By Joseph Dudek
Guest Contributor*

On January 26, the Court of Special Appeals published its opinion in Gateway Terry, LLC v. Prince George’s County (slip op. here). In my former job with the Office of the Attorney General, I was arguing counsel for the County and the Clerk of the Circuit Court, defending certain transfer and recordation taxes.

I doubt that Gateway will make headlines outside the MSBA Real Property Section’s listserv. But I want to highlight an important doctrinal development and footnote that should bear on any statutory case that involves a law recodified during the grand recodification of the Maryland Code in the 1980s. In short, it is exceedingly important that attorneys arguing these cases review the recodification bill and the pre-recodification statute to truly understand the law.

By Megan E. Coleman

In Hemphill v. New York, Justice Sotomayor authored the Court’s 8-1 opinion holding that the trial court’s admission of a plea transcript containing testimonial statements by a non-testifying declarant, violated Hemphill’s Sixth Amendment right to confront this witness, notwithstanding the fact that the defense “opened the door” by presenting misleading information to the jury.

By John Grimm

Last week’s ruling in National Federation of Independent Business v. OSHA[1] was big news. The Court stayed the enforcement of OSHA’s rules requiring employers with more than 100 employees to be vaccinated against COVID-19, or else wear a mask and take a weekly test. Technically, the Court didn’t strike down the rules, but it found a strong likelihood of success on the merits (necessary for any stay of an agency rule pending review) which makes it difficult to envision any other result when the merits are finally heard.

The majority opinion—written per curiam so we don’t know the author—focuses on OSHA’s statutory authority. OSHA is empowered to promote “safe and healthful working conditions” by enacting rules that are “reasonably necessary or appropriate to provide safe or healthful employment.”[2]  The majority reasoned that COVID-19 is a universal hazard, not a workplace hazard, and held that OSHA’s mandate does not permit it to regulate public health crises just because they happen to affect workplaces.  In dissent, Justice Breyer examined the same statutory authority and administrative record to argue that the risk of COVID exposure is a workplace hazard that OSHA was entitled to regulate against.

There could be a robust academic debate over the majority and dissent’s arguments, but the most interesting aspect about the opinion for the future of administrative law is Justice Gorsuch’s concurrence.  All of the opinions recognized that agencies only possess power that Congress grants them, but Justice Gorsuch took the opportunity to elaborate on a particular nuance to that rule which he has written on before: the major questions doctrine.