Archive | March 2014

Government Practice—A Different Perspective

By Karen Federman Henry

[Editor’s note: We’re happy to present the first post by the newest member of our editorial board.]

As an attorney representing a local government, I enjoy a unique opportunity to delve into a wide array of legal issues. The work itself can range from litigation to administrative hearings to legislative drafting to advising public officials, agencies, and departments as they seek to achieve goals that enhance the interests of the community. While the individual tasks and topics presented may not differ from those seen in private practice, the nature of the client has an impact on the manner of giving advice and providing representation. Read More…

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Welcoming new editor Karen Federman Henry

We were lucky enough to convince Karen Federman Henry, a Division Chief in the Office of the County Attorney for Montgomery County, to join the Maryland Appellate Blog’s editorial board.

If you want an idea of Karen’s impressive appellate credentials, we invite you to type her name into Google Scholar case search. Along with former blog editor Kevin Arthur and current editor Brad McCullough, Karen was among the 18 candidates whom the Judicial Nominating Commission forwarded for the three recently filled vacancies on the Court of Special Appeals. Kevin was one of those three appointees, and Karen fills the resulting vacancy on the blog’s editorial board.

Karen’s first post will appear on Monday morning. We’re thrilled to welcome her aboard!

Did the iPad kill the acronym?

By Steve Klepper (Twitter: @MDAppeal)

Over at Above the Law, David Lat is covering the D.C. Circuit’s recent clampdown on “uncommon acronyms” in briefs. (I’m quoted!) The Court’s anti-acronym push began in 2010, with a Notice that “the court strongly urges parties to limit the use of acronyms.” But now the D.C. Circuit has gone one step further—ordering parties to file new briefs, without the offending acronyms. Read More…

The Potential After-Effects of DeWolfe’s Implementation – Expanding Maryland v. King to Begin Testing All Arrestee DNA

By Michael Wein

There’s less than two weeks before the Maryland General Assembly adjourns sine die on April 7th. This poses an upcoming deadline for passing legislation complying with the Maryland Court of Appeals’ DeWolfe decision that criminal Defendants have a Constitutional right to representation in their initial bail determinations. The three main proposals are on the table, though a mixture of them is also possible. These proposals are (1) to have comprehensive and supposedly objective Preliminary bail determinations delegated to administrative Pretrial Services employees (that will effectively scrap the current system of review by a neutral magistrate, and thereby no Constitutional violations since no Counsel will be permitted), (2) an expansive and supposedly more expensive representation schema in place that will have full time defense attorneys representing defendants, and additional costs for judges, Court commissioners, courthouse security, etc., and (3) permitted some criminal defendants to affirmatively waive their right to Counsel for an initial appearance in order to get a pre-trial appearance before a Court Commissioner and release. (In the past day, after this was written but before being posted, the Senate Judicial Proceedings Committee favored by a 7-4 vote, Option 1, the Pretrial services approach.) Read More…

Maryland Certiorari Grants, March 2014

The Court of Appeals today granted certiorari in six cases.  The text from the Court’s website is below:

Anne Arundel County, Maryland, et al. v. Steve Bell, et al.– Case No. 29, September Term, 2014

Issues – Zoning and Planning – 1) Whether the prima facie aggrievement standard established in Bryniarski v. Montgomery County Bd. of Appeals, 247 Md. 137 (1967), should be expanded beyond challenges to administrative land use decisions to include challenges to legislative comprehensive zoning enactments? 2) Whether the “almost prima facie” standard as established in Ray v. Mayor of Baltimore, 430 Md. 74 (2013), should be expanded beyond challenges to administrative land use decisions to include challenges to legislative comprehensive zoning enactments? 3) Whether noise from a predicted increase in traffic constitutes “special damages”?

Falls Garden Condominium Association, Inc. v. Falls Homeowners Association, Inc.– Case No. 30, September Term, 2014

Issues – Civil Procedure – 1) Whether it was error to enforce the Letter of Intent given the parties never intended to be bound by the Letter of Intent and the Letter of Intent does not contain all material terms? 2) Did the lower court err in failing to hold a full plenary hearing on the Motion to Enforce Settlement Agreement since the existence of a binding and enforceable agreement was contested and there were contradicting proffers regarding a material issue, i.e. whether the parties intended to be bound by the Letter of Intent?

Carol Jane Gray, et al. v. Howard County Board of Elections, et al.– Case No. 107, September Term, 2013

Issues – Election Law – 1) Was the Board of Elections’ determination that the referendum summary was not “fair and accurate” is arbitrary, capricious and illegal as a matter of law? 2) Is the referendum summary as presented “fair and accurate” as required by EL § 6-201(c)(2)(i)?

Metro Maintenance Systems South, Inc. v. Thomas Milburn, et al.– Case No. 31, September Term, 2014

Issues – Civil Procedure – 1) Did CSA err in its decision that the lower court’s remand order was not a “final judgment” as defined by CJP § 12-301? 2) Did the lower court act arbitrarily and capriciously in remanding a final administrative decision to the processes of an administrative agency without conducting any record review and without any finding of fraud, mistake, inadvertence, cognizable defect, intervening factors or subsequent events? 3) Did CSA properly decide Anne Arundel County v. Rode, 214 Md.App. 702 (2013), and properly apply that ruling to the procedural circumstances in this case?

In the Matter of Carol Jane Gray, et al.– Case No. 106, September Term, 2013

Issue – Election Law – Within the context of the decision-making required by EL § 6-208(a)(2), was the Board of Elections’ determination that the referendum summary was not “fair and accurate” arbitrary, capricious and illegal as a matter of law?

State of Maryland v. Charles William Callahan – Case No. 28, September Term, 2014

Issues – Criminal Law – 1) Did CSA err in concluding that the lower court violated the doctrine of the separation of powers in finding respondent in violation of his probation based upon his failure to comply with a lawful order of his probation agent where the order was a requirement of his mandatory parole release conditions? 2) Did CSA correctly hold that the lower court erred in revoking Callahan’s probation?

Four Reasons to End Calls for Justice Ginsburg’s Retirement

By Steve Klepper (Twitter: @MDAppeal)

[Updated, 6:21 p.m., March 17, 2014. See comment below for details.]

One gift that Justice Ruth Bader Ginsburg received for her 81st birthday was yet another editorial – this time by Erwin Chemerinsky– calling for her retirement. As soon as chatter dies down, we can expect a new round of editorials criticizing Justice Thomas’ silence at oral argument, followed by another round of calls for Justice Ginsburg to retire. (Maybe I should have saved my “Time Is a Flat Circle” reference for this post.)

A few quick thoughts: Read More…

New SCOTUSblog-type Listing of Pending Cases Available on Court of Appeals Website

By Michael Wein

A new “all in one” feature has appeared on the Maryland Court of Appeals website, providing a chronological listing of all “Pending cases.” This feature would appear to give the immediate ability and transparent reminder (for anyone interested) to know which cases have been pending the longest at the Court of Appeals. There are also links to (1) the date of the grant of certiorari, (2) the date and link to oral arguments, (3) if a recent decision was issued, and (4) the main Questions Presented. Read More…

Time Is a Flat Circle: More Briefing Ordered in Public Defender Cases

By Steve Klepper (Twitter: @MDAppeal)

Today’s order from the Court of Appeals in Clyburn v. Richmond makes me think of the already-famous line in True Detective: “You’ll do this again. Time is a flat circle.” The Court of Appeals again adhered to its holding that a right exists to counsel at initial appearances, and it ordered another round of briefing and argument. Read More…

Chief Justice Roberts, Civil Litigator at Heart

By Steve Klepper (Twitter: @MDAppeal)

Across the political spectrum of legal blogs, the Supreme Court’s decision in Kaley v. United States has drawn strong criticism, and Chief Justice Roberts’ dissent has drawn strong praise. A sampling of the commentaries appear at the end of this post.

Writing for the 6-to-3 majority, Justice Kagan summarized the Court’s holding as follows:

A federal statute, 21 U. S. C. §853(e), authorizes a court to freeze an indicted defendant’s assets prior to trial if they would be subject to forfeiture upon conviction. In United States v. Monsanto, 491 U. S. 600, 615 (1989), we approved the constitutionality of such an order so long as it is “based on a finding of probable cause to believe that the property will ultimately be proved forfeitable.” And we held that standard to apply even when a defendant seeks to use the disputed property to pay for a lawyer.

In this case, two indicted defendants wishing to hire an attorney challenged a pre-trial restraint on their property. The trial court convened a hearing to consider the seizure’s legality under Monsanto. The question presented is whether criminal defendants are constitutionally entitled at such a hearing to contest a grand jury’s prior determination of probable cause to believe they committed the crimes charged. We hold that they have no right to relitigate that finding.

Chief Justice Roberts, joined by Justices Breyer and Sotomayor, responded: Read More…

Court of Appeals Addresses Appellate Preservation of Sentencing Challenges

by Brad McCullough

In Bryant v. State, No. 37, September Term 2013 (Feb. 3, 2014), the Court of Appeals re-affirmed the importance of preserving issues for appellate review, holding that the defendant had waived his challenge to the imposition of his sentence. The Court also concluded that – even if the issue had been preserved – the defendant’s sentence had been properly imposed. Read More…