Yesterday was the close date for applications for the Court of Appeals seat vacated by the retirement of Judge Clayton Greene, Jr. Applicants must be residents of the Fifth Appellate Judicial Circuit, which includes Anne Arundel, Calvert, Charles & St. Mary’s Counties.
Ten lawyers and judges applied: Read More…
For the most recent Court of Appeals term, which ran from September 1, 2018 through August 31, 2019, I began tracking the Court’s merits docket across a number of categories. The Court’s criminal docket offers an interesting data set, because the State of Maryland is a party to every case, and the Office of the Public Defender (OPD) represents about 60% of defendants.
Going by bottom-line judgments, the State prevailed approximately half the time, maybe more, depending on how you count them. Read More…
The Maryland Court of Appeals today granted review in four criminal appeals, including two cases regarding writs of actual innocence; and two civil appeals, including a constitutional challenge to Baltimore’s regulation requiring food trucks to operate more than 300 feet from brick-and-mortar restaurants.
The grant list, including the questions presented and links to the opinions below, appears after the jump. Read More…
Darlene Barclay v. Sadie M. Castruccio – Case No. 30, September Term, 2019
Issues – Torts – 1) Did the trial court err when it ruled that the cause of action for intentional interference with an expectancy is not a cause of action under Maryland law? 2) Did Petitioner adequately plead facts to succeed on a claim of intentional interference with an expectancy? Read More…
In the words of Yogi Berra, “It’s like déjà vu all over again.” That thought came to mind when reading the Court of Appeals’ decision in Board of County Commissioners of Washington County v. Perennial Solar, LLC, Sept. Term, 2018, No. 66 (filed July 15, 2019). In the course of concluding that the Public Service Commission (PSC) regulates solar systems—leaving local governments unable to impose zoning restrictions and procedures on them—the Court sounded much like it did in 1990 when addressing high-voltage overhead transmission power lines in Howard County v. Pepco, 319 Md. 511 (1990). Read More…
Benisek v. Maryland Recap – The Forgotten Early 1900s Congressional Statute and How this Lafollette “Progressive Era” Reform, Supported Federal Judicial Interests against Political Party Gerrymandering
By Michael Wein
Last June in Ocean City, Maryland, the Supreme Court panel discussion for the Maryland State Bar Association (MSBA) convention, (which included guest panelists Kelsi Corkran, Prof. Shon Hopwood and Beth Brinkman) seemed to agree on one thing–the two pending political gerrymandering cases of Benisek v. Maryland and Gill v. Whitford, were likely to be the blockbuster decisions for the Court. That didn’t happen last year, with the Supreme Court not deciding the merits of those cases and remanding the Benisek case on procedural grounds.
Still, that left open the possibility the merits of the legal issue would come up again this year, and a decisive Majority opinion, particularly with the North Carolina Rucho case waiting in the wings. Unfortunately, for those who have studied the corrupting consequences on democracy and good government created by severe partisan redistricting, a year didn’t help. Instead, the clarity the Supreme Court decided, came in the form of a 5-4 opinion consolidating the Redistricting challenge of Benisek with that of North Carolina’s Rucho decision, concluding partisan gerrymandering will not be addressed by the Federal Courts as a “political question.”
As MdAppBlog contributor Alan Sternstein explained in a piece last week analyzing Rucho, excessive partisan gerrymandering, would appear to be quite justiciable, and logically makes sense, consistent with prior Supreme Court cases. Justice Elena Kagan’s Dissent, in favor of justiciability, discussed the little doubt, without Court intervention, the potential permanent possibility, of the lack of competitive Congressional elections, and an unnatural number of elected partisan Democrats and Republicans, as opposed to moderates, centrists, and independents. Chief Justice John Roberts’ Majority Opinion, perhaps ironically as a more optimistic perspective, in determining that the issue was non-justiciable in the federal courts, seemed to support alternatives, through Congressional action, or through the “state by state” approach of non-partisan redistricting Commissions. This piece focuses on the Congressional action alternative, particularly as related to the history of the Populist movement also known as the “Progressive Era” movement from the early 1900s. Part Two, when published will discuss the “state by state” approach alternative in more detail, both historically, and how that can be a guide for today.
April 24, 2018 and March 14, 2019 posts in this blog argued that achieving and guarding political equality at the ballot box should, under the Equal Protection Clause of the Fourteenth Amendment, be no less justiciable than achieving and guarding racial equality there. Measuring and predicting the effects of legislative districting implementing classifications based on political beliefs and affiliations are endeavors not materially different from measuring the predicting the effects of conduct implementing classifications based on race. Except where a classification both protects and diminishes protected interests, as with partisan gerrymandering, classifications burdening the expression or effectuation of political beliefs, equally as classifications based on race, have been carefully scrutinized and eschewed in Supreme Court equal protection decisions under the Fourteenth Amendment. The prior posts, however, also argued that the partisan “retaliation” standard in actions brought under the First Amendment did not provide a justiciable standard for separating constitutional partisan gerrymandering from unconstitutional partisan gerrymandering. Read More…
The Supreme Court recently decided Kisor v. Wilkie, a case that addresses when courts are required to defer to agencies’ interpretations of their own rules. The general rule that courts defer to an agency’s reasonable interpretation of its own regulations when they are ambiguous was articulated in the case Auer v. Robbins and is referred to as Auer deference. Auer deference has been subject to criticisms that it allows agencies to issue what amount to new regulations without going through the rulemaking process and that it is an abdication of the judicial role of interpreting the law.
When the Maryland Legislature enacted the Justice Reinvestment Act (JRA) in 2016, it did so with an eye toward an overhaul of the criminal justice system. The overarching goal of the JRA was to reduce Maryland’s prison population and use the related monetary savings to provide treatment to offenders before, during, and after their incarceration. The JRA would accomplish this by reducing maximum penalties for drug distribution convictions, by repealing mandatory minimum sentences for nonviolent drug crimes, and by limiting the duration of incarceration imposed for a technical violation of probation. While the concept focuses on rehabilitation rather than punishment, achieving the goals may be easier said than done. A recent example appeared before the Court of Appeals, which concluded that the JRA did not expand the ability of an individual to seek appellate review of a revocation of probation to allow a direct appeal, but instead, the individual must seek leave to appeal a decision. See Conaway v. State, No. 69, Sept. Term, 2018 and Johnson v. State, No. 76, Sept. Term, 2018 (combined).
In May, Blog Editor Derek Stikeleather sat down with Judge Daniel A. Friedman of the Court of Special Appeals (At-Large), to ask about his background, his chambers and law clerks, and how he prepares for oral arguments and writes his opinions.
What has best prepared you for your work as a judge on the Court of Special Appeals?
Three sources of my background practice prepared me for judging. I was a “big-firm” private civil litigator at Miles & Stockbridge and at Saul Ewing. I did public/government litigation both at the Baltimore City Solicitor’s Office and for the Maryland Attorney General. These two types of work required different expertise, both of which are helpful now. On the academic side, I focused on teaching and writing about constitutional law at the University of Maryland School of Law. These three branches of my legal experience each developed different parts of my foundation as a judge, but none of the three was more important than the others.