Montgomery County v. Fraternal Order to Address Government’s Role at the Ballot Box
By Alan Sternstein*
In Montgomery County v. Fraternal Order of Police, No. 175 (Md. Ct. App. 2014), the Maryland appellate courts will confront for the first time the evolving doctrine of official speech. Official speech is any statement by a branch or entity of government or an individual acting in official capacity. It may be made in multiple forms, including oral, written, and electronic. Until more recent times, official speech has largely been an unquestioned prerogative of government. Governments need to communicate with their citizenry to exercise powers and effect programs, no less than individuals need to communicate with each other in order to achieve important or vital ends. The increase in partisanship at all levels of government, however, has turned an increasingly critical eye toward the lawful scope of official speech, with particular respect to its means of exercise and intended ends. The result has been judicial challenges regarding the reach of and external limits on official speech.
Hiob: Nothing Is Over Until the Court Decides It Is
In the comedy film classic Animal House, Delta Tau Chi pledge-master, and future U.S. Senator, John Blutarsky[1] asks and then answers a crucial question: “Did you say ‘over’? Nothing is over until we decide it is.” Judge Robert McDonald recently gave similar advice to the Maryland bar. In Hiob v. Progressive Am. Ins. Co., Case No. 4, Sept. Term 2014 (Md. Nov. 20, 2014), Judge McDonald explained that there is no appealable judgment until there is both (1) a final judgment that is (2) also set forth in a separate document signed by a judge or the clerk and entered on the court docket. Thus, even if there is a final adjudication on all claims involving all parties, that final judgment is not appealable until the court enters and dockets a separate document, signed by a judge or the clerk, evidencing that final judgment. In short, nothing is over (and appealable) until the trial court says it is.
Court of Special Appeals sails uncharted waters of FDCA preemption right into monsters of Greek mythology
In McCormick v. Medtronic, Inc., Ct. of Spec. App. Md., No. 670, Sept. Term 2013 (Oct. 6, 2014), the Court of Special Appeals recently decided a preemption issue that is percolating up through courts around the country: the extent to which federal law preempts state claims for personal injuries resulting from “off-label” promotion of a medical device. Most of the decisions that have come out so far on this question have been issued by federal district courts; the CSA’s opinion was one of the first appellate decisions to tackle it. Given the careful and thoughtful treatment the CSA gave the issue, McCormick likely will be an influential decision as more appellate courts weigh in on this question. As noted below, at one point the Court compared express and implied preemption to Scylla and Charybdis, two monsters from Greek mythology – perhaps a somewhat overblown analogy, but, for those of us who appreciate the ancient myths and find preemption analysis sometimes a bit dry, the allusion was a welcome addition to the opinion.
Raynor v. Maryland: Shades of, or for, Privacy Invasions to Come
The recent decision of the Court of Appeals in Raynor v. Maryland, No. 69, September Term 2012, is laden with issues and potential issues bearing on the scope of individual privacy from state intrusion. Correctly or incorrectly, and depending on your viewpoint (for the reader’s personal sensitivities about privacy will likely affect his or her appraisal of the Court’s decision), the Court addressed some of these issues, missed at least acknowledging others, and left still others, appropriately, for another day.[1]
Kulbicki v. State Dodges Due-Process Issues, Rules on Grounds That Weren’t Briefed
By Brad McCullough,
Last September, I previewed two cases that had the potential to be the Court of Appeals’ “next big case.” One of them was Kulbicki v. State, a case that demonstrates how oral argument can dramatically shape a case. In 1993, James Kulbicki was a 36-year-old married police officer with a 22-year-old mistress. After the mistress’s dead body was found with a bullet wound to the head, Kulbicki was convicted of murdering her. The prosecution’s case featured several expert witnesses, one who testified as an expert in comparative bullet-lead analysis, or “CBLA,” and another who testified as an expert in firearms identification. The Court of Special Appeals affirmed Kulbicki’s convictions and the Court of Appeals denied his petition for writ of certiorari. Kulbicki v. State, 102 Md. App. 376 (1995). Eleven years later, in Clemons v. State, 392 Md. 339 (2006), the Court of Appeals held that the conclusory aspects of CBLA are not admissible under the Frye-Reed test. Kulbicki also learned that the firearms identification expert had lied about his qualifications and that much of his trial testimony was simply false. Armed with this new information, Kulbicki sought post-conviction relief, but the circuit court denied his petition and the Court of Special Appeals affirmed.
The Wire in the (Fourth) Circuit: Civil Rights Claims Proceed Against Police Who Inspired David Simon Characters
On September 24, the U.S. Court of Appeals for the Fourth Circuit issued an opinion in Owens v. Baltimore City State’s Attorney’s Office et al., largely vacating a lower court’s dismissal of a 42 U.S.C. § 1983 action brought by James Owens seeking damages for wrongful conduct by Baltimore City police officers and an assistant state’s attorney that, Owens alleges, resulted in his spending more than two decades in prison for a rape and murder he didn’t commit. If Owens can prove his allegations of intentional suppression of exculpatory evidence by police, it will be a tremendous black eye for the Baltimore City Police Department and perhaps in particular for Jay Landsman, a former BCPD detective sergeant who lent his name to a character in HBO’s The Wire and who also acted in that series.
Obamacare on Appeal: Statutory Construction of This Politically Charged Question Will Inevitably Be Called Judicial Activism
In June, I wrote here that law professors should use the Supreme Court’s reversal of a Fourth Circuit opinion (CTS Corp. v. Waldburger) as their case study to teach the complexity of statutory construction. But I fear that a subsequent pair of conflicting, high-profile opinions in the D.C. Circuit and Fourth Circuit construing the Patient Protection and Affordable Care Act (“ACA”) is what many law professors will be using to teach statutory construction. Halbig v. Burwell, No. 14-5018 (D.C. Cir. July 22, 2014), rehearing en banc granted (Sep. 4, 2014), and King v. Burwell, No. 14-1158 (4th Cir. July 22, 2014), are attractive as important cases that present a pure question of statutory construction, but using them to teach statutory construction runs the risk that students will see statutory construction as a mere euphemism for partisan “judicial activism.” The opinions are best used to instead explore the precarious role of appellate judges in resolving politically charged controversies.
Let Freedom Ring… By Respecting Religion
This week brings with it events worthy of celebration and remembrance. The “Star Spangled Banner” celebrates its 200th birthday, while we again honor those who lost their lives so tragically on September 11, 2001. Each milestone sparks patriotism and appreciation for the foundation upon which this country rests — the protection of a number of freedoms and the separation of powers to ensure adequate checks and balances among the executive, legislative, and judicial branches of government.
Along with this separation of powers, the United States has taken pride in maintaining the separation of church and state as a means of avoiding the religious persecution that the early colonists sought to leave behind. Despite the effort, periodic blurring of the line occurs, as demonstrated in the debate about prayer in the schools, the refusal of health insurance coverage for birth control, displays of the Ten Commandments on government-owned property, and even whether the Pledge of Allegiance should remove the reference to God.
Two Court of Appeals Judges Indicate Support for Permitting Attorneys to “Specialize” in Fields
By Michael Wein
Two judges of the Maryland Court of Appeals, in a little-recognized and short concurring and dissenting opinion, have indicated they may be open to attorneys using the word “specialty” or similar words when describing their professional qualifications, including in advertising. In the case of Attorney Grievance Comm’n v. Zhang, Judges McDonald and Adkins noted their disagreement with Judge Watts’ majority opinion on two issues: They felt that the attorney’s actions justified not a disbarment but an indefinite suspension, and, more interestingly for the purposes of this piece, that an attorney’s use of the words “specialty,” “specializing,” or similar iterations in describing his or her practice should not be considered a potentially sanctionable offense under Maryland Lawyers’ Rules of Professional Conduct (“MLRPC”) 7.4(a).
Maryland Appellate Blog 