Four Nominated to fill Maryland Court of Appeals vacancy

To fill the vacancy on the Maryland Court of Appeals, the Appellate Judicial Nominating Commission nominated these four applicants:

Honorable Sharon Veronica Burrell, Circuit Court for Montgomery County
Honorable Steven Bennett Gould, Court of Special Appeals
James Bradford McCullough, Lerch, Early & Brewer in Bethesda
Honorable Terrence Mark Ranko Zic, Court of Special Appeals

This vacancy was created by the retirement of Chief Judge Mary Ellen Barbera. Our prior post, introducing all of the applicants for this vacancy, is here.

Note: Although Brad McCullough is a member of the Maryland Appellate Blog’s editorial board, he is not participating in the Blog’s coverage of this vacancy.

In Reversing Tax Court Decision, Court of Special Appeals Demonstrates Agencies’ Power to Shape the Law

By John Grimm

Appeals of administrative agency decisions can be deceiving. While they often involve dry and highly technical matters, they also contain some of the trickiest and most interesting problems regarding courts’ powers over a coordinate branch of government’s exercise of its legal authority. The Court of Special Appeals recently proved that in the administrative law world, important concepts can arise out of seemingly minor regulatory decisions: In this case, a $2,554.37 tax assessment.

Comptroller v. Atwood, involved the proper application of Maryland Annotated Code, Tax-General § 11-208(c)(1), which makes aircraft used principally for interstate commerce exempt from a state sales and use tax. The appellee paid $34,000 for 1958 Beechcraft airplane, which he used primarily to train his son how to fly, and to travel back and forth to JFK Airport where he worked. The Comptroller assessed a $2,040.00 sales and use tax plus interest and a penalty totaling $2,554.37. The appellate disputed the tax, first before the Comptroller, and then in the Tax Court. The Comptroller affirmed the assessment, holding that the appellee’s use of the plane was not interstate commerce and did not qualify for a tax exemption.

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August 2021 Maryland Certiorari Grants (Batch 1)

Today, the Maryland Court of Appeals granted certiorari in two criminal cases. Both involve voir dire preservation issues left unresolved by its June 23 decision in State v. Ablonczy, which held that “objections that relate to the determination of a trial court to not ask a proffered voir dire question are not waived by later acceptance, without qualification, of the jury as empaneled.” The Court yesterday denied several petitions in which the State raised the same argument it did in Ablonczy.

The Lopez-Villa and Jordan petitions, granted today, were not among the petitions circulated to the judges at their July 30 conference. It is therefore likely that the Court will issue a second batch of certiorari grants later this month.

Additionally, on July 26, the Court of Appeals accepted a certified question from the U.S. District Court for the District of Maryland. The three cases, with questions presented, are listed below.

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Problems with Modern Electronic Legal Research—the Importance of “Rosetta Stones”

By Michael Wein

The ancient Egyptians – the builders of the Sphinx, the Great Pyramids, and rulers of much of the “fertile crescent” for millennia —  were a mystery civilization for one main reason: No one could decipher their hieroglyphic writing. That changed in the early Nineteenth Century, when Napoleon’s Army stumbled upon a marker holding Ptolemy’s Decree: the Rosetta Stone.  The Rosetta Stone contained writing in three languages on the same tablet:  (1) Egyptian Hieroglyphics (which no one alive for centuries understood or read), (2) Egyptian “Demotic” cursive writing, and (3) Ancient Greek, which was still used regularly by scholars.  And because it was a “translation” of the same decree, it became the “key” in 1822 for understanding Hieroglyphics (mostly for working back the translation through Ancient Greek), it began a reinvigoration in interest in the Egyptian history that was once thought lost.

Legal research in our modern era, now through online databases like Westlaw and Lexis, may appear distant from the ancient Hieroglyphics (depending on the case you’re working on). But there is a lesson in the Rosetta Stone for us.

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Maryland high court to hear challenge to COVID-related tolling orders

The Maryland Court of Appeals has accepted the following certified question from the U.S. District Court for the District of Maryland: “Did the Court of Appeals act within its enabling authority under, inter alia, the State Constitution and the State Declaration of Rights when its April 24, 2020 Administrative Order tolled Maryland’s statutes of limitation in response to the COVID-19 pandemic?”

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Dissenters Say Supreme Court Majority Takes Easy Out In Controversial Case

By Megan E. Coleman

On June 28, 2021, the United States Supreme Court issued a per curiam opinion in Jody Lombardo, et al. v. City of St. Louis, Missouri, et al., No. 20-391. The question presented to the Supreme Court was whether a reasonable jury could find that officers used excessive force when they put a handcuffed and shackled person face-down on the ground and pressed into his back until he suffocated to death.

Rather than decide the issue, the per curiam opinion punted the question back to the Eighth Circuit, reasoning that the Eighth Circuit had discounted “insignificant” facts that might have made a difference when deciding whether to grant summary judgment on an excessive force claim. The Supreme Court also asked the Eighth Circuit to clarify whether it believed that the use of a prone restraint is per se constitutional so long as an individual appears to resist officers’ efforts to subdue him.

True to per curiam format, this opinion fails to list an author or name the justices comprising the majority. However, this per curiam opinion features a dissent by Justice Alito, which was joined by Justice Thomas and Justice Gorsuch. The dissent calls into question whether this was a proper use of a per curiam opinion, or instead, whether it was used to avoid deciding a controversial issue in the midst of a social justice movement.

The timing of the issuance of this per curiam opinion fuels the argument by the dissent as this per curiam opinion was issued just three days after Minneapolis Police Officer Derek Chauvin was sentenced for the murder of George Floyd. The Lombardo case presented facts akin to those in George Floyd’s case and ultimately called for a similar determination of whether the police used excessive force under the circumstances.

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July 2021 Maryland Certiorari Grants

On Friday, July 9, the Maryland Court of Appeals granted certiorari in three cases:

Broadway Services, Inc. v. Comptroller of Maryland – Case No. 19, September Term, 2021 (Reported COSA Opinion, by Gould, J.)

Issues – Tax-General – 1) Where tangible personal property is purchased by an intermediary contractor for the use of a non-profit charitable institution in carrying on its exempt purpose, are those purchases exempt from Maryland sales and use tax in light of John McShain, Inc. v. Comptroller, 252 Md. 68 (1953) under Md. Code § 11-204 of the Tax-General Article? 2) Were the Maryland Tax Court’s factual findings supported by substantial evidence such that the purchases in question are exempt from Maryland sales and use tax?

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Supreme Court’s Latest Fourth Amendment Case Clarifies Exigent Circumstances Doctrine

By John Grimm

The Supreme Court recently clarified the limits of law enforcement’s ability to enter a fleeing suspect’s home without a warrant in Lange v. California. While the Fourth Amendment generally requires police to get a search warrant before coming into a house, they can make a warrantless entry under certain exigent circumstances.[1] Lange presented the question whether the pursuit of a fleeing misdemeanor suspect is categorically an exigent circumstance. The Court held that it is not—exigency must be assessed on a case-by-case basis, and a suspect’s flight is only one circumstance that officers should weigh in making that assessment.

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Biden to Nominate Virginia SG Heytens to Fourth Circuit

President Biden today announced his fifth round of judicial nominees, including Virginia Solicitor General Toby Heytens, his first nominee to the Fourth Circuit. The announcement states:

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Maryland Certiorari Statistics, 2020 Term

By Steve Klepper (Twitter: @MDAppeal)

For the fourth straight year, I’ve tracked the Court of Appeals’ petition docket. The judiciary’s annual statistical reports give the overall grant rate for civil and criminal certiorari petitions. Because unrepresented (pro se) parties file the majority of petitions each year, however, the overall statistics are not terribly helpful for lawyers in advising their clients regarding the odds of certiorari.

Below are the statistics for the Court’s 2020 Term (petitions filed 3/1/2020 to 2/28/2021), alongside the statistics for the 2019 Term (petitions filed 3/1/2019 to 2/29/2020) and the 2018 Term (petitions filed 3/1/2018 to 2/28/2019).

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