Archive | October 2013

DeWolfe v. Richmond: State Law or Just Law?

By Alan B. Sternstein

As recently recounted on this Blog,[1] the 4-3 decision of the Court of Appeals in DeWolfe v. Richmond, ___ Md. ___, 2013 WL 5377174 (Sept. 25, 2013), was notable as another in a growing line of state court decisions resting individual rights on the Maryland Constitution, as opposed to federal law.[2]  Expressly grounding its decision on Article 24 of the Maryland Constitution’s Declaration of Rights, the Court ruled that detainees at initial bail hearings have a right to counsel provided by the state, if they cannot afford or otherwise retain counsel of their own.  The convoluted procedural history of the case and related cases that preceded it evidences the substantial moment of the competing interests at stake in the decision.[3]  Not only does the decision broaden the protective reach of Article 24 of the Maryland Constitution’s Declaration of Rights but also, more practically and immediately, it is estimated that the ruling will require counsel to be afforded for 177,000 bail hearings at 188 different locations annually, at a cost, no less of $28 Million for the Office of the Public Defender, whose total current General Assembly allocation, set before DeWolfe, stands at $94 Million for all services the Office provides. Read More…


Court of Appeals of Maryland: October 2013 Cert Grants

On October 18, 2013, the Court of Appeals granted certiorari in eight cases. Its website lists a ninth case where, on October 21, 2013, the Court of Appeals, by per curiam opinion, summarily granted certiorari, vacated the decision below, and remanded to the Court of Special Appeals for further review.

The October 18, 2013 order identifies the questions presented in the eight cases set for merits review: Read More…

The Public Defender Opinion: The Implications of Resting on State-Law Grounds

By Kevin Arthur

It is axiomatic that a state constitution may afford greater rights than the analogous provisions of the federal constitution.  Moreover, if a state court “clearly and expressly states” that its decision rests on an “adequate and independent” state constitutional ground, the Supreme Court cannot reverse that decision even if federal law would not countenance the same result.  Michigan v. Long, 463 U.S. 1032, 1041 (1983).  In effect, therefore, under Michigan v. Long, a state court may insulate an expansive ruling from further review by a potentially hostile federal court, as long as the ruling was based on an adequate and independent state constitutional ground. Read More…

A 28th Amendment to Dock Congress’ Pay During a Shutdown

By Steve Klepper (Twitter: @MDAppeal)

I am far from the first to observe the injustice that members of Congress continue to draw salary during the present shutdown of the federal government. See, e.g., Patricia Murphy, How Congress Will Still Get Paid in a Government Shutdown, The Daily Beast (Sept. 20, 2013). This situation is an unintended consequence of the Twenty-Seventh Amendment, which provides that “[n]o law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of Representatives shall have intervened.” The amendment’s drafter, James Madison, and the states ratifying the amendment—which was submitted to the states in 1789 but was not ratified until 1992—were targeting congressional pay raises. But, under the amendment’s plain language, no law varying congressional pay, whether upward or downward, can take effect until after an intervening election. Read More…

Maryland Court of Appeals to Follow SCOTUS Policy of Deciding Argued Cases by Term’s End

By Michael Wein

New Chief Judge Mary Ellen Barbera, after her appointment in July by Governor O’Malley, announced her objective of having the Court of Appeals issue opinions no more than one year after oral arguments. Though unsaid, this new policy was clearly intended to refute criticism, including from the Baltimore Sun and The Maryland Daily Record, about how some cases in the Court of Appeals seemed to languish for years under Chief Judge Bell’s tenure. Read More…

SCOTUS Retirements: The Carrot and the Stick

By Steve Klepper (Twitter: @MDAppeal)

Yesterday, I had the pleasure of sitting on a Supreme Court Term preview panel at my alma mater, Goucher College, with Associated Press Supreme Court reporter Jesse Holland and political science Professor Nina Kasniunas. Inevitably, the question arose as to why Justice Ruth Bader Ginsburg isn’t choosing to retire while Democrats control the White House and the Senate. Robert Barnes’ delightful piece, The Question Facing Ruth Bader Ginsburg: Stay or Go?, appearing in today’s Washington Post Magazine, gives some insight into this most personal of decisions. Read More…

Meet the Candidates for the Court of Special Appeals

By Steve Klepper (Twitter: @MDAppeal)

[Update: The Governor announced his picks on February 24, 2014. Click here for our post on those three selections.]

Governor O’Malley will be picking from 18 candidates to fill three vacancies on the Court of Special Appeals. The Maryland Courts website today posted the names that the Judicial Nominating Commission forward to the Governor. Two vacancies are for the new at-large seats, while a third is for the Baltimore City seat that Judge Shirley Watts vacated when she joined the Court of Appeals. It is an incredible list of qualified individuals. Excluding Jack Tranter, whose application was withdrawn, the 18 candidates are: Read More…