Joe Loves Tom and Sue: Why Roberts Could Be Writing the Same-Sex Marriage Decision
By Steve Klepper (Twitter: @MDAppeal)
Comptroller v. Wynne: Will Tuesday Be the Day?
By Steve Klepper (Twitter: @MDAppeal)
Only recently has the media been focusing on a sneaky-big Supreme Court case out of Maryland, Comptroller v. Wynne. Just last week, Bill Turque at the Washington Post noted the potentially major consequences in Maryland and beyond. The question is whether Maryland tax law, in denying a county income tax credit for income tax paid in other states on out-of-state income, discriminates against interstate commerce in violation of the so-called “dormant” or “negative” commerce clause. Read More…
The odds that the full Fourth Circuit will review the good faith of pre-2012 warrantless GPS tracking
In United States v. Stephens, a divided panel of the Fourth Circuit affirmed a holding of the U.S. District Court for the District of Maryland that the good-faith exception to the exclusionary rule applied to police officers’ concededly unconstitutional warrantless use of a GPS device to track a suspect and obtain evidence in furtherance of his prosecution. Judge Dennis Shedd, an appointee of President George W. Bush, wrote the majority opinion, joined by Senior Judge Clyde Hamilton, an appointee of President George H.W. Bush. An appointee of President Obama, Judge Stephanie Thacker, wrote a dissenting opinion.
A petition for rehearing en banc almost certainly will be filed by the defendant. The question then will become whether the six Obama appointees who are active judges on the Court — and at least two other judges appointed by prior presidents — will choose this Fourth Amendment good-faith case as one to plant their flag in en banc. As I explain below, I doubt that this case will result in a very rare grant of rehearing en banc.
Coming Soon to the Supreme Court: Umaña v. United States?
On August 12, 2014, a divided Fourth Circuit denied a petition for rehearing en banc that had been filed by capital defendant Alejandro Umaña. Umaña had sought the rehearing en banc of a panel opinion, 750 F.3d 320 (4th Cir. 2014), in which a majority held that the Sixth Amendment’s Confrontation Clause does not apply to the sentencing selection phase of capital sentencing. Eight judges (Chief Judge Traxler, Judge Wilkinson, Judge Niemeyer, Judge King, Judge Shedd, Judge Duncan, Judge Agee, and Judge Floyd) voted to deny the rehearing en banc, while five (Judge Motz, Judge Gregory, Judge Keenan, Judge Wynn, and Judge Thacker) voted to grant the petition.
A leader in the MS-13 transnational criminal gang, Umaña was convicted in federal court of murdering two brothers (who were not affiliated with any gang) in a bar in Greensboro, N.C., after the brothers got into an argument with Umaña and other MS-13 members about the music that should be played on the jukebox. After the jury found Umaña eligible for the death penalty in the first portion of the sentencing phase, the proceeding moved to the sentencing selection phase. Over Umaña’s objection, the district court allowed the government to introduce hearsay testimony from Los Angeles police detectives concerning statements that MS-13 informants had given the detectives implicating Umaña in several unrelated murders in Los Angeles. Umaña argued that the Confrontation Clause required the government to produce the informants themselves at the sentencing selection phase. In a 2-to-1 decision, the Fourth Circuit panel (Niemeyer and Agee, with Gregory dissenting) affirmed the admission of the informants’ statements through the detectives.
Could Clarence Thomas Be Questioning Whether Citizens United Binds the States?
By Steve Klepper (Twitter: @MDAppeal)
One of the more surprising denials of certiorari this past term at the U.S. Supreme Court was in Iowa Right to Life Comm. v. Tooker. There, the Eighth Circuit, applying FEC v. Beaumont, 539 U.S. 146 (2003), upheld an Iowa law that bans direct corporate contributions to political campaigns but permits such contributions by unions. Over at the Election Law Blog, Rick Hasen noted that Beaumont’s days appear to be numbered under recent Supreme Court election law decisions, but he concluded Chief Justice Roberts “is playing the long game, not wanting to move quickly.”
I agree that Chief Justice Roberts is playing the long game, but it only takes four justices to grant certiorari. In Beaumont itself, Justices Kennedy (concurring in the judgment) and Justices Scalia and Thomas (dissenting) telegraphed a willingness to reexamine the ban on corporate giving in a future case. It’s difficult to see why Justice Alito, having since joined the Court, would hesitate to vote to grant review in Iowa Right to Life, particularly given Iowa’s differing treatment of unions and corporations. Read More…
Maryland Appellate Blog 