With Mitchell v. Maryland Motor Vehicle Admin., Hard Cases Still Make Bad Law
The aged judicial adage, that hard cases make bad law — or, at least, not so good law — continues to hold true after the decision of the Court of Special Appeals in Mitchell v. Maryland Motor Vehicle Administration, Sept. Term 2014, No. 713 (Nov. 25, 2015).[i] Mitchell concerned a vehicular license plate displaying the Spanish word “mierda,” which translates as “shit” or, in Yiddish, “kakn” (as in “that’s a kakn bull story”), all terms that are often a useful expletive or noun in circumstances on the road and off. As vital or valuable to expression as those words may be generally (and regardless of the domestic dialect or foreign language in which they are spoken), there is, no doubt, something troublesome about their being displayed in traffic. In grappling with the matter in Mitchell, the Court of Special Appeals at least arguably reached the right result but for reasons that unduly and impermissibly compromise First Amendment protections in other contexts.
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.
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.
Montgomery County v. Fraternal Order of Police – Government’s Role at the Ballot Box: Round II
In an article here in January, I wrote about the doctrine of official or government speech. The post was prompted by the appeal pending in Montgomery County v. Fraternal Order of Police, Md. Ct. Spec. App., No. 175, which was decided by the Court of Special Appeals in April. Slip Op. (decided Apr. 3, 2015).[1] The court’s decision reversed, among other things, the Circuit Court’s ruling that the Appellants, Montgomery County and certain of its officials, had acted beyond their power and authority by making substantial use of public funds and resources to campaign in a general-election referendum in favor of legislation that the County Council had passed and that the County Executive had signed into law. According to the Circuit Court’s “Findings of Fact,” Appellants had unlawfully “engaged in electioneering and conducted a political campaign.” Id. at 11.
Non-Mutual Collateral Estoppel: A Shield, but is it a Sword?
Traditionally, the preclusive effects of res judicata and collateral estoppel applied only if the parties in the second case were the same as, or in privity with, the parties in the first case. This was commonly referred to as the “strict mutuality of parties” requirement, but the Court of Appeals “long ago discarded” that requirement for both res judicata and collateral estoppel. Caldor, Inc. v. Bowden, 330 Md. 632, 657 (1993) (citations omitted). Thus, it is now “irrelevant that the party seeking to assert collateral estoppel was not a party to the prior proceeding. Only the party against whom collateral estoppel is asserted need be a party or in privity with a party in the prior adjudication.” Id. at 657.
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.
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).
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.
The Importance of the New Maryland Daily Record Database of Unreported Court of Special Appeals Opinions
By Michael Wein
Last week, Chief Judge Mary Ellen Barbera delivered the State of the Judiciary address to the Maryland General Assembly, concluding, “The Judiciary is doing well and it is making strides in becoming smarter, more efficient and increasingly accessible to the public. The future presents challenges and opportunities alike, and the time is ripe for reasoned and thoughtful reforms.” (Both the written transcript and webcast links are available on the Judiciary website.) Along those lines, recent changes involving the statewide introduction of electronic filing are taking hold, and may help make Maryland’s intermediate appellate court, the Court of Special Appeals, more accessible and transparent. This corresponds with the recent launch by the Maryland Daily Record, as a benefit for its subscribers, of an online searchable catalog of the Court of Special Appeals’ unreported opinions from Jan. 1, 2014, on.
How to Speed Up the Serial Appeal
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.]
Fans of the Serial podcast received some good news and some bad news this weekend. The good news: the Court of Special Appeals granted Adnan Syed’s application for leave to appeal. His ineffective assistance of counsel claim will be heard on the merits during the court’s June 2015 sitting. But there was bad news for those who had trouble waiting between Serial installments: final resolution is going to take a while. As Sarah Koenig explained on her blog: Read More…
Maryland Appellate Blog 