DeWolfe v. Richmond: State Law or Just Law?
As recently recounted on this Blog,[1] the 4-3 decision of the Court of Appeals in DeWolfe v. Richmond, ___ Md. ___, 2013 WL 5377174 (Sept. 25, 2013), was notable as another in a growing line of state court decisions resting individual rights on the Maryland Constitution, as opposed to federal law.[2] Expressly grounding its decision on Article 24 of the Maryland Constitution’s Declaration of Rights, the Court ruled that detainees at initial bail hearings have a right to counsel provided by the state, if they cannot afford or otherwise retain counsel of their own. The convoluted procedural history of the case and related cases that preceded it evidences the substantial moment of the competing interests at stake in the decision.[3] Not only does the decision broaden the protective reach of Article 24 of the Maryland Constitution’s Declaration of Rights but also, more practically and immediately, it is estimated that the ruling will require counsel to be afforded for 177,000 bail hearings at 188 different locations annually, at a cost, no less of $28 Million for the Office of the Public Defender, whose total current General Assembly allocation, set before DeWolfe, stands at $94 Million for all services the Office provides. Read More…
Court of Appeals of Maryland: October 2013 Cert Grants
On October 18, 2013, the Court of Appeals granted certiorari in eight cases. Its website lists a ninth case where, on October 21, 2013, the Court of Appeals, by per curiam opinion, summarily granted certiorari, vacated the decision below, and remanded to the Court of Special Appeals for further review.
The October 18, 2013 order identifies the questions presented in the eight cases set for merits review: Read More…
The Public Defender Opinion: The Implications of Resting on State-Law Grounds
By Kevin Arthur
It is axiomatic that a state constitution may afford greater rights than the analogous provisions of the federal constitution. Moreover, if a state court “clearly and expressly states” that its decision rests on an “adequate and independent” state constitutional ground, the Supreme Court cannot reverse that decision even if federal law would not countenance the same result. Michigan v. Long, 463 U.S. 1032, 1041 (1983). In effect, therefore, under Michigan v. Long, a state court may insulate an expansive ruling from further review by a potentially hostile federal court, as long as the ruling was based on an adequate and independent state constitutional ground. Read More…
A 28th Amendment to Dock Congress’ Pay During a Shutdown
By Steve Klepper (Twitter: @MDAppeal)
I am far from the first to observe the injustice that members of Congress continue to draw salary during the present shutdown of the federal government. See, e.g., Patricia Murphy, How Congress Will Still Get Paid in a Government Shutdown, The Daily Beast (Sept. 20, 2013). This situation is an unintended consequence of the Twenty-Seventh Amendment, which provides that “[n]o law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of Representatives shall have intervened.” The amendment’s drafter, James Madison, and the states ratifying the amendment—which was submitted to the states in 1789 but was not ratified until 1992—were targeting congressional pay raises. But, under the amendment’s plain language, no law varying congressional pay, whether upward or downward, can take effect until after an intervening election. Read More…
Maryland Court of Appeals to Follow SCOTUS Policy of Deciding Argued Cases by Term’s End
By Michael Wein
New Chief Judge Mary Ellen Barbera, after her appointment in July by Governor O’Malley, announced her objective of having the Court of Appeals issue opinions no more than one year after oral arguments. Though unsaid, this new policy was clearly intended to refute criticism, including from the Baltimore Sun and The Maryland Daily Record, about how some cases in the Court of Appeals seemed to languish for years under Chief Judge Bell’s tenure. Read More…
SCOTUS Retirements: The Carrot and the Stick
By Steve Klepper (Twitter: @MDAppeal)
Yesterday, I had the pleasure of sitting on a Supreme Court Term preview panel at my alma mater, Goucher College, with Associated Press Supreme Court reporter Jesse Holland and political science Professor Nina Kasniunas. Inevitably, the question arose as to why Justice Ruth Bader Ginsburg isn’t choosing to retire while Democrats control the White House and the Senate. Robert Barnes’ delightful piece, The Question Facing Ruth Bader Ginsburg: Stay or Go?, appearing in today’s Washington Post Magazine, gives some insight into this most personal of decisions. Read More…
Meet the Candidates for the Court of Special Appeals
By Steve Klepper (Twitter: @MDAppeal)
[Update: The Governor announced his picks on February 24, 2014. Click here for our post on those three selections.]
Governor O’Malley will be picking from 18 candidates to fill three vacancies on the Court of Special Appeals. The Maryland Courts website today posted the names that the Judicial Nominating Commission forward to the Governor. Two vacancies are for the new at-large seats, while a third is for the Baltimore City seat that Judge Shirley Watts vacated when she joined the Court of Appeals. It is an incredible list of qualified individuals. Excluding Jack Tranter, whose application was withdrawn, the 18 candidates are: Read More…
Fourth Circuit Judge Andre Davis to Take Senior Status
By Steve Klepper (Twitter: @MDAppeal)
As of this morning, the United States Courts’ website indicates that Judge Andre M. Davis, of the United States Court of Appeals for the Fourth Circuit, will be taking senior status effective February 28, 2014. Although Judge Davis has been sitting on the Fourth Circuit for less than five years, he is eligible for senior status upon turning 65 because he has been an Article III judge since becoming a U.S. District Judge on August 14, 1995. Judges are eligible to assume semi-retired senior status when they turn 65 if they have served 15 years or more as Article III judges.
In the Fourth Circuit’s 2011 Affordable Care Act decision in Liberty University v. Geithner, Judge Davis dissented from the court’s ruling that the Anti-Injunction Act stripped the federal courts of jurisdiction to adjudicate the act’s constitutionality before it goes into effect in 2014.
Judge Davis is the first of President Obama’s Article III nominees to take senior status. Moreover, although Judge Davis is the youngest of the Fourth Circuit’s three Maryland-based judges, he is the first to announce he will take senior status.
While I wish that Judge Davis could have been in active service longer – he was first nominated to the Fourth Circuit in 2000 but was not then confirmed – his selfless decision to assume senior status should be a boon to the Fourth Circuit. For U.S. District Judges, assuming senior status is a much easier decision. A senior district judge has more control over his or her docket while still being the one-and-only judge in his or her courtroom. But a senior circuit judge loses all seniority on three-judge panels and is unable to participate in en banc proceedings unless he or she sat on the original three-judge panel.
The Fourth Circuit could use more senior judges. Unlike other U.S. Courts of Appeals, like the Second Circuit and D.C. Circuit, where numerous senior circuit judges continue to hear cases, the Fourth Circuit for years has had only one of its senior judges (Judge Clyde Hamilton of South Carolina) at its service. Judge William Wilkins served only briefly as a senior judge before leaving for private practice in South Carolina. Judge J. Michael Luttig left to become general counsel for Boeing before even becoming eligible for senior status. And tragedy has struck the Fourth Circuit in recent years, with the untimely death of Judge M. Blane Michael in 2011, and Judge Karen Williams’ 2009 retirement because of early-onset Alzehimer’s Disease. The Fourth Circuit has relied heavily on outside senior judges, including Judge C. Arlen Beam of the Eighth Circuit and Judge Arthur Alarcon of the Ninth Circuit, to complete three-judge panels.
Not to Worry: A Comment on Today’s Dissent in Ray v. State
By Steve Klepper (Twitter: @MDAppeal)
(This post has been updated to address some points I overlooked in my original post. The irony.)
Today the Court of Appeals, in Ray v. State, issued useful guidance on the limits on an appellate court’s discretion under Md. Rule 8-131(a) to consider the merits of a waived claim. The five-judge majority, in an opinion by new Chief Judge Barbera, held that the Court of Special Appeals, in an opinion by new Court of Appeals Judge Watts, erroneously reached the merits of the defendant’s claim in Ray v. State, 206 Md. App. 309 (2012).
Two judges dissented. The dissent “agree[d] that the Court of Special Appeals erred in concluding that the matter was a proper subject of appellate review.” Nevertheless, the dissent “disagree[d] with the Majority’s failure to vacate the Court of Special Appeals’ holding about the merits of Ray’s Fourth Amendment claim—a decision that rests on an expanded and worrisome interpretation of Maryland v. Pringle, 540 U.S. 366, 124 S. Ct. 795 (2003) …. This means that the Court of Special Appeals’ holding will be applied by trial courts until the next time this Court decides a case applying Pringle in a similar context.”
Not to worry. The decision of the Court of Special Appeals on the merits of the question is now only dicta:
A Court of Special Appeals’ opinion underlying a judgment, which is reversed or vacated in its entirety by this Court on another ground, may, depending upon the strength of its reasoning, constitute some persuasive authority in the same sense as other dicta may constitute persuasive authority. Nonetheless, analytically the intermediate appellate court’s opinion is only dicta because it no longer supports or reflects a viable appellate judgment. Accordingly, such an opinion is not a precedent for purposes of stare decisis.
West v. State, 369 Md. 150, 797 A.2d 1278, 1282 (2002).
The wrinkle in Ray is that the Court of Appeals ultimately affirmed the judgment below, since the Court of Special Appeals had ruled against the defendant on the merits of the question that it should not have reached. But the principle in West still should prevail—since the Court of Special Appeals erred in reaching the question in the first place, its discussion on the merits is dicta.
Nevertheless, there is some potential for confusion, since a not-too-close review of the procedural history of the case would show “affirmed.” I’ve even seen practitioners, and occasionally judges, cite as precedential a case with the signal “reversed on other grounds,” without recognizing that the opinion below was rendered dicta. The lesson, though, is that one should always carefully review the procedural history of the case, rather than just being content that Westlaw or LEXIS shows the decision was affirmed.
But I do believe that that the dissent in Ray v. State is properly labeled a “concurrence,” since the opinion concurs with the disposition of the case by the Court of Appeals.
Certiorari Grants, September 20, 2013
From the Court of Appeals website:
Granted September 20, 2013
Sonia Carter, et al. v. The Wallace & Gale Asbestos Settlement Trust – Case No. 84, September Term, 2013
Issues – Torts – 1) Did CSA err in its decisions that the trial court should have admitted the testimony and opinion of Respondent’s expert and should have instructed the jury on apportionment of damages? 2) Did CSA err in its conclusion that the use plaintiffs were required to join the action with a formal pleading and are now barred by the statute of limitations? Read More…
Maryland Appellate Blog 