment. The case is pending before the Appellate Court of Maryland.
Read More…SCM to Posthumously Admit Lawyer Excluded Because of Race
Except to occasionally cheer on a relative or law clerk crossing the threshold into lawyerdom, there’s usually not much reason to pay attention to the bar-admission special sessions at the Maryland Supreme Court — but don’t ignore a unique and important one coming up Thursday, October 26, 2023, at 3 p.m. That’s when the high court will consider the posthumous admission of Edward Garrison Draper, who is the earliest known individual found qualified to join the Maryland bar but rejected because of his race.
The session is the culmination of an effort to recognize Mr. Draper’s accomplishments and the historical injustice of his exclusion from Maryland’s legal profession. That was prompted by a compelling and informative University of Baltimore Law Forum article last year by Justice John G. Browning, formerly of the state Fifth District Court of Appeals in Texas.
In response, the Supreme Court invited Justice Browning, along with attorney Dominique A. Flowers and University of Baltimore law professor José F. Anderson, to submit a petition requesting Mr. Draper’s posthumous admission to the bar. I’ll briefly summarize the account of Mr. Draper as taken from Justice Browning’s article and the application for admission:
Read More…September 2023 Maryland Certiorari Grants
On September 22, 2023, the Supreme Court of Maryland granted a number of Petitions involving issues related to criminal procedure, contract interpretation, choice of law, and statutory interpretation. The issues presented are as follows:
Read More…4-3 Reversal Over Violation of Right to Counsel, both under the Sixth Amendment and Articles 21 and 24
Clark v. State (No. 25. September Term 2022, opinion by Honorable Shirley M. Watts), decided on the last day of the term, is unusual and remarkable. This 132-page, 4-3 opinion is really a 4-4-3-3 decision which includes a majority opinion by Justice Watts, joined by Justices Hotten, Biran, and Eaves, a concurring opinion by Justice Biran joined by the same Justices as the majority (Justices Watts, Hotten, and Eaves), a first dissenting opinion by Chief Justice Fader joined by Justices Gould and Booth, and a second dissenting opinion by Justice Gould, joined by Chief Justice Fader and Justice Booth. The majority opinion is remarkable because it holds that defense counsel’s failure to object to the trial court’s improper order prohibiting a testifying defendant from communicating with counsel during an overnight recess resulted in the actual denial of the Sixth Amendment right to the effective assistance of counsel and the right to counsel under Article 21 and 24 of the Maryland Declaration of Rights.
Of particular note is Justice Biran’s concurring opinion regarding the Maryland Declaration of Rights. He writes: “[t]he right to counsel is arguably the most important right enshrined in the Maryland’s Constitution. I expect that, when the Supreme Court eventually decides whether the Sixth Amendment provides the same amount of protection as Article 21 and Article 24 do in this context, it will answer in the affirmative. But if I am wrong about that, then I will be proud that Maryland provides a more robust right to counsel in this context under Article 21 and Article 24.” There is indeed a lot to be proud about in the majority and concurring opinions.
Read More…Sex Offense Trials: The Path Forward for CJP § 10-923
This summer, the Maryland Supreme Court decided Woodlin v. State, No. 22, Sept. Term, 2022 (July 26, 2023) (opinion by Eaves, J.), the first opinion interpreting Maryland’s Repeat Sexual Predator Prevention Act of 2018, Courts and Judicial Proceedings Article (“CJP”) § 10-923.
Read More…2023 and the Summer of Daubert
The summer of 2023 brought us more than sunshine and cookouts. Each month this summer, the Supreme Court of Maryland handed down a major decision on Rule 5-702 and the Daubert/Rochkind standard for admissibility of expert testimony. June gave us Abruquah v. State, No. 10 (June 20, 2023). July gave us Oglesby v. Baltimore School Associates, No. 26 (July 26, 2023), and August 31, the last day of the 2022 term, brought us Katz, Abosch, Windesheim, Gershman& Freedman, P.A. v. Parkway Neuroscience and Spine Institute, LLC, No. 30 (Aug. 31, 2023). These opinions join the prior term’s lone high-court decision on the same issue, State v. Matthews, 479 Md. 278 (2022), giving us a total of four post-Rochkind Supreme Court precedents reviewing trial-court applications of the Daubert/Rochkind standard. See Rochkind v. Stevenson, 471 Md. 1 (2020). The 296 combined pages of opinions, concurrences, and dissents from this summer’s trilogy will be cited for decades to come in cases applying Rule 5-702. Each case addressed whether the expert’s challenged opinion had a sufficient factual basis under subsection (3) of Rule 5-702, which includes the inquiry into whether there exists an impermissible analytical gap between the expert’s methodology and conclusion.
Read More…August 2023 Maryland Certiorari Grants
On August 11, 2023, the Supreme Court of Maryland granted a number of Petitions involving issues related to constitutional law, public safety, and public utilities. The issues presented are as follows:
Corey Cunningham, on behalf of Kodi Gaines, a minor v. Baltimore County, Maryland, et al. – Case No. 9, September Term, 2023
Issues – Constitutional Law – 1) Did ACM err in holding that the law enforcement officer was entitled to qualified immunity with respect to petitioner’s innocent bystander’s substantive due process claim? 2) Does a party waive appellate rights in a second appeal following remand on an issue the trial court did not address in the proceedings prior to the first appeal?
In the Matter of Mark McCloy – Case No. 10, September Term, 2023
Issues – Public Safety – 1) Did ACM err in affirming the Maryland State Police’s (“MSP”) denial of petitioner’s application to purchase a regulated firearm? 2) Did ACM err in finding that the relevant Md. statute to be considered for equivalence is the statue in effect at the time of the application, not the statute in effect at the time of the out-of-state conviction? 3) Did ACM err in adopting a “substantial evidence” test that fails to provide clear criteria for determining the equivalence of out-of-state offenses and affords unreasonable deference to the agency’s changing statutory interpretations? 4) Did ACM err in finding that a “reasonable mind” could accept the MSP’s conclusion, given that MSP’s conclusion has abruptly and inexplicably changed absent any changes to the relevant facts or law?
In the Matter of the Petition of the Maryland Office of People’s Counsel – Case No. 11, September Term, 2023
Issues – Public Utilities – 1) Should the Public Service Commission’s interpretation of the Merger Order be given the usual deference afforded Commission evidentiary findings, rather than reviewed in the light of the parties’ reasonable understanding of the Merger Order at the time it was issued? 2) Does an increase of $7.8 million in corporate costs post-merger comply with the Merger Order’s plain language, intent, and purpose that the merger produce “tangible financial benefits” in the form of a “reduction in distribution rates” for customers?
Maryland Appellate Blog 