Lessons After the First 60 Days of 2023 with the Appellate and Supreme Courts of Maryland
As most people know, in November 2022, Maryland voters approved a constitutional amendment changing the names of the appellate courts. On December 14, 2022, the switch flipped—the Court of Appeals became the Supreme Court of Maryland, and the Court of Special Appeals became the Appellate Court of Maryland. Judges of the Supreme Court of Maryland became “Justices.”
Whether you welcomed this change because it reduces confusion (“wait, so the Court of Special Appeals hears everything?”) or you were fine with the old names and saw no reason to upset the apple cart, the deed is done. Supreme Court of Maryland and Appellate Court of Maryland it is. The only question at this point is one that Steve Klepper wrote about back in December: how to refer to the appellate courts in the past tense?
When Steve wrote his post, the name change was not yet official, and the courts had offered no guidance. We thought perhaps there would be an official policy statement, or a style guide expressing preferences based upon the circumstances. To my knowledge, no such policy or statement of preferences has been issued. What we have now that we didn’t have in December, however, is opinions written by the courts under the new name regime. I have done an unofficial survey of the opinions (published and unpublished) written between December 14, 2022 and February 8, 2023. Here is what I learned:
Read More…Law on Imperfect Self-Defense is Still… Imperfect
Back in November 2016, less than two weeks before I left the Appellate Blog for a long foray as a Governor’s Office lawyer, I wrote my final post about the Court of Special Appeals’ decision in Porter v. State and the panel’s struggles with imperfect self-defense. How odd, then, that in my return more than six years later, the first split Appellate Court decision I come across is… a panel applying Porter and struggling with imperfect self-defense. With that coincidence, I guess I’ll just pick up where I left off.
To set the stage — when proven, imperfect self-defense negates the element of malice, which drops a murder charge to voluntary manslaughter. At least in Maryland, it comes into play when the perpetrator was not the “aggressor” and had the subjective beliefs, no matter how unreasonable, that:
- a potential assailant posed an imminent or immediate danger of serious bodily harm;
- the amount of force used to respond was necessary; and
- retreat was not safe.
To generate a jury instruction on imperfect self-defense, a defendant need only produce “some evidence” of these subjective beliefs.
Read More…Conditional Cross-Appeals After Korotki
By Barnett Harris (Twitter: @BarnettHarris_)
Guest Contributor[*]
A new decision from the Court of Appeals says that even when you think you’ve won you must file a conditional cross appeal or risk losing the whole thing. The Court of Appeals recently ruled that an individual who failed to file a conditional cross appeal could not revisit that determination on remanded because that determination is considered a “final judgment” under Maryland law—which resulted in a million-dollar judgment going to zero. The decision will likely have broad implications for the Maryland bar.
The case, MAS Assocs., LLC v. Korotki, centered on a dispute over a business arrangement. Harry Korotki invested both his time and $275,000 in the business. When the business broke up, Korotki filed suit. Korotki’s principal claim was that he was a partner in the business: that the money he invested was the purchase of a share, the work he performed was as a partner, and that on termination, he was he entitled to the value a share of the business. Korotki argued in the alternative that he was an employee of the business and the $275,000 he gave was a loan to the business. As a result, Korotki’s alternative argument was that he was owed repayment of the loan and wages.
Read More…The End of Frye-Reed
Maryland’s Frye-Reed era appears to be ending. Last month, in Savage v. State,[1] the Court of Appeals handed down a significant decision on “the proper scope for the threshold evaluation of expert scientific evidence” under Maryland’s “Frye–Reed” test. Although the Frye-Reed test, as originally envisioned, would preclude only opinions based on novel scientific methodologies that were not “generally accepted as reliable within the expert’s particular scientific field,”[2] its scope has greatly expanded in recent decades. The Savage opinion highlights that Frye-Reed now precludes opinions, even those based on methodologies that are both (1) not novel and (2) generally accepted, if the reasoning behind the opinion is simply unreliable. Under Savage, the Frye-Reed inquiry requires trial judges—regardless of whether the expert’s underlying methodology is well-established and valid—to examine “whether the expert bridged the ‘analytical gap’ between accepted science and his ultimate conclusion in a particular case.”
How did we get here and where are we headed? Read More…
Supreme Court requests response to State’s petition on marijuana odor
[Update, 10/2/2017: The Supreme Court has denied certiorari.]
This March, the Court of Appeals of Maryland held in Norman v. State that an “odor of marijuana alone emanating from a vehicle with multiple occupants does not give rise to reasonable articulable suspicion that the vehicle’s occupants are armed and dangerous and subject to frisk.”
The State of Maryland petitioned for certiorari to the Supreme Court of the United States, posing the following question: Read More…
With All Administrative Speed
By Steve Klepper (Twitter: @MDAppeal)
The June 21 opinion of the Court of Appeals of Maryland in National Waste Managers, Inc. v. Forks of the Patxuent Improvement Association illustrates a serious problem with judicial review of state administrative decisions. The process takes a long time, often to accomplish very little. Read More…
Another September 2016 Certiorari Grant
Though the usual collection of Court of Appeals certiorari grants came a little earlier than expected this month, the judges’ regularly scheduled monthly conference did result in one more:
State of Maryland v. Douglas Ford Bey II – Case No. 48, September Term, 2016
Issue – Criminal Law – Did CSA err in concluding that Criminal Law § 3-315, which prohibits engaging in a continuing course of conduct with a child, prohibits more than one conviction and sentence per victim, regardless of the duration of the abuse or the type of sexual acts committed?
Bey poses some interesting questions of interpretation that prompted a short concurrence by Judge Friedman in the lower appellate court. (The Court also summarily granted certiorari and remanded to the Court of Special Appeals the case of Antwann Gibson v. State of Maryland – Case No. 48, September Term, 2016.)
COSA Dissent Watch: Marijuana Odors and Pat-Downs
The case: Norman v. State, Sept. Term 2015, No. 1408 (Aug. 11, 2016)
The questions: Was the odor of marijuana effectively the only justification for a police officer’s alleged belief that a passenger in a vehicle was armed and dangerous? If so, is that belief reasonable for the purposes of the Fourth Amendment?
August 2016 Maryland Certiorari Grants
It’s been a slightly elongated layover since the Maryland Court of Appeals made their July certiorari decisions, but, with nine new cases, it’s clear the gears are starting to grind for the upcoming term. Included in the mix is Johnson v. State (we called it!), the much-publicized prosecution for the murder of Phylicia Barnes that ended in acquittal… or did it? Some big double-jeopardy questions in that one for the Court to figure out. Check out the rest of the grants after the jump.
Fifteen Days to Go, and an Avalanche — 15 — Maryland Court of Appeals Cases Left to Decide!
By Michael Wein
Last year, with about one week to go before the Maryland Court of Appeals’ self-imposed deadline for deciding all cases in a September term by the following August, the Court had only four cases left to decide. Per the “Pending Cases” page on the Court of Appeals’ web site, with two weeks to go before this year’s deadline, 15 decisions are left to decide. Of these 15 cases, seven are civil, six are criminal, one is an Attorney Grievance matter (which the oral arguments indicate was, interestingly, remanded back to the trial judge for additional findings and re-argued in the same term), and one is a Bar application case.
Maryland Appellate Blog 