Archive | September 2017

Benisek v. Lamone – an End Run for No Gain in Redistricting Challenges?

By Alan B. Sternstein

A three-judge panel of the federal district court for Maryland recently concluded another round in the longstanding legal fight over the state’s 2011 congressional redistricting plan and, in particular, the plan’s restructuring of Maryland’s Sixth Congressional District. In a 2-1 decision, the panel denied plaintiffs’ motion for a preliminary injunction against use of the redistricting plan in the upcoming 2018 midterm congressional elections. Benisek v. Lamone, 2017 U.S. Dist. LEXIS 136208 (Aug. 24, 2017) (“Benisek II”).[1] In Benisek v. Lamone sub nom. Shapiro v. McManus, 203 F. Supp. 3d 579 (D. Md. 2016) (“Benisek I”), the same district court panel denied defendants’ motion to dismiss plaintiffs’ second amended complaint. Read More…

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Final Judgments and Harmless Jurisdictional Error in Maryland

By Michael Wein

Appealable final judgments have been described as a legal quagmire that for “the past forty or fifty years … no one issue has been the subject of more opinions than the question of whether a trial court order is appealable …” Brewster v. Woodhaven Bldg. & Dev. Inc., 360 Md. 602, 623 (2000). Going further, the Court of Appeals noted “[n]either the Code nor the Rules define when an order or ruling is sufficiently final to qualify as a judgment…’[W]hether a ruling is final’ … is frequently so close a question that decision of that issue either way can be supported with equally forceful arguments, and that it is impossible to devise a formula to resolve all marginal cases coming within what might well be called the ‘twilight zone’ of finality”) Circuit City Stores, Inc. v. Rockville Pike Joint Venture Ltd. P’ship, 376 Md. 331, 347 (2003), quoting in part, Gillespie v. United States Steel Corp., 379 U.S. 148, 152 (1964)). The solution for the “marginal” and/or inadvertent non-final judgment cases being actually decided on the merits by the Maryland appellate courts, with reasonable continuing predictability for the vast majority of appeals that do not have these concerns, may be found in a Federal Rule and legal interpretation, and recent developments support a similar Rules adoption. Read More…

Event: Chambers Chat with COSA Judge Beachley

From our inbox…


The YLS of the Frederick County Bar and MSBA YLS is hosting a

Chambers Chat

with

The Honorable Donald E. Beachley

Judge at the Court of Special Appeals

on

Wednesday September 27, 2017

5:30 p.m. until 7:00 p.m.

Miles & Stockbridge

30 West Patrick Street, 5th Floor

Frederick, Maryland 21701

Judge Beachley will be talking to the group about (1) preserving the record; (2) concise briefing; (3) and oral argument techniques.  There will also be a question and answer period.

Refreshments will be provided

RSVP not required

For more information please email Detric Kemp at Detric@conklynlawfirm.com

September 2017 Maryland Certiorari Grants

The merits docket for September Term 2017 is filling up fast, with 12 new grants posted yesterday on the Maryland Court of Appeals website. We’re now up to 47 merits cases, meaning that the merits dockets is probably about half full. The cases involve a drug-sniffing dog, a woman who needed to visit the rest room before submitting to a breathalyzer test, a challenge to the authentication of business records, a wrongful death claim against a pyschiatrist who discharged a patient from involuntary commitment, a statute-of-repose defense against an asbestos claim, and many more. The full list appears after the jump. Read More…

COSA Spotlight: Judge Stuart Berger

By Steve Klepper (Twitter: @MDAppeal)

This post kicks off a series of profiles of the judges of the Court of Special Appeals. Our guinea pig for this series is Judge Stuart R. Berger, who holds one of the Court’s eight at-large seats. I interviewed him at his Baltimore City chambers. Read More…

August 2017 Maryland Certiorari Grants

The Court of Appeals posted a batch of August 28 certiorari grants, but we were waiting for the questions presented to appear on the Court’s site before we did a post. They’re up, and they’re interesting. Question 1 in Seaborne-Worsely, for example, involves a bar-exam-type hypothetical on the operation of Maryland’s contributory negligence rule; it looks like the Court of Appeals took the case on bypass review. State v. Brookman (COSA opinion here) features a variety of appellate procedure questions arising out of Drug Court proceedings. Rodriguez v. Cooper (COSA opinion here) is on its second trip to the Court of Appeals, which in 2015 reinstated a jury finding of gross negligence against a corrections officer in charge of prison transport bus during one inmate’s murder of another. This time, the question is whether the cap on noneconomic damages applies.

The complete list of grants appears after the jump. Read More…

Clear and present danger: An abused spouse can hire a contract killer and argue imperfect self-defense.

By Brad McCullough

When is a threat of mortal harm so imminent that a preemptive attack is justified or at least understandable? No, this is not a discussion of the nuclear threat posed by North Korea and the possibility of preemptive military action by the Trump administration. Instead, this is a look at the recent decision of the Court of Appeals in Porter v. State, No. 88, Sept. Term, 2016 (Md. Aug. 7, 2017), a murder case involving battered spouse syndrome and imperfect self-defense. This is a very interesting case, made even more interesting by how the members of the Court split. We sometimes see appellate courts split along liberal versus conservative lines, or between Democratic appointees and Republican appointees. But here, the Court split along gender lines, with the four female judges forming the majority and the three male judges in dissent. And that split reflected diametrically opposed views of what constitutes a threat of imminent harm. To the majority, a threat of inevitable harm can constitute a threat of imminent harm. But to the dissent, only a contemporaneous threat can constitute imminent harm. Read More…