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COSA Changes Long-held Policy of Disallowing Unreported Opinions From Being Cited as Persuasive Authority

February 21, 2022 By Elaine R. Wilford

For years the Maryland Court of Special Appeals (“COSA”) has maintained a policy that, for persuasive value, it will not cite to any unreported federal or state court opinion in its opinions. Kendall v. Howard Cty., 204 Md. App. 440, 445 (2012), aff’d, 431 Md. 590 (2013); see also Poe v. IESI MD Corp., 243 Md. App. 243, 256 n.2 (2019); Oliveira v. Sugarman, 226 Md. App. 524, 553 (2016), aff’d, 451 Md. 208 (2017); Margolis v. Sandy Spring Bank, 221 Md. App. 703, 718 n.3 (2015).  In two reported opinions issued on September 7, 2021, the Court of Special Appeals announced it was reversing this policy.  In Gambrills v. Board of Education of Dorchester County, et al. and CX Reinsurance Company Limited, et al. v. Devon Johnson, et al., the COSA reversed this long-standing policy.

 In contrast, Maryland’s Court of Appeals has permitted and relied upon the use of unreported opinions in making decisions.  In Finci v. Am. Cas. Co. of Reading, Pa., 323 Md. 358, 375-76 (1991) the federal court cited to unreported decisions of federal district courts.  The difference in treatment between the two courts in the allowance or disallowance of using unreported cases as precedent has led to inconsistent rationales. For example, in Gables Constr., Inc. v. Red Coats, Inc., 468 Md. 632, 663 (2020) the Court of Appeals reversed the decision of the Court of Special Appeals based upon an unreported decision of the United States District Court for the District of Maryland Court. 

It is important to note that this change does not apply to unreported opinions of this Court of Special Appeals, which remain governed by Maryland Rule 1-104, or to other jurisdictions which prohibit the use their unreported opinions to be cited as precedent.  With this policy change, the Court of Special Appeals joins over half of all state courts and the federal courts in permitting this use of unreported opinions.