Food trucks vs. brick-and-mortar restaurants, vestiges of Lochner v. New York, and the parameters of Maryland’s rational basis test – Pizza di Joey, LLC v. Mayor of Baltimore

By J. Bradford McCullough

Economic rivalries between classes of competitors have long existed. In the late eighteenth century, for example, disputes between shepherds and cattlemen were legendary, and clashes between farmers and ranchers supplied the grist for movies depicting life in the American west. In the urban America of the early twenty-first century, a rivalry has developed between food truck vendors and the operators of brick-and-mortar restaurants. The past ten years have seen a rapid increase in the number of food trucks in scores of American cities, leading to restaurateurs’ cries of unfair competition. Different cities have responded in different ways, with some localities welcoming food trucks and carts, while others have acted to protect restaurants by restricting the areas where food trucks may operate. See America’s food-truck industry is growing rapidly despite roadblocks, The Economist, May 2, 2017. Baltimore falls within the latter camp. In an opinion authored by Judge Douglas Nazarian – for a panel that included Judge Daniel Friedman and Senior Judge of the Court of Appeals (specially assigned) Lynne Battaglia – the Court of Special Appeals discussed Baltimore’s regulation of food trucks, considered a legal argument that flowed from the Supreme Court’s decision in Lochner v. New York, 198 U.S. 45 (1905) and explained the parameters of Maryland’s rational basis test. Pizza di Joey, LLC v. Mayor of Balt., No. 2411, Sept. Term, 2017 (May 30, 2019). Ultimately, the Court upheld Baltimore’s regulation.

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Join Us for the Annual SCOTUS Panel in Ocean City

By Steve Klepper (Twitter: @MDAppeal)

On Friday, I’ll have the pleasure of moderating the annual Supreme Court Term in Review panel at the MSBA Annual Meeting. The program is sponsored by the MSBA Section of Litigation and its Appellate Practice Committee.

Our all-#AppellateTwitter panelists this year are: Read More…

June 2019 Maryland Certiorari Grants

On Friday, June 7th, the Court of Appeals granted the following writs of certiorari:

Credible Behavioral Health, Inc. v. Emmanuel Johnson – Case No. 19, September Term, 2019

(District Court Appeal, from the Circuit Court for Montgomery County)

Issues – Courts & Judicial Proceedings – 1) Did the trial court erroneously apply Md. Rule 7-113(f) when it reviewed the district court’s construction of a contract’s terms for clear error rather than de novo? 2) Did the plain terms of the parties’ promissory note (“Note”) entitle Petitioner to a judgment against the Respondent? 3) In interpreting the Note, did Maryland law require the trial court to choose the one among two possible readings of the Note that was consistent with the parties’ intent?

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Court of Appeals Bids Farewell to Judge Clayton Greene, Jr.

The Court of Appeals ended its arguments on Friday, the last of the September 2018 Term, by congratulating Judge Clayton Greene, Jr. on his forthcoming retirement from the court at the end of this month. As Chief Judge Barbera’s comments reflect, Judge Greene will continue to sit by designation on the Court of Special Appeals and the Court of Appeals. Read More…

Court of Appeals Confirms Taxpayer Standing to Challenge Unlawful Government Spending but Clouds the Concept of Standing Under Maryland Law

By Alan Sternstein

An October 2018 post on this Blog covered the Court of Appeals’ decision to review two cases on the burgeoning and ever complex subject of taxpayer standing. On April 1, 2019, the Court decided Floyd v. Baltimore, and George v. Baltimore Co., adding those decisions to its lengthy and growing commentary on taxpayer standing.[1]  The Court’s decisions are clear that taxpayers do have standing to challenge government economic waste resulting from violations of law.  In so doing, however, the Court muddled the analytical construct it has been struggling to define for testing when taxpayer standing will be recognized in actions challenging unlawful government action.

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May 2019 Maryland Certiorari Grants

The Court of Appeals today issued its first certiorari grants since Judge Brynja Booth took the bench last month. There were a total of five grants. They include a sequel to Comptroller v. Wynne, where in 2015 the Supreme Court, affirmed a Court of Appeals decision striking down portions of the state tax code as violating the “dormant” commerce clause. The cases are below, with the questions presented and links to the Court of Special Appeals opinions under review. Read More…

Maryland Certiorari Statistics, 2018 Term: The Numbers Behind the Declining Grant Rate

By Steve Klepper (Twitter: @MDAppeal)

The Maryland Court of Appeals has been granting fewer certiorari petitions this term. Now we have some numbers to help analyze that decline.

For two years now, I’ve tracked the Court of Appeals’ petition docket. The judiciary’s annual statistical reports give the overall grant rate for civil and criminal certiorari petitions. Because the majority of petitions each year are filed pro se, the overall statistics are not terribly helpful for lawyers in advising their clients regarding the odds of certiorari.

Refining my approach from last year, I have compiled the statistics for the 2018 Term (petitions filed 3/1/2018 to 2/28/2019), alongside revised statistics for the 2017 Term (petitions filed 3/1/2017 to 2/28/2018). Read More…

April 2019 Maryland Certiorari Grants, Batch #2

Yesterday, the Maryland Court of Appeals granted two petitions in criminal cases that it will hear in the fall. (Update: After the Court of Appeals granted certiorari in State v. Santos, the State voluntarily dismissed its appeal.)

 

Dana T. Johnson, Jr. v. State of Maryland – Case No. 9, September Term, 2019 (Reported COSA Opinion by Judge Nazarian)

Issues – Criminal Law – 1) Section 5-612 of the Criminal Law Article, which prohibits possession of certain quantities of controlled dangerous substances, provides that “[a] person who is convicted of a violation of subsection (a) of this section shall be sentenced to imprisonment for not less than 5 years and is subject to a fine not exceeding $100,000.” What is the maximum allowable period of incarceration for a violation of this law? 2) Did the circuit court impose an illegal sentence of fourteen years of incarceration for a violation of section 5-612 of the Criminal Law Article?

State of Maryland v. Bryan Santos – Case No. 10, September Term, 2019 (Unreported COSA Opinion by Judge Raker)

Issue – Courts & Judicial Proceedings – Did the trial court properly admit testimony by Respondent’s wife about statements he made to her and a statement by Respondent admitting some of the things he did with the victims?

Dos and Don’ts When You Learn Who Is on Your Court of Special Appeals Panel

By Steve Klepper (Twitter: @MDAppeal)

Few Maryland lawyers are accustomed to advance notice of which judges will be deciding their appeal. The Fourth Circuit and the Court of Special Appeals have traditionally kept the identities of three-judgment panels secret until the morning of argument. But the Court of Special Appeals will now be announcing panels 7 to 10 days before argument.

That lead time gives counsel an opportunity to make productive or counter-productive use of that information. In this post, I address what you must do, should do, and should not do when you learn who is on your three-judge panel. Read More…

Corporations Need Counsel

By Karen Federman Henry

It’s not really new—corporations cannot participate in court proceedings without an attorney.  The same concept applies to the otherwise informal process before an administrative agency.  So what should a corporation do when its counsel withdraws from an administrative proceeding?  The Court of Special Appeals recently answered the question in an unreported decision—retain counsel or say something to preserve the issue for further review.

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