Chapter 18 PETITIONS FOR CERTIORARI—VIEW FROM THE BAR

• Jurisdiction: Maryland

Chapter 18 PETITIONS FOR CERTIORARI—VIEW FROM THE BAR

William J. Murphy, John J. Connolly, and Samantha A. Miller

I. CERTIORARI IN THE SUPREME COURT OF MARYLAND

A. Introduction

For most litigants, petitioning for certiorari is the only way to obtain review in the Supreme Court of Maryland. Generally, more than half of the Court's docket consists of cases arising from certiorari petitions. The principal exceptions are writs of certiorari issued on the Court's own motion, bar disciplinary matters, and cases certified from other state or federal courts.¹

The Supreme Court received roughly 500 petitions for certiorari in fiscal years 2019 through 2021.² Generally, each of the judges reads all the petitions to the extent necessary to decide how that judge will vote. This contrasts with the practice at the U.S. Supreme Court, for example, where the law clerks do much of the certiorari screening and the justices have created a l abor pool to divide the workload. Petitioners before the Supreme Court of Maryland should keep in mind that each judge has roughly one and a half petitions to read each day of the year, on top of his or her regular duties. The judges ordinarily read and decide petitions in batches, but that is even more reason to keep the petition brief, clear, and provocative.

The volume of the certiorari workload also suggests that the certiorari rules should be scrupulously followed. They are, after all, promulgated by the Court itself. Petitioners can assume that the judges like to see their rules followed, and indeed the Court has authority to deny a petition if certain rules are disregarded. See Md. Rule 8-303(c). Additionally, a meticulous petition may suggest to the Court not only that the petition presents an important issue, but that the petitioner's lawyer will present that issue well.

The Clerk's office bundles petitions and answers and sends them periodically to the seven judges in batches. The judges read the petitions privately and then vote on them in group conferences. Three judges must vote to hear a case before certiorari will be granted. A petition is not likely to cause agonizing debate or generate lengthy research before the judges reach a decision. As a group, the judges have a broad understanding of recent Maryland law, having written much of it themselves, and they are adept at recognizing issues of importance to Maryland. A long recital on the Court's position on statutory interpretation, for instance, is likely to be unproductive. A better strategy is to identify the heart of the conflict, inform the judges about relevant law they are not likely to be familiar with, and explain why the facts at issue present a wonderful opportunity to fix an anomaly in existing law that has bedeviled many litigants, or the circuit courts, and that is likely to recur.

The certiorari procedure discussed in this chapter relates to the Supreme Court of Maryland only. It should not be confused with the certiorari procedure available at the circuit court level to review certain decisions of inferior tribunals.³

B. Preserving the Issues

Careful litigators are aware of most "certworthy" issues well before they sit down to draft a petition for certiorari. A modicum of research and planning prior to trial, and preservation of the record during trial, could save a frantic search for an appellate issue after an unfavorable judgment. The details underlying this simple advice have been well considered elsewhere.⁴ But it bears repeating that if trial research discloses a relevant area of law that is not very well developed in Maryland, the lawyer should ensure that the trial judge clearly rules on the issue and that the written record clearly reflects the ruling. Although careful preservation of an issue cannot guarantee a grant of certiorari, a failure to preserve almost certainly will result in denial.

C. Who May Petition

The first step in petitioning for certiorari is to ensure that the Supreme Court of Maryland has the power to grant the writ in the case, should the judges be so inclined. A quick review of Md. Code Ann., Courts & Judicial Proceedings II §§ 12-201 to 12-203 and 12-305 would be useful. Section 12-201 provides that "any party" may file a petition to review "any case or proceeding pending in or decided by the [Appellate Court of Maryland] upon appeal from a circuit court or an orphans' court or the Maryland Tax Court." Although the Supreme Court has broad discretion to issue the writ, the code lists five specific categories of cases in which the court has no authority to do so.⁵ The judges will not look kindly upon receiving a petition for certiorari from denial of leave to appeal in a post-conviction proceeding, for instance.⁶

Petitioners should also ensure that a final judgment was entered at the trial court level, assuming the case does not fall within one of the exceptions to the rule of finality. The final judgment rule is trickier than it might appear, and few people understand the arcana of the rule like appellate judges, who have authority to consider it sua sponte.⁷ Even if the case has been decided on the same record by the Appellate Court of Maryland, the Supreme Court justices will check for finality in the circuit court.⁸ Thus, lawyers would be wise to spend a few minutes of their time at the beginning of the certiorari process to ensure finality, lest they end the process by reading a dissertation on the final judgment rule rather than on the merits of their case.⁹ Chapter 16 of this treatise addresses the final judgment rule.

The appellate rules require a petition to include a copy of "the docket entry evidencing the judgment of the circuit court."¹⁰ This rule enables the Court to ensure that the petition is timely when the case below was an appeal from the district court to a circuit court, see Md. Rule 8-302(b), (d), and to ensure that a final judgment was entered in the circuit court in all cases within the final judgment rule, see Md. Rule 2-601(b).¹¹ "[I]n order for a judgment to be considered final and appealable in Maryland, two criteria must be met. The judgment must settle the rights of the parties, thereby concluding the cause of action, and the judgment must be entered on the docket."¹² Although the Court has authority to enter final judgment if the trial judge had discretion to direct the entry of a final judgment under Md. Rule 2-602(b), see Md. Rule 8-602(g)(1)(C), the Court is not required to do so and could choose to dismiss the appeal.

The final judgment rule is especially treacherous when the case contains multiple parties and claims. Make sure the docket reflects that judgment has been entered on all cross-claims, counterclaims, and third party claims, see Md. Rule 2-602(a), even if those claims are moot after the entry of judgment on the main claim, see Shofer v. Stuart Hack Co.,324 Md. 92, 98, 595 A.2d 1078, 1080-81 (1991). See Chapter 16 for a discussion of final judgments.

D. Rules for Petitioning

1. Deadlines

Maryland Rules 8-302 and 8-303 govern most of the procedural aspects of petitioning for certiorari. In the ordinary case, the first step is to file a notice of appeal to the Appellate Court of Maryland. The rules afford the parties an unusually broad time period in which to petition for certiorari, at least for cases appealable to the Appellate Court, although practical considerations may shorten the window of opportunity. Under Md. Rule 8-302(a), if a notice of appeal to the Appellate Court has been filed, "a petition for a writ of certiorari may be filed either before or after the [Appellate Court of Maryland] has rendered a decision, but not later than the later of 15 days after the [Appellate Court of Maryland] issues its mandate or 30 days after the filing of that court's opinion."¹³

When the case below was an appeal to a circuit court, there may be no right of direct appeal to the Appellate Court, and hence further appellate review may be available only by petitioning for certiorari.¹⁴ In these cases a petition must be filed not later than 30 days after entry of the judgment in the circuit court.¹⁵ Note that entry of judgment is defined to mean "the day when the clerk of the lower court enters a record on the docket of the electronic case management system used by that court."¹⁶ In a civil case, the filing of a motion for a new trial or, in a court trial, a motion to alter or amend the judgment, may delay the time for filing the petition.¹⁷ A petition filed prior to withdrawal or disposition of either of these motions "has no effect, and a new petition must be filed within the time specified in this section."¹⁸ In criminal cases, when a motion for a new trial is filed pursuant to Md. Rule 4-331(a), the petition may be filed within 30 days after the later of entry of the judgment or entry of a notice withdrawing the motion or an order denying the motion.¹⁹ The special rules that apply when post-judgment motions are pending in a matter on appeal to a circuit court are now materially different from the rules for filing a timely notice of appeal to the Appellate Court. See Md. Rule 8-202. Maryland Rule 8-202(c) was amended in 2002 to eliminate one post-judgment trap for the unwary: a notice of appeal filed before a timely post-judgment motion is now "treated as filed on the same day as, but after, the entry of a notice withdrawing the motion or an order disposing of it." The trap remains for petitions filed under Md. Rule 8-302(b) after an appeal to a circuit court.

An "answer" to a petition "stating why the writ should be denied," although not required, is due 15 days after service of the petition or cross petition, unless an amicus brief has been filed.²⁰ And "[i]f a timely petition for a writ of certiorari is filed by a party, any other party may file a petition for a writ of certiorari within 15 days after the date on which the first timely petition was filed or within any applicable time otherwise prescribed by this Rule, whichever is...