“De Facto Parents”: Maryland Joins the Trend

By Karen Federman Henry

Earlier this month, the Court of Appeals issued a decision in a case presenting the opportunity to revisit Maryland’s view of “de facto parents.” In Conover v. Conover, No. 79, Sept. Term, 2015 (July 7, 2016), a same-sex couple in a long-term relationship decided that they wanted to have a child. One member of the couple became the biological parent through artificial insemination, and the couple participated equally in raising the child. After the baby was born, the women married.

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United States v. Graham: The Fourth Circuit Rejects the Privacy Concerns of a Broad Range of Groups with Often Conflicting Interests

By Alan Sternstein

To appreciate the range of constituencies concerned with threats to privacy in this country, one need only examine the diverse array of amici supporting the appellants in United States v. Graham, No. 12-4659 (4th Cir., May 31, 2016) (en banc). Amici from the Conservative Legal Defense and Education Fund to the ACLU and from the Gun Owners of America to the Reporters Committee for Freedom of the Press lined up to voice their concerns in connection with the Fourth Circuit’s en banc review of its panel’s decision ruling that the government had violated Defendants’ Fourth Amendment rights when it obtained from their cellphone carriers’ records personal cell-site location information (“CSLI”) without a warrant supported by probable cause.[i] The Fourth Circuit nevertheless overturned the ruling.

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COSA Dissent Watch: Questioning Police Officer Testimony and Bias in Voir Dire

By Chris Mincher

The case: Lapole v. State, Sept. Term 2014, No. 2169 (June 27, 2016)

The questions: Can a voir dire question about bias regarding testimony of police officers reference other professions as well? Is the failure to properly give that question subject to harmless-error review?

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July 2016 Maryland Certiorari Grants

The Court of Appeals went only 2½ weeks between conferences. But we still get new cert grants! This round will need to hold us for a while, because the next conference is August 18.

The biggest news is that the Court of Appeals will directly review the Hogan Administration’s appeal of an injunction entered against it in a dispute regarding the Anne Arundel County School Board Nominating Commission. The full list of grants, with questions presented, appears after the jump.

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Maryland High Court Introduces Civil Liability for Adults Who Allow Underage Drinking

By Derek M. Stikeleather

This week, the Maryland Court of Appeals, in Kiriakos v. Phillips, punched a large hole in a civil-law doctrine that has long protected adults who host parties where underage guests are allowed to drink alcohol. While it has long been illegal to sell or otherwise supply alcohol to minors, Maryland law has nonetheless rejected attempts to assign civil liability to those who provide alcohol to minors when the inebriated minors injure themselves or others. Although minors who consume alcohol frequently cause horrific – often fatal – accidents (or commit serious felonies), Maryland tort law has traditionally assigned liability for the injuries to those who consumed the alcohol while shielding the individuals or businesses that furnished the alcohol. But, recognizing the special vulnerability of minors to alcohol, the Court now holds that adults who “knowingly and willfully” allow underage guests to drink on their property and substantially contribute to the minor’s diminished ability to reason can be found liable for the harm that results from a drunken guest’s subsequent actions. Read More…

New Employee Classification in the Fourth Circuit: Exotic Dancer

By Karen Federman Henry

As a government legal adviser, I often encountered the question of whether a person performing services for Montgomery County was an employee or an independent contractor. The distinction held significance, because it determined who had responsibility for Social Security payments, unemployment insurance premiums, workers’ compensation benefits, overtime, and other aspects of the employment relationship. Simply designating a person as an independent contractor usually did not make it so. Instead, the activities performed by the person and the manner of performing them became key focal points.

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Save time and money by appealing in banc

By John Grimm

I recently posted about appeals in District Court of Maryland cases, including lesser-known appellate options. Maryland also allows for an unusual type of appeal from circuit court decisions — the in banc appeal. Article 4, § 22 of the Maryland Constitution allows, with some exceptions, a party who loses “any trial conducted by less than three Circuit Judges,” to request review “in banc” (and yes, for the pedantically inclined, the term of art is “in banc,” not the more common “en banc”) by three circuit court judges, in lieu of an appeal to the Court of Special Appeals.

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June 2016 Maryland Certiorari Grants

Those lazy, hazy, crazy days of summer are here, but the Court of Appeals of Maryland is still hard at work, cranking out another batch of certiorari grants. Does heading out into the stifling, stuffy heat make you feel like you’re suffocating? Well, have hope: The Court is going to figure something out about toxic air pollutants in commercial parks. Also in the slate: questions about voir dire, searching for records subject to the Public Information Act, and the writ of actual innocence. See the full lineup after the jump.

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State v. Braverman: $5 million fee award here today, gone tomorrow

By Brad McCullough

In an opinion featuring forceful and direct language, the Court of Special Appeals recently reminded us that the “American Rule” regarding attorneys’ fees remains alive and well in Maryland. In 2007, 49 plaintiffs, led by William Braverman and Stanley Goldberg, sued the State of Maryland, challenging the constitutionality of recently enacted legislation affecting the use of “ground leases” in Maryland. After several years of litigation – including removal to federal court followed by a remand to state court, an effort to change venue, certification as a class action, and a trip to the Court of Appeals – the plaintiffs succeeded in their attack on that legislation. See State v. Goldberg, 437 Md. 191 (2014). The plaintiffs then filed a fee petition in the circuit court, which, after an evidentiary hearing, ordered the State to pay $5 million in fees. But the joy of that victory was short-lived, as the Court of Special Appeals, in State v. Braverman, No. 429 Sept. Term (June 1, 2016), reversed the circuit court’s award as running afoul of the American Rule.

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COSA Dissent Watch: Credibility and Contradiction in a “Sham Affidavit”

By Chris Mincher

The case: Davis v. Lewin Realty, III, Sept. Term 2015, No. 0420 (May 25, 2016) (unreported)

The questions: Can a court assess credibility in striking a “sham affidavit” pursuant to Md. Rule 2-501? In the context of that rule, how specific do statements have to be for a court to find them contradictory? Is it a materially inconsistent for a witness to recall facts in a later affidavit that she could not recall in an earlier deposition?

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