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Editorial: Improvidence is not an explanation

We all make mistakes. Admitting them is a good first step. But when the state’s highest court makes a mistake, admitting it is not enough.

As The Daily Record’s Steve Lash reported this week, the Maryland Court of Appeals has owned up to 12 mistakes in the last 12 months. That’s how many cases it agreed to hear — and indeed, did hear — before deciding that, really, it should not have heard them.

To put that number in context, the court only agrees to hear about 120 cases in an average year. Out of seven judges on the court, three must agree that it would be “desirable and in the public interest” to decide the case. The judges look for public policy issues, evolving areas of law, cases that will have an impact.

For the few lawyers whose petitions make the grade, the following months are spent in paperwork and preparation, at no small expense, as they ready themselves and their clients for their hour upon Maryland’s ultimate stage of law.

Then, when it is all over but the waiting, imagine getting a 50-word order with a two-word message: Never mind.

Why? What happened? The court does not say.

Were the judges who voted to hear the case misinformed? Did they misjudge its importance? Was there something about this particular litigant or fact pattern that made the court bow out?

The order provides no clue, saying only that the petition was “improvidently granted.”

That creates an information vacuum that can be filled only by trial and error and a new set of hopeful petitioners. That’s a poor use of resources, both private and public.

It is also fundamentally discourteous, which sets the wrong tone for a court that professes concern for civility in the legal profession. In what other realm is it considered civil to back out of a longstanding commitment without comment?

Chalking it up to an improvident act is not sufficient. The public deserves an explanation.

3 comments

  1. Agreed.

    The economic realities are such for many clients that while a review by the Court of Appeals is frequently the conceptually desirable course, the expense & resource commitment to development & filing of a petition for cert followed by what may be a briefing & 2d appellate argument to that Court if the CSA has already considered a case, considered in light of the very low and apparently random prospects of having cert granted no matter how apparently significant the issue, raises a legitimate question of cost-effectiveness for many clients as to whether to even bother filing a petition with the Court of Appeals.

  2. I understand why the court does not issue the basis for its “improvidently granted” decision. Providing a reason will result in endless relitigation when the party files a Motion for Reconsideration explaining why the court is wrong. Then the other side, who of course will receive that motion, will respond explaining why the other party is wrong. Then the court will have to respond to the motion, and on and on. An astute lawyer can usually figure out the reason the order was issued based on the questioning during the oral argument. It has nothing to do with civility or being discourteous.

  3. Another problem is that the explanation could become a precedent, when the whole idea is to avoid a ‎precedent from the record presented by the case. Suppose the Court of Appeals has granted ‎certiorari to consider whether a circuit court had authority to conduct a trial de novo on an appeal ‎from the district court in a case that involved more than $5000. See Md. Code Ann., Cts. & Jud. ‎Proc. § 12-401(f). After reviewing the briefs and hearing argument, a majority of the Court ‎realizes that the petitioner himself asked the circuit court to conduct the trial de novo. The Court ‎concludes that the question presented is complicated by principles of waiver and equity, and ‎therefore decides to dismiss the writ. If the Court explains its decision, it has effectively ‎announced that waiver and equity might affect authority to conduct de novo trials in district ‎court appeals. The Court’s explanation might well be helpful, but that was not the issue the ‎Court wanted to decide, and that issue may not have been fully briefed and argued. The purpose ‎of certiorari jurisdiction is to free the Court to select cases most likely to result in a fair and useful ‎precedent on issues of public importance.

    Although the specific reason for a DIG is seldom provided, the list of possibilities is not all that ‎long. As the Daily Record has pointed out, from time to time individual judges dissent from a ‎DIG, and those dissenting opinions have explained the basic standard. The facts in the ‎preceding paragraph, for instance, are drawn from a dissent written by Chief Judge Bell in ‎Jacobson v. Sol Levinson & Bros., 371 Md. 442 (2002). “Judging from the tenor of the ‎questions” at oral argument, Chief Judge Bell explained, “it is fair to say that the petitioner’s ‎position was not perceived by the Court to be very strong from the standpoint of equity.” He ‎also cited his dissent in Koenig v. State, 368 Md. 150 (2002), which explained that DIGs ‎typically occur in two instances: when “briefing and argument have disclosed that the issue for ‎which certiorari was granted is not, in fact, presented by the case, [or] need not, or cannot, be ‎reached on the merits”; and when “[s]ubsequent events, such as legislative action, . . . render the ‎issue less important or its impact less extensive, making the decision to await another case ‎proper.” Chief Judge Bell dissented from DIGs in Jacobson and Koenig because he concluded ‎neither situation applied.‎

    It is a fair for lawyers who briefed an appeal, and clients who paid for it, to feel frustrated when ‎that work and expense yields nothing, and the court should limit DIGs as much as possible. But ‎admitting mistake, however obliquely, is a meaningful event for a court of last resort, and in this ‎context it is probably more an act of grace than of shame. If explanations were given, no doubt ‎many would start, “The petition for certiorari failed to disclose that . . . .” By accepting some ‎measure of blame and moving on, the court reminds the parties that certiorari jurisdiction is ‎fundamentally discretionary; that the court didn’t have to take the case in the first place; and that ‎it now accepts that its prior exercise of discretion was improvident. That’s as close to an apology ‎as any litigant or lawyer is likely to get from a high court.

    A DIG is the Court’s way of saying, “We should not speak on this issue.” An explanation would ‎be tantamount to adding, “And here is what we should not say.” ‎

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