December 2013 Certiorari Grants, Including 2 New DNA Cases
By Steve Klepper (Twitter: @MDAppeal)
On December 20, 2013, the Court of Appeals of Maryland granted certiorari in seven cases. All seven cases have been set for argument during the term beginning September 2014.
The first two listed cases include interesting variations on the Maryland DNA Collection Act, which the U.S. Supreme Court upheld in Maryland v. King, 133 S. Ct. 1 (2012). Two criminal defendants now want to use DNA matches to point the finger at other potential culprits. Read More…
Five Names, Including Neal Katyal, Reportedly to Be Forwarded for Judge Davis’ Seat on 4th Circuit
By Michael Wein
For now, I’ll have to attribute this to ‘reliable hearsay,’ as opposed to any personal knowledge, but Maryland’s Senators apparently are recommending to President Obama five potential nominees to replace Fourth Circuit Judge Andre Davis, who is taking senior status in February.
The five names reportedly include Neal Katyal, who is presently with Hogan Lovells in D.C., and who was acting Solicitor General following President Obama’s appointment of Justice Elena Kagan to the Supreme Court. Read More…
In re 2012 Legislative Districting and the Permanence or Expedience of Judicial Review
Every ten years, after each national census, provisions in the Maryland Constitution (Art. III, § 5) require that the State’s 47 Legislative Districts be reviewed for reapportionment. Those same provisions require the Governor to submit to both houses of the State legislature, the Senate and the House of Delegates, a plan for the 47 Districts, making boundary changes to the District in response to population changes and as necessitated by and consistent with state and federal constitutional requirements. Failing the General Assembly’s adoption of its own plan, the Governor’s plan becomes law, and that became the case for Governor O’Malley’s plan in response to the 2010 census (“2012 Plan”), which became the law on February 24, 2012.
The reapportionment provisions of the Maryland Constitution also vest the Court of Appeals with original jurisdiction to review any registered voter’s constitutional challenge to the legislative redistricting plan (Art. III, § 5). On March 6, 2012, the Court of Appeals issued an order in Matter of 2012 Legislative Districting of the State, 429 Md. 301, 55 A.3d 713 (2012), setting forth procedures to accommodate such challenges and appointed retired Court of Appeals Judge Alan M. Wilner as the Court’s Special Master, to conduct any necessary hearings. Eventually, after hearings before the Special Master, the submission of his recommendations, the taking of exceptions thereto, and argument before the Court, the Court issued a one page order on November 9, 2012, rejecting all challenges to the 2012 Plan, with opinion to follow. The Court (Bell, C.J., ret.) issued that opinion (cited herein as “Slip Op.”) on December 10, 2013. Read More…
Certified Questions to the Court of Appeals Now Online
By Michael Wein
Certified questions are an irregular part of Court of Appeals practice (averaging about 3-5 per year), usually from a Maryland Federal District Court judge or a Fourth Circuit panel asking the Maryland Court of Appeals to opine on an unsettled (but dispositive) issue of Maryland law. Theoretically any jurisdiction, state or federal, in the United States could certify a question for the Court of Appeals to decide under the Maryland Uniform Certification of Questions of Law Act, found at sections 12-601 to 12-613 of the Courts and Judicial Proceedings Article. Before the recent web revamp about three months ago, unless you were a litigant in the case, it was difficult to know just from checking the judiciary web site, what, if any, certified questions were being considered in the Court of Appeals. Usually the first notice was when the case appeared on the online oral argument schedule. Read More…
Read This: A Great Fourth Circuit Dissent
By Steve Klepper (Twitter: @MDAppeal)
Judge Andre M. Davis is, in my opinion, one of the two best writers on the Fourth Circuit. (The other is Judge J. Harvie Wilkinson III.)
Earlier this week, readers of the Fourth Circuit’s opinions were treated to a powerful dissent by Judge Davis in United States v. Kerr, No. 12-4775 (4th Cir. Dec. 3, 2013). Without taking sides between the majority and the dissent on the substantive question (the application of the Armed Career Criminal Act to North Carolina convictions), I’d like to highlight the dissent as an excellent piece of legal writing. Read More…
The Fourth Circuit May Have Quietly Set Up Supreme Court Cert Review on Judicial Recusals
By Michael Wein
An easily overlooked set of Opinions and Orders in the Fourth Circuit Court of Appeals, those in United States v. Jeffrey Sterling, (at least when considered together), appears to have gone mostly unnoticed in the blogosphere. It involves an unlikely combination of Certworthy issues for the Supreme Court, not just on the scope of a potential privilege and/or 1st Amendment rights that exists for reporters to obtain and keep secret information received from confidential sources, but to include the ethics issue for Judicial Recusal, at least with respect to the intervenor, New York Times reporter James Risen, and a host of Amici groups, including the Times, Washington Post, Tribune Company, and CNN. (Actually, most major media companies in the U.S.). Read More…
November 2013 Certiorari Grants
The Court of Appeals of Maryland granted certiorari in 12 cases on Friday, November 22, 2013. Consistent its new policy of deciding all cases in the same term in which they were argued, the Court designated 11 of the 12 cases for the Court’s September 2014 Term. The one case assigned to the present September 2013 Term involves issues similar to a certified question that the Court has designated for argument in May 2013. Read More…
Which Circuit Judges Could Retire Today?
By Steve Klepper (Twitter: @MDAppeal)
Wow. So Harry Reid went nuclear. Just 51 votes are now required for cloture on votes to confirm U.S. District Judges and U.S. Circuit Judges.
Two questions now come to the forefront:
(1) Will Senator Leahy, Chair of the Senate Judiciary Committee, adhere to the “blue slip” protocol, under which both home-state senators must approve a nominee?
(2) Will there be a flood of judges assuming senior status? Read More…
How Twitter Can Save Law Reviews
By Steve Klepper (Twitter: @MDAppeal)
Recently, a New York Times column by Adam Liptak reignited a running controversy over the utility of law reviews. If you’re interested in that controversy, I recommend responses by Will Baude and Orin Kerr at The Volokh Conspiracy, plus a rebuttal by Christopher Zorn at Empirical Legal Studies. And, more to the point of this post, Derek Muller’s post, Why Aren’t More Journals Like the Case Western Reserve Law Review?, examines what certain law reviews are doing right. Building on Professor Muller’s observations, I’d like to offer my own observations on how an online presence, particularly through Twitter, can increase a law review’s readership and encourage a dialogue useful to the bench, bar, and academia. Read More…
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