The Supreme Court recently decided Kisor v. Wilkie, a case that addresses when courts are required to defer to agencies’ interpretations of their own rules. The general rule that courts defer to an agency’s reasonable interpretation of its own regulations when they are ambiguous was articulated in the case Auer v. Robbins and is referred to as Auer deference. Auer deference has been subject to criticisms that it allows agencies to issue what amount to new regulations without going through the rulemaking process and that it is an abdication of the judicial role of interpreting the law.
[Update, 10/2/2017: The Supreme Court has denied certiorari.]
This March, the Court of Appeals of Maryland held in Norman v. State that an “odor of marijuana alone emanating from a vehicle with multiple occupants does not give rise to reasonable articulable suspicion that the vehicle’s occupants are armed and dangerous and subject to frisk.”
The State of Maryland petitioned for certiorari to the Supreme Court of the United States, posing the following question: Read More…
By Michael Wein
Last year, with about one week to go before the Maryland Court of Appeals’ self-imposed deadline for deciding all cases in a September term by the following August, the Court had only four cases left to decide. Per the “Pending Cases” page on the Court of Appeals’ web site, with two weeks to go before this year’s deadline, 15 decisions are left to decide. Of these 15 cases, seven are civil, six are criminal, one is an Attorney Grievance matter (which the oral arguments indicate was, interestingly, remanded back to the trial judge for additional findings and re-argued in the same term), and one is a Bar application case.
Shapiro v. McManus: Round Two for the Constitutionality of Maryland’s 2011 Congressional Redistricting
Shapiro v. McManus, No. 14-990, 136 S. Ct. 450 (decided Dec. 8, 2015), started as a challenge, on First Amendment grounds, to Maryland’s 2011 congressional redistricting. It appears, however, that Maryland and Supreme Court watchers nationwide will need to wait before the Court potentially sheds light on the lawfulness of that or other First Amendment challenges to congressional and state legislative redistricting. In Shapiro, a unanimous Supreme Court ruled only that the Fourth Circuit Court of Appeals erred in affirming the District Court’s decision that it was not required under the Three-Judge Court Act, codified at 28 U.S.C. § 2284, to convene a three-judge panel to consider Petitioners’ First Amendment challenge to the 2011 redistricting. Further, because the Court has already summarily and unanimously upheld an equal-protection challenge to Maryland’s 2011 redistricting, see Fletcher v. Lamone, 831 F. Supp. 2d 887 (D. Md. 2011), aff’d 133 S. Ct. 29 (2012), it seems unlikely that Shapiro will clarify the standards applicable to a constitutional challenge to redistricting.
As we await the appointment of a successor to the empty seat on the U.S. Supreme Court, one of the early casualties of a tie vote has already occurred. Many public employers and employees had their eyes on a recent case involving the California Teachers Association, because its outcome had the potential to alter the relationship between public employees and their union representatives that has existed since the 1970s. Instead of a scintillating analysis by the Court, a tie vote yielded only a one-line order that left the decision of the Ninth Circuit Court of Appeals intact along with the existing precedent from the 1970s and 1980s. See Friedrichs v. California Teachers Ass’n, No. 14-915.
In Luis v. United States, a fractured Supreme Court found that, in a prosecution for Medicare fraud, the federal government could not freeze untainted assets needed to retain defense counsel. The vote alignment was unusual, and none of the four opinions commanded a majority. The opinion drawing the most attention is Justice Kagan’s solo dissent, which Ian Millhiser has called “the most interesting opinion the Court has handed down this year.” That dissent, read together with a prior opinion on pretrial seizures, sends an important message to the criminal defense bar – go big or go home. Read More…
By John Grimm
Last week, in a short per curiam opinion, the U.S. Supreme Court vacated a Massachusetts woman’s conviction for possessing a stun gun, holding that it violated her Second Amendment rights. Caetano v. Massachusetts, No. 14-10078, — S. Ct. — (2016). For Maryland lawyers (and clients), the case is no mere academic matter; at least three jurisdictions have laws on the books banning stun guns: Defendants can get up to six months in jail for possessing a stun gun in Baltimore and Howard Counties, or 60 days in Baltimore City. It’s hard to imagine these ordinances surviving Caetano, at least as applied to simple possession of a stun gun without some additional element (such as possession by a minor or someone with a prior conviction for a crime of violence, which are both illegal in Maryland).
We have a breaking update in our coverage of the long-running Kulbicki case. Ten weeks ago, the Supreme Court summarily reversed the decision of the Court of Appeals of Maryland in Kulbicki v. State, 440 Md. 33 (2014), which had found ineffective assistance of counsel on grounds that the Court of Appeals raised sua sponte. Read More…
By Michael Wein
One of the consequences of the greater availability and ubiquity of legal opinions online is that authors can directly hyperlink to sources, including other online decisions, and thus provide immediate access to the source material. This has led to the unintended consequence of “link rot” in appellate decisions — that is, the inclusion of links that are no longer valid. As noted in a 2013 New York Times article, at that time, 49 percent of links in online U.S. Supreme Court decisions were inoperative.