MCOA (MARYLAND COURT OF APPEALS) BLOG: Pit Bulls, Personal Injury

From the national general practice law firm of Charles Jerome Ware, P.A., Attorneys and Counsellors: "Still working. Still committed. Still here to make a difference." Consult an attorney directly for advice and consultation.

PERSONAL INJURY

(1) The Maryland Court of Appeals (MCOA) is considering changing Maryland's personal injury law after a civil suit in which a Howard County soccer player was injured when a cross-bar crashed in his face (Baltimore Sun, 9/17/2012).

Along with neighboring District of Columbia, Maryland is one of only four state jurisdictions that bar injured people from collecting damages in lawsuit claims if they had any role in the accident (contributory negligence), regardless of who a jury determines is liable. The MCOA is considering whether to allow some payment even when "contributing negligence" is an issue.

The original standard of contributory negligence was adopted judicially in Maryland in the 1847 case of Irwin v. Spriggs.

PIT BULLS

(2) In addressing a motion for reconsideration of its controversial decision in Tracey v. Solesky, outlawing pit bulls and mixed-breed (pit bulls) in Maryland, the Maryland Court of Appeals (MCOA) has upheld its ruling declaring pure breed pit bulls to be "inherently dangerous" but has now ruled in a revised order that mixed breed dogs are not subject to strict liability standards (Dorothy M. Tracey v. Anthony K. Solesky, et al., Maryland Court of Appeals, No. 53, September Term 2011, On Motion for Reconsideration, Opinion Filed August 21, 2012).

[www.bizjounrals.com/ 09-18-2012/ "Md. Court of Appeals Considers Changing Personal Injury Law"; www.foxbaltimore.com/ Tuesday, 8-21-2012/ "Pit Bulls"]

WHAT "SCOTUS" REFUSES TO HEAR

We have discussed and outlined over the past couple of days cases that the Supreme Court of the United States (SCOTUS) will hear oral argument on this 2012-2013 Term, as well as cases that it may hear.

Following are three cases, among others, that we now know the Court will not hear:

(1) The Court has rejected an appeal from the National Organization for Marriage (NOM), which donated $1.9 million to a political action committee that helped repeal Maine's same-sex marriage law.

Maine's campaign disclosure law requires groups that raise or spend more than $5000 to influence elections to register and disclose donors. NOM declined to do so, arguing that releasing the donor list would hinder free speech and subject donors to harassment. The lower court disagreed with NOM and refused to throw out Maine's disclosure law.

(National Organization for Marriage v. McKee, Docket Number 11-599, from the 1st Circuit)

(2) The Court refuses to hear an appeal challenging a federal rule that bars development on 58.5 million acres of roadless areas in national forests.

The justices announced that they will leave in place a federal appeals court decision that upheld the so-called "roadless rule" that took effect late in President Bill Clinton's second term.

(Wyoming v. Department of Agriculture, Docket Number 11-1378, et al.)

(3) The Supreme Court refuses to overturn the death sentence for a man in Oklahoma who was convicted of killing his ex-girlfriend and her infant daughter. The man, Raymond Eugene Johnson, was convicted of beating the woman, Brooke Whitaker, in the head with a hammer and setting her and her 7-month-old baby, Kya Whitaker, on fire in their gasoline-doused home.

(Johnson v. State, 2012 OK CR5 (State Citation), Case Number: D-2009-702; from the 10th Circuit)

This tweet and this blog are brought to you as a public service by the national general practice law firm of Charles Jerome Ware, P.A., Attorneys and Counsellors. Always contact a lawyer directly for advice and consultation.

[www.breakinglegalnews.com/ 10-01-2012; www.scotus-blog.com/ 10-01-2012; law.justia.com/ US Courts of Appeals Cases; www.cbsnews.com/ "Court Won't Hear Anti-Gay Marriage Group Appeal"]

"SCOTUS" RETURNS!: The Supreme Court of the United States Returns for the 2012-2013 Term

Charles Ware is a principal in the national general practice law firm of Charles Jerome Ware, P.A., Attorneys and Counsellors: "Still working. Still committed. Still here to make a difference."

As of today (Tuesday, October 2nd, 2012) there are 39 appeals on SCOTUS's 2012-2013 calendar. It is projected that maybe 36 or more may be added in coming months of the term. Look for possible additions of appeals involving same-sex marriage rights, "personhood" laws for the unborn, voter identification laws, and voting rights enforcement, inter alia.

Some of the so-called "big" cases to be argued before the high court this term include:

(1) AFFIRMATIVE ACTION

Fisher v. University of Texas at Austin

Docket Number 11-345 (from the 5th Circuit)

At issue

A challenge to the school's race-conscious admissions policies.

The case

Abigail Fisher individually sued the flagship state university after her college application was rejected in 2008 when she was a high school senior in Sugar Land, Texas.

The arguments

Fisher claims being turned away in part because she is white. The school defends its policy of considering race as one of many factors -- such as test scores, community service, leadership and work experience -- designed to ensure a diverse campus.

The impact

The court's most closely watched pre-election case this term, it raises anew thorny, unresolved questions over race and remedies. Justice Kagan will not hear this case because she had dealt with the issue while serving as President Barack Obama's solicitor general. That would leave the possibility of a 4-4 tie, meaning the university would prevail, but no important precedent would be established.

(2) HUMAN RIGHTS

Kiobel v. Royal Dutch Petroleum Co., Inc.

Docket Number 10-1491 (from the 2nd Circuit)

At issue

When federal courts can hear claims by foreign nationals of international law violations.

The case

More than a dozen individuals seek to hold major oil companies liable for human rights violations in Nigeria in the 1990s. The 223-year-old Alien Tort Statute that has been increasingly used in recent years to sue corporations and political groups for alleged abuses abroad. The plaintiffs allege the oil giants conspired with the government to stop protests over petroleum exploration, using killings, rape, arrests, and property destruction. Shell has denied giving soldiers any money, supplies, or logistical help.

The arguments

The high court in 2004 endorsed use of the ATS, but only in limited circumstances. The Kiobel case had originally been argued at the high court in February, revealing an ideological split on the bench. The case was ordered re-heard with a different focus on the law's limits: whether it can be applied extraterritorially for violations occurring overseas.

The impact

A Supreme Court decision against the plaintiffs could effectively end ATS litigation. Similar lawsuits involve Chevron and Exxon energy operations in Indonesia; Chiquita Brand fruit farms in Colombia; and businesses that operated years ago in the now-outlawed apartheid system in South Africa.

(3) NATIONAL SECURITY

Clapper v. Amnesty International USA

Docket Number 11-1025 (from the 2nd Circuit)

At issue

Standing question over the constitutionality of the federal government's electronic monitoring of targeted foreigners suspected of terrorism or spying. Can domestic plaintiffs who deal with overseas clients and co-workers file suit if they reasonably fear the government was reading and hearing their sensitive communications?

The case

Congress revised the Foreign Intelligence Surveillance Act (FISA) in 2008 to give the attorney general and the director of national intelligence greater authority to order "mass acquisition" of electronic traffic from suspected foreign terrorists or spies. The law previously required the government to justify a national security interest before any monitoring of phone calls and emails originating in another country. A federal judge had to sign any search warrant.

The arguments

The larger issue involves the constitutionality of the federal government's electronic monitoring of targeted foreigners. A federal appeals court ruled against the Obama administration. The specific question now to be addressed is whether certain Americans have "standing" to challenge the federal law without a specific showing they have been monitored. Plaintiffs say the National Security Agency has in turn refused to disclose specifics. The ACLU calls that "Catch-22" logic.

The impact

Privacy groups worry that such electronic dragnets could easily and unknowingly intrude on the privacy rights of U.S. citizens. The government calls that "speculation" but cites national security in refusing to provide specifics.

(4) SAME-SEX MARRIAGE

These cases may be added to the Supreme Court docket in coming months.

A.) Defense of Marriage Act: Bipartisan Legal Advisory Group of the U.S. House of Representatives v. Gill; Dept. of Health and Human Services v. Massachusetts; Office of Personnel Management v. Golinski; Windsor v. U.S.

Docket Number 12-13 (from the 1st Circuit)

At issue

Whether the federal Defense of Marriage Act violates equal protection guarantees in the Fifth Amendment's Due Process Clause, as applied to same-sex couples legally married under the laws of their own state.

The cases

Appeals from Massachusetts, New York, California, and elsewhere are pending. The law known as DOMA defines marriage for federal purposes as unions exclusively between a man and woman. The legal issue is whether the federal government can deny tax, health, and pension benefits to same-sex couples in states where they can legally marry. A federal appeals court in Boston struck down the benefits provision, saying, "If we are right in thinking that disparate impact on minority interests and federalism concerns both require somewhat more in this case than almost automatic deference to Congress' will, this statute fails that test."

The arguments

The First Circuit court did not rule on the federal law's other key provision: states that do not allow same-sex marriages cannot be forced to recognize such unions performed in other states. Traditionally, marriages in one jurisdiction are considered valid across the country.

The impact

The Obama administration in a rare move has refused to defend a federal law in court. That left the GOP-controlled House of Representatives to file the legal appeals to the high court.

B.) California ballot measure: Hollingsworth v. Perry

Docket Number 12-144 (from the 9th Circuit)

At issue

Whether the Constitution's 14th Amendment guarantee of "equal protection" prevents states from defining marriage as only between one man and one woman.

The case

The "Prop 8" case, as it has become known, has been down a complicated legal road. California's Supreme Court ruled same-sex marriages were legal in 2008. After the statewide ballot measure banning them passed with 52% of the vote later that year, gay and lesbian marriages were put on hold. Then a federal appeals court in San Francisco in February ruled the measure unconstitutional. In its split decision, the panel found Proposition 8 "works a meaningful harm to gays and lesbians" by denying their right to civil marriage.

The arguments

California is the only state that accepted, then revoked, same-sex marriage as a legal right. The measure's supporters asked the justices to preserve the will of the voters in this politically-charged social issue. Opponents of Prop 8 seek a court-ordered expansion of the "traditional" views of marriage.

The impact

Currently, same-sex marriage is legal in six states: Massachusetts, Connecticut, Iowa, Vermont, New Hampshire and New York, along with the District of Columbia. Washington, Maryland, and New Jersey voted earlier this year to allow same-sex marriages, but the laws have not yet taken effect.
Another nine states recognize civil unions or broad domestic partnership, providing state-level spousal rights to same-sex couples. President Barack Obama, who previously opposed same-sex marriage, said in June he now supports it.

(5) Voting Rights

Though not on the Court's calendar now, these cases may be added during this term.

Shelby County, AL v. Holder; Nix v. Holder

Docket Number 12-96 (from the D.C. Circuit)

At issue

Continued use by the federal government of the key enforcement provision of the landmark Voting Rights Act of 1965.

The case

Section 5 gives federal authorities open-ended oversight of states and localities with a history of voter discrimination. Any changes in voting laws and procedures in the covered states must be "pre-cleared" with Washington.

The arguments

The provision was reauthorized in 2006 for another quarter-century, and counties in Alabama and North Carolina subsequently filed suit, saying the monitoring was overly burdensome and unwarranted. All or parts of 16 states are currently covered under the provision. Other states are not covered by the provision even if they, too, might discriminate against minority voters.
In a separate high court case from three years ago, the conservative majority suggested -- but never fully affirmed -- that continued use of Section 5 may soon be nullified. "Things have changed in the South. Voter turnout and registration rates now approach parity," Chief Justice John Roberts wrote in 2009. "Past success alone, however is not adequate justification to retain the pre-clearance requirements. The Act imposes current burdens and must be justified by current needs."

The impact

A high court decision whether to accept these appeals for a full review will likely come in a presidential election year that incorporates newly redrawn voting boundaries, based on the updated census.

(6) ABORTION RIGHTS

Oklahoma v. Barber

Docket Number 12-145.

This case may be added to the Supreme Court docket during this term.

At issue

Constitutionality of state "personhood" laws saying life begins at conception, and giving human embryos the rights and privileges of citizens.

The case

Initiative Petition 395 is a proposed ballot measure to amend the state constitution, but was unanimously struck down by the Oklahoma Supreme Court. The state justices said the measure, if approved, would unconstitutionally ban access to abortions, and concluded that defining a fertilized human egg as a person "is clearly unconstitutional."

The arguments

Supporters of the measure say voters should be given the right to decide a critical issue like defining life, and said it was unfair for the courts to block the law before it was enacted. Opponents counter it would essentially block abortions even in case of rape, incest, or when the mother's life was in danger. They also say it would severely restrict use of contraception and in vitro fertilization.

The impact

A bill similar to Oklahoma's is pending in Virginia's state legislature. Voters in Colorado and Mississippi have rejected "personhood" ballot initiatives in recent years. Many of its backers hope to use "personhood" measures to force another Supreme Court showdown over the landmark 1973 Roe v. Wade ruling legalizing abortions.

[www.cnn.com/ 10-2012/politics/scotus.cases/ "Big Cases Await Supreme Court's 2012-13 Term"; www.csmonitor.com/ October 1, 2012/ "Supreme Court Cases Tests US Leadership In Human Rights"; www.huffingtonpost.com/ 10-01-2012/ "Supreme Court Term Begin, Major Rulings Ahead"; freegov.info/ 09-30-2012/ "US Supreme Court 2012-2013 Docket Full of High-Profile Cases #SCOTUS"; news.yahoo.com/ 10-02-2012/ "The Courts News Headlines"]

WE'RE BACK!: SUPREME COURT'S FALL 2012 NEW TERM

Monday, October 1st, 2012; Washington, D.C.

We're ba-a-c-c-k!  The U.S. Supreme Court opened its new term today with big cases on human rights, affirmative action, and the death penalty.

Among several docket entries for the high court, three in particular are of interest:

Kiobel v. Royal Dutch Petroleum Company, Monday, Oct. 1: The term opens with a case held over from last year—in a way that doesn’t bode well for Esther Kiobel. She sued Royal Dutch Shell in 2002 on behalf of her late husband and 11 other Nigerians, saying that the company colluded with the Nigerian military in the 1990s to silence protesters—going so far as torturing and killing them—who were trying to halt oil exploration. Last term, when the court first heard the case, the question was whether corporations could be sued for human rights abuses. Cue lots of bitterness on the left about how the court could treat companies as people for the purposes of campaign donations, but not when it comes to accusations of murder.

Now the case is back to resolve a more basic question: Can Esther Kiobel sue in the United States over this alleged breach of international law on foreign soil? The law at issue is the Alien Tort Statute, passed in 1789 to combat piracy, among other things. No one much used it until the 1980s, when it became a weapon for fighting human rights abuses. In 2004, in a case out of Mexico, the court said it was OK to use the statute for claims based in “universally condemned human rights violations,” as the plaintiffs put it. Genocide, torture, and human trafficking should count along with piracy.

Ryan v. Gonzales and Tibbals v. Carter, Tuesday, Oct. 9: We are not supposed to execute mentally insane people in this country. The Supreme Court said so in 1986. At the time, no state allowed such an execution; as Justice Thurgood Marshall pointed out, British judges back in the 17^th century worried about the “miserable spectacle” of “extreme inhumanity and cruelty” presented by executing a “mad man.” That’s still the law, though it’s worth worrying over the low standard of competence courts use. Apart from that, what exactly is supposed to happen if a defendant is sentenced to death and then found to be incompetent, because of mental illness, to help his lawyer press his appeals?

Two federal appeals courts, the 6^th Circuit and the 9^th Circuit, have essentially found that defendants have a right to be competent during the federal court proceeding called habeas corpus—basically, a defendant’s last-ditch chance to get off death row. The 9^th Circuit stayed proceedings indefinitely in the case of Ernest Valencia Gonzales, who is psychotic, and who killed a man in the course of a burglary. In Ohio, a district court similarly ordered an indefinite stay for Sean Carter, sentenced to die for killing his adoptive grandmother, and then found to be delusional with schizophrenia. The state of Ohio, which wants to execute Carter, imagines courts handing out lots more delays under “extraordinarily loose standards,” bringing the death penalty to a halt in the state. This is not a crazy concern: The backdrop here is the case of Melvin Davis Rees, who got a competency hearing and a stay courtesy of the Supreme Court in the mid-1960s—and died in prison in 1995.
 

The Obama administration has weighed in against a rule that favors indefinite stays for death row inmates whose mental illness makes them incompetent. It’s too much to ask to stop all these cases, the government says. The American Psychiatric Association is on the other side, arguing that, for the sake of fairness, people who can’t help their lawyers shouldn’t be marched through their appeals. The American Bar Association wants a flexible standard for granting a stay, depending on the level of the defendant’s impairment and the circumstances of the case. It’s hard to imagine a lot of defendants who are deemed incompetent who could possibly work well with their lawyers—most of them are probably hallucinatory and delusional. That may not move a majority on the Supreme Court, though.

Fisher v. University of Texas at Austin, Wednesday, Oct. 10: The Supreme Court famously battled its way to a détente over affirmative action in 2003. In a pair of split-the-baby decisions, two different majorities struck down the use of quotas that favored historically disadvantaged racial minorities in public college admissions, but allowed schools to use race as one unquantified factor among many. Writing that second ruling, Justice Sandra Day O’Connor proclaimed her expectation that “25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today." O’Connor is gone from the court and so is her timeline. She has been replaced by Justice Samuel Alito, a dedicated foe of race-conscious policies, and that can only be good for Abigail Fisher, who is white, and who was denied admission to the University of Texas at Austin in 2008. UT, abiding by a 1997 state law, fills most of its class—more than 85 percent, the year Fisher applied—with the top 10 percent of the state’s high school graduates. For the remaining spots, the university takes race into account. Fisher wasn’t among the top 10 percent in her high school, so her argument is that she should have gotten one of the remaining spots—and did not because of affirmative action.

The last rationale that the Supreme Court accepted for maintaining some degree of affirmative action was diversity. Here’s Justice Lewis Powell speaking, in the other huge ruling in this arena, in 1978: “The atmosphere of ‘speculation, experiment, and creation’—so essential to the quality of higher education—is widely believed to be promoted by a diverse student body.” In 2003, O’Connor noted the premium that “major American businesses” and “high-ranking retired officers and civilian military leaders” placed on exposure to people of different backgrounds in developing future employees and leaders. The retired military leaders and the Fortune 100 companies are back this time around, with briefs that include captions like “Invalidating UT’s Modest Race-Conscious Admissions Policy Would Seriously Dispute the Military’s Efforts to Maintain Military Cohesion and Effectiveness.” We’ll see whether their continuing support for affirmative action matters. Justice Elena Kagan will sit this case out—she presumably worked on it during her time in the Obama Justice Department.

[www.slate.com/ 9-25-2012/ "Human Rights, the Death Penalty, and Affirmative Action"; www.huffingtonpost.com/ 10-01-2012/ "High Court Begins New Term With Human Rights Case"; www.scotus-blog.com/ 09-28-2012/ "Supreme Court Kicks Off New Term, Faces Agenda That Could be Historic"; www.forbes.com/ 08-31-2012/ 'Superem Court Mulls Affirmative Action, Class Actions In Fall Docket"]

IMMIGRATION 101 --- "THE IMMIGRATION PARADOX: 15 TIPS FOR WINNING IMMIGRATION CASES"

Exclusion and removal (deportation) proceedings, along with asylum hearings, are major staples for the United States Immigration Judge and the EOIR of the Department of Justice.

Generally speaking, all aliens to the United States must satisfy State Department consular officers abroad and the Department of Homeland Security (DHS) Bureau of Customs and Border Protection inspectors upon entry to the U.S. that they (the aliens) are not ineligible for visas or admission under the so-called “grounds of inadmissibility” of the Immigration and Nationality Act (INA).

Officially, the nine (9) INA “grounds of inadmissibility” are:

(1) health-related grounds

(2) criminal history;

(3) national security and terrorist concerns;

(4) public charge (e.g., indigence);

(5) seeking to work without proper labor certification;

(6) illegal entrants and immigration law violations;

(7) lacking proper documents;

(8) ineligible for citizenship; and, of course,

(9) aliens previously removed.

[Pages 89-90, Chapter 15, "Fundamentals of Immigration and Naturalization Law," THE IMMIGRATION PARADOX, by Attorney Charles Jerome Ware http://amzn.com/B007PLY6WA]

LAW 101 --- "UNDERSTANDING THE LAW: A PRIMER"

This excerpt from the best-selling book, "Understanding the Law: A Primer", is brought to you by the national general practice law firm of Charles Jerome Ware, P.A., Attorneys and Counsellors: "Still working.  Still committed.  Still here to make a difference."

"The role of the law in each country varies slightly but the ultimate goal, I contend, is the same in every country; and that is to avoid anarchy.  When traveling abroad, remember the humor of the five nations:

In the USA everything that is not prohibited by law is permitted.

In Germany, everything that is not permitted by law is prohibited.

In Russia, everything is prohibited, even if permitted by law.

In France, everything is permitted, even if prohibited by law.

In Switzerland everything that is not prohibited by law is obligatory."

[page 11, "Chapter One: The Law," Understanding the Law: A Primer, by Attorney Charles Jerome Ware (2008) http://amzn.com/1440111456]

SUPREME COURT UDPATE: BLACK BROKERS CLASS ACTION AGAINST MERRILL LYNCH UPHELD

Monday, October 1st, 2012; Washington, D.C.

A U.S. Supreme Court-watch update by Attorney Charles Jerome Ware: "Still working. Still committed. Still here to make a difference."

The U.S. Supreme Court today, in the case of Merrill Lynch, Pierce, Fenner & Smith v. McReynolds, et al., U.S. Supreme Court, No. 12-113, refused to consider an appeal by Bank of America Corporation's Merril Lynch unit from a 7th Circuit U.S. Court of Appeals ruling that allows black Merrill Lynch broker to pursue a class action lawsuit alleging bias.

Without comment, the court on Monday let stand a Feb. 24 decision by the 7th U.S. Circuit Court of Appeals in Chicago that Merrill claimed had misinterpreted a 2011 Supreme Court decision, Wal-Mart Stores Inc v. Dukes, that made it significantly harder to pursue class-action cases.

The lawsuit accused Merrill of steering blacks into clerical positions and diverting lucrative accounts to white brokers, resulting in lower pay and fewer career growth opportunities.

Writing for the 7th Circuit, Circuit Judge Richard Posner said that while managers' discretion played a big role in career development, a key reason the Wal-Mart class was struck down, common issues made it more efficient to handle the cases of roughly 700 current and former brokers as a group.

He said the brokers could challenge Merrill's policies of teaming and distributing accounts to brokers, which are policies of the parent and not within the discretion of local managers.

"There is no indication that the corporate level of Merrill Lynch (or its parent, Bank of America) wants to discriminate against black brokers. Probably it just wants to maximize profits," Posner wrote. "But in a disparate impact case the presence or absence of discriminatory intent is irrelevant."

In the Wal-Mart decision, the Supreme Court decertified a class of as many as 1.5 million female workers claiming they were paid less and promoted less often than men. It found that the proposed class raised too many different claims, often based on decisions at the local store level.

The brokers are being led by George McReynolds, a longtime Merrill broker who first sued that company in 2005. They are also challenging Merrill's allegedly paying them lower retention bonuses than white brokers to keep them from defecting after the company merged with Bank of America on Jan. 1, 2009.

On Sept. 11, the 7th Circuit said the brokers could try to prove losses over the bonuses as part of their overall damages.

[www.reuters.com/ 10-01-2012/ 'U.S. Supreme Court Rejects Appeal On Merrill Broker Bias"]