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The Court of Appeals Continues Defining the Fourth Amendment Implications of the Odor of Marijuana in a Post-Decriminalization Maryland

By John R. Grimm

In 2014, the General Assembly decriminalized possession of small amounts of  marijuana; rather than being a crime, possessing less than 10 grams of marijuana is now a civil offense punishable by a fine.[1]  Courts have been grappling with the effects of this change ever since.  Most notably, since the possession of marijuana is no longer categorically a crime, courts have had to clarify the rules for whether the odor of marijuana still constitutes probable cause sufficient to justify a search or arrest.  Several recent Court of Appeals decisions define the contours of the Fourth Amendment with respect to the odor of marijuana in a post-decriminalization world, and a recent cert grant seems poised to confirm Fourth Amendment limits on marijuana-related arrests. Read More…

Court of Special Appeals Endorses Absolute Immunity for Administrative Adjudicators

By Peter Sheehan, Guest Contributor[i]

On June 26, 2019 the Court of Special Appeals published a scholarly 110-page opinion on an issue of first impression in Maryland: whether administrative adjudicators and prosecutors are entitled to absolute immunity.  Bd. of Physicians v. Geier, 241 Md. App. 429 (2019).  In Geier, the court held that members of the Maryland Board of Physicians were entitled to absolute quasi-judicial immunity for adjudicative and prosecutorial acts and, as a result, the Board itself was entitled to immunity.  (The case previously had been in the Court of Special Appeals in 2015 (Geier I) and the Court of Appeals in 2017 (Geier II), but the procedural context of those appeals did not present an opportunity for the courts to resolve the absolute immunity question.)  In the simplest of terms, the case arose out of a public cease and desist order issued by the Board in 2012.  The plaintiffs, a physician and his family, sued the Board and numerous Board personnel, alleging federal constitutional claims under Section 1983 and state common law claims under the Maryland Tort Claims Act.  After a series of perceived discovery failures, the trial court ordered default as to the liability of all defendants and then, following a bench trial on damages, awarded the plaintiffs $1.25 million in compensatory damages, $1.25 million in punitive damages, and $2.4 million in attorneys’ fees.  Id. at 449.  The trial court, which itself issued a 112-page memorandum opinion, was not persuaded by federal case law recognizing and applying absolute quasi-judicial immunity, and it considered Section 5-715(b) of the Courts and Judicial Proceedings Article, which grants the Board and its agents qualified immunity for actions taken without malice, to be at odds with the principle of absolute quasi-judicial immunity.  Id. at 467.  Ultimately, the trial court found that multiple defendants had acted with malice.  Id. Read More…

August 2019 Maryland Certiorari Grants & Certified Questions

With the new term right around the corner, the Court of Appeals granted certiorari in nine cases, and the Court of Special Appeals certified questions of law in another one:

Darlene Barclay v. Sadie M. Castruccio – Case No. 30, September Term, 2019

(Unreported CSA Opinion by Nazarian, J.)

Issues – Torts – 1) Did the trial court err when it ruled that the cause of action for intentional interference with an expectancy is not a cause of action under Maryland law? 2) Did Petitioner adequately plead facts to succeed on a claim of intentional interference with an expectancy? Read More…

Some Things Never Change

By Karen Federman Henry

In the words of Yogi Berra, “It’s like déjà vu all over again.”  That thought came to mind when reading the Court of Appeals’ decision in Board of County Commissioners of Washington County v. Perennial Solar, LLC, Sept. Term, 2018, No. 66 (filed July 15, 2019).  In the course of concluding that the Public Service Commission (PSC) regulates solar systems—leaving local governments unable to impose zoning restrictions and procedures on them—the Court sounded much like it did in 1990 when addressing high-voltage overhead transmission power lines in Howard County v. Pepco, 319 Md. 511 (1990). Read More…

Benisek v. Maryland Recap – The Forgotten Early 1900s Congressional Statute and How this Lafollette “Progressive Era” Reform, Supported Federal Judicial Interests against Political Party Gerrymandering

By Michael Wein

Last June in Ocean City, Maryland, the Supreme Court panel discussion for the Maryland State Bar Association (MSBA) convention,  (which included guest panelists Kelsi Corkran, Prof. Shon Hopwood and Beth Brinkman) seemed to agree on one thing–the two pending political gerrymandering cases of Benisek v. Maryland and Gill v. Whitford, were likely to be the blockbuster decisions for the Court. That didn’t happen last year, with the Supreme Court not deciding the merits of those cases and remanding the Benisek case on procedural grounds.

Still, that left open the possibility the merits of the legal issue would come up again this year, and a decisive Majority opinion, particularly with the North Carolina Rucho case waiting in the wings.   Unfortunately, for those who have studied the corrupting consequences on democracy and good government created by severe partisan redistricting, a year didn’t help.  Instead, the clarity the Supreme Court decided, came in the form of  a 5-4 opinion consolidating the Redistricting challenge of Benisek with that of North Carolina’s Rucho decision, concluding partisan gerrymandering will not be addressed by the Federal Courts as a “political question.”

As MdAppBlog contributor Alan Sternstein explained in a piece last week analyzing Rucho, excessive partisan gerrymandering, would appear to be quite justiciable, and logically makes sense, consistent with prior Supreme Court cases.  Justice Elena Kagan’s Dissent, in favor of justiciability, discussed the little doubt, without Court intervention, the potential permanent possibility, of the lack of competitive Congressional elections, and an unnatural number of elected partisan Democrats and Republicans, as opposed to moderates, centrists, and independents.  Chief Justice John Roberts’ Majority Opinion, perhaps ironically as a more optimistic perspective,  in determining that the issue was non-justiciable in the federal courts, seemed to support alternatives, through Congressional action, or through the “state by state” approach of non-partisan redistricting Commissions. This piece focuses on the Congressional action alternative, particularly as related to the history of the Populist movement also known as the “Progressive Era”  movement from the early 1900s. Part Two, when published will discuss the “state by state” approach alternative in more detail, both historically, and how that can be a guide for today.

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Kisor v. Wilkie and the Next Chapter in Administrative Deference

By John Grimm & Guest Contributor Mark Davis

The Supreme Court recently decided Kisor v. Wilkie,[1] a case that addresses when courts are required to defer to agencies’ interpretations of their own rules.  The general rule that courts defer to an agency’s reasonable interpretation of its own regulations when they are ambiguous was articulated in the case Auer v. Robbins[2] and is referred to as Auer deference.  Auer deference has been subject to criticisms that it allows agencies to issue what amount to new regulations without going through the rulemaking process and that it is an abdication of the judicial role of interpreting the law.

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Help from the Justice Reinvestment Act may be limited

By Karen Federman Henry

When the Maryland Legislature enacted the Justice Reinvestment Act (JRA) in 2016, it did so with an eye toward an overhaul of the criminal justice system.  The overarching goal of the JRA was to reduce Maryland’s prison population and use the related monetary savings to provide treatment to offenders before, during, and after their incarceration.  The JRA would accomplish this by reducing maximum penalties for drug distribution convictions, by repealing mandatory minimum sentences for nonviolent drug crimes, and by limiting the duration of incarceration imposed for a technical violation of probation.  While the concept focuses on rehabilitation rather than punishment, achieving the goals may be easier said than done.  A recent example appeared before the Court of Appeals, which concluded that the JRA did not expand the ability of an individual to seek appellate review of a revocation of probation to allow a direct appeal, but instead, the individual must seek leave to appeal a decision.  See Conaway v. State, No. 69, Sept. Term, 2018 and Johnson v. State, No. 76, Sept. Term, 2018 (combined).

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COSA Spotlight: Judge Daniel A. Friedman

By: Derek Stikeleather

In May, Blog Editor Derek Stikeleather sat down with Judge Daniel A. Friedman of the Court of Special Appeals (At-Large), to ask about his background, his chambers and law clerks, and how he prepares for oral arguments and writes his opinions.

 What has best prepared you for your work as a judge on the Court of Special Appeals?

Three sources of my background practice prepared me for judging. I was a “big-firm” private civil litigator at Miles & Stockbridge and at Saul Ewing. I did public/government litigation both at the Baltimore City Solicitor’s Office and for the Maryland Attorney General. These two types of work required different expertise, both of which are helpful now. On the academic side, I focused on teaching and writing about constitutional law at the University of Maryland School of Law. These three branches of my legal experience each developed different parts of my foundation as a judge, but none of the three was more important than the others.

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July 2019 Maryland Certiorari Grants

The Court of Appeals closed this week by granting certiorari in six cases, on issues including shelter care in CINA cases, insurance coverage, and tolling the Hicks Rule for DNA testing:

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Pirates and Piracy: The Supreme Court Will Examine Whether States are Immune from Copyright Infringement Claims in a Dispute Over Blackbeard’s Shipwreck

By John Grimm

The Supreme Court has agreed to hear a case that will determine whether Congress can abrogate states’ sovereign immunity with respect to copyright infringement claims.  Allen v. Cooper, No. 18-877.    The case arises out of an underwater research expedition to document and salvage the wreck of Blackbeard’s ship off the coast of North Carolina.  The salvage team alleges that, without permission, North Carolina published some of the team’s footage on the internet, violating its copyright in the footage.

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