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Defense counsel’s opening statement didn’t open the door – Ford v. State

By Brad McCullough

Suppose defense counsel in a homicide trial gives an opening statement suggesting that the victim had been the aggressor and had initiated the fight that ultimately led to his death. Does that opening statement open the door to permit the prosecution, in its case-in-chief, to introduce evidence showing the victim’s character trait for peacefulness? That was one of the issues facing the Court of Appeals in Ford v. State, No. COA-REG-0011-2018 (Oct. 26, 2018).[i] In an opinion authored by Judge Shirley Watts, the Court held that defense counsel’s opening statement had not opened the door and that the trial court erred in allowing the State to introduce the character evidence in its case-in-chief. But the defense victory was pyrrhic, as the Court also held that the error was harmless and thus affirmed the conviction for second-degree murder.

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Taxpayer Standing Cases Pending Yet Again in the Court of Appeals:  Herein, About Whose Interest Is It Anyways?

By Alan B. Sternstein

The Court of Appeals is poised once again to tackle the subject of standing in Maryland courts, particularly the doctrine of so-called “taxpayer standing.”[1]  Four relatively recent and lengthy decisions by the Court have already addressed the matter at length, including the related “property owner standing,” doctrine.  Anne Arundel County v. Bell, 442 Md. 539, 113 A.3d 639 (2015); State Center, LLC v. Lexington Charles Ltd. P’ship, 438 Md. 451, 92 A.3d 400, 458 (2014); 120 West Fayette St., LLLP v. Mayor and City Council of Baltimore, 426 Md. 14, 43 A.3d 355 (2012) (“Superblock III”); and 120 W. Fayette St., LLLP v. Mayor and City Council of Baltimore, 407 Md. 253, 964 A.2d 662 (2009) (“Superblock I ”).  Two new appeals raise issues showing the lack of clarity that remains regarding taxpayer standing in Maryland.  Read More…

When does a statute abrogate the common law and when may an arbitration award be vacated due to legal error?

By Brad McCullough

In 1793, the General Court of Maryland – which from 1776 to 1806 exercised both general and appellate jurisdiction – held that an arbitration award could be set aside for reasons “apparent on the face of the award.” Dorsey v. Jeoffray, 3 H & McH. 81 (Md. 1793). In the ensuing years, and well into the Twentieth Century, the Court of Appeals followed that general principle, holding that an arbitrator’s “gross and manifest” mistake can lead a court to set aside an award, Roloson v. Carson, 8 Md. 208, 220-21 (1853), and that an award may be set aside if there is a mistake of fact or law appearing on the face of that award, Parr Constr. Co. v. Pomer, 217 Md. 539, 544 (1958).

In 1965, however, Maryland adopted the Uniform Arbitration Act, Md. Code Ann., Cts. & Jud. Proc. §§3-201 et seq., which contains five specific grounds for vacating an arbitration award, but a manifest mistake of law is not among them. In the years following adoption of the Act, Maryland courts continued to rule – in cases not governed by the Act – that an arbitration award could be set aside for manifest disregard of the law. Baltimore Cty. Fraternal Order of Police Lodge No. 4 v. Balt. Cty., 429 Md. 533, 564 (2012); Downey v. Sharp, 428 Md. 249, 265 (2012); Board of Educ. of Prince George’s Cty. v. Prince George’s Cty. Educators’ Ass’n, 309 Md. 85, 101-02 (1987). But what about those cases covered by the Act? May an award in one of those cases be vacated for manifest disregard of the law? Or may an award in a case covered by the Act be disturbed only if based on a ground specified by the Act? In WSC/2005 LLC v. Trio Ventures Assocs. (Md. July 30, 2018), the Court of Appeals answered that question. Read More…

Identifying Public Records

By Karen Federman Henry

Whether you advise a government entity or seek information from a government for your private client, the Maryland Public Information Act (MPIA) provides a useful tool for access to public records. Although many requests seek documents that everyone agrees are public information, the exceptions to disclosure and evolution of an array of electronic information that might constitute a public record can pose dilemmas for the government and the requester.

Two appellate decisions that came out during the summer highlight some of the nuances that arise with identifying public records and public employment generally. In Lamson v. Montgomery County, the Maryland Court of Appeals revisited the issue of when a supervisor’s notes become a public record. Read More…

The Janus decision should not be a surprise

By Karen Federman Henry

Two years ago, we awaited the appointment of a successor to the empty seat on the U.S. Supreme Court that resulted from the death of Justice Scalia. An early casualty of a tie votes occurred in Friedrichs v. California Teachers Association, No. 14-915. Many public employers and employees had their eyes on the case, which involved the California Teachers Association, because its outcome had the potential to alter the relationship between public employees and their union representatives that has existed since the 1970s. Read More…

Locating a Fragmented Appellate Court’s Rule of Decision – The Marks Rule Marks the Spot?

By Alan B. Sternstein

Stare decisis, the practice of following in judicial decisionmaking a rule of decision established in prior cases, is a cornerstone of the United States legal system. More fundamentally, it is the practice of respecting precedent. The Marks Rule, the subject of this post, aides stare decisis by purporting to establish a method for ascertaining the binding rule of decision in fragmented cases, that is, cases in which no majority of a quorum of an appellate court joins in a single opinion of the court or in otherwise expressing the rule of decision. Read More…

Hillary Clinton’s e-mails, attorney discipline, and the original and exclusive jurisdiction of the Court of Appeals – Attorney Grievance Commission v. Clevenger

By Brad McCullough

Hillary Clinton’s use of a private e-mail server to conduct business as Secretary of State has been the primary focus, or at least an aspect, of various investigations, including ones by the FBI, the State Department’s Office of the Inspector General, the House Select Committee on Benghazi, and the House Oversight Committee. Add the Maryland Attorney Grievance Commission, Bar Counsel, and Court of Appeals to the list of authorities who have now touched some aspect of that controversy. After a Texas lawyer persuaded a circuit court judge to order the Commission and Bar Counsel to investigate three lawyers for actions they allegedly took while representing Clinton, the Court of Appeals held that the circuit court lacked jurisdiction over the Texas lawyer’s request.

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Free Speech May Have Some Limits

By Karen Federman Henry

One of the fundamental tenets of the United States Constitution is the freedom of speech, which includes the ability to air our grievances about government activities.  Fane Lozman did just that in the City of Riviera Beach, Florida.  During the public participation portion of a meeting held by the City Council, Mr. Lozman began to discuss the recent arrest of a former county official.  After several requests to cease his remarks, the Council asked for the assistance of a police officer.  When Mr. Lozman continued to refuse to cooperate, he was arrested for disorderly conduct and resisting arrest.  Although later released, the posture of the case as it reached the Court required analysis of the principles related to lawful arrests in the context of the First Amendment prohibition against government retaliation when a person exercises his right to free speech.  The decision issued by the Court in June in Lozman v. City of Riviera Beach, Florida, 585 U.S. ___ (2018), focused less on the public forum aspects of the case than on the probable cause for arrest and the possible retaliation of the Council.

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Maryland Certiorari Statistics, September Term 2017

By Steve Klepper (Twitter: @MDAppeal)

I’m often asked what percentage of certiorari petitions the Maryland Court of Appeals grants. Each year, the Maryland Judiciary publishes a statistical abstract. The most recent report includes this table:

Maryland Certiorari Statistics

I’ve begun reviewing the Court’s petition docket to get more details.  Read More…

COSA addresses whether heroin distribution can support a conviction for involuntary manslaughter

By Brad McCullough

Across the country, opioid use has reached epidemic proportions with often tragic results. Maryland is no different from the rest of America. To battle this deadly plague, many prosecutors are charging drug dealers with homicide when customers die from overdoses caused by the drugs sold by the dealers. And again, many Maryland prosecutors are pursuing that same strategy by lodging homicide charges against dealers. These efforts have earned media attention, as seen in articles such as Alison Knezevich, Maryland Prosecutors Pursue Manslaughter, Murder in Overdose Cases, Baltimore Sun (December 7, 2017), https://perma.cc/UJY8-QZZN; Arelis R. Hernandez, Selling Opioids in this Rural Maryland County Could Get You a Murder Charge, Washington Post (August 9, 2017), http://perma.cc/4N8D-ZF4Y; Al Baker, New Tactic in War on Opioids: Charging Dealers in Overdose Deaths, New York Times (July 23, 2017), https://nyti.ms/2tRsvTv.

Those three articles are cited in Maryland’s first reported appellate decision dealing with this issue, Patrick Joseph Thomas a/k/a Patrick Joseph Patrick v. State, No. 1115, Sept. Term, 2016 (Md. Ct. Spec. App. April 4, 2018). Read More…