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The Janus decision should not be a surprise

By Karen Federman Henry

Two years ago, we awaited the appointment of a successor to the empty seat on the U.S. Supreme Court that resulted from the death of Justice Scalia. An early casualty of a tie votes occurred in Friedrichs v. California Teachers Association, No. 14-915. Many public employers and employees had their eyes on the case, which involved the California Teachers Association, because its outcome had the potential to alter the relationship between public employees and their union representatives that has existed since the 1970s. Read More…

Locating a Fragmented Appellate Court’s Rule of Decision – The Marks Rule Marks the Spot?

By Alan B. Sternstein

Stare decisis, the practice of following in judicial decisionmaking a rule of decision established in prior cases, is a cornerstone of the United States legal system. More fundamentally, it is the practice of respecting precedent. The Marks Rule, the subject of this post, aides stare decisis by purporting to establish a method for ascertaining the binding rule of decision in fragmented cases, that is, cases in which no majority of a quorum of an appellate court joins in a single opinion of the court or in otherwise expressing the rule of decision. Read More…

Hillary Clinton’s e-mails, attorney discipline, and the original and exclusive jurisdiction of the Court of Appeals – Attorney Grievance Commission v. Clevenger

By Brad McCullough

Hillary Clinton’s use of a private e-mail server to conduct business as Secretary of State has been the primary focus, or at least an aspect, of various investigations, including ones by the FBI, the State Department’s Office of the Inspector General, the House Select Committee on Benghazi, and the House Oversight Committee. Add the Maryland Attorney Grievance Commission, Bar Counsel, and Court of Appeals to the list of authorities who have now touched some aspect of that controversy. After a Texas lawyer persuaded a circuit court judge to order the Commission and Bar Counsel to investigate three lawyers for actions they allegedly took while representing Clinton, the Court of Appeals held that the circuit court lacked jurisdiction over the Texas lawyer’s request.

Read More…

Free Speech May Have Some Limits

By Karen Federman Henry

One of the fundamental tenets of the United States Constitution is the freedom of speech, which includes the ability to air our grievances about government activities.  Fane Lozman did just that in the City of Riviera Beach, Florida.  During the public participation portion of a meeting held by the City Council, Mr. Lozman began to discuss the recent arrest of a former county official.  After several requests to cease his remarks, the Council asked for the assistance of a police officer.  When Mr. Lozman continued to refuse to cooperate, he was arrested for disorderly conduct and resisting arrest.  Although later released, the posture of the case as it reached the Court required analysis of the principles related to lawful arrests in the context of the First Amendment prohibition against government retaliation when a person exercises his right to free speech.  The decision issued by the Court in June in Lozman v. City of Riviera Beach, Florida, 585 U.S. ___ (2018), focused less on the public forum aspects of the case than on the probable cause for arrest and the possible retaliation of the Council.

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Maryland Certiorari Statistics, September Term 2017

By Steve Klepper (Twitter: @MDAppeal)

I’m often asked what percentage of certiorari petitions the Maryland Court of Appeals grants. Each year, the Maryland Judiciary publishes a statistical abstract. The most recent report includes this table:

Maryland Certiorari Statistics

I’ve begun reviewing the Court’s petition docket to get more details.  Read More…

COSA addresses whether heroin distribution can support a conviction for involuntary manslaughter

By Brad McCullough

Across the country, opioid use has reached epidemic proportions with often tragic results. Maryland is no different from the rest of America. To battle this deadly plague, many prosecutors are charging drug dealers with homicide when customers die from overdoses caused by the drugs sold by the dealers. And again, many Maryland prosecutors are pursuing that same strategy by lodging homicide charges against dealers. These efforts have earned media attention, as seen in articles such as Alison Knezevich, Maryland Prosecutors Pursue Manslaughter, Murder in Overdose Cases, Baltimore Sun (December 7, 2017), https://perma.cc/UJY8-QZZN; Arelis R. Hernandez, Selling Opioids in this Rural Maryland County Could Get You a Murder Charge, Washington Post (August 9, 2017), http://perma.cc/4N8D-ZF4Y; Al Baker, New Tactic in War on Opioids: Charging Dealers in Overdose Deaths, New York Times (July 23, 2017), https://nyti.ms/2tRsvTv.

Those three articles are cited in Maryland’s first reported appellate decision dealing with this issue, Patrick Joseph Thomas a/k/a Patrick Joseph Patrick v. State, No. 1115, Sept. Term, 2016 (Md. Ct. Spec. App. April 4, 2018). Read More…

Odds and Ends

By Karen Federman Henry

Although its status as the intermediate appellate court may lead to skimming or skipping many of the decisions issued by the Court of Special Appeals, taking the time to review them can yield points of law that often go unnoticed.  This blog post captures a few recent issues that might otherwise have escaped your attention (especially if you are a purist and focus only on the Court of Appeals or United States Supreme Court).  The nuggets found in the intermediate appellate court deserve attention in modern law practice, because many days bring out-of-the-ordinary issues to our desks. Read More…

Does the Americans with Disabilities Act Apply to Company Websites?

By Ayesha N. Khan, Guest Contributor[i]

Last year, Winn-Dixie lost an ADA-compliance lawsuit—Gil v. Winn-Dixie Stores, Inc., 257 F. Supp. 3d 1340 (S.D.N.Y. 2017)—because blind individuals, who use screen readers to navigate websites, could not effectively use the supermarket chain’s website. Winn-Dixie, which has appealed the ruling, is not alone. In the last year, litigants have filed hundreds of website-accessibility lawsuits across the country. Hospitals, clinics, retailers, restaurants, credit unions, and universities have all been targeted.  Read More…

Update: The End of Frye-Reed Draws Closer

By Derek Stikeleather

In my lengthy October 2017 post, The End of Frye-Reed, I traced the history of Maryland’s Frye-Reed jurisprudence on expert testimony and explained my view that Frye-Reed is now “on its last legs.” A recent published Court of Special Appeals opinion, Sissoko v. State,[1] suggests that Frye-Reed’s death has drawn even closer. It notes Maryland’s “drift” towards applying Frye-Reed to scientific conclusions, rather than only techniques, and treats the Frye-Reed and Rule 5-702 inquiries as tests that not only “overlap” but perhaps have even “melded into one.”[2] In doing so, the opinion elevates, from well-considered dicta to controlling Maryland law, many points in the concurring opinion in the Court of Appeals’ August 2017 decision Savage v. State.[3]

The analysis in my original post ended with Savage v. State, which is proving itself to be a landmark opinion. Read More…

Oral Argument in Benisek v. Lamone: An Alleged Wrong Without a Remedy, Regardless?

By Alan B. Sternstein

The Supreme Court’s most pressing dilemma today is, arguably, the choice between heeding constitutional and practical considerations of justiciability, on the one hand, and, on the other, applying constitutional cures for the evident dysfunction by which partisan redistricting has defiled electoral processes and our democracy. The views of the majority of the electorate on several major policy issues facing this country are demonstrably out of line with the current holders of power in Congress and the Presidency, gun control and health care, being, perhaps, the best examples of this.

In other matters involving the integrity of the electoral process, the Court has often not cowed at confronting the dilemma. See, e.g., Citizens United v. FEC, 558 U.S. 310 (2010); Elrod v. Burns, 427 U.S. 347 (1976); Buckley v. Valeo, 424 U.S. 1 (1976); Reynolds v. Sims, 377 U.S. 533 (1964) and Baker v. Carr, 369 U.S. 186 (1962). The institutional risk, still, to federal courts is their supplanting state legislatures in a function that the Constitution expressly assigns to those bodies and the assumption of that function’s burdens by a judiciary ill-equipped, ill-informed and ill-positioned to perform it.

Most recently, the Court recurred to the problem of reviewing redistricting challenges in last month’s oral argument in Benisek v. Lamone, 2017 U.S. Dist. LEXIS 136208 (D. Md. Aug. 24, 2017), appeal docketed, No. 17-333 (U.S. Sept. 1, 2017). Read More…