By Michael Wein
In my January 19 post about the online Court of Special Appeals documents for the prosecution of the officers charged in Freddie Gray’s death, I indicated that, as an inherently “cert-worthy” case, it would not be surprising if one of the parties sought certiorari and it ended up in the Court of Appeals. On Wednesday, that happened, as the Attorney General’s Office sought, in multiple filings (as seen on the Court of Appeal’s “Highlighted Cases” page), expedited review and a ruling that would apply in the prosecutions of the other five officers as to whether the Supreme Court’s opinion in Kastigar v. United States and Md. Code, Cts. & Jud. Proc. § 9-123 allow or prevent the admission of fellow officer William Porter’s previous testimony from his mistrial given that he will be tried again. Also at issue is the authority of the trial judge to refuse to stay three of the officers’ cases after making a pretrial evidentiary ruling relying on the State’s representation that Officer Porter’s testimony was not necessary.
Although the Court of Appeals of Maryland’s Standing Committee on Rules of Practice and Procedure meets regularly, and the Court routinely considers proposed changes to the Maryland Rules, their activities impact the appellate rules with less frequency than a blue moon.* In September, however, the Court of Appeals adopted a number of modifications to the appellate rules that will apply to practitioners beginning January 1, 2016.
By Michael Wein
A lot of lively discussion ensued on this Blog and others on the proposed revisions to Md. Rule 1-104. There was a general positive reaction to the news that, for the first time, unreported opinions from the Court of Special Appeals (about 90 percent of the appellate opinions in the state) would by end of this year be made available online on the Judiciary website. Most commentary, however, focused on the proposed revisions to 1-104 that would expand the prohibition on citation of Maryland unreported opinions to include all “non-precedential,” “unreported,” and “unpublished” opinions, thereby broadly sweeping away an enormous number of previously citable decisions from across the nation, including all state and federal trial and appellate courts.
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.
In the comedy film classic Animal House, Delta Tau Chi pledge-master, and future U.S. Senator, John Blutarsky asks and then answers a crucial question: “Did you say ‘over’? Nothing is over until we decide it is.” Judge Robert McDonald recently gave similar advice to the Maryland bar. In Hiob v. Progressive Am. Ins. Co., Case No. 4, Sept. Term 2014 (Md. Nov. 20, 2014), Judge McDonald explained that there is no appealable judgment until there is both (1) a final judgment that is (2) also set forth in a separate document signed by a judge or the clerk and entered on the court docket. Thus, even if there is a final adjudication on all claims involving all parties, that final judgment is not appealable until the court enters and dockets a separate document, signed by a judge or the clerk, evidencing that final judgment. In short, nothing is over (and appealable) until the trial court says it is.
With no fanfare, the Court of Appeals of Maryland has ended an internal practice that was unusual among state high courts. At the May meeting of the MSBA Litigation Section Council, Court of Appeals Judge (and Section Chair) Glenn Harrell informed the council that the Court of Appeals has, effective immediately, disbanded its Bypass Committee.
By Michael Wein
I’m sure there are some Maryland attorneys who, like me, look forward to receiving a hardcopy of the two-volume Maryland Rules from Lexis annually around Christmas. The hardcopy is supposed to catalogue the most updated Rules. Unfortunately, it appears that the new Rules from the late November 2013 Court of Appeals meeting, which took effect on January 1, 2014, were omitted. Therefore as a courtesy, I am reiterating that readers, before filing their certiorari, merits, or amici briefs, should review the actual Rules that took effect on January 1. Read More…