Espina v. Prince George’s County – Separation of Powers and Legislative Damages Caps for Violation of Rights Based on Self-Executing State Constitutional Provisions
In Espina v. Prince George’s County, No. 2044 (Md Ct. Spec. App. Dec. 20, 2013), the Court of Special Appeals ruled that the damage cap in Maryland’s Local Government Tort Claims Act (“LGTCA”), codified at Md. Code Ann., Cts. & Jud. Proc. §§ 5-301 et seq., applies to tort claims based on a violation of the Maryland Declaration of Rights, in this particular case Article 24. Article 24 provides:
That no man ought to be taken or imprisoned or disseized of his freehold, liberties or privileges, or outlawed, or exiled, or, in any manner, destroyed, or deprived of his life, liberty or property, but by the judgment of his peers, or by the Law of the land
The essence of the LGTCA’s damages cap is codified in Section 5-303(a)(1) of the Courts and Judicial Proceedings Article, which provides:
[T]he liability of a local government may not exceed $200,000 per an individual claim, and $500,000 per total claims that arise from the same occurrence for damages resulting from tortious acts or omissions . . . .
On Friday, January 24, the Court of Appeals granted certiorari in four cases. Below are the four cases, with questions presented, as they appear on the Court’s website:
Granted January 24, 2013
Bernard Delaney McCree, Jr. v. State of Maryland– Case No. 20, September Term, 2014
Issue – Criminal Law – Is the trademark counterfeiting statute, Md. Code, Crim. Law Art. § 8-611 (2012 Repl. Vol.), unconstitutional because it is overbroad and/or void-for-vagueness?
Dominik Oglesby v. State of Maryland– Case No. 23, September Term, 2014
Issue – Criminal Law – Pursuant to the rule of lenity, was Appellant required to be sentenced for possession of a firearm pursuant to Crim. Law Art., § 5-622, one of the two statutes punishing the conduct for which he was sentenced, because it prescribed a more lenient sentence than that mandated by the statute, Public Safety Art., § 5-133, under which he was sentenced?
People’s Insurance Counsel Division v. State Farm Fire and Casualty Company, et al.– Case No. 21, September Term, 2014
Issues – Insurance Law – 1) Should this Court reexamine Maryland common law on construing insurance contracts and, recognizing that such contracts are not the product of equal bargaining, hold that terms contained in an insurance policy must be strictly construed against the insurer? 2) Did the Commissioner err in allowing State Farm to deny coverage for damage to a collapsed carport under a policy that insured against “the sudden, entire collapse of a building” based on a restrictive definition of the term “building” that does not appear in the insurance policy or any other written document, and is based only on oral instructions given to a catastrophe claims adjuster when she was dispatched to handle claims following a severe snowstorm?
William Siam Simpson, III v. State of Maryland– Case No. 22, September Term, 2014
Issues – Criminal Law – 1) Does the State violate a criminal defendant’s rights under the Fifth Amendment and Article 22 of the Maryland Declaration of Rights when a prosecutor repeatedly and over objection assures the jury in opening statement that the defendant “will tell you” that he committed the alleged offenses? 2) Does a trial court commit reversible error when it allows the State to offer opinion testimony from a law enforcement officer concerning his canine partner’s alleged detection of an accelerant without requiring the State to name the officer as an expert prior to trial or to qualify the officer as an expert at trial? 3) Did CSA err in holding that a police officer may not testify as to the significance of an accelerant-detecting dog’s actions unless that officer is first qualified and accepted as an expert pursuant to Md. Rule 5-702?
Yesterday the Court of Appeals posted an order granting certiorari in Clyburn v. Richmond, limited to the following three questions:
1. Did the circuit court err in entering an injunction directing officials of the District Court to conduct initial appearances in a manner inconsistent with the existing rules promulgated by this Court?
2. Did the circuit court err in granting an application for supplemental relief based on a prior declaratory judgment without first issuing a show cause order, as required by the statute governing such applications?
3. Did the circuit court err in ordering officials of the District Court to appoint counsel for all arrestees at initial appearances and prohibiting those court officials from conducting initial appearances for arrestees who were not provided with counsel?
Argument has been set for March 7, 2014. This blog has provided extensive analysis (see below) of the DeWolfe v. Richmond decisions regarding the right to counsel at bail hearings. We’ll be providing commentary on Clyburn v. Richmond — including the implications for DeWolfe v. Richmond — as details develop.
- Alan Sternstein, DeWolfe v. Richmond: State Law or Just Law?
- Kevin Arthur, Who Is on the Court Of Appeals: The Role of Retired Judges
- Kevin Arthur, The Public Defender Opinion: The Implications of Resting on State-Law Grounds
Until this morning, the following rule prevailed in the Fourth Circuit:
[A] claim for legal costs based on a contractual provision that is not limited to expenses incurred during the underlying litigation is an element of damages to be proved at trial under the substantive law governing the action, see Fed.R.Civ.P. 54(d)(2), 58(c), and that a judgment that leaves open such a claim is not final and appealable.
No more. This morning, the Supreme Court cited Carolina Power as standing on one side of a circuit split, and the Court unanimously went the other way: “Whether [a] claim for attorney’s fees is based on a statute, a contract, or both, the pendency of a ruling on an award for fees and costs does not prevent, as a general rule, the merits judgment from becoming final for purposes of appeal.” Ray Haluch Gravel Co. v. Central Pension Fund, __ U.S. __ (Jan. 15, 2014).
Anyone litigating contract actions in the Fourth Circuit should take note. Decisions from the Third, Eighth, and Eleventh Circuits also were cited on the losing side of the circuit split.
In January of last year, the Court of Appeals of Maryland, in Maryland State Comptroller of the Treasury v. Wynne, 431 Md. 147 (2013), held that Maryland tax law discriminated against interstate commerce by failing to allow a tax credit for certain “pass through” income for Subchapter S corporations. Judge McDonald wrote the majority opinion, and Judge Greene, joined by Judge Battaglia, dissented. In May, the Court of Appeals denied reconsideration, but it stayed its mandate pending the Comptroller’s filing of a petition for certiorari with the United States Supreme Court. SCOTUSblog has been tracking the case.
Today’s orders list from the United States Supreme Court included an order in Comptroller v. Wynne that “[t]he Solicitor General is invited to file a brief in this case expressing the views of the United States.” Though such a call for the views of the Solicitor General (CVSG) is far from a guarantee that the Supreme Court will grant review, it is an indication that the Supreme Court is taking the petition seriously. Read More…
Looking for the Next Big Case, Part II: The Court of Appeals Decides B.J.’s Wholesale Club, Inc. v. Rosen
Four months ago, as part of looking for “the next big case,” I previewed two cases that were scheduled for argument in the Court of Appeals in September and October. One of those cases was BJ’s Wholesale Club, Inc. v. Rosen, No. 99, September Term, 2012. About six weeks ago, the Court decided that case, reversed the Court of Special Appeals, and held that a parent’s pre-injury waiver of a minor child’s negligence claim against a commercial enterprise does not violate public policy. Read More…
By Kevin Arthur
As most Maryland lawyers probably know, the Court of Appeals consists of seven judges from the various geographical regions in the state. But because the Maryland Constitution requires judges to retire at age 70 and then permits retired judges to be recalled into service, the Court of Appeals currently has as many as six additional members who serve provisionally on a case-by-case basis . After Judges Battaglia and Harrell are required to retire over the next two years, the Court may have more provisional, retired members than it has active members.
In recent years, retired judges have had an outsized role in some of the Court’s most prominent and controversial decisions. Most notably, in Tracey v. Solesky, 427 Md. 627 (2012), two retired judges provided the decisive votes in support of a 4-3 opinion that held that landlords could be held strictly liable for injuries caused by their tenants’ pit bulls. One of the retired judges authored the divisive opinion, which spurred a successful motion to reconsider some of the majority’s more expansive pronouncements (concerning liability for so-called “pit bull mixes”), unsuccessful efforts at corrective legislation in a special session of the General Assembly in 2012, the acrimonious collapse of a legislative compromise at the end of the 2013 legislative session, and additional legislative proposals in the upcoming session. Read More…