August 8, 2013

Fun New Declaratory Judgment Case in Ocean City

There is an interested federal court opinion that came out this month on a street artist/violinist who was barred by a police officer from playing the Ocean City boardwalk. Faced with the threat of
arrest, three months in jail and a $500 fine, plaintiff waited a year and filed a lawsuit.

Plaintiff filed a motion for injunctive relief, asking the court order Ocean City not to enforce a 30-foot audibility restriction on the O.C. boardwalk.

Judge Hollander looked at the factors to consider in warranting injunctiive relief. The most interesting to me is: who do you think will win? Judge Hollander believes the plaintiff will win.

This is a classic declaratory relief opinion, the same stuff I use when teaching torts to my students. It will be taught in Maryland law schools, I bet, because it is a fun application of the relevant factors. You can find the opinion in Hassay v. Ocean City here.

June 17, 2013

Arizona Citizenship Law Is Toast

The Supreme Court today shot down an absolutely ridiculous Arizona law that made voters provide proof they were U.S. citizens when they vote. Justice Antonin Scalia wrote the 7-2 opinion. Justices Clarence Thomas and Samuel Alito dissented.

The National Voter Registration Act forbids states to demand that an applicant submit additional information beyond that required by the Federal Form, the court found. The court's ruling does not stop states from denying registration based on information in their possession establishing the applicant’s ineligibility. It just means they can't make you show evidence when you walk up to register.

The Alito's dissent's point is that the statute is ambiguous and states should be able to decide to approach it however they like. Justice Thomas' point was that the statute requires that you follow a form but the state can require whatever additional information it wants when voters register.

I can't speak to these legal issues. I don't know who has the law right. What I do know is that it was silly all along to pretend that voter fraud was a big issue in this country. Immigrants have a voting problem: they don't vote enough and their voice is not being heard. I don't think many illegal immigrants are sneaking in to vote.

June 22, 2012

New Survey Indicates that the Supreme Court is Likely to Strike Down Individual Mandate

It is expected that the Supreme Court will soon announce its ruling on the constitutionality of President Barack Obama's health care law passed in 2010. At the latest, the decision will be announced on June 28th, although it could come earlier.

In the meantime, a new survey, paid for by the American Action Forum, has concluded that the court will strike down the so-called individual mandate, a central provision within the law requiring that every American purchase a government-approved form of health insurance.

Using a scale from 0 to 100, the pollsters asked the 58 legal experts (38 former clerks of current Supreme Court justices and 18 attorneys who have argued before the court) to rate the probability that the individual mandate provision would be declared unconstitutional. The insiders provided an average rating of 57 percent, a significant jump from the pre-hearing survey, when the average was just 35 percent. Of note, the same expert survey was conducted before the hearings began, and found that most thought the law would be upheld.

The notion that the entire law would be struck down if the individual mandate is declared unconstitutional received an average rating of 31 percent in the new poll, an increase of four percentage points from the pre-hearing survey. The average prediction that the law would remain even if the individual mandate is removed dropped to 21 percent from 36 percent in the new survey.

March 5, 2012

Maryland Handgun Law Shot Down Today

U.S. District Court Judge Benson Everett Legg has ruled that Maryland's handgun permit law is unconstitutional, finding that Maryland law cannot require people to demonstrate a "good and substantial reason" to carry a handgun because such a law infringes on their Second Amendment right. The foundation for the attack on the law is familiar to constitutional law experts: it isn't sufficiently tailored to the state's public safety interests.

Plaintiff in this case bought a gun for a reason everyone can understand, no matter where you stand on this gun control: he was assaulted by an intruder in his own home. The intruder got out of jail in 2005 which was the basis for the renewal of his permit to carry a gun. In 2009, plaintiff's application was denied because there was no clear and present danger to him (those are Jack Ryan's words, the state said that plaintiff failed to provide sufficient evidence "to support apprehended fear").

Just what we need in Maryland: something more to argue about.

August 5, 2010

Justice Elena Kagan

Senate voted to confirm Justice Elena Kagan (little premature use of "Justice") as the 112th Supreme Court justice largely 63-37, pretty much along party lines (one Democrat against and five Republicans for).

I'm impressed by the five Republicans who clearly would not have chose soon-to-be Justice Kagan but deferred to the presidents choice under the theory that elections have consequences and the president should be able to largely chose any qualified candidate he wants. How many Democrats will agree with this one day when the shoe is on the other foot? I predict five.

December 3, 2009


The Maryland Daily Record reports that juror in the Shelia Dixon trial Facebook friended each other before the jury verdict.

The messages were very 'no harm, no foul" but there were 12 lawyers working on this case for Dixon. Somehow, I expect this is going to come up. Judge Sweeney is not going to declare a mistrial over it and neither is the Maryland Court of Special Appeals. But expect a lot of trees to go in the process to this outcome.

April 3, 2009

Yet Another Victory for Strippers in Prince George's County

Strippers in Prince George's County scored another victory when a federal judge ruled that strip clubs in Prince George’s County can keep on serving alcohol because a state law enabling the county’s licensing board to revoke liquor licenses issued to strip bars violates equal protection and free speech under the Constitution. Somewhere, I'm sure James Madison and Abraham Lincoln are smiling because I think they had exactly strip clubs in Prince George's County in their minds putting together the 1st and 4th Amendments. I'm sure they would have been offended by the sensibilities of the Prince George's County law that required - among it other draconian measures - no touching the patrons. No lap dances? The inhumanity.

Why another victory for Prince George's County strippers? No reason. I just thought it was a fun title.

September 3, 2008

Baltimore County Ban on Portable Ads?

The Maryland Daily Record reports that Baltimore County may ban portable ads on its roads and parking lots.

Does not sound like an awful idea although I wonder if there are 1st Amendment issues. I think a bigger distraction is radio commercials scare me half to death beeping horns in their ads. I have to think that these horns have to panic some drivers into car accidents.

February 7, 2008

Frivolous Lawsuit + Sex = Maryland Lawyer Blog Post

The Maryland Daily Record published a story today about a St. Mary’s County, Maryland man who is bringing suit against and three anonymous users of the site for defamation and false light invasion of privacy over the posting of sexually explicit pictures of his wife.

I hope more information comes out about this story because I have a lot of questions. First, the man claims that his reputation as a monogamous spouse has been smeared as a result of the inference that he is a swinger. This is nonsense on a number of levels. As a service to you, the loyal Maryland Lawyer Blog reader, I went to this website. There is no presumption that everyone on the site is part of a swinging couple. In fact, I think the major purpose of the site is to give couples a chance to pick up a third, if you will. This might cast some unfavorable impressions of his wife, who is very notably not a plaintiff, but it says very little about him and whether he has been faithful to his wife.

I would also be a bit curious to know exactly where sexually explicit pictures of his wife of 22 years came from in the first place. Three different users apparently have these pictures. There does not appear to be any suggestion that the pictures were stolen or unlawfully obtained.

I’m looking forward to seeing what develops from here. But I think this lawsuit is frivolous regardless of further facts, particularly against the website because the Communications Decency Act of 1996 bars claims against the website as a publisher. More to the point, I think all of this probably could have been avoided if the plaintiff or his lawyer had taken the time to have a long heart-to-heart talk with this man’s wife.

December 26, 2007

Freedom from Religion Foundation Lawsuit in Wisconsin

In Wisconsin, a lawsuit will be filed today against the mayor and the City Council of Green Bay president by the Madison-based Freedom from Religion Foundation who opposes the nativity scene the city placed at the entrance of City Hall.

If you ever watched West Wing, one of my 5 favorite shows of all-time, President Bartlett was asked by one of his young aids how the president speaking to Supreme Court justices at Red Mass did not create a separation of church and state problem. (Red Mass is a Catholic Mass celebrated annually by Catholic and non-Catholic lawyers and judges, the most prolific of which is the Red Mass held in October before the Supreme Court's fall session. The Mass held is to seek the Holy Spirit's guidance in the administration of justice in the coming year.) President Bartlett said: “And so how isn't it a Constitutional issue? It is, but sometimes you say, "Big deal." It was the intention not to have a national religion, not to have anyone's religious views imposed on anyone else, and not to have the government encourage a national display of piety as a substitute for real action.”

I realize that many have valid arguments to the idea that any intrusion into church and state is a slippery slope. But at some point, do we have to sweat all of the small stuff? Is anyone really offended by a nativity scene or “In God We Trust” on our currency?

I think we need more people saying “big deal” in our culture today. But I'm going to go out on a limb and say that the Freedom from Religion Foundation is not going to be listening.