Archive | November 2021

Seven apply for Maryland Court of Appeals Vacancy (Third Appellate Circuit)

Four judges and three attorneys have applied for the Court of Appeals vacancy that will arise when Chief Judge Joseph M. Getty turns 70 this coming April. This expanded list of applicants comes after the vacancy was “re-advertised at the request of the Governor in order to attract as broad a field of candidates as possible consistent with his commitment to diversity and outreach.”

This seat on the State’s highest court is for the Third Appellate Judicial Circuit, which includes Allegany, Carroll, Frederick, Garrett, Howard and Washington Counties. The applicants are:

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691 text messages—a tale of authenticity, relevance, and hearsay.

By Brad McCullough

The Court of Special Appeals recently faced a case where 691 text messages played a significant role in the conviction of a defendant charged with drug offenses. Challenging the admission of those messages at trial, the defendant raised issues of authenticity, relevance and prejudice, and hearsay. Having failed in his efforts at trial, he appealed. But he fared no better in the Court of Special Appeals than he had in the Circuit Court for Talbot County, as the appellate court affirmed his conviction. Sykes v. State, No. 2132, Sept. Term, 2019 (Nov. 18, 2021). 

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Twelve Apply for Court of Appeals Vacancy (Harford and Baltimore Counties)

Following re-advertisement of the vacancy, “at the request of the Governor in order to attract as broad a field of candidates as possible consistent with his commitment to diversity and outreach,” six judges and six lawyers are now applying for the Court of Appeals vacancy that will arise when Judge Robert McDonald turns 70 this coming February.

The applicants are:

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November 2021 Maryland Certiorari Grants

Last week, the Court of Appeals granted review in two criminal cases and three civil cases. It posted the questions presented this afternoon, and we’ve posted them below with links to the Court of Special Appeals decisions under review.

Judge Gould is recused from the three cases involving reported opinions, because he participated in the Court of Special Appeals’ vote to report the opinions.

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In NRG Energy v. Public Service Commission, the Court of Special Appeals Hints at an Intriguing Question of Administrative Deference, but Leaves it Unanswered for Now.

By John Grimm

About a month ago, the Court of Special Appeals handed down a reported opinion in NRG Energy v. Public Service Commission, Sept. Term, 2020, No. 1181, — Md. App. —, 2021 WL 4704825.[i] The case involved a dispute over the rates Baltimore Gas and Electric (“BGE”) can charge for electric service.

Without getting too far into the details—because they’re not relevant for the issues I find most interesting about this case—when the General Assembly de-regulated the electric market in the late 90s and early 2000s, it allowed BGE to keep a monopoly on the service of delivering electricity, but opened the market for competition on the product of electricity. For those consumers who cannot or do not select a provider, however, BGE must offer a fall-back service, whose rates are set in tariffs approved by the Public Service Commission (“PUC”). The formula for setting those rates is complicated, and it includes some open-ended factors such as an “administrative adjustment,” but the overall goal of the rate is to approximate reasonable market rates.

A lengthy series of administrative proceedings ensued, at which BGE, the Maryland People’s Counsel, and a number of providers—comprising an “Energy Service Coalition”—offered economic analyses, and the PUC ultimately set a new rate.  The private providers objected that the rate was too low, and filed a petition for judicial review, which ultimately made its way to the Court of Special Appeals. 

Applying arbitrary and capricious review, the court held that except for two small exceptions—the PUC relied on a piece of evidence it said was unsupported, and apparently made a minor mathematical error—the court affirmed the decision.  But what’s most interesting in this case is a question presented, but ultimately not answered, by the court: whether the PUC is “entitled to deference when addressing an issue of first impression on which it has yet to develop precedent, consistent rulings or expertise[.]”[ii]

Deference is an important topic in administrative law, that is often conflated with similar topics like the appropriate standard of review to apply to an agency’s decision. But, while arbitrary-and-capricious review, for example, focuses on the agency’s reasoning in reaching a decision, deference applies to an agency’s interpretation of its own statute.[iii] Deference is also an area where federal and Maryland administrative law differ somewhat.

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