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.
By Stuart Berman
The number of firearms available in the United States has nearly tripled over the past two decades, to the point where firearms outnumber people. Yet the Second Amendment is not limitless. The federal criminal code makes it unlawful for “prohibited persons” to possess a firearm: convicted felons (specifically, persons convicted of a crime punishable by imprisonment for a term exceeding one year); fugitives; drug addicts; persons adjudicated as mental defectives or committed to mental institutions; unlawful aliens; persons dishonorably discharged from the military; persons who renounced U.S. citizenship; persons subject to certain restraining orders; and persons convicted of misdemeanor domestic violence. A person who “knowingly violates” these prohibitions faces up to 10 years in prison in most cases, and up to life under certain circumstances.
Does “knowingly” mean the government must prove only that the defendant fell into an enumerated category and knowingly possessed a firearm? Or must the government also prove that the defendant knew he was a prohibited person? Read More…