Archive by Author | MdAppBlog

Rucho v. Common Cause – Allowing the Constitution to Sow the Seeds of Democracy’s Demise?

By Alan B. Sternstein

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,[1] 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.[2]  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…

Kisor v. Wilkie and the Next Chapter in Administrative Deference

By John Grimm & Guest Contributor Mark Davis

The Supreme Court recently decided Kisor v. Wilkie,[1] 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[2] 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.

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Help from the Justice Reinvestment Act may be limited

By Karen Federman Henry

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).

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COSA Spotlight: Judge Daniel A. Friedman

By: Derek Stikeleather

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.

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July 2019 Maryland Certiorari Grants

The Court of Appeals closed this week by granting certiorari in six cases, on issues including shelter care in CINA cases, insurance coverage, and tolling the Hicks Rule for DNA testing:

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Supreme Court Potentially Guns Down Thousands of Firearms Convictions

By Stuart Berman
Guest contributor

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…

June 2019 Maryland Certiorari Grants (one extra)

The Court of Appeals granted certiorari today in one additional civil case.

Gables Construction, Inc. v. Red Coats, Inc., et al.– Case No. 23, September Term, 2019 (Reported COSA opinion by Judge Wright)

Issue – Torts – As a matter of first impression, did CSA err in holding that a defendant can be liable for joint tortfeasor contribution even though it is not liable to the injured person in tort by virtue of a contractual waiver of claims covered by insurance?

Pirates and Piracy: The Supreme Court Will Examine Whether States are Immune from Copyright Infringement Claims in a Dispute Over Blackbeard’s Shipwreck

By John Grimm

The Supreme Court has agreed to hear a case that will determine whether Congress can abrogate states’ sovereign immunity with respect to copyright infringement claims.  Allen v. Cooper, No. 18-877.    The case arises out of an underwater research expedition to document and salvage the wreck of Blackbeard’s ship off the coast of North Carolina.  The salvage team alleges that, without permission, North Carolina published some of the team’s footage on the internet, violating its copyright in the footage.

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Food trucks vs. brick-and-mortar restaurants, vestiges of Lochner v. New York, and the parameters of Maryland’s rational basis test – Pizza di Joey, LLC v. Mayor of Baltimore

By J. Bradford McCullough

Economic rivalries between classes of competitors have long existed. In the late eighteenth century, for example, disputes between shepherds and cattlemen were legendary, and clashes between farmers and ranchers supplied the grist for movies depicting life in the American west. In the urban America of the early twenty-first century, a rivalry has developed between food truck vendors and the operators of brick-and-mortar restaurants. The past ten years have seen a rapid increase in the number of food trucks in scores of American cities, leading to restaurateurs’ cries of unfair competition. Different cities have responded in different ways, with some localities welcoming food trucks and carts, while others have acted to protect restaurants by restricting the areas where food trucks may operate. See America’s food-truck industry is growing rapidly despite roadblocks, The Economist, May 2, 2017. Baltimore falls within the latter camp. In an opinion authored by Judge Douglas Nazarian – for a panel that included Judge Daniel Friedman and Senior Judge of the Court of Appeals (specially assigned) Lynne Battaglia – the Court of Special Appeals discussed Baltimore’s regulation of food trucks, considered a legal argument that flowed from the Supreme Court’s decision in Lochner v. New York, 198 U.S. 45 (1905) and explained the parameters of Maryland’s rational basis test. Pizza di Joey, LLC v. Mayor of Balt., No. 2411, Sept. Term, 2017 (May 30, 2019). Ultimately, the Court upheld Baltimore’s regulation.

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Join Us for the Annual SCOTUS Panel in Ocean City

By Steve Klepper (Twitter: @MDAppeal)

On Friday, I’ll have the pleasure of moderating the annual Supreme Court Term in Review panel at the MSBA Annual Meeting. The program is sponsored by the MSBA Section of Litigation and its Appellate Practice Committee.

Our all-#AppellateTwitter panelists this year are: Read More…