Court of Appeals Addresses Appellate Preservation of Sentencing Challenges
In Bryant v. State, No. 37, September Term 2013 (Feb. 3, 2014), the Court of Appeals re-affirmed the importance of preserving issues for appellate review, holding that the defendant had waived his challenge to the imposition of his sentence. The Court also concluded that – even if the issue had been preserved – the defendant’s sentence had been properly imposed. Read More…
Fourth Circuit issues a primer on statutory construction in siding with consumers against debt collectors
In Clark v. Absolute Collection Service, Inc., issued on January 31, 2014, the Fourth Circuit provided a useful review of several standard tools of statutory construction, the application of which led the Court to come down on the pro-consumer side of a federal Circuit split. Mr. and Mrs. Clark incurred debts at a health care facility in North Carolina. After they didn’t pay those debts, the creditor referred the debts to ACS, a third-party debt collector. ACS then sent collection notices to the Clarks that said, among other things: “ALL PORTIONS OF THIS CLAIM SHALL BE ASSUMED VALID UNLESS DISPUTED IN WRITING WITHIN THIRTY (30) DAYS” (emphasis added). Read More…
Espina v. Prince George’s County – Separation of Powers and Legislative Damages Caps for Violation of Rights Based on Self-Executing State Constitutional Provisions
In Espina v. Prince George’s County, No. 2044 (Md Ct. Spec. App. Dec. 20, 2013), the Court of Special Appeals ruled that the damage cap in Maryland’s Local Government Tort Claims Act (“LGTCA”), codified at Md. Code Ann., Cts. & Jud. Proc. §§ 5-301 et seq., applies to tort claims based on a violation of the Maryland Declaration of Rights, in this particular case Article 24. Article 24 provides:
That no man ought to be taken or imprisoned or disseized of his freehold, liberties or privileges, or outlawed, or exiled, or, in any manner, destroyed, or deprived of his life, liberty or property, but by the judgment of his peers, or by the Law of the land
The essence of the LGTCA’s damages cap is codified in Section 5-303(a)(1) of the Courts and Judicial Proceedings Article, which provides:
[T]he liability of a local government may not exceed $200,000 per an individual claim, and $500,000 per total claims that arise from the same occurrence for damages resulting from tortious acts or omissions . . . .
Looking for the Next Big Case, Part II: The Court of Appeals Decides B.J.’s Wholesale Club, Inc. v. Rosen
Four months ago, as part of looking for “the next big case,” I previewed two cases that were scheduled for argument in the Court of Appeals in September and October. One of those cases was BJ’s Wholesale Club, Inc. v. Rosen, No. 99, September Term, 2012. About six weeks ago, the Court decided that case, reversed the Court of Special Appeals, and held that a parent’s pre-injury waiver of a minor child’s negligence claim against a commercial enterprise does not violate public policy. Read More…
Who Is on the Court Of Appeals: The Role of Retired Judges
By Kevin Arthur
As most Maryland lawyers probably know, the Court of Appeals consists of seven judges from the various geographical regions in the state. But because the Maryland Constitution requires judges to retire at age 70 and then permits retired judges to be recalled into service, the Court of Appeals currently has as many as six additional members who serve provisionally on a case-by-case basis . After Judges Battaglia and Harrell are required to retire over the next two years, the Court may have more provisional, retired members than it has active members.
In recent years, retired judges have had an outsized role in some of the Court’s most prominent and controversial decisions. Most notably, in Tracey v. Solesky, 427 Md. 627 (2012), two retired judges provided the decisive votes in support of a 4-3 opinion that held that landlords could be held strictly liable for injuries caused by their tenants’ pit bulls. One of the retired judges authored the divisive opinion, which spurred a successful motion to reconsider some of the majority’s more expansive pronouncements (concerning liability for so-called “pit bull mixes”), unsuccessful efforts at corrective legislation in a special session of the General Assembly in 2012, the acrimonious collapse of a legislative compromise at the end of the 2013 legislative session, and additional legislative proposals in the upcoming session. Read More…
In re 2012 Legislative Districting and the Permanence or Expedience of Judicial Review
Every ten years, after each national census, provisions in the Maryland Constitution (Art. III, § 5) require that the State’s 47 Legislative Districts be reviewed for reapportionment. Those same provisions require the Governor to submit to both houses of the State legislature, the Senate and the House of Delegates, a plan for the 47 Districts, making boundary changes to the District in response to population changes and as necessitated by and consistent with state and federal constitutional requirements. Failing the General Assembly’s adoption of its own plan, the Governor’s plan becomes law, and that became the case for Governor O’Malley’s plan in response to the 2010 census (“2012 Plan”), which became the law on February 24, 2012.
The reapportionment provisions of the Maryland Constitution also vest the Court of Appeals with original jurisdiction to review any registered voter’s constitutional challenge to the legislative redistricting plan (Art. III, § 5). On March 6, 2012, the Court of Appeals issued an order in Matter of 2012 Legislative Districting of the State, 429 Md. 301, 55 A.3d 713 (2012), setting forth procedures to accommodate such challenges and appointed retired Court of Appeals Judge Alan M. Wilner as the Court’s Special Master, to conduct any necessary hearings. Eventually, after hearings before the Special Master, the submission of his recommendations, the taking of exceptions thereto, and argument before the Court, the Court issued a one page order on November 9, 2012, rejecting all challenges to the 2012 Plan, with opinion to follow. The Court (Bell, C.J., ret.) issued that opinion (cited herein as “Slip Op.”) on December 10, 2013. Read More…
Read This: A Great Fourth Circuit Dissent
By Steve Klepper (Twitter: @MDAppeal)
Judge Andre M. Davis is, in my opinion, one of the two best writers on the Fourth Circuit. (The other is Judge J. Harvie Wilkinson III.)
Earlier this week, readers of the Fourth Circuit’s opinions were treated to a powerful dissent by Judge Davis in United States v. Kerr, No. 12-4775 (4th Cir. Dec. 3, 2013). Without taking sides between the majority and the dissent on the substantive question (the application of the Armed Career Criminal Act to North Carolina convictions), I’d like to highlight the dissent as an excellent piece of legal writing. Read More…
The Fourth Circuit May Have Quietly Set Up Supreme Court Cert Review on Judicial Recusals
By Michael Wein
An easily overlooked set of Opinions and Orders in the Fourth Circuit Court of Appeals, those in United States v. Jeffrey Sterling, (at least when considered together), appears to have gone mostly unnoticed in the blogosphere. It involves an unlikely combination of Certworthy issues for the Supreme Court, not just on the scope of a potential privilege and/or 1st Amendment rights that exists for reporters to obtain and keep secret information received from confidential sources, but to include the ethics issue for Judicial Recusal, at least with respect to the intervenor, New York Times reporter James Risen, and a host of Amici groups, including the Times, Washington Post, Tribune Company, and CNN. (Actually, most major media companies in the U.S.). Read More…
Who’s the appellant, what’s the appellee, and I don’t know if we have jurisdiction.
The Court of Special Appeals recently issued an opinion that calls to mind the famous Abbott and Costello comedy routine, “Who’s on First.” Read More…
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