DAVID E. FUSTER v. STATE OF MARYLAND
Court of Appeals, Watts, Filed April 22, 2014,
DNA Post-Conviction- No right to appointed counsel in a post-conviction filed under CP § 8-201 (DNA testing)

On its face, this opinion stands for the novel proposition that proper statutory construction involves ignoring the plain text of a statute; ignoring the overall legislative intent in enacting a statutory scheme; breaking the statutory scheme into its various individual parts; looking through the minutes of committee meetings to see the various intentions at play for each part; comparing each of these different opinions to the enacted legislation; and voiding the enacted legislation if it isn’t “clearly consistent” with every single opinion expressed in committee.

In actuality, this is just a terribly written opinion that is unlikely to gain precedential traction.

Judge Watts suggests in the opinion that: 1) the Rules committee passed a Rule that it did not mean to pass and 2) that the Court of Appeals accidentally adopted this Rule without reading it (the Rule, by the way, was two sentences long).

Because of this, according to J. Watts, the Court accidentally bestowed a right on Fuster that they didn’t intend to and, because they didn’t mean to, we can all just ignore the Rule and remove the right. A Rule adopted by the Court of Appeals, after all, isn’t something that may be relied upon (sort of like the Court of Appeals’ precedent).

Were this House of Cards I would suspect Judge Watts of being in the pocket of Frank Underwood attempting to undermine the authority of the Court. Fresh on the heels of the opinion she authored in Pearson holding that following the direction of the Court of Appeals amounts to abuse of discretion, the instant opinion maintains that the Court of Appeals doesn’t actually read the Rules that it’s considering when passing them and, moreover, they amount to nothing once passed.

Pretending that it is correct statutory interpretation to look back at the minutes of the rules committee to determine if the plain text meets the statutory intent, Judge Watts still breaks from reality in her analysis.

Here is Judge Watts’ historical argument (summarized)

In 2007, the Court of Appeals in Arey noted that a circuit court has the inherent power to appoint counsel in cases where “the court believes counsel would be necessary to further the interest of justice,” including a DNA post-conviction.

In 2009, the Court in Simms dropped a footnote citing Arey for this proposition.

The Rules committee then took up the issue. Initially the committee drafted a rule containing mandatory language. “One member of the Rules Committee” disagreed, saying that the rule should be permissive, not mandatory.

At the next meeting and as adopted, the mandatory language was kept.

Therefore, the legislative intent in the Rules’ adoption was that permissive language should be used.

It seems unlikely that law students will be studying this opinion a hundred years from now for clues on how to conduct proper statutory construction.