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Regulatory deference, not restrooms, at issue in high-profile petition

By John Grimm

One of the most closely watched cert petitions before the U.S. Supreme Court in its new term is G.G. v. Gloucester County School Board, scheduled for conference on October 14. The Fourth Circuit decision — which gained national attention in April — was a major milestone for transgender rights, but the petition raises only a narrow question unrelated to civil rights: whether the Court should abandon a relatively obscure, but increasingly controversial, doctrine of administrative law. G.G. is a striking example of how seemingly dry concepts of administrative procedure can have unexpected relevance outside of traditional “administrative law” practice areas.

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State Seeks Stay and Certiorari in Remaining Freddie Gray Prosecutions

By Michael Wein

In my January 19 post about the online Court of Special Appeals documents for the prosecution of the officers charged in Freddie Gray’s death, I indicated that, as an inherently “cert-worthy” case, it would not be surprising if one of the parties sought certiorari and it ended up in the Court of Appeals. On Wednesday, that happened, as the Attorney General’s Office sought, in multiple filings (as seen on the Court of Appeal’s “Highlighted Cases” page), expedited review and a ruling that would apply in the prosecutions of the other five officers as to whether the Supreme Court’s opinion in Kastigar v. United States and Md. Code, Cts. & Jud. Proc. § 9-123 allow or prevent the admission of fellow officer William Porter’s previous testimony from his mistrial given that he will be tried again. Also at issue is the authority of the trial judge to refuse to stay three of the officers’ cases after making a pretrial evidentiary ruling relying on the State’s representation that Officer Porter’s testimony was not necessary.

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Montgomery County v. Fraternal Order of Police – Government’s Role at the Ballot Box: Round II

By Alan Sternstein

In an article here in January, I wrote about the doctrine of official or government speech. The post was prompted by the appeal pending in Montgomery County v. Fraternal Order of Police, Md. Ct. Spec. App., No. 175, which was decided by the Court of Special Appeals in April. Slip Op. (decided Apr. 3, 2015).[1] The court’s decision reversed, among other things, the Circuit Court’s ruling that the Appellants, Montgomery County and certain of its officials, had acted beyond their power and authority by making substantial use of public funds and resources to campaign in a general-election referendum in favor of legislation that the County Council had passed and that the County Executive had signed into law. According to the Circuit Court’s “Findings of Fact,” Appellants had unlawfully “engaged in electioneering and conducted a political campaign.” Id. at 11.

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Kulbicki Still Awaiting Supreme Court Cert Decision

By Michael Wein

The Maryland case of Kulbicki v. State, involving the post-conviction relief appropriate for those convicted with help from the now thoroughly discredited FBI “comparative bullet lead analysis” (“CBLA”), was one of the “blockbuster” cases of last year, as noted by fellow Blog editor Brad McCullough in a post discussing how the case unexpectedly did not decide larger issues and by myself on a list of some of the “longest pending cases” in the 2013-2014 Term (Kulbicki being the longest). The 4-3 Court of Appeals decision and majority opinion by Judge Lynne Battaglia, instead of dealing with potentially more sweeping issues that could have also been addressed in the case, concentrated more narrowly on Kulbicki’s entitlement to a post-conviction remedy under a regular ineffective-assistance-of-counsel analysis, despite that potential error not being earlier presented in the certiorari petition. As Judge Robert McDonald’s dissent noted, the case “reverses Mr. Kulbicki’s conviction on the basis that his trial counsel failed to anticipate [that CBLA would one day be deemed inadmissible] and thereby provided ineffective assistance of counsel in their cross-examination of the prosecution’s CBLA forensic expert – a ground not briefed by either party in this appeal and not among the questions on which we granted the writ of certiorari in this case.”

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Court Calendar, Including Dates of Certiorari Conferences, Now on Md. COA Website

By Michael Wein

Attorneys have wondered in the past, “What date will the Court of Appeals decide my certiorari petition?” Wonder no more. To continue its evolution under Chief Judge Mary Ellen Barbera – who, as discussed in previous posts, has required that an opinion in each case be issued by the end of the term in which it was considered, and spearheaded a “pending cases” webpage to keep track of undecided cases – the Court of Appeals this week created an online calendar on its homepage listing dates of significant Court events, including oral arguments. Of most interest is that now, for the first time, the anticipated dates of certiorari conferences will be available to the general public. (Thursday, September 18, 2014, and Monday, October 20, 2014, are the next-scheduled conferences.) That of course does not necessarily mean that a party’s certiorari petition will be decided at any certain conference, but at least practitioners will know to check for the outcome a day or two after each conference rather than daily throughout the month. There are additional certiorari decisions that come from time-sensitive petitions (such as in some injunction, family law, and election law cases) that are unlikely to be scheduled in advance. Still, this calendar feature should give approximate notice to most certiorari applicants of when they can learn the fate of their petitions, a welcome improvement.

Solicitor General Urges SCOTUS to Reverse Court of Appeals in Comptroller v. Wynne

We previously reported in January that the Supreme Court of the United States requested the views of the Solicitor General of the United States as to whether to grant certiorari in Maryland State Comptroller of the Treasury v. Wynne, 431 Md. 147 (2013). As reported today by Steve Lash at The Daily Record, the Solicitor General has filed a brief in support of the State’s petition.

The Solicitor General’s brief is available here. Below is the Solicitor General’s argument summary, from pages 6 and 7 of that brief: Read More…

SCOTUS Requests Views of Solicitor General in Comptroller v. Wynne

By Steve Klepper

In January of last year, the Court of Appeals of Maryland, in Maryland State Comptroller of the Treasury v. Wynne,  431 Md. 147 (2013), held that Maryland tax law discriminated against interstate commerce by failing to allow a tax credit for certain “pass through” income for Subchapter S corporations. Judge McDonald wrote the majority opinion, and Judge Greene, joined by Judge Battaglia, dissented. In May, the Court of Appeals denied reconsideration, but it stayed its mandate pending the Comptroller’s filing of a petition for certiorari with the United States Supreme Court. SCOTUSblog has been tracking the case.

Today’s orders list from the United States Supreme Court included an order in Comptroller v. Wynne that “[t]he Solicitor General is invited to file a brief in this case expressing the views of the United States.” Though such a call for the views of the Solicitor General (CVSG) is far from a guarantee that the Supreme Court will grant review, it is an indication that the Supreme Court is taking the petition seriously. Read More…