Unreported opinions serve a valuable role by assisting courts in addressing dispute resolution appeals that do not break new ground. That may present an unresolved issue under the Maryland Rule, because, if an unreported federal decision is cited in a Maryland court, treatment under the Maryland Rule is dependent on the federal treatment, which is unspecified. Richman, “Much Ado About the Tip of an Iceberg,” 62 Wash.
See Proposal to Eliminate Judicial Disappearing Ink accord, W. 32.1 does not state what impact, if any, those opinions may have. However, while citation is permitted, Fed.R.App.P. That, of course, is much broader than the new Maryland Rule.
32.1 provides that courts may not restrict citation of unpublished opinions issued after January 1, 2007. While, in my view, new Maryland Rule 1-104 is not perfect and reflects some compromises, it is a substantial improvement however, the federal approach is dissimilar from the amended Maryland Rule.įed.R.App.P. The citation shall indicate whether the opinion is precedent in the issuing jurisdiction.” Unreported opinions issued by other jurisdictions “may be cited as persuasive authority if the jurisdiction in which the opinion was issued would permit it to be cited as persuasive authority or as precedent. Second, post-July 1, 2023, unreported opinions may be cited as persuasive “only if no reported authority adequately addresses an issue before the court.” First, per curiam opinions, and opinions issued before July 1, 2023, may not be cited at all. Unreported Maryland appellate decisions may be cited as “persuasive authority” under specific, limited conditions. Under the new Rule, unreported Maryland decisions may be treated differently than unreported out-of-state or federal decisions. However, the new rule makes substantial changes regarding citation of unreported decisions as persuasive. Under the new Rule, unreported Maryland decisions may be treated differently than unreported out-of-state or federal decisions.Īs before, those opinions may not be cited as precedent. By Rules Order dated April 21, 2023, an amended rule governing citation of unreported appellate decisions has been promulgated. įortunately, Maryland Rule 1-104 has reached its endpoint. 21, 2022), the Court described a cell phone discovery issue as “a case of first impression….” Nevertheless, its decision was unreported and cannot be cited, even as persuasive. For a recent e-discovery example, see Maryland Appellate Decision Permitting Limited Forensic Search of Non-Parties’ Cell Phones. Some unreported decisions decided novel issues. They could not be cited as precedent or as persuasive authority. Under that Rule, unreported decisions were essentially judicial disappearing ink. Until now, Maryland Rule 1-104 prohibited the citation of unreported appellate decisions, with a few very limited exceptions. Those differences may present an unresolved issue if an unreported federal decision is cited to a Maryland State court. The Supreme Court of Maryland has approved a proposal to eliminate judicial disappearing ink. However, Maryland has not followed the approach of the Federal Rules of Appellate Procedure.
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