Today the Supreme Court of the United States issued a per curiam ruling summarily reversing the four-to-three Court of Appeals decision in Kulbicki v. State, 440 Md. 33 (2014). Interestingly, the Supreme Court never issued an order calling up the state court record (see, for instance, the docket in Martinez v. Illinois) – even though Maryland is not a state where the record is available online.
It took the Supreme Court just 4½ pages to unanimously reverse. Read More…
Obamacare on Appeal: Statutory Construction of This Politically Charged Question Will Inevitably Be Called Judicial Activism
In June, I wrote here that law professors should use the Supreme Court’s reversal of a Fourth Circuit opinion (CTS Corp. v. Waldburger) as their case study to teach the complexity of statutory construction. But I fear that a subsequent pair of conflicting, high-profile opinions in the D.C. Circuit and Fourth Circuit construing the Patient Protection and Affordable Care Act (“ACA”) is what many law professors will be using to teach statutory construction. Halbig v. Burwell, No. 14-5018 (D.C. Cir. July 22, 2014), rehearing en banc granted (Sep. 4, 2014), and King v. Burwell, No. 14-1158 (4th Cir. July 22, 2014), are attractive as important cases that present a pure question of statutory construction, but using them to teach statutory construction runs the risk that students will see statutory construction as a mere euphemism for partisan “judicial activism.” The opinions are best used to instead explore the precarious role of appellate judges in resolving politically charged controversies.
On August 12, 2014, a divided Fourth Circuit denied a petition for rehearing en banc that had been filed by capital defendant Alejandro Umaña. Umaña had sought the rehearing en banc of a panel opinion, 750 F.3d 320 (4th Cir. 2014), in which a majority held that the Sixth Amendment’s Confrontation Clause does not apply to the sentencing selection phase of capital sentencing. Eight judges (Chief Judge Traxler, Judge Wilkinson, Judge Niemeyer, Judge King, Judge Shedd, Judge Duncan, Judge Agee, and Judge Floyd) voted to deny the rehearing en banc, while five (Judge Motz, Judge Gregory, Judge Keenan, Judge Wynn, and Judge Thacker) voted to grant the petition.
A leader in the MS-13 transnational criminal gang, Umaña was convicted in federal court of murdering two brothers (who were not affiliated with any gang) in a bar in Greensboro, N.C., after the brothers got into an argument with Umaña and other MS-13 members about the music that should be played on the jukebox. After the jury found Umaña eligible for the death penalty in the first portion of the sentencing phase, the proceeding moved to the sentencing selection phase. Over Umaña’s objection, the district court allowed the government to introduce hearsay testimony from Los Angeles police detectives concerning statements that MS-13 informants had given the detectives implicating Umaña in several unrelated murders in Los Angeles. Umaña argued that the Confrontation Clause required the government to produce the informants themselves at the sentencing selection phase. In a 2-to-1 decision, the Fourth Circuit panel (Niemeyer and Agee, with Gregory dissenting) affirmed the admission of the informants’ statements through the detectives.
Just a few weeks shy of the Maryland Appellate Blog’s first anniversary, we have two pieces of good news to share.
First, one of our sillier posts caught the attention of Marcia Coyle, who covers the Supreme Court for PBS NewsHour and the National Law Journal. Marcia interviewed me for a piece in today’s NLJ, which also features a new piece I wrote matching today’s justices with Marvel and DC superheroes.
Big thanks are due: to Marcia Coyle, who couldn’t have been nicer; to Mike Moline, who edited my piece for the better; to Texas Supreme Court Justice Don Willett, who encourages and retweets my malarkey; to my wife for putting up with me writing a post while on vacation; and, as always, to the whole Maryland Appellate Blog board for their contributions and support.
Second, we now have a blog manager, Chris Mincher. Like me, Chris graduated from the University of Virginia School of Law and worked on the Libel Show, Virginia Law Weekly, and the Journal of Law and Politics. Unlike me, Chris held leadership positions with those groups, was a law clerk (with Court of Appeals Judge Robert N. McDonald), and is a real journalist (with a résumé that includes The Washington Post and The Onion’s AV Club).
As blog manager, Chris will be responsible for keeping everyone on schedule and for continuing to work out the kinks in our editorial processes. You can look forward to fewer typos. He has already begun contributing to the blog. Chris will of course be keeping his day job as an associate at Silverman | Thompson | Slutkin | White LLC.
One of the more surprising denials of certiorari this past term at the U.S. Supreme Court was in Iowa Right to Life Comm. v. Tooker. There, the Eighth Circuit, applying FEC v. Beaumont, 539 U.S. 146 (2003), upheld an Iowa law that bans direct corporate contributions to political campaigns but permits such contributions by unions. Over at the Election Law Blog, Rick Hasen noted that Beaumont’s days appear to be numbered under recent Supreme Court election law decisions, but he concluded Chief Justice Roberts “is playing the long game, not wanting to move quickly.”
I agree that Chief Justice Roberts is playing the long game, but it only takes four justices to grant certiorari. In Beaumont itself, Justices Kennedy (concurring in the judgment) and Justices Scalia and Thomas (dissenting) telegraphed a willingness to reexamine the ban on corporate giving in a future case. It’s difficult to see why Justice Alito, having since joined the Court, would hesitate to vote to grant review in Iowa Right to Life, particularly given Iowa’s differing treatment of unions and corporations. Read More…
Yesterday’s excellent guest post by Derek Stikeleather managed to set a new record for daily traffic on the Maryland Appellate Blog. Many thanks to Derek (and to Howard Bashman for picking up the post at How Appealing). I’d like to briefly add a small point on CTS Corp. v. Waldburger.
I’ve seen news reports of efforts in the North Carolina Legislature to pass a bill, applying to all pending litigation, declaring that the state’s statute of repose was never intended to apply to tort cases involving contaminated groundwater. [Update: Beth Scherer at the North Carolina Appellate Practice Blog reports that both houses unanimously approved the legislation.] A Marylander might ask why the Fourth Circuit does not simply certify that question to the Supreme Court of North Carolina. Read More…
An Open Letter to Law Professors: Use This Case To Show Why Statutory Interpretation Is Not as Easy as It Sounds
The simplest rules and standards can often be the most confounding; just ask anyone who has had to divine whether an act was “willful.” The decisions of the Fourth Circuit and Supreme Court in CTS Corp. v. Waldburger offer a vivid case study of how the supposedly simple rules of statutory interpretation, which apply a statute’s “plain language” and “clear intent,” are anything but simple in practice. Both courts analyzed whether CERCLA’s express pre-emption of state-law statutes of limitations also pre-empts state-law statutes of repose. Last summer, a split panel of Fourth Circuit judges reversed a district court judge and held that CERCLA did pre-empt North Carolina’s statute of repose. But a divided Supreme Court, reversing again, held last week that it did not. Read More…