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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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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…