Appeals court gives red light to speed camera lawsuit

James Liskow

James Liskow (File photo)

Bowie lawyer James Liskow beat a speed camera ticket in Montgomery County three years ago based on what was essentially a typo.

In a nutshell, the law as written required police to include with the citation the county plan describing the location of the speed camera and a signed certificate showing the camera passed an annual inspection — “a phone book full of artifacts” as Liskow told me at the time.

A similar due process argument was made in a putative class-action lawsuit against the towns of Riverdale Park and Forest Heights, filed in April 2012 in U.S. District Court, with Liskow representing the plaintiffs. A federal judge granted a defense motion for summary judgment in November 2012, finding in part that he could not enforce state constitutional laws.

The plaintiffs appealed the decision. On Tuesday, a three-judge panel for 4th U.S. Circuit Court of Appeals unanimously affirmed the lower-court ruling, finding the plaintiffs’ due process rights had not been violated.

“Appellants fail to identify any element of the disputed procedures that equate to egregious official conduct unjustified by the state interest in traffic enforcement,” the opinion states. “…Any flaws in the citation or enforcement process could have been challenged in the state courts, and Appellants failed to do so.”

The appellate court similarly rejected an argument that electronic signatures on citations cannot be admitted as sworn testimony at trial because it is unknown whether the testimony is based on “personal knowledge, information and belief.”

Finally, the appellate panel found citations do not need to be sent via certified mail to satisfy due process.

“[N]othing presented to us indicates that the United States Postal Service delivers certified mail at a rate so superior to that of first-class mail that we should declare first-class mail not reasonably calculated to provide actual notice,” the opinion states.

Law blog roundup

Welcome back to the roundup. Ease into the week with some of the latest law links:

  • This should be obvious, but one local lawyer says when when handling a social media crisis, don’t act like Anthony Weiner.
  • An American lawyer and a professor celebrated the first public lesbian wedding in Nepal.
  • What’s the best way to cross-examine defense medical experts? Why, use their own ethics code against them, of course.
  • Isolating race bias in the workplace is difficult.
  • Mirriam Seddiq rants on the latest inaction on immigration reform and the FBI’s new guidelines.
  • NFL’s Mr. Irrelevant wins a $5.4 million default judgement.
  • Supreme Court Justice Clarence Thomas (above) is drawing more attention to himself with what the New York Times calls an “ethically sensitive” friendship with a Dallas real estate magnate.

Law blog roundup

With all of the Osama bin Laden news last night and today, you might want (need?) a little break. Check out the law links below for a breather.

Law blog roundup

Good morning. Here’s all the legal Web news that’s fit to re-post:

Terminal lawsuit flies away

I’ve never been to Raleigh-Durham International Airport, but it’s near Duke, so naturally I must root against it under any circumstances. (Go Terps!)

I was doubly delighted, then, upon learning that the airport had conceded defeat in a six-year battle with a local newspaper, The News & Observer, over a ban on vending boxes at the airport. The airport, known as RDU, had argued the news racks “would undermine airport security and aesthetics, impede passenger flow through the terminals, and reduce airport income.”

The case went up and down the federal court system until Thursday, when the 4th U.S. Circuit Court of Appeals denied RDU’s request for a rehearing en banc. The airport says it will place news racks at baggage claim and ticket areas of terminals, although The News & Observer and other papers want them in the terminals’ concourses.

That dispute is for another day; what I want to highlight is the “withering rebuke” of RDU written by Judge J. Harvie Wilkinson III. Wilkinson, a former newspaper editorial page editor, who attacked RDU’s arguments and offered a spirited defense of the First Amendment. You can read the entire concurring opinion here.

His underlying point is “it is blackletter law that free speech is not to be wholly subordinated to administrative convenience.” And he concludes with the following gem:

“An informed citizenry is at the heart of this democracy, and narrowing the arteries of information in the manner sought by the Authority will only serve to impair our country’s coronary health.”

Monday law blog round-up

Welcome back from the long weekend! Just four days to go until the next one! Until then, here are some law links:

Keenan joins Davis in 4th Circuit waiting room

The Senate Judiciary Committee has unanimously approved the nomination of Virginia Supreme Court Justice Barbara Keenan for the 4th U.S. Circuit Court of Appeals. Keenan must still be approved by the full Senate — just like U.S. District Judge Andre M. Davis, who was approved by the committee for a 4th Circuit seat back on June 4.

Sen. Ben Cardin’s frustration over the delay in getting a vote on Davis surfaced on Tuesday, when the Senate approved West Virginia’s Irene C. Berger as a federal judge in that state.

According to the Charleston (W.Va.) Gazette, Cardin complained that some Republican senators had placed anonymous holds on nominees.

“This is a deliberate effort to try to slow the pace,” he said. “I really think this is wrong, and people should know about this.”

The ranking Republican on the committee, Sen. Jeff Sessions, R-Ala., denied that Senate Republicans were “slow walking” Obama’s nominees.

“I’m not going to remain silent while the record is distorted,” Sessions said.

This Week in Maryland Lawyer

On the Cover:  Welcome to the first Monday in October! This morning marks the Supreme Court debut of Maryland Attorney General Douglas F. Gansler and Assistant Public Defender Celia Anderson Davis, who will argue over a Hagerstown man’s child sex abuse conviction. The question is whether a request for counsel, years earlier, should have stopped police from questioning the suspect without a lawyer after they obtained additional information. Read the main story, some advice from Gansler’s predecessor, and a preview of the new term.

In the News: The Court of Appeals heard argument in a legal malpractice case that challenges the “case within a case” methodology … the ban on self-represented lawyers claiming attorneys’ fees applies even to bad faith or frivolous actions, the Court of Special Appeals holds … Maryland Legal Services Corp. renews its quest for a higher filing-fee surcharge … Sen. Ben Cardin finds a civil audience for his health-care talk at UB Law… and a former CBS Early Show personality appeals a ruling that knocked out his medical malpractice claim.

Also:

Female circumcision case interesting for another reason

As if Caryn Tamber’s article weren’t compelling enough, our sister paper in Richmond points out another reason to study Gomis v. Holder.

“If the 4th Circuit’s current configuration leaves it in equipoise and publishing even fewer opinions than usual, it is at least going on the record with some of its disputes,” Deborah Elkins writes on the Virginia Lawyers Weekly blog

In recent days, the court has published two orders in cases in which it has denied rehearing en banc, with judges at each end of the spectrum publishing concurrences and dissents from those denials.

True, the judges don’t always fall into predictable patterns.  But their airing of views on classic issues such as the degree of deference to agency decisions and the “sanctity of the home” may be a preview of coming attractions, after some of the court’s five vacant slots are filled.

The agency-deference case Elkins refers to is Gomis, in which the court voted 5-5 not to rehear an asylum case. July’s panel decision deferred, 2-1, to the BIA’s finding that an adult woman’s father was unlikely to make good on his vow to have her circumcised because, among other things, the practice was outlawed in Senegal in 1999 and the State Department reports it is on the wane there. 

The “sanctity of the home” case is Hunsberger v. Wood, decided Sept. 14 by a 5-4 vote with one abstention. The decision let stand a finding of qualified immunity for a police officer who made a warrantless entry to a home at night, accompanied by a civilian who was looking for his missing stepdaughter.

 

Judge Davis could get a Senate date soon

A vote on U.S. District Judge Andre M. Davis’ nomination to the 4th Circuit could be scheduled as soon as next week, according to The Baltimore Sun’s Maryland Politics blog.

Since taking office, President Obama has made 17 Article III appointments to the federal judiciary. So far the full Senate has approved just one: Justice Sonia Sotomayor, who heard her first case on Wednesday.

Sorry, still no word on when DLLR Secretary Tom Perez might be able to follow his staff to the Justice Department.