Breaking News: The Sky Is Falling, and, According to Washington Post v. McManus, So Was First Amendment Protection Under Maryland’s Online Electioneering Transparency and Accountability Act

By Alan Sternstein

New York Times v. Sullivan, a jurisprudential monument to freedom of the press, confirmed the core role of the press under the First Amendment “‘to secure ‘the widest possible dissemination of information,’” in order “‘to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people.’”  376 U.S. 254, 266, 269 (1964).  Ironic and disappointing it is that the Washington Post, a pillar of the press, would lead the charge among press interests to invalidate Maryland laws requiring certain online platforms to disclose and report the sources and dollar amounts of online, not printed, political advertising.  It did so, moreover, making dubious claims that requiring such disclosures is a material infringement on editorial control and judgment, compels political messages, and imposes, on account of related recordkeeping requirements, an unacceptable burden on press operations.  Accepting these contentions, the Fourth Circuit’s recent decision in Washington Post v. McManus, No. 19-1132 (4th Cir. decided Dec. 6, 2019) (“Washington Post”),[1] invalidated Maryland’s Online Electioneering Transparency and Accountability Act (“Act”), codified at Md. Code Ann., Elec. Law § 13-405.  Notably, none of the plaintiffs in Washington Post or any of the amici supporting them was a person who sought or planned to engage in online political advertising or an organization supported by such persons. Read More…

January 2020 Maryland Certiorari Grants

Today, the Maryland Court of Appeals granted certiorari in one civil case and three criminal cases, including one where the State claims that a criminal defendant entered into a collusive marriage to obstruct justice and tamper with a witness.

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Seventeen apply for At-Large Vacancy on the Court of Special Appeals

By Diane E. Feuerherd

This afternoon, the Administrative Office of the Courts released the list of seventeen applicants seeking to fill the open at-large seat on the Court of Special Appeals:

Honorable Krystal Quinn Alves, Circuit Court for Prince George’s County
Russell Paul Butler, Maryland Crime Victims’ Resource Center, Inc. in Upper Marlboro
Kurt James Fischer, Venable LLP in Towson
Rickey Nelson Jones, Law Offices of Rickey Nelson Jones in Baltimore
Steven Michael Klepper, Kramon & Graham in Baltimore
James Bradford McCullough, Lerch, Early & Brewer in Bethesda
Honorable Erik Howard Nyce, District Court of Maryland for Prince George’s County
Michael Patrick Redmond, Chief Solicitor of the Baltimore City Law Department
Eldridge Eugene Rice, Jr., from Randallstown
Steven Lee Tiedemann, Powell Recovery Center, Inc. in Baltimore
Tara Sky Woodward, Bradley Arant Boult & Cummings in Washington, D.C.
Terrence Mark Ranko Zic, Whiteford Taylor Preston in Rockville
**Honorable Judith Claibourne Ensor, Circuit Court for Baltimore County
**Honorable Lawrence Paul Fletcher-Hill, Circuit Court for Baltimore City
**Brian Scott Kleinbord, Office of the State’s Attorney for Montgomery County
**Rachel Theora McGuckian, Miles & Stockbridge in Rockville
**Phillip Robert Zuber, Sasscer Clagett & Bucher in Upper Marlboro

This vacancy was created by the recent retirement of Judge Alexander Wright, Jr. The list includes four trial judges and thirteen attorneys (including two Blog Editors, Steve Klepper and Brad McCullough, neither of whom participated in the preparation or publication of this post).  The last five, marked by a double asterisk (**), are pool candidates, having received the Appellate Courts Nominating Commission’s nomination for a prior At-Large Court of Special Appeals vacancy within the past two years; pool candidates receive automatic consideration by the Governor. The remaining applicants will be interviewed by the commission, on February 4 and 5, 2020.

Live Webcast of the En Banc Fourth Circuit’s Oral Arguments in the Emoluments Case to Begin at 9 a.m. Today

Earlier this week, Blog Editor Derek Stikeleather wrote of In re Trump, the emoluments case brought against President Trump by the State of Maryland and the District of Columbia. Due to public interest, the oral arguments will be webcast live (audio only), starting at 9 a.m. this morning.

December 2019 Maryland Certiorari Grants

Happy holidays from the Maryland Appellate Blog! Yesterday, the Court of Appeals granted review in three criminal cases and five civil cases. One of the civil cases, MIA v. State Farm Mutual Auto Insurance Co., centers on uninsured motorist coverage and will be consolidated with a certified question raising the same issue. Read More…

The Fourth Circuit Emoluments Case Proceeds En Banc: A Non-Partisan Guide for Lawyers

By Derek Stikeleather

On December 12, the en banc Fourth Circuit will re-hear oral argument in the “emoluments” case brought against President Trump by the State of Maryland and the District of Columbia. They allege that his ongoing business interests in the Trump International Hotel in Washington D.C. violate the Constitution’s Foreign and Domestic Emoluments Clauses. In July, a three-judge panel of the court unanimously held that the plaintiffs lacked standing to bring a lawsuit to enforce the Emoluments Clauses, and it remanded the case to be dismissed with prejudice. In re Trump, 928 F.3d 360 (4th Cir. 2019). Despite the unanimous panel ruling, a majority of the court’s active (i.e., non-senior status) judges voted to allow rehearing en banc. 780 F. App’x 36 (4th Cir. 2019).

The case is genuinely newsworthy for many reasons. Read More…

Jonathan Biran Appointed to Court of Appeals

Today Governor Larry Hogan appointed Jonathan Biran to the Court of Appeals of Maryland. Biran will take the seat reserved for the Fifth Appellate Circuit (Anne Arundel, Calvert, Charles and St. Mary’s Counties), replacing recently retired Judge Clayton Greene, Jr. This is the second time one of the blog’s original seven editors has been appointed to the state appellate courts.

Governor Hogan’s press release states: Read More…

Bubba Gump reminds us that quasi-contract is not an equitable claim and is not available where a real contract exists

By Brad McCullough

When lawyers bring lawsuits alleging a breach of contract, they often include claims for unjust enrichment. As the Court of Special Appeals recently explained, however, those efforts are often doomed to failure. In AAC HP Realty, LLC v. Bubba Gump Shrimp Co. Restaurants, Inc., __ Md. App. __ (Oct. 31, 2019), in an opinion authored by Judge Kevin Arthur, the Court reminded the bar of two points that pertain to unjust enrichment. The first is “the general rule that unjust enrichment is unavailable when the parties have an enforceable contract.” Slip Op. at 5. And the second is that an unjust enrichment claim seeking a money judgment is not an equitable claim (despite a widespread mistaken belief to the contrary), but is instead a quasi-contractual claim that is an action at law. Id. at 8 n.5.

Bubba Gump is a seafood restaurant in Baltimore’s Harborplace. It leases space from AAC, pursuant to a lease that obligates Bubba Gump to pay monthly rent, “without deduction or set-off.” Id. at 2. The lease requires AAC to maintain the common areas, which the lease calls “Joint Use Areas,” and to keep those areas in “good order and repair.” Read More…

November 2019 Maryland Certiorari Grants

Last week, the Maryland Court of Appeals granted review in three civil cases and two civil cases. Two of the civil cases are on petitions by Baltimore City Solicitor Andre Davis.  The third is from a Court of Special Appeals opinion (criticized in a post by Alan Sternstein) that reversed a $45 million judgment against Harford County.

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Three Nominated for Court of Appeals Vacancy

On Tuesday, the Appellate Judicial Nominating Commission interviewed the applicants for the Court of Appeals seat vacated by the retirement of Judge Clayton Greene, Jr. That seat is designated for residents of the Fifth Appellate Judicial Circuit, which includes Anne Arundel, Calvert, Charles & St. Mary’s Counties.

Yesterday, the Commission forwarded three nominees to the Governor:

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