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Hemphill v. NY: Statement’s Reliability Must be Tested by Cross-Examination, Not by Judicial Determination

By Megan E. Coleman

In Hemphill v. New York, Justice Sotomayor authored the Court’s 8-1 opinion holding that the trial court’s admission of a plea transcript containing testimonial statements by a non-testifying declarant, violated Hemphill’s Sixth Amendment right to confront this witness, notwithstanding the fact that the defense “opened the door” by presenting misleading information to the jury.

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The Supreme Court’s Vaccine-Mandate Decision Illustrates the Ascendency of the “Major Questions” Doctrine in Administrative Law.

By John Grimm

Last week’s ruling in National Federation of Independent Business v. OSHA[1] was big news. The Court stayed the enforcement of OSHA’s rules requiring employers with more than 100 employees to be vaccinated against COVID-19, or else wear a mask and take a weekly test. Technically, the Court didn’t strike down the rules, but it found a strong likelihood of success on the merits (necessary for any stay of an agency rule pending review) which makes it difficult to envision any other result when the merits are finally heard.

The majority opinion—written per curiam so we don’t know the author—focuses on OSHA’s statutory authority. OSHA is empowered to promote “safe and healthful working conditions” by enacting rules that are “reasonably necessary or appropriate to provide safe or healthful employment.”[2]  The majority reasoned that COVID-19 is a universal hazard, not a workplace hazard, and held that OSHA’s mandate does not permit it to regulate public health crises just because they happen to affect workplaces.  In dissent, Justice Breyer examined the same statutory authority and administrative record to argue that the risk of COVID exposure is a workplace hazard that OSHA was entitled to regulate against.

There could be a robust academic debate over the majority and dissent’s arguments, but the most interesting aspect about the opinion for the future of administrative law is Justice Gorsuch’s concurrence.  All of the opinions recognized that agencies only possess power that Congress grants them, but Justice Gorsuch took the opportunity to elaborate on a particular nuance to that rule which he has written on before: the major questions doctrine.

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Weighing Controlling and Persuasive Daubert Authorities for Maryland State Courts

By Derek Stikeleather

Since Maryland’s formal adoption of the Daubert standard for admitting expert testimony in Rochkind v. Stevenson, 471 Md. 1 (2020), many Maryland judges and practitioners have sought more specific guidance on how to apply our new standard. Among the many questions, what weight do Daubert cases from outside Maryland hold? And how important are the official Advisory Committee notes for Federal Rule 702 now that Maryland—by adopting the standard that federal courts use to construe FRE 702—has essentially adopted FRE 702?

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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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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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When can a haircut amount to destruction or concealment of evidence?

By Brad McCullough

When can a haircut amount to destruction or concealment of evidence? That question was before the Court of Special Appeals in Rainey v. State, No. 3094, Sept. Term 2018 (Sept. 28, 2021). The defendant was charged with murder. At the time of the slaying, he sported long dreadlocks, but when he was arrested, his hair was close-cropped. As the appellate court noted, the Court of Appeals has said “that a jury may infer consciousness of guilt if a defendant alters his appearance after the commission of a crime.” But Maryland does not have a pattern jury instruction that covers that issue. At trial, the prosecution did not propose a customized jury instruction, but instead asked the circuit court to give the pattern jury instruction that covers destruction or concealment of evidence. The court gave that instruction and the jury returned a guilty verdict. Did the trial court err in giving that instruction? Does cutting hair destroy evidence?  

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The Proliferation of Dissents from the Denial of Rehearing En Banc

By Megan E. Coleman

Each week my email inbox receives links to published opinions released by the Fourth Circuit. When I saw the link for Jane Doe v. Fairfax County School Board, No. 19-2203, I almost did not click on it. It was an order denying rehearing en banc and my first thought was, what could be enlightening about that? Luckily, I thought twice. After all, the Fourth Circuit decided to publish this order, so there must be more to it. Indeed, there was.

The first line of the order reads as one would expect: “The court denies the petition for rehearing en banc.” But what follows is an unexpected exchange between a concurring opinion and two dissenting opinions in which the concurrence writes to “confront” the dissent about a practice that is appearing with more frequency in the Fourth Circuit – dissenting from denials of rehearing en banc.

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“Don’t Say Daubert”? Why Not?

By Derek Stikeleather

No one likes to arrive at a party just as the fun is ending and the guests are leaving. Yet, within a year of the Court of Appeals completing its two-decade journey towards formally adopting the Daubert standard for admitting expert testimony, see Rochkind v. Stevenson, 471 Md. 1 (2020), a nationwide legal movement has begun rallying behind the slogan “Don’t Say Daubert.” Has Maryland arrived at the Daubert party only to see everyone else leave?

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In Reversing Tax Court Decision, Court of Special Appeals Demonstrates Agencies’ Power to Shape the Law

By John Grimm

Appeals of administrative agency decisions can be deceiving. While they often involve dry and highly technical matters, they also contain some of the trickiest and most interesting problems regarding courts’ powers over a coordinate branch of government’s exercise of its legal authority. The Court of Special Appeals recently proved that in the administrative law world, important concepts can arise out of seemingly minor regulatory decisions: In this case, a $2,554.37 tax assessment.

Comptroller v. Atwood, involved the proper application of Maryland Annotated Code, Tax-General § 11-208(c)(1), which makes aircraft used principally for interstate commerce exempt from a state sales and use tax. The appellee paid $34,000 for 1958 Beechcraft airplane, which he used primarily to train his son how to fly, and to travel back and forth to JFK Airport where he worked. The Comptroller assessed a $2,040.00 sales and use tax plus interest and a penalty totaling $2,554.37. The appellate disputed the tax, first before the Comptroller, and then in the Tax Court. The Comptroller affirmed the assessment, holding that the appellee’s use of the plane was not interstate commerce and did not qualify for a tax exemption.

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Dissenters Say Supreme Court Majority Takes Easy Out In Controversial Case

By Megan E. Coleman

On June 28, 2021, the United States Supreme Court issued a per curiam opinion in Jody Lombardo, et al. v. City of St. Louis, Missouri, et al., No. 20-391. The question presented to the Supreme Court was whether a reasonable jury could find that officers used excessive force when they put a handcuffed and shackled person face-down on the ground and pressed into his back until he suffocated to death.

Rather than decide the issue, the per curiam opinion punted the question back to the Eighth Circuit, reasoning that the Eighth Circuit had discounted “insignificant” facts that might have made a difference when deciding whether to grant summary judgment on an excessive force claim. The Supreme Court also asked the Eighth Circuit to clarify whether it believed that the use of a prone restraint is per se constitutional so long as an individual appears to resist officers’ efforts to subdue him.

True to per curiam format, this opinion fails to list an author or name the justices comprising the majority. However, this per curiam opinion features a dissent by Justice Alito, which was joined by Justice Thomas and Justice Gorsuch. The dissent calls into question whether this was a proper use of a per curiam opinion, or instead, whether it was used to avoid deciding a controversial issue in the midst of a social justice movement.

The timing of the issuance of this per curiam opinion fuels the argument by the dissent as this per curiam opinion was issued just three days after Minneapolis Police Officer Derek Chauvin was sentenced for the murder of George Floyd. The Lombardo case presented facts akin to those in George Floyd’s case and ultimately called for a similar determination of whether the police used excessive force under the circumstances.

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