Enter Judge Pamela Harris

Adam Farra
Guest contributor

Remember when that partisan street fight broke out after Pamela Harris was nominated to the Fourth Circuit by President Obama?  David Fontana wrote in The New Republic that “liberals should rally behind” then-nominee Harris because she – “more than any other Obama judicial nominee” (whew!) – would “be a sympathetic vote to liberal causes,” would “give rise to the next generation of liberal legal elites,” and would “be an eloquent and inspiring champion of liberal jurisprudence.”  Carrie Severino blisteringly responded in National Review that the Senate “should be deeply skeptical of her ability to put the law ahead of her political views,” and National Review did multiple pieces attacking her candidacy.  The questioning at her confirmation hearing tracked this line of attack.  Confirmed with 50 votes (no filibuster after Harry Reid triggered the nuclear option), Judge Harris fortified Obama’s transformation of the Fourth Circuit.

A few years have passed – and were the commentators right?  Is she a liberal lion and a conservative’s worst nightmare?

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Fourth Circuit delves into the conundrum of willfulness

By Stuart Berman
Guest contributor

Veteran federal prosecutors and defense lawyers can pretty much recite in their sleep the standard jury instructions defining “knowingly” and “willfully.” In the commonly used Modern Federal Jury Instructions, knowingly means “to act voluntarily and deliberately, rather than mistakenly or inadvertently. A person acts knowingly if he acts intentionally and voluntarily, and not because of ignorance, mistake, accident, or carelessness.” Willfully means “to act knowingly and purposely, with an intent to do something the law forbids; that is to say, with bad purpose either to disobey or to disregard the law.” Simple enough, right? Read More…

Eight New February 2017 Maryland Certiorari Grants

By Brandon Moore

On Friday, the Court of Appeals issued eight certiorari grants, covering a wide range of civil and criminal questions. We have two more cell phone Fourth Amendment cases, including one where the police obtained a warrant. The list of cases, with questions presented, appears after the jump.

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Mitchell v. MVA: The Court of Appeals’ Reluctant Engagement with the Public Forum Doctrine

By Alan Sternstein

Braving to step into the “Stygian swamp that envelops the public forum doctrine,” Slip Op. at 19, the Court of Appeals in Mitchell v. Maryland Motor Vehicle Admin., 450 Md. 282, 148 A.3d 319 (2016) (“Mitchell”), successfully emerges from the swamp but leaves its way out as murky as the swamp it dared to enter. The Court affirmed the decision of the Court of Special Appeals, which, in turn, affirmed the Circuit Court’s judicial review of an Administrative Law Judge’s determination to uphold an action of the Maryland Motor Vehicle Administration (“MVA”). That action revoked vehicle license plates issued to the Appellant and bearing the Spanish word “MIERDA,” whose primary English meaning is the expletive “shit.” Heeding public forum analysis, though not without periodic pause, the Court’s opinion adopts essentially the reasoning of the Court of Special Appeals and holds that state-issued license plates are a nonpublic forum. Slip Op. at 2, 22. Consequently, MVA’s action passed muster under the standard discussed below and applicable to determining the constitutionality of government limitations on speech and expression in nonpublic forums. Read More…

Six New Maryland Certiorari Grants, January 9, 2017

The Court of Appeals of Maryland has posted six new certiorari grants. Five are criminal cases. The one civil case involves a Court of Special Appeals opinion, authored by Judge Arthur, with facts that read like a Trusts & Estates exam. On the criminal side, Savage v. State presents interesting questions regarding a defense expert’s neuropsychological examination and DSM-IV diagnosis.

The Court of Appeals is likely to issue any additional grants for this month on a rolling basis between now and January 20 (the day after its January 19 conference).The six grants, with questions presented, appear after the jump. Read More…

The Court of Special Appeals celebrates being 50 years young

By Michael Wein

As highlighted in a media release on the Maryland Judiciary web site, Maryland’s intermediate appellate court, the Court of Special Appeals, is having a fiftieth anniversary celebration today. This is meant to coincide, exactly, with the first day, January 6, 1967, that the original five Court of Special Appeals judges were sworn to the newly created constitutional position (including the first Chief Judge of that Court, Robert C. Murphy, who went on to be Chief Judge of the Court of Appeals 5 years later, and after whom the appellate courts’ building is now named). Read More…

Goodbye Chris, Hello Brandon

By Steve Klepper (Twitter: @MDAppeal)

We have some exciting but bittersweet news. Longtime blog manager Chris Mincher has departed, but for the best of reasons. He has taken a new job as Deputy Legal Counsel in the Governor’s Office of Legal Counsel. Chris has taken the laboring oar countless times over the past three years. We offer him the sincerest thanks for his hard work, discerning editorial eye, good humor, and font expertise.

Fortunately, Brandon Moore has agreed to take over the role of blog manager. Brandon is an obvious choice. He served three federal clerkships, with Fourth Circuit Judge Andre M. Davis and U.S. District Judges Theodore D. Chuang and George L. Russell, III. During law school, Brandon served as the Managing Editor of the Maryland Law Review and interned for then-Chief Judge Robert M. Bell on the Court of Appeals of Maryland. He is now an associate with Gallagher, Evelius & Jones in Baltimore. I’ve had the pleasure of knowing Brandon for five years and am thrilled that he will be joining the blog.

Fourth Circuit invalidates police department’s social-networking policy as an impermissible prior restraint on speech

By Jonathan Biran

On December 15, in Liverman v. City of Petersburg, the U.S. Court of Appeals for the Fourth Circuit issued an interesting opinion dealing with public-employee speech in the digital age. In a unanimous opinion written by Judge Wilkinson (and joined by Judge Traxler and USDJ Hendricks), the Court sided resoundingly with two Petersburg (Virginia) police officers disciplined for having violated the social-networking policy of their Department by criticizing it in posted Facebook comments.

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Fourth Circuit Proves Infertile Ground for Heller Expansion

By Stuart Berman
Guest contributor

In its 2008 decision in District of Columbia v. Heller[1], the Supreme Court revolutionized Second Amendment jurisprudence by holding unconstitutional the District of Columbia’s ban on possession of handguns in the home, as well as its requirement that all firearms in the home be stored in a manner that rendered them inoperable for immediate self‑defense. When the Court subsequently held in McDonald v. City of Chicago[2] that the Second Amendment applied to state and local governments, some observers predicted a string of decisions invalidating firearms prohibitions. Because the five states in the Fourth Circuit are home to a large population of firearms owners, and several of those states have loosened gun restrictions and even permitted “open carry” of weapons, firearms advocates had reason to hope the Fourth Circuit might to take the lead in reading Heller expansively. As a recent decision demonstrates, however, those hopes have not been fulfilled.

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Fourth Circuit asks only if arbitrators did their job – not if they did it well

By Brad McCullough

The Fourth Circuit recently reminded us that “[t]he scope of judicial review of an arbitration award ‘is among the narrowest known at law.’” UBS Fin. Servs., Inc. v. Padussis, slip op. at 6, No. 15-2148 (4th Cir. Nov. 22, 2016) (citation omitted). When reviewing arbitrators’ decisions, reviewing courts ask only “whether the arbitrators did the job they were told to do – not whether they did it well, or correctly, or reasonably, but simply whether they did it.” Id. (internal quotation marks omitted) (citation omitted). A disgruntled UBS Financial Services likely wanted to borrow a phrase from Johnny Paycheck and tell the arbitrators to “take this job and shove it,” but its attempt to obtain relief from the arbitration decision fell on deaf judicial ears.[1]

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