August 2014 Maryland Certiorari Grants
What better way to welcome back the Court of Appeals from its summer recess than with a new slate of cert grants? This assortment should especially draw the attention of employment lawyers (questions about the viability of the reasonable-expectations doctrine and the relationship between retirement and workers’ comp benefits), criminal attorneys (matters on merging sentences and the conducting of voir dire), and practitioners with a niche interest in underinsured-motorist benefits (a double-dose of UIM cases this month). Without further ado, the latest appellate admissions after the jump… drum roll, please …
Dan Friedman Appointed to the Court of Special Appeals
By Steve Klepper (Twitter: @MDAppeal)
This press release just appeared on the Governor’s website:
Governor O’Malley made one appointment to an at-large seat on the Court of Special Appeals.
Dan Friedman has served as an Assistant Attorney General and Counsel to the General Assembly since 2008. In that role, Mr. Friedman provides legal advice to members and committees of the General Assembly about the constitutionality of legislation and proposed bills, and he also defends enacted legislation if it is challenged in court.
Prior to serving in the Attorney General’s office, Mr. Friedman served as special counsel at Saul Ewing LLP, as an Associate City Solicitor and Chief of Litigation at the Baltimore City Law Department, and as an associate at Miles & Stockbridge, P.C. For over a decade, he has served as an Adjunct Professor at the University of Maryland Francis King Carey School of Law teaching courses in state and federal constitutional law. In addition, Mr. Friedman has served in numerous community organizations and coaches lacrosse.
Mr. Friedman earned a law degree from the University of Maryland Francis King Carey School of Law and an undergraduate degree from the University of Maryland, College Park. After law school, he clerked for Judge John Carroll Byrnes on the Circuit Court for Baltimore City and Judge Robert L. Karwacki on the Court of Appeals. Mr. Friedman fills a vacancy created by Judge Albert J. Matricciani, who resigned earlier this year after serving in an at-large seat on the Court of Special Appeals since 2008.
Friedman had been one of the finalists for the three since-filled vacancies that opened last year. Congratulations!
The odds that the full Fourth Circuit will review the good faith of pre-2012 warrantless GPS tracking
In United States v. Stephens, a divided panel of the Fourth Circuit affirmed a holding of the U.S. District Court for the District of Maryland that the good-faith exception to the exclusionary rule applied to police officers’ concededly unconstitutional warrantless use of a GPS device to track a suspect and obtain evidence in furtherance of his prosecution. Judge Dennis Shedd, an appointee of President George W. Bush, wrote the majority opinion, joined by Senior Judge Clyde Hamilton, an appointee of President George H.W. Bush. An appointee of President Obama, Judge Stephanie Thacker, wrote a dissenting opinion.
A petition for rehearing en banc almost certainly will be filed by the defendant. The question then will become whether the six Obama appointees who are active judges on the Court — and at least two other judges appointed by prior presidents — will choose this Fourth Amendment good-faith case as one to plant their flag in en banc. As I explain below, I doubt that this case will result in a very rare grant of rehearing en banc.
Corralling National Federation of Independent Business v. Sebelius
In the U.S. Supreme Court’s Affordable Care Act case, National Federation of Independent Business v. Sebelius, 132 S. Ct. 2566 (2012) (“NFIB”), five justices of the Court expressed their concurrence in the view, stated most broadly, that the liberty of persons limits the scope of Congressional power under the Commerce Clause of the United States Constitution. Chief Justice Roberts articulated this view in a portion of his opinion for the Court, stating that, “Congress has never attempted to rely on that power to compel individuals not engaged in commerce to purchase an unwanted product,” id. at 2586, and that, “Allowing Congress to justify federal regulation by pointing to the effect of inaction on commerce would bring countless decisions an individual could potentially make within the scope of federal regulation and – under the Government’s theory – empower Congress to make those decisions for him,” id. at 2587. The justices dissenting from the opinion’s decision upholding a federal individual mandate for health insurance as a valid exercise of Congress’s power to tax, Justices Scalia, Kennedy, Thomas and Alito, expressed a broader view, stating that, “Whatever may be the conceptual limits upon the Commerce Clause and upon the power to tax and spend, they cannot be such as will enable the Federal Government to regulate all private conduct …,” id. at 2643 (emphasis added). According to the dissenting justices, “If Congress can reach out and command even those further removed from an interstate market to participate in the market, then the Commerce Clause becomes a font of unlimited power, or in Hamilton’s words, ‘the hideous monster whose devouring jaws … spare neither sex nor age, nor high nor low, nor sacred nor profane.’” Id. at 2646 (quoting The Federalist No. 33, p. 202 (C. Rossiter ed. 1961)).
Consolidated Cases: Establishing Commonality for Finality
“There’s many a slip ‘twixt’ the cup and the lip” because “the opera ain’t over ‘til the fat lady sings.” Or, a case can quickly go in an unanticipated direction because there is no final appealable judgment until all claims are adjudicated – and knowing when that happens in consolidated actions can be tricky.
Coming Soon to the Supreme Court: Umaña v. United States?
On August 12, 2014, a divided Fourth Circuit denied a petition for rehearing en banc that had been filed by capital defendant Alejandro Umaña. Umaña had sought the rehearing en banc of a panel opinion, 750 F.3d 320 (4th Cir. 2014), in which a majority held that the Sixth Amendment’s Confrontation Clause does not apply to the sentencing selection phase of capital sentencing. Eight judges (Chief Judge Traxler, Judge Wilkinson, Judge Niemeyer, Judge King, Judge Shedd, Judge Duncan, Judge Agee, and Judge Floyd) voted to deny the rehearing en banc, while five (Judge Motz, Judge Gregory, Judge Keenan, Judge Wynn, and Judge Thacker) voted to grant the petition.
A leader in the MS-13 transnational criminal gang, Umaña was convicted in federal court of murdering two brothers (who were not affiliated with any gang) in a bar in Greensboro, N.C., after the brothers got into an argument with Umaña and other MS-13 members about the music that should be played on the jukebox. After the jury found Umaña eligible for the death penalty in the first portion of the sentencing phase, the proceeding moved to the sentencing selection phase. Over Umaña’s objection, the district court allowed the government to introduce hearsay testimony from Los Angeles police detectives concerning statements that MS-13 informants had given the detectives implicating Umaña in several unrelated murders in Los Angeles. Umaña argued that the Confrontation Clause required the government to produce the informants themselves at the sentencing selection phase. In a 2-to-1 decision, the Fourth Circuit panel (Niemeyer and Agee, with Gregory dissenting) affirmed the admission of the informants’ statements through the detectives.
Some Good News for the Blog
By Steve Klepper (Twitter: @MDAppeal)
Just a few weeks shy of the Maryland Appellate Blog’s first anniversary, we have two pieces of good news to share.
First, one of our sillier posts caught the attention of Marcia Coyle, who covers the Supreme Court for PBS NewsHour and the National Law Journal. Marcia interviewed me for a piece in today’s NLJ, which also features a new piece I wrote matching today’s justices with Marvel and DC superheroes.
Big thanks are due: to Marcia Coyle, who couldn’t have been nicer; to Mike Moline, who edited my piece for the better; to Texas Supreme Court Justice Don Willett, who encourages and retweets my malarkey; to my wife for putting up with me writing a post while on vacation; and, as always, to the whole Maryland Appellate Blog board for their contributions and support.
Second, we now have a blog manager, Chris Mincher. Like me, Chris graduated from the University of Virginia School of Law and worked on the Libel Show, Virginia Law Weekly, and the Journal of Law and Politics. Unlike me, Chris held leadership positions with those groups, was a law clerk (with Court of Appeals Judge Robert N. McDonald), and is a real journalist (with a résumé that includes The Washington Post and The Onion’s AV Club).
As blog manager, Chris will be responsible for keeping everyone on schedule and for continuing to work out the kinks in our editorial processes. You can look forward to fewer typos. He has already begun contributing to the blog. Chris will of course be keeping his day job as an associate at Silverman | Thompson | Slutkin | White LLC.
One Month to Go, Only Seven Cases Left! (With One Potential Blockbuster)
By Michael Wein
[EIC’s Update, 8/27/2014: The Court this morning decided Kulbicki, along with Spacesaver, and Brooks. It decided Raynor this afternoon.]
[EIC’s Update, 8/18/2014: The Court has since decided Chesapeake Bay, Peters, and NIHC. We’re still waiting on Spacesaver, Raynor, Brooks, and, notably, Kulbicki.]
As a follow up on previous posts by myself and members of this Blog, the Court of Appeals, under the helm of Chief Judge Mary Ellen Barbara, appears to be smoothly finishing work for the remaining cases from the 2013 Term by the self-imposed deadline of August 31, 2014. Per the handy “Pending Cases” link on the Court of Appeals’ website, discussed previously here, only seven cases from the term remain on the Court of Appeals’ docket. Read More…
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