Archive | Analysis RSS for this section

Court of Special Appeals expands the boundaries of the tort of wrongful termination

By Brad McCullough

In a case of first impression in Maryland, the Court of Special Appeals went where California’s courts have refused to go, holding “that the tort of wrongful termination may lie when an employer decides to terminate an employment relationship by declining to renew an employment agreement for which the parties anticipated the reasonable possibility of renewal.” Miller-Phoenix v. Balt. City Bd. of Sch. Comm’rs, CSA-REG-209-2019, 2020 WL 2781833, at *3 (May 29, 2020). Building on the Court of Appeals’ decisions in Adler v. Am. Standard Corp., 291 Md. 31 (1981) and Ewing v. Koppers Co., 312 Md. 45 (1988), the Court of Special Appeals gave Maryland employers the following message. If an employer allows an employment relationship to terminate—and the employer’s motivation for that termination contravenes some clear mandate of public policy—the terminated employee may have a claim for wrongful termination. Read More…

Despite Video, Court of Appeals Can’t Reach Consensus on Police Use of Deadly Force

By Derek Stikeleather

The use of deadly force by police officers in the line of duty has never been uncontroversial. But the police killing of George Floyd in Minneapolis on Memorial Day weekend has sparked an unprecedented national—even global—protest movement to re-examine the use of deadly force by police and the role of lawful police violence in perpetuating systemic American racism. Mr. Floyd’s killing was extraordinary in its stark inhumanity. But it galvanized millions because of its terrible familiarity to too many Americans who see police resort to deadly force in situations that often erupt from relatively minor infractions.

A Fourth Circuit panel recently captured the national mood when it declared, “This has to stop.” Estate of Jones v. City of Martinsburg (4th Cir. June 9, 2020). The Jones decision reversed a trial court’s ruling that had awarded qualified immunity to five Martinsburg, West Virginia, police officers who had killed a mentally ill homeless Black man by shooting him 22 times. The killing occurred shortly after one of the officers had stopped the man for walking in the road.

Like every American state, Maryland is deeply engaged in this difficult national conversation. State and federal laws have long recognized and accommodated the fact that officers must make split-second decisions on the use of force when running into unstable and often dangerous situations. The law does not limit them to using only the level and type of force that 20/20 hindsight later reveals as optimal. But society has also grown increasingly wary of rules and systems that seem to leave police officers unaccountable and even embolden some to brutalize citizens with impunity. Much of this sea-change in public opinion has been driven by the sudden ubiquity of cell phone, bodycam, and other video evidence—and social media platforms that facilitate “viral” dissemination—that brings these violent encounters into public view.

In this moment of intense national reflection, Maryland’s Court of Appeals recently handed down a 4-3 decision that captures the complexity of crafting and applying legal rules to properly regulate police conduct—even when an encounter is video recorded. Estate of Blair v. Austin, No. 35, September Term 2019 (June 2, 2020). Read More…

Maryland Reclamation Associates v. Harford County V: Herein of Litigant Fallibility, Judicial Infallibility, and the Demise of a $45 Million Judgment

By Alan B. Sternstein

The odyssey of Maryland Reclamation Associates (“MRA”) to construct and operate a rubble landfill in Harford County began in August 1989. It shortly ran into legislative, regulatory and judicial hurdles, leading to 30 years of administrative and judicial litigation. MRA’s 30 year saga continued with a recent and now fifth Court of Appeals decision in this story. In “MRA V” (Opinion, Maryland Reclamation Assocs. v. Harford C’ty, No. 52, September Term 2019 (Md. decided Apr. 24, 2020)), in an 80 page opinion, the Court of Appeals nullified a $45,076,420 verdict for MRA in an inverse condemnation action that MRA brought after being unable to secure zoning variances required for the landfill. The court rejected the Court of Special Appeals’ own determination that MRA had exhausted its administrative remedies before bringing its action and ruled that MRA’s action should be dismissed for failure to exhaust administrative remedies. Though MRA did stumble some over the last 30 years, the Court of Appeals in MRA V reached an arguably justified prospective rule of procedure in condemnation cases but questionably did so in applying that rule to MRA. Read More…

Does substituted service on SDAT violate due process? Mayor & City Council v. Prime Realty

By Brad McCullough

Business entities such as corporations, limited partnerships, and limited liability companies must have a resident agent in Maryland who is authorized to accept service of process. If an entity fails to abide by its statutory obligations regarding maintenance of a resident agent, or if good faith efforts to serve the resident agent fail, the Maryland State Department of Assessments and Taxation may be served in the resident agent’s stead. Does that service on SDAT, however, comport with due process? Does it matter if the party trying to serve the resident agent knows that the resident agent’s official address might be wrong and might know the resident agent’s actual address? In that situation, does service on SDAT satisfy due process? The Court of Appeals was recently faced with these questions in Mayor & City Council of Balt. v. Prime Realty Assocs., Inc., No. 53, Sept. Term, 2019, 2020 WL 2460110 (May 12, 2020). In its opinion, the Court essentially created a “safe harbor” for a party that makes substituted service on SDAT in strict compliance with the applicable rule of procedure. Yet the Court also hinted that the safe harbor might disappear if the serving party has actual knowledge that the resident agent’s address listed with SDAT is wrong. That answer, however, must await another day. Read More…

Friendly Fire: A Jurisdictional and Ethical Look at the D.C. Circuit’s Surprising Order that a Trial Judge Respond to a Legal Challenge to His Ruling

By John Grimm and Amy Richardson

Earlier this month, U.S. District Judge Emmet Sullivan made headlines when he appointed a retired federal judge to oppose the Government’s motion to dismiss its criminal case against former National Security Advisor Michael Flynn, and to make a recommendation as to whether to hold Flynn in criminal contempt for perjury.[1] The move was universally regarded as highly unusual. But, while prosecutors’ motions to dismiss charges are generally granted without much fanfare, the Federal Rules of Criminal Procedure do require leave of court,[2] so Judge Sullivan must approve the withdrawal. Read More…

COVID-19 pandemic presents issues of contract interpretation—how have Maryland appellate courts recently handled those issues?

By Brad McCullough

The COVID-19 pandemic has affected every facet of our lives and has raised many legal issues. Every day, lawyers’ e-mail inboxes are bombarded with messages touting webinars and publications addressing those issues. Does your insurance policy cover business disruption caused by the pandemic? Does the pandemic implicate the force majeure provision in a contract? Is a party’s performance of a contract excused by principles of impossibility, impracticability, or frustration of purpose? Those are hot legal issues at the moment, but ultimately those issues will be resolved by application of fundamental legal principles. Foremost among those principles are rules of contract interpretation. Whether a particular force majeure provision in a contract covers pandemics, or whether a specific insurance policy covers losses arising from a disruption of business caused by the pandemic, are questions that will be answered by interpreting the specific contractual provisions in play. Similarly, whether the purpose of a contract has been frustrated, or its performance made impossible, will hinge on the intent and expectations of the parties, as reflected by the terms of their contract. How do Maryland’s appellate courts address those issues? Two recent decisions, one by the Court of Appeals and another by the Court of Special appeals, provide some insight. Read More…

Washington Post v. McManus and Clear Channel v. Department of Finance:  Important Lessons from Maryland’s State and Federal Court’s in Assessing Content and Means Based Abridgements of Speech

By Alan B. Sternstein

Two First Amendment cases recently decided in state and federal courts in Maryland interestingly parallel each other factually but reach different results as to the constitutionality of the governmental actions challenged in each case.  The facts and First Amendment issues in Clear Channel Outdoor, Inc. v. Department of Finance, No. 2910 (Md. App. Sept. Term, 2018) (“Clear Channel”),  which the Court of Special Appeals decided on January 29, 2020, bear a useful and instructive comparison to those in the Fourth Circuit’s decision in Washington Post v. McManus, No. 19-1132 (4th Cir. Dec. 6, 2019) (“Washington Post”), which was the subject of a post earlier this year on the Maryland Appellate Blog.  Read More…

Fourth Circuit Fires Away at Defective Felon-in-Possession Convictions

By Stuart BermanGuest Contributor

In June 2019, the Supreme Court held in Rehaif v. United States, 139 S.Ct. 2191 (2019), that in federal prosecutions of illegal aliens for knowingly possessing a firearm, the government “must show that the defendant knew he possessed a firearm and also that he knew he had the relevant status when he possessed it.” As expected, Rehaif was quickly applied to other categories of “prohibited persons,” including one of the most commonly-prosecuted federal crimes, “felon in possession” – knowing possession of a firearm that had moved in interstate or foreign commerce by a person previously convicted of a crime punishable by more than one year of imprisonment, under 18 U.S.C. § 922(g)(1).

The trickier issue was whether Rehaif would be applied retroactively. Read More…

20/20 Hindsight, in the Year 2020… Do Recent Maryland Court of Appeals’ Decisions Suggest It’s Time to Permit Citations to Unreported Opinions?

By: Michael Wein

Over the past two years, there has seen pointed recognition by the Court of Appeals of Maryland, on the issue of citing to unreported Maryland opinions, which make up about 90% of the Court of Special Appeals appellate decisions.   Under Maryland Rule 1-104, unreported opinions cannot be cited in our appellate or trial courts as, precedent or as persuasive authority, but otherwise may be used under very specific conditions, such as “law of the case, res judicata, or collateral estoppel.”

The present incarnation of Md. Rule 1-104 (previously under Md. Rule 8-114) is as follows.

RULE 1-104. UNREPORTED OPINIONS

(a) Not Authority. An unreported opinion of the Court of Appeals or Court of Special Appeals is neither precedent within the rule of stare decisis nor persuasive authority.

(b) An unreported opinion of either Court may be cited in either Court for any purpose other than as precedent within the rule of stare decisis or as persuasive authority. In any other court, an unreported opinion of either Court may be cited only (1) when relevant under the doctrine of the law of the case, res judicata, or collateral estoppel, (2) in a criminal action or related proceeding involving the same defendant, or (3) in a disciplinary action involving the same respondent. A party who cites an unreported opinion shall attach a copy of it to the pleading, brief, or paper in which it is cited.

But this Rule puts Maryland in contrast with most other states, and the Federal Rules since at least 2007, which allow citations to unreported opinions as “persuasive” authority, when involving similar or identical legal and factual issues. Read More…

Court of Appeals to Review New Expert-Testimony Requirement for Medical Malpractice Defendants Asserting “Empty Chair” Defense

By: Derek Stikeleather

Although it is well-established Maryland law that a medical negligence plaintiff must support her claim with expert testimony, the Court of Special Appeals recently issued the first Maryland appellate decision to hold that defendants have the same obligation when asserting an “empty chair” defense. Reiss v. Am. Radiology Servs., LLC, 241 Md. App. 316 (2019). The well-established “empty chair” defense asserts that a non-party’s negligence caused the alleged injury.[i] Under Reiss, those asserting the defense now must elicit “expert testimony, to a reasonable degree of medical probability, that the non-party breached the standard of care.”[ii]

Although the rule announced in Reiss is relatively straightforward, the holding’s full implications remain unclear for litigants in medical negligence cases. The Court of Appeals may address these issues on February 6 at oral argument in Reiss. The court can resolve an important unanswered question: Can defendants elicit the testimony from a properly qualified plaintiff’s expert? The Court of Special Appeals’ reasoning in Reiss and existing Maryland law should allow it. Read More…