United States v. Graham: The Fourth Circuit Rejects the Privacy Concerns of a Broad Range of Groups with Often Conflicting Interests
To appreciate the range of constituencies concerned with threats to privacy in this country, one need only examine the diverse array of amici supporting the appellants in United States v. Graham, No. 12-4659 (4th Cir., May 31, 2016) (en banc). Amici from the Conservative Legal Defense and Education Fund to the ACLU and from the Gun Owners of America to the Reporters Committee for Freedom of the Press lined up to voice their concerns in connection with the Fourth Circuit’s en banc review of its panel’s decision ruling that the government had violated Defendants’ Fourth Amendment rights when it obtained from their cellphone carriers’ records personal cell-site location information (“CSLI”) without a warrant supported by probable cause.[i] The Fourth Circuit nevertheless overturned the ruling.
COSA Dissent Watch: Questioning Police Officer Testimony and Bias in Voir Dire
The case: Lapole v. State, Sept. Term 2014, No. 2169 (June 27, 2016)
The questions: Can a voir dire question about bias regarding testimony of police officers reference other professions as well? Is the failure to properly give that question subject to harmless-error review?
Maryland High Court Introduces Civil Liability for Adults Who Allow Underage Drinking
This week, the Maryland Court of Appeals, in Kiriakos v. Phillips, punched a large hole in a civil-law doctrine that has long protected adults who host parties where underage guests are allowed to drink alcohol. While it has long been illegal to sell or otherwise supply alcohol to minors, Maryland law has nonetheless rejected attempts to assign civil liability to those who provide alcohol to minors when the inebriated minors injure themselves or others. Although minors who consume alcohol frequently cause horrific – often fatal – accidents (or commit serious felonies), Maryland tort law has traditionally assigned liability for the injuries to those who consumed the alcohol while shielding the individuals or businesses that furnished the alcohol. But, recognizing the special vulnerability of minors to alcohol, the Court now holds that adults who “knowingly and willfully” allow underage guests to drink on their property and substantially contribute to the minor’s diminished ability to reason can be found liable for the harm that results from a drunken guest’s subsequent actions. Read More…
New Employee Classification in the Fourth Circuit: Exotic Dancer
As a government legal adviser, I often encountered the question of whether a person performing services for Montgomery County was an employee or an independent contractor. The distinction held significance, because it determined who had responsibility for Social Security payments, unemployment insurance premiums, workers’ compensation benefits, overtime, and other aspects of the employment relationship. Simply designating a person as an independent contractor usually did not make it so. Instead, the activities performed by the person and the manner of performing them became key focal points.
State v. Braverman: $5 million fee award here today, gone tomorrow
In an opinion featuring forceful and direct language, the Court of Special Appeals recently reminded us that the “American Rule” regarding attorneys’ fees remains alive and well in Maryland. In 2007, 49 plaintiffs, led by William Braverman and Stanley Goldberg, sued the State of Maryland, challenging the constitutionality of recently enacted legislation affecting the use of “ground leases” in Maryland. After several years of litigation – including removal to federal court followed by a remand to state court, an effort to change venue, certification as a class action, and a trip to the Court of Appeals – the plaintiffs succeeded in their attack on that legislation. See State v. Goldberg, 437 Md. 191 (2014). The plaintiffs then filed a fee petition in the circuit court, which, after an evidentiary hearing, ordered the State to pay $5 million in fees. But the joy of that victory was short-lived, as the Court of Special Appeals, in State v. Braverman, No. 429 Sept. Term (June 1, 2016), reversed the circuit court’s award as running afoul of the American Rule.
COSA Dissent Watch: Credibility and Contradiction in a “Sham Affidavit”
The case: Davis v. Lewin Realty, III, Sept. Term 2015, No. 0420 (May 25, 2016) (unreported)
The questions: Can a court assess credibility in striking a “sham affidavit” pursuant to Md. Rule 2-501? In the context of that rule, how specific do statements have to be for a court to find them contradictory? Is it a materially inconsistent for a witness to recall facts in a later affidavit that she could not recall in an earlier deposition?
Shapiro v. McManus: Round Two for the Constitutionality of Maryland’s 2011 Congressional Redistricting
Shapiro v. McManus, No. 14-990, 136 S. Ct. 450 (decided Dec. 8, 2015), started as a challenge, on First Amendment grounds, to Maryland’s 2011 congressional redistricting. It appears, however, that Maryland and Supreme Court watchers nationwide will need to wait before the Court potentially sheds light on the lawfulness of that or other First Amendment challenges to congressional and state legislative redistricting.[1] In Shapiro, a unanimous Supreme Court ruled only that the Fourth Circuit Court of Appeals erred in affirming the District Court’s decision that it was not required under the Three-Judge Court Act, codified at 28 U.S.C. § 2284, to convene a three-judge panel to consider Petitioners’ First Amendment challenge to the 2011 redistricting. Further, because the Court has already summarily and unanimously upheld an equal-protection challenge to Maryland’s 2011 redistricting, see Fletcher v. Lamone, 831 F. Supp. 2d 887 (D. Md. 2011), aff’d 133 S. Ct. 29 (2012), it seems unlikely that Shapiro will clarify the standards applicable to a constitutional challenge to redistricting.
Maryland Court of Appeals continues its cautious approach to finding implied private causes of action
On May 20, 2016, in Fangman v. Genuine Title, LLC, a case certified from federal court, the Maryland Court of Appeals held that Md. Code Ann., Real Prop. (“RP”) § 14-127 – which generally prohibits kickbacks and similar arrangements with respect to real-estate settlement business – does not create a private cause of action. Judge Watts wrote the opinion for the unanimous Court, which continued a winning streak in the Court of Appeals for defendants arguing against recognizing implied private rights of action.
Non-Mutual Collateral Estoppel: A Shield, but Now Clearly Also a Sword
Last summer, I reviewed the decision of the Court of Appeals in Shader v. Hampton Improvement Ass’n, Inc., 443 Md. 148 (2015), and the decision of the Court of Special Appeals in Garrity v. Maryland State Bd. of Plumbing, 221 Md. App. 78 (2015), and posed the following question: In addition to being used defensively as a shield, may non-mutual collateral estoppel be used offensively as a sword? In Garrity, the Court of Special Appeals had embraced the use of offensive non-mutual collateral estoppel, at least in the context of successive proceedings brought by separate administrative agencies. But I noted that the Court of Appeals on a number of occasions had neither embraced nor rejected offensive use of the doctrine, and, in Shader, had skirted the question, holding that the case did not require an answer to it. I suggested that the issue needed to make its way back to our highest court so that the Court could have the final word on the subject. Having granted certiorari in Garrity, the Court of Appeals a few weeks ago issued an opinion permitting offensive non-mutual collateral estoppel.
Do not overestimate the exceptions to the exhaustion of administrative remedies
When evaluating a new case, the focus often relates to the merits of the claim: Is your client credible? Are there witnesses who can corroborate your client’s position? Are there documents that substantiate the claim? What legal theories apply? Has the statute of limitations run yet?
All of these elements play a significant role in advising a client and deciding to pursue the case. When handling matters before administrative agencies, however, it also is essential to consider the hierarchy of remedies that are available. Some administrative remedies must be pursued before filing a complaint in court, while others may proceed concurrently or without affecting other legal processes. Knowing where to go first can be tricky, as two police officers learned the hard way.
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