Event: Recent Impact Decisions of the Maryland Appellate Courts
From the Maryland Appellate Blog’s inbox:
THE LITIGATION SECTION OF THE MARYLAND STATE BAR ASS’N AND ITS APPELLATE PRACTICE COMMITTEE
PRESENT
Recent Impact Decisions of the Maryland Appellate Courts
Thursday, March 19, 2015
5:00 – 8:00 p.m.
Court of Appeals of Maryland
Robert C. Murphy Courts of Appeal Building
Fourth Floor 361 Rowe Boulevard Annapolis, MD 21401
5:00 – 6:00 p.m. Social Hour Reception – Foyer to the Courtroom
(front doors to the Courthouse close at 6:00 p.m.)
Cash Bar (Beer & Wine) & Heavy Hors D’oeuvres
6:00 p.m. – 8:00 p.m. – Court of Appeals Courtroom
Speaker Presentations and Audience Questions
$10.00 for MSBA Litigation Section
$25.00 for others
SPEAKERS:
HON. ALAN M. WILNER, Judge (retired), Court of Appeals of Maryland
RENÉE HUTCHINS, Professor of Law, University of Maryland Frances King Carey School of Law
BRUCE L. MARCUS, ESQUIRE, MarcusBonsib LLC
SPACE IS LIMITED
Please register on-line at http://www.msba.org/RecentImpactDecisionsMarch2015.aspx
Serial Comes to the Maryland Appellate Courts
Fans of the Serial podcast: You might be interested in this new press release from the Court of Special Appeals. Read More…
Hiob: Nothing Is Over Until the Court Decides It Is
In the comedy film classic Animal House, Delta Tau Chi pledge-master, and future U.S. Senator, John Blutarsky[1] 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.
Court of Special Appeals sails uncharted waters of FDCA preemption right into monsters of Greek mythology
In McCormick v. Medtronic, Inc., Ct. of Spec. App. Md., No. 670, Sept. Term 2013 (Oct. 6, 2014), the Court of Special Appeals recently decided a preemption issue that is percolating up through courts around the country: the extent to which federal law preempts state claims for personal injuries resulting from “off-label” promotion of a medical device. Most of the decisions that have come out so far on this question have been issued by federal district courts; the CSA’s opinion was one of the first appellate decisions to tackle it. Given the careful and thoughtful treatment the CSA gave the issue, McCormick likely will be an influential decision as more appellate courts weigh in on this question. As noted below, at one point the Court compared express and implied preemption to Scylla and Charybdis, two monsters from Greek mythology – perhaps a somewhat overblown analogy, but, for those of us who appreciate the ancient myths and find preemption analysis sometimes a bit dry, the allusion was a welcome addition to the opinion.
Maryland Court of Appeals Ends Unusual Certiorari Procedure
By Steve Klepper (Twitter: @MDAppeal)
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.
Judge Arthur Publishes His First Opinion
Court of Special Appeals Judge (and former Maryland Appellate Blog editor) Kevin Arthur has published his first opinion: White v. Register of Wills, — Md. App. — (May 1, 2014). It comes less than six weeks after he joined the Court. It’s as concise and well-written as we here at the Maryland Appellate Blog expected.
Not to Worry: A Comment on Today’s Dissent in Ray v. State
By Steve Klepper (Twitter: @MDAppeal)
(This post has been updated to address some points I overlooked in my original post. The irony.)
Today the Court of Appeals, in Ray v. State, issued useful guidance on the limits on an appellate court’s discretion under Md. Rule 8-131(a) to consider the merits of a waived claim. The five-judge majority, in an opinion by new Chief Judge Barbera, held that the Court of Special Appeals, in an opinion by new Court of Appeals Judge Watts, erroneously reached the merits of the defendant’s claim in Ray v. State, 206 Md. App. 309 (2012).
Two judges dissented. The dissent “agree[d] that the Court of Special Appeals erred in concluding that the matter was a proper subject of appellate review.” Nevertheless, the dissent “disagree[d] with the Majority’s failure to vacate the Court of Special Appeals’ holding about the merits of Ray’s Fourth Amendment claim—a decision that rests on an expanded and worrisome interpretation of Maryland v. Pringle, 540 U.S. 366, 124 S. Ct. 795 (2003) …. This means that the Court of Special Appeals’ holding will be applied by trial courts until the next time this Court decides a case applying Pringle in a similar context.”
Not to worry. The decision of the Court of Special Appeals on the merits of the question is now only dicta:
A Court of Special Appeals’ opinion underlying a judgment, which is reversed or vacated in its entirety by this Court on another ground, may, depending upon the strength of its reasoning, constitute some persuasive authority in the same sense as other dicta may constitute persuasive authority. Nonetheless, analytically the intermediate appellate court’s opinion is only dicta because it no longer supports or reflects a viable appellate judgment. Accordingly, such an opinion is not a precedent for purposes of stare decisis.
West v. State, 369 Md. 150, 797 A.2d 1278, 1282 (2002).
The wrinkle in Ray is that the Court of Appeals ultimately affirmed the judgment below, since the Court of Special Appeals had ruled against the defendant on the merits of the question that it should not have reached. But the principle in West still should prevail—since the Court of Special Appeals erred in reaching the question in the first place, its discussion on the merits is dicta.
Nevertheless, there is some potential for confusion, since a not-too-close review of the procedural history of the case would show “affirmed.” I’ve even seen practitioners, and occasionally judges, cite as precedential a case with the signal “reversed on other grounds,” without recognizing that the opinion below was rendered dicta. The lesson, though, is that one should always carefully review the procedural history of the case, rather than just being content that Westlaw or LEXIS shows the decision was affirmed.
But I do believe that that the dissent in Ray v. State is properly labeled a “concurrence,” since the opinion concurs with the disposition of the case by the Court of Appeals.
Maryland Appellate Blog 