Archive by Author | MdAppBlog

In-Person Appellate Oral Arguments Ended Suddenly with a Bang, and are Restarting Slowly with Anticipated Full Strength in the Fall.

By: Michael Wein

What happened in March 2020 was an abrupt departure for everyone, and a surprisingly long segue from normal.  This post provides an update.   As outlined in detail in previous posts for this Blog,  the Maryland and Federal Appellate Courts (which include Maryland), suddenly postponed Oral arguments in March 2020.  They also had the unenviable task transitioning to Remote Oral Arguments for the first time.  It’s been that way for about a year.

Assuming T.S. Eliot is a legal authority (he’s not, but fun to quote) and as a matter of transitive logic, a “bang” wouldn’t signify the end of the world…only a whimper.   Thus, there will be a resumption of normal. [1]

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The Institution of the Judiciary and Judicial Review, American Democracy’s Lifeline

By Alan B. Sternstein

Until recently, the social and political institutions of the United States long enjoyed, largely, the respect and the fealty of its citizenry. Though their raison d’etre vary, our institutions our schools, houses of worship, courts, legislatures and more all serve a common and fundamental function. They facilitate the conduct of orderly and rational discourse aimed at achieving consensus of purpose, in, importantly but not exclusively, matters of education, worship, governance, and commerce. Plainly, however, institutions do not guarantee discourse having such quality and effect. That depends, instead, on the character of each institution’s members. Given their essential function and the vital purposes, how is it that our most important institutions, those of government, have fallen so far in function and repute? Certainly bearing responsibility, at the federal and even state levels, has been the Supreme Court’s insensitivity to, if not abdication of, the unique position it occupies to protect our democratic form of government, which judicial proclivity is the subject of this post. We start first, though, with some political theory.

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Divergence Between the Fourth Circuit and Maryland in Extending Arizona v. Gant to Non-Vehicular Searches Incident to a Lawful Arrest

By Megan E. Coleman

Arizona v. Gant, 556 U.S. 332 (2009) involved the search of a vehicle after the driver had been lawfully arrested, handcuffed, and locked in a patrol car. The Supreme Court rendered two holdings, the first, which is relevant for this post, held that the police may not use the search incident to a lawful arrest exception to the warrant requirement to search a vehicle incident to a recent occupant’s arrest after the arrestee has been secured and cannot access the interior of the vehicle.

Gant’s first holding was premised upon Chimel v. California, 395 U.S. 752 (1969), a non-vehicular search case in which it was determined that police may search incident to arrest only the space within an arrestee’s “immediate control”, meaning “the area from within which he might gain possession of a weapon or destructible evidence.” The Chimel holding was then applied to vehicle searches in New York v. Belton, 453 U.S. 454 (1981).

However, the Gant Court limited Belton’s reach, based upon Chimel, since the purpose of allowing a search to prevent a suspect from gaining possession of a weapon or destroying evidence would be rendered nugatory where the suspect has already been secured and cannot access the interior of the vehicle.

For the past decade, in Maryland and in the Fourth Circuit, the holding in Gant has been applied exclusively to vehicle searches.

But on May 7, 2021, in United States v. Howard Davis, the United States Court of Appeals for the Fourth Circuit joined three other federal circuits in concluding that the holding in Gant applies to searches of non-vehicular containers as well. Now, police can conduct warrantless searches of non-vehicular containers incident to a lawful arrest, but “only when the arrestee is unsecured and within reaching distance of the [container] at the time of the search.”

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Scent of Marijuana Alone Does Not Provide Reasonable Suspicion to Seize a Person in Maryland

By Megan E. Coleman

Since Maryland decriminalized possession of less than 10 grams of marijuana in 2014, Maryland’s appellate courts have been tasked with determining how this non-criminal, but non-legal substance, factors into the reasonableness of warrantless searches and seizures where evidence of marijuana is present. 

On April 28, 2021, the Court of Special Appeals of Maryland decided In re: D.D., holding, as a matter of first impression, that the odor of marijuana, by itself, does not provide reasonable suspicion of criminal activity, and therefore, a stop based on this circumstance alone is unreasonable under the Fourth Amendment.

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Modern Family Law: Who Gets the Frozen Pre-Embryos?

By Derek Stikeleather

With the increasing use of cryogenic preservation in fertility treatments (and thousands of Maryland divorces every year), it was only a matter of time before Maryland’s appellate courts would need to create a framework for resolving custody disputes over frozen pre-embryos. That time arrived last month when the Court of Special Appeals handed down its reported decision in Jocelyn P. v. Joshua P., No. 2125, September Term, 2019. It is the first Maryland appellate decision to “examine how to determine the rights of parties, upon dissolution of their marriage or partnership, in a pre-embryo that they jointly created and cryopreserved.”[1]

The court adopted a hybrid test that first looks to the intent of the parties in any relevant prior agreement—focusing on their actual intent instead of boilerplate recitations in form contracts prepared by fertility-treatment centers and storage labs—before applying a multi-factor balancing test. If the parties did not have a (non-boilerplate) “express agreement, courts should seek to balance the competing interests under the following factors: (1) the intended use of the frozen pre-embryos by the party seeking to preserve them; (2) the reasonable ability of a party seeking implantation to have children through other means; (3) the parties’ original reasons for undergoing IVF, which may favor preservation over disposition; (4) the potential burden on the party seeking to avoid becoming a genetic parent; (5) either party’s bad faith and attempt to use the frozen pre-embryo as leverage in the divorce proceeding; and (6) other considerations relevant the parties’ unique situation.[2]

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May 2021 Maryland Certiorari Grants

Today the Maryland Court of Appeals granted certiorari in five civil cases, one criminal case, and one juvenile case. This March, Alan Sternstein posted about the Court of Special Appeals decision in one of the civil cases, Mercer.

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Breached NDA renders a $20 million verdict, but only a $1 judgment

By Brad McCullough

In the last few years, we’ve heard a lot about non-disclosure agreements or “NDAs.” They are commonly used to protect against disclosure of confidential business information or financial data and similar types of highly sensitive information. Sometimes the question arises, what happens if someone breaches an NDA? In a recent Maryland case, the answer had a whipsaw-like quality, as a jury returned a $20,000,000 verdict only to see the trial judge reduce the award to $1. In an opinion written by Judge Steven Gould, and joined by fellow panelists Judge Gregory Wells and Senior Judge James Eyler, the Court of Special Appeals affirmed that drastic reduction. Adcor Indus, Inc. v. Beretta U.S.A. Corp., No. 0118, Sept. Term, 2019 (Md. Ct. Spec. App. April 1, 2021).

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Court of Appeals Clears Baltimore City Excise Tax on Clear Channel’s Billboards

By Alan B. Sternstein

In Clear Channel Outdoor, Inc. v. Dep’t of Finance, No. 9, September Term, 2020 (decided Mar. 15, 2021), the Court of Appeals recently affirmed the January 2020 decision of the Court of Special Appeals, which had ruled that Baltimore’s excise tax on billboards did not violate the First Amendment or Article 40 of the Maryland Constitution. Clear Channel Outdoor, Inc. v. Dep’t of Finance, 244 Md. App. 304, 223 A.3d 1050 (2020). An April 15, 2020 post on this Blog previously discussed the decision of the Court of Special Appeals. The decision of the Court of Appeals, though affirming the Court of Special Appeals, provides important clarification with regard to assessing the constitutionality of speech constraints effected by regulation of the means, as opposed to the content, of speech.

Specifically, in reaching its decision, the Court of Special Appeals implied that regulation which limited or burdened only the means of communication was without First Amendment significance.  As will be reviewed in this post, the April 15, 2020 post argued otherwise, in principle and discussing relevant Supreme Court precedents.  In reaching its decision, the Court of Appeals was clear that such regulation, though impacting only the noncommunicative, means of speech, also required First Amendment attention.

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April 2021 Maryland Certiorari Grants

On Friday, the Court of Appeals of Maryland (which will probably be renamed the Supreme Court of Maryland in 19 months) granted review in three appeals, all criminal, to be argued in September.

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Maryland appellate courts likely getting new names, maybe new building

By Steve Klepper (Twitter: @MDAppeal)

As Steve Lash reported at The Daily Record on Wednesday, the 2022 general election ballot will include a proposed constitutional amendment under which the Court of Appeals of Maryland would become the Supreme Court of Maryland, its members would be called “Chief Justice” and “Justice,” and the Court of Special Appeals would become the Appellate Court of Maryland.

Although the election is 19 months away, the amendment is overwhelmingly likely to win approval on November 8, 2022. By my count, 29 constitutional amendments have gone before Maryland voters since 1994, and voters have approved all but two. Nearly all have received at least two-thirds (67%) support. The only amendments to fail were controversial proposals to raise the judicial retirement age to 75 in 1994 (which came close to passage with 48% of the vote), and to allow “quick take” condemnation of property for redevelopment in Prince George’s County in 2000 (which garnered only 38% support). Only one other amendment came close to rejection—a 2002 amendment relating to emergency legislative powers won 50.6% approval.

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