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Food trucks vs. brick-and-mortar restaurants, vestiges of Lochner v. New York, and the parameters of Maryland’s rational basis test – Pizza di Joey, LLC v. Mayor of Baltimore

By J. Bradford McCullough

Economic rivalries between classes of competitors have long existed. In the late eighteenth century, for example, disputes between shepherds and cattlemen were legendary, and clashes between farmers and ranchers supplied the grist for movies depicting life in the American west. In the urban America of the early twenty-first century, a rivalry has developed between food truck vendors and the operators of brick-and-mortar restaurants. The past ten years have seen a rapid increase in the number of food trucks in scores of American cities, leading to restaurateurs’ cries of unfair competition. Different cities have responded in different ways, with some localities welcoming food trucks and carts, while others have acted to protect restaurants by restricting the areas where food trucks may operate. See America’s food-truck industry is growing rapidly despite roadblocks, The Economist, May 2, 2017. Baltimore falls within the latter camp. In an opinion authored by Judge Douglas Nazarian – for a panel that included Judge Daniel Friedman and Senior Judge of the Court of Appeals (specially assigned) Lynne Battaglia – the Court of Special Appeals discussed Baltimore’s regulation of food trucks, considered a legal argument that flowed from the Supreme Court’s decision in Lochner v. New York, 198 U.S. 45 (1905) and explained the parameters of Maryland’s rational basis test. Pizza di Joey, LLC v. Mayor of Balt., No. 2411, Sept. Term, 2017 (May 30, 2019). Ultimately, the Court upheld Baltimore’s regulation.

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June 2019 Maryland Certiorari Grants

On Friday, June 7th, the Court of Appeals granted the following writs of certiorari:

Credible Behavioral Health, Inc. v. Emmanuel Johnson – Case No. 19, September Term, 2019

(District Court Appeal, from the Circuit Court for Montgomery County)

Issues – Courts & Judicial Proceedings – 1) Did the trial court erroneously apply Md. Rule 7-113(f) when it reviewed the district court’s construction of a contract’s terms for clear error rather than de novo? 2) Did the plain terms of the parties’ promissory note (“Note”) entitle Petitioner to a judgment against the Respondent? 3) In interpreting the Note, did Maryland law require the trial court to choose the one among two possible readings of the Note that was consistent with the parties’ intent?

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Court of Appeals Confirms Taxpayer Standing to Challenge Unlawful Government Spending but Clouds the Concept of Standing Under Maryland Law

By Alan Sternstein

An October 2018 post on this Blog covered the Court of Appeals’ decision to review two cases on the burgeoning and ever complex subject of taxpayer standing. On April 1, 2019, the Court decided Floyd v. Baltimore, and George v. Baltimore Co., adding those decisions to its lengthy and growing commentary on taxpayer standing.[1]  The Court’s decisions are clear that taxpayers do have standing to challenge government economic waste resulting from violations of law.  In so doing, however, the Court muddled the analytical construct it has been struggling to define for testing when taxpayer standing will be recognized in actions challenging unlawful government action.

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Corporations Need Counsel

By Karen Federman Henry

It’s not really new—corporations cannot participate in court proceedings without an attorney.  The same concept applies to the otherwise informal process before an administrative agency.  So what should a corporation do when its counsel withdraws from an administrative proceeding?  The Court of Special Appeals recently answered the question in an unreported decision—retain counsel or say something to preserve the issue for further review.

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A Necessary and Proper Post on the 200th Anniversary of McCulloch v. Maryland and the Upcoming Maryland Bicentennial Symposium

By Diane E. Feuerherd

On March 6, 1819, exactly 200 years ago today, Chief Justice John Marshall issued his landmark McCulloch v. Maryland opinion, on behalf of a unanimous Supreme Court. On its face, McCulloch confirmed the federal power to create a national bank free from state taxation. But more enduring than the national bank’s charter (which expired by 1836) is the holding in favor of Congress’s implied powers, under the “Necessary and Proper” clause of the Constitution’s Article I, Section 8. Today, law students and elite legal minds alike continue to study the case and its lasting impact on our government framework and constitutional jurisprudence. Read More…

March 2019 Maryland Certiorari Grants

By Diane E. Feuerherd

Here are the writs of certiorari granted by the Court of Appeals today:

State of Maryland v. Philip Daniel Thomas – Case No. 73, September Term, 2018

(Reported CSA Opinion by Raker, J.)

Issue – Criminal Procedure – As a matter of first impression, is a sentence imposed on remand legal if the new sentence imposes the same or fewer years of imprisonment but results in a later parole eligibility date than the original sentence? Read More…

McLaughlin Opinion Provides Valuable Guidance After Final Judgment Rule Sinks Another Maryland Appeal

By Derek Stikeleather

A recent foreclosure action in the Court of Special Appeals presented Judge Arthur with the opportunity to cleanly explain one of the more maddening—and anxiety-producing—rules of appellate practice, the Final Judgment Rule. See McLaughlin v. Ward, No. 1827, September Term 2017 (Jan. 30, 2019). The rule begins with a simple premise: one cannot appeal a trial court’s ruling until the court has entered a final judgment that resolves every claim in the case. See Md. Code Ann., Cts. & Jud. Proc. § 12-301. Yet, the rule has exceptions. And it is those exceptions that bedevil practitioners (and courts) as they grapple with proper application of the rule and try to avoid noting an appeal too early or—even worse—too late.

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February 2019 Maryland Certiorari Grants

Today’s cert grants will bring a wide variety of issues before the Court of Appeals, including: the method for obtaining appellate review of an incarceration sentence in light of the Justice Reinvestment Act of 2016; the authority of the Workers’ Compensation Commission to revise an incorrectly-calculated award; and whether statutory relocation benefits should be extended to tenants vacating government-owned property.

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January 2019 Maryland Certiorari Grants

By Diane E. Feuerherd

Happy New Year from the Maryland Appellate Blog!

Three new writs of certiorari start off our 2019:

(I) In re Santos Nohe Lopez Perez – Order granting an emergency petition for writ of certiorari and ordering the case be remanded to allow the petitioner to apply for special immigrant status, “with haste” and before his impending 21st birthday later this week (the Daily Record’s Steve Lash gives further coverage of this case, including a quote from Perez’s attorney – the Blog’s own EIC, Steve Klepper);

(II) Ronald F. Moser, et al. v. Kristi Heffington, et al. (COSA Reported Opinion by Judge D. Eyler) – Civil Procedure – 1) Did CSA err when it vacated the trial court’s denial of Respondent’s motion to stay in a case where: A) Respondent initiated the civil action for defamation; B) during the pendency of the civil action, Respondent was criminally indicted for the conduct at issue in the civil suit, yet Respondent had fully participated in all aspects of discovery both prior to and after the indictment, which discovery included her own deposition; and C) on the eve of trial, and four months after the indictment, Respondent filed an 11th hour motion to stay the civil trial on the grounds that she intended to invoke her Fifth Amendment privilege not to testify at the civil trial? 2) Did Respondent waive her Fifth Amendment privilege in the civil action by testifying at her deposition and providing other discovery responses without invoking the privilege, after she was on notice that the police were investigating her for the conduct at issue? 3) Given that Respondent had already answered questions at her deposition concerning the conduct at issue, did Respondent fail to preserve for review the denial of a stay of the civil action where she failed to proffer the questions as to which she intended to invoke her right to silence – which was necessary to determine if she could validly exercise the privilege or had waived it? 4) Did CSA unnecessarily decide a Constitutional question, i.e. whether the trial court had failed to fully consider Respondent’s Fifth Amendment right by not granting a stay of the civil action, after it learned that Respondent had been convicted of the very conduct that formed the basis of the alleged defamation, which rendered moot her defamation claim?

(III) State of Maryland v. John Schlick (COSA Reported Opinion by Judge Raker) – Criminal Law – Does a court lose revisory power over a criminal sentence “after the expiration of five years from the date the sentence originally was imposed,” as Maryland Rule 4-345(e) states, or does the court indefinitely retain “fundamental jurisdiction” to revise a sentence, which it is an abuse of discretion not to consider exercising, as CSA held below?

Four Added to the Applicant Pool for the Court of Appeals Vacancy

By Diane E. Feuerherd

After re-advertising, the Appellate Judicial Nominating Commission noted four additional applicants for the Court of Appeals (First Appellate Judicial Circuit) vacancy:

Brynja McDivitt Booth, Booth, Booth, Cropper & Marriner (Easton)

Joyce Elizabeth Jones, Jones & Suh, LLC (Church Hill)

Carla Lynn Knight, Lynn Knight Law (Centreville)

Jane Chace Miller, Law Office of Jane Chace Miller (Chester)

These four individuals join Christopher F. Drummond, Judge Christopher B. Kehoe, and Judge Brett W. Wilson, who each applied in August of 2018. The Commission intends to meet on January 14, 2019 to review these applications.