Legal Magazine

Has the Separation of Powers Gone to the Dogs Now, Too?

Posted on the 16 July 2012 by Jslubinski @jslubinski

The Maryland Attorney General’s office released a statement a few days ago, opining that because the Court of Appeals has granted a motion to reconsider its opinion in the wrongfully-infamous pit bill case, that case “is not currently in effect.”

Well, what the heck does that mean?

The Attorney General seems to be suggesting that, because a mandate has not yet issued with respect to the Tracey v. Sobelesky decision, the Court’s ruling – that pit bulls should be considered inherently dangerous and therefore a basis for the imposition of strict liability – is not yet law. A mandate is basically an administrative docketing mechanism. It functions like an order to the lower court to take any necessary action to comply with the appellate court decision, if additional action is required. It is true that under the Maryland Rules of Procedure, the grant of a motion for reconsideration of an appellate court opinion delays the issuance of a mandate. But does the fact that the mandate hasn’t yet issued mean that the law announced by the opinion is not yet in effect?

I’m not so sure. Take a gander at Lemley v. Lemley, 109 Md. App. 620 (1996), in which the Court of Special Appeals stated that:

[T]he law as announced by an appellate court in its written opinion is in effect and controlling as of the date of the filing of the opinion. Firstman v. Atlantic Constr. & Supply, 28 Md. App. 285, 295, n. 12, 345 A.2d 118 (1975). The mandate serves to evidence the action of the appellate court on the particular judgment appealed from and to direct the lower court to proceed according to the tenor and directions of the opinion. Id. The docketing of the mandate is simply a clerical function. See Save the Trains Ass’n v. Chicago & N.W. Ry. Co., 168 Neb. 180, 95 N.W.2d 334 (1959) (stating that the issuance of a mandate is a ministerial act only, and that a bona fide judgment rendered by an appeals court may be relied and acted upon).

I have two questions. First, has the Office of the Attorney General reviewed Lemley v. Lemley? And second, is it appropriate for the Executive Branch to attempt to limit the effectiveness of judicial action, however much political capital may be a stake?


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