Serial Comes to the Maryland Appellate Courts
Fans of the Serial podcast: You might be interested in this new press release from the Court of Special Appeals. Read More…
Montgomery County v. Fraternal Order to Address Government’s Role at the Ballot Box
By Alan Sternstein*
In Montgomery County v. Fraternal Order of Police, No. 175 (Md. Ct. App. 2014), the Maryland appellate courts will confront for the first time the evolving doctrine of official speech. Official speech is any statement by a branch or entity of government or an individual acting in official capacity. It may be made in multiple forms, including oral, written, and electronic. Until more recent times, official speech has largely been an unquestioned prerogative of government. Governments need to communicate with their citizenry to exercise powers and effect programs, no less than individuals need to communicate with each other in order to achieve important or vital ends. The increase in partisanship at all levels of government, however, has turned an increasingly critical eye toward the lawful scope of official speech, with particular respect to its means of exercise and intended ends. The result has been judicial challenges regarding the reach of and external limits on official speech.
December 2014 Maryland Certiorari Grants
The holidays are here for Maryland court-watchers, with a new pile of certiorari grants waiting to be eagerly unwrapped. Those with appellate-procedure matters on their wishlists will find their days particularly merry and bright. Did the Court of Appeals bring you what you wanted this season? Find out after the jump.
Court of Appeals Grants Rapid Review in Police Records Case
Yesterday, the Court of Appeals granted certiorari in a single case, Maryland Department of State Police v. Dashiell, Case No. 84, Sept. Term 2014, which arose from a police officer’s use of a racial slur on the voice-mail of a potential witness, Teleta Dashiell. Ms. Dashiell’s complaint was “confirmed” by the Maryland State Police and resulted in some unexplained disciplinary action against the officer. When Ms. Dashiell later sought the investigation documents for the incident, her request was denied as seeking personnel records that were exempt from disclosure under the Maryland Public Information Act (“MPIA”) and Law Enforcement Officers’ Bill of Rights (“LEOBR”). (The denial also stated that such disclosure would be against the “public interest.”)
The circuit court agreed that the MPIA protected the records, but the Court of Special Appeals, in an Oct. 8 opinion, No. 1078, Sept. Term 2011, reversed, holding: (1) that the LEOBR didn’t trigger MPIA protection for records that are barred from inspection by some other statute; and (2) the circuit court had not properly determined which documents were protected as personnel records, investigation records, or inter-agency memoranda under the MPIA, suggesting that the Maryland State Police could be required to disclose any portions of the records could be reasonably severed from other protected documents. (The court also held that, as a complainant, Ms. Dashiell was not a “person of interest” under the MPIA such that the State Police would have to make a heightened showing before denying her access to the records.) The case was remanded so that the circuit court could analyze MPIA exemption for individual documents rather than the set of records as a whole.
Given the open questions of statutory interpretation involved, it’s not too surprising that the Court of Appeals took up the case for review. Some curiosity, however, is prompted by the speed at which it did so — only about two months after the intermediate appellate opinion issued, and a week before the court would normally review certiorari petitions at its monthly conference. If any of you MdAppBlog readers out there have any thoughts or insights on the expedited grant, we’d be interested to check them out in the comments below…
Hiob: Nothing Is Over Until the Court Decides It Is
In the comedy film classic Animal House, Delta Tau Chi pledge-master, and future U.S. Senator, John Blutarsky[1] asks and then answers a crucial question: “Did you say ‘over’? Nothing is over until we decide it is.” Judge Robert McDonald recently gave similar advice to the Maryland bar. In Hiob v. Progressive Am. Ins. Co., Case No. 4, Sept. Term 2014 (Md. Nov. 20, 2014), Judge McDonald explained that there is no appealable judgment until there is both (1) a final judgment that is (2) also set forth in a separate document signed by a judge or the clerk and entered on the court docket. Thus, even if there is a final adjudication on all claims involving all parties, that final judgment is not appealable until the court enters and dockets a separate document, signed by a judge or the clerk, evidencing that final judgment. In short, nothing is over (and appealable) until the trial court says it is.
Court of Special Appeals sails uncharted waters of FDCA preemption right into monsters of Greek mythology
In McCormick v. Medtronic, Inc., Ct. of Spec. App. Md., No. 670, Sept. Term 2013 (Oct. 6, 2014), the Court of Special Appeals recently decided a preemption issue that is percolating up through courts around the country: the extent to which federal law preempts state claims for personal injuries resulting from “off-label” promotion of a medical device. Most of the decisions that have come out so far on this question have been issued by federal district courts; the CSA’s opinion was one of the first appellate decisions to tackle it. Given the careful and thoughtful treatment the CSA gave the issue, McCormick likely will be an influential decision as more appellate courts weigh in on this question. As noted below, at one point the Court compared express and implied preemption to Scylla and Charybdis, two monsters from Greek mythology – perhaps a somewhat overblown analogy, but, for those of us who appreciate the ancient myths and find preemption analysis sometimes a bit dry, the allusion was a welcome addition to the opinion.
The Recent Proposed Maryland Appellate Rules On Electronic Filing, in Plain English
By Michael Wein,
There’s been a lot of discussion recently in Maryland about electronic filing, which began in Anne Arundel County in October 2014. There’s also been some confusion for those who practice in the state’s appellate courts, which are located in Annapolis, Anne Arundel County, about whether and when appellate materials can be filed electronically. The U.S. Court of Appeals for the Fourth Circuit has used electronic filing – including filing appellate briefs in .pdf format with electronic signatures – for a number of years through its own dedicated appellate ECF system. So has Maryland suddenly adopted a system comparable to the Fourth Circuit?
Three Things Congress Should Do in 2015 About Judges
By Steve Klepper (Twitter: @MDAppeal)
The first six months of 2015 will provide a short breather before the nation’s political machinery turns its attention to the 2016 presidential election. For all the talk of how the Republican takeover of the Senate will affect judicial nominations, the next six months provide a window of time when Congress can reform judicial policy for the next president — before we have much of an idea who the next president will be.
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