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Dissension hits Md.’s top court less than 25 percent of the time

Judges Watts, McDonald dissent most often, review reveals

(Photo Illustration by Maximilian Franz)

(Photo Illustration by Maximilian Franz)

Attorneys arguing before Maryland’s top court should heed the adage that you cannot convince everyone every time, even though the Court of Appeals has been in agreement in an overwhelming percentage of its cases.

Since the beginning of 2016, the high court has rendered a dissenting opinion in almost 25 percent of its non-attorney grievance cases, according to a Daily Record analysis.

The dissent rate of less-than-one-in-four strikes law professor Byron L. Warnken as a “pretty realistic rate” of disagreement for the court.

“You’ve got some bright judges,” said Warnken, who teaches at the University of Baltimore School of Law. “It’s kind of ridiculous to think they would always be in agreement.”

When dissension has arisen, the judges most often splitting from the majority were Shirley M. Watts and Robert N. McDonald, at 13 times each, while Sally D. Adkins was most often a sole dissenter among the court’s seven active judges.

Chief Judge Mary Ellen Barbera dissented in eight cases and wrote a dissent in three.

The legal issues generating dissents were eclectic, including criminal, environmental, insurance, family and estate law.

These figures are based on 150 signed decisions (not including attorney grievance matters) between Jan. 1, 2016, and July 31, 2017. Of those 150 cases, at least one dissenting opinion was written in 35 of them, or 23.3 percent.

By comparison, at least one dissenting opinion was written in 26.7 percent of the final 150 signed decisions during the tenure of Chief Judge Robert M. Bell, whom Barbera succeeded in 2013.

Former Court of Appeals Judge Joseph F. Murphy Jr. said dissenting opinions are “healthy” for the fleshing out of legal principles.

“A robust discussion of an important issue never hurt anybody,” said Murphy, a frequent dissenter on the bench and now an attorney with Silverman Thompson Slutkin White LLC in Baltimore. “People benefit from it.”

Respectful disagreement

When they do dissent, the Court of Appeals judges are respectful of the majority view. In fact, the dissenters often state they “respectfully” disagree with the court’s decision.

Watts, who dissented in 13 cases, was the most prolific writer, explaining her reasoning in 10 cases. She authored perhaps the most biting dissent in the last two years, disagreeing in February with the majority overturning its 2005 ruling that permitted first-degree assaults to be a predicate offense for a second-degree felony murder if the victim dies.

It was evidently not lost on Watts – and those who joined her dissent – that Judge Irma S. Raker, who dissented from that 2005 decision in Roary v. Maryland as an active judge, wrote the precedent-breaking majority opinion in Maryland v. Tyshon Leteek Jones as a retired jurist sitting by special assignment.

“Respectfully, a review of the majority opinion demonstrates that it is simply a rewrite of the dissenting opinion in Roary,” wrote Watts, joined by Judges Clayton Greene Jr. and Lynne A. Battaglia, also a retired judge sitting by special assignment.

Watts added that “it is not a basis for overruling a case that someone, perhaps even another judge, expresses disagreement with the case’s outcome. Otherwise, anytime an opinion of this court were criticized, it would be subject to being overruled.”

McDonald, who also dissented 13 times, has explained his objections in nine cases since January 2016.

Judge Joseph M. Getty, though only on the court since September, has not been reticent about expressing his disagreement, writing five minority opinions in less than a year.

Adkins was alone in dissent in three cases, followed by McDonald and Getty, with two solos each, and Judge Michele D. Hotten with one.

Of the Court of Appeals’ 150 decisions, 13 were reached by the slimmest of majorities, a 4-3 vote.

Why write?

So why should a Court of Appeals judge bother writing a losing opinion?

Warnken, the law profession, said judges often do so in the hope that “today’s dissent becomes tomorrow’s majority” opinion.

Former Maryland Attorney General Douglas F. Gansler said he believes the strength of a dissent helped convince the Supreme Court to review and overturn, at his request, the Court of Appeals’ 2008 decision that suspects in custody cannot ever be questioned by police once they invoke their right to counsel.

Then-Judge Glenn T. Harrell Jr., in the dissent, said a suspect’s invocation should not render him or her “forever unquestionable” but rather the police can at a later date ask him or her again if he or she wants counsel. In 2010, the Supreme Court “clearly adopted” Harrell’s rationale in Maryland v. Shatzer, Gansler said, holding that an invocation of the right to counsel lasts for 14 days, after which the suspect must against be advised of his right to counsel before being questioned.

“Dissenting opinions are critical” when seeking Supreme Court review, Gansler said. “A strong, well-written dissent shows (the justices) that the court had considered the arguments from both sides.”

‘Greatest service’

A Supreme Court appeal could be in the offing based on Hotten’s dissent last month in the Court of Appeals’ 4-3 decision that Baltimore detectives did not violate a suspected killer’s constitutional rights by essentially erecting a cellphone tower to find him. The case, State of Maryland v. Robert L. Copes Jr., addresses the Fourth Amendment prohibition on unreasonable searches.

Hotten, joined by Greene and Adkins, said the police could not have relied in good faith upon a court order authorizing the search by mock cell tower because the document failed to describe the technology to be used and to place identifiable limits on the scope of the search so as not to include such a wide breadth of cellphones.

The dissent could serve as the opening argument in Copes’ petition for Supreme Court review should he and the Maryland public defender’s office choose to appeal.

“Where … a law enforcement officer does not rely on a statute that details the type of technology the warrant… would apply to,” Hotten wrote, “he or she is required to provide a description of the technology he or she intends to use in sufficient detail for an issuing judge to appreciate the scope of the potential infringement on a person’s Fourth Amendment privacy interests, and the officer’s failure to do so results in a warrant so deficient on its face that the good faith exception to the exclusionary rule should not apply.”

Ultimately, lawyers who lose – but not unanimously – at the Court of Appeals can take heart, said appellate attorney Steven M. Klepper, of Kramon & Graham P.A. in Baltimore.

“A dissenting opinion is one of the greatest services that a court can provide for client relations,” Klepper said. “What it does is show that you were able to get your points across to at least one judge. The dissent is a way to tell your client that you weren’t tilting at windmills.”

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