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Not A Child, Not Yet An Adult: Why Maryland’s Laws Pertaining To Juveniles Charged With Felony Murder Have Not Kept Pace With Evolving Standards

By Megan Coleman

Maryland, like every other state in the country, has a juvenile court system set up to promote the welfare of juveniles, to develop the character of the juvenile to become a productive member of society, and to instill public safety and protection of the community. See Courts and Judicial Proceedings Article (C.J.) § 3-8A-02.

In Maryland, the law recognizes distinctions between juveniles and adults, and in many criminal cases, provides juveniles with the benefit of having their criminal case heard in juvenile court, or at the very least, provides the juvenile with the opportunity to have a hearing to determine whether the case may be transferred to juvenile court.

But for a certain subset of juveniles, namely 16 and 17-year-olds charged with first-degree murder, the law treats these children as though they are adults, providing no opportunity for these juveniles to have a hearing to determine whether their cases would be appropriate to transfer to juvenile court.

It may seem absurd to think that society would permit an almost 18-year-old to be subject to juvenile court jurisdiction for only three plus years (as jurisdiction of the juvenile court terminates at age 21), for committing the crime of first-degree murder.

However, there may be legitimate (and constitutional) reasons for giving all juveniles, the opportunity to have their case transferred to juvenile court. Alternatively, if 16 and 17-year-olds charged with first-degree murder are still required to be charged in adult court, there may be valid (and again constitutional) reasons for mandating special sentencing practices before a court may impose a life with the possibility of parole sentence upon a juvenile.

These reasons should become even more apparent in the context of a juvenile charged with first-degree felony murder, an offense which has drawn worldwide criticism not just in the context of charging a juvenile, but in its application to adults as well.

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A Maryland Guide to Judicial Recusal

By Derek M. Stikeleather

Recusal standards for appellate judges rarely trend on social media. But the recent nomination of Seventh Circuit Judge Amy Coney Barrett to the United States Supreme Court has spawned widespread popular debate over whether she should recuse herself from deciding any cases involving the results of the 2020 Presidential election. Regrettably, most media soundbites on the issue offer little more than partisan excerpts of her supporters saying that she should not recuse herself and her critics arguing that she should. Few delve into the controlling rules and standards.

Ultimately, a Justice Barrett recusal seems unlikely for one simple reason: At the Supreme Court, the recusal decision rests exclusively with the Justice herself and is not subject to further review. Thus, absent any unambiguous precedent that requires her recusal or a statement from Judge Barrett that she plans to recuse herself from election cases, she appears unlikely to do so.

While I have nothing special to add to the arguments for or against a potential Justice Barrett recusal, the uproar prompted me to look more closely at Maryland’s standards for recusing appellate judges. Here’s what I found:

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Court of Appeals reviews moot appeal from a non-final judgment – In re O.P.

By Brad McCullough

As we know, courts typically refrain from deciding cases that do not present real, live justiciable controversies. Where the passage of time has erased the dispute that once existed between the parties, a court will generally dismiss that case as being moot. That’s not always the case, however, as there are narrow exceptions to that general proposition. We also know that appellate courts generally have jurisdiction only over appeals from final judgments, i.e. orders or judgments that adjudicate all claims against all parties. But again, there are exceptions to this general rule.

Recently, in an opinion authored by Judge Robert McDonald, the Court of Appeals decided a moot case in an appeal taken from a non-final judgment: In re O.P., No. 26, Sept. Term, 2019, 2020 WL 4726601 (Aug. 14, 2020). Due to the public interest presented by the litigation—and the fact that the litigation presented a controversy capable of repetition, yet evading review—the Court considered the case even though it had become moot. And because the appeal conclusively determined an important issue separate from the merits of the action that would be effectively unreviewable if the appeal had to await entry of a final judgment, review was allowed under the collateral order doctrine.  

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Plank v. Cherneski: Court of Appeals Nails Down a Loose Plank in Maryland Tort Law

By Alan Sternstein

The Court of Appeals expressly held in Kann v. Kann, 344 Md. 689, 510, 690 A.2d 509, 510 (1997), that “allegations of breach of fiduciary duty, in and of themselves, do not give rise to an omnibus or generic cause of action at law that is assertable against all fiduciaries.” Ever since, Maryland’s lawyers and courts have labored under the maxim that “Maryland does not recognize a separate tort action for breach of fiduciary duty.” Int’l Brotherhood of Teamsters v. Willis Corroon Corp., 369 Md. 724, 727 n.1, 802 A.2d 1050, 1051 n.1 (2002) (dictum). Yet, since Kann, lawyers have sought and courts have granted and affirmed relief for breaches of required standards of conduct in various fiduciary relationships. See, e.g., Shenker v. Laureate Education, Inc., 411 Md. 317, 983 A.2d 408 (2009) (corporate directors and minority shareholders); Della Ratta v. Larkin, 382 Md. 553 (2004) (general partner and limited partners); Ins. Co. v. Miller, 362 Md. 361, 765 A.2d 587 (2001) (insurance company and agent of company). With its recent decision in Plank v. Cherneski, Misc. No. 3, Sept. Term 2019 (Md., July 14, 2020) (“Slip Op. at ___”), the Court of Appeals, after exhaustively surveying and scrutinizing relevant Maryland state and federal decisions in the 23 years since Kann, has exposed the emptiness of the maxim rejecting a generic cause of action for breach of fiduciary duty. Despite the 23 year wait, however, Judge Booth’s 79-page unanimous opinion for the court leaves no suspense for the end, stating on page 2:

This Court recognizes an independent cause of action for breach of fiduciary duty. To establish a breach of fiduciary duty, a plaintiff must demonstrate: (1) the existence of a fiduciary relationship; (2) breach of the duty owed by the fiduciary to the beneficiary; and (3) harm to the beneficiary.

Slip Op. at 2.[1]
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Waiving a Claim of Waiver in COSA

By Steve Klepper (Twitter: @MDAppeal)

On August 3, the Court of Special Appeals reported an opinion of the kind that gives attorneys anxiety attacks. In Hayes v. State, the Court addressed a consolidated appeal involving two jointly tried co-defendants, Hayes and Winston. Both claimed on appeal that the circuit court failed to ask necessary voir dire questions under Kazadi v. State. The State conceded that both defendants preserved the error, and that both were entitled to a new trial. But the Court of Special Appeals originally held, contrary to the State’s concession, that only Winston preserved the issue for review on appeal, and that Hayes therefore was not entitled to a new trial.

On Hayes’ motion for reconsideration, however, the Court issued a revised opinion holding that “Hayes did raise the issue before voir dire ended, if just barely,” by handing the trial judge a written request for the same questions that Winston requested. The Court lamented that Hayes’ “tactical approach does not represent best voir dire practice,” and that “it took more than 4,000 words worth of analysis to reach the conclusion, as we now do, that Ms. Hayes preserved her Kazadi claims.”

The Court engaged in this 4,000-word analysis because it held itself obligated to ensure that the matter was preserved under Rule 8-131:

We can dispose quickly of [Hayes’ argument] that the State’s concession that Ms. Hayes had preserved the Kazadi argument waived any  preservation objection. The State’s concession of error does not bind us. Coley v. State, 215 Md. App. 570, 572 n.2 (2013) (an appellate court is not bound by a party’s erroneous concession of error on a legal issue). Under Maryland Rule 8-131, we “will not decide any [ ] issue unless it plainly appears by the record to have been raised in or decided by the trial court….” 

The Court deserves credit for recognizing on reconsideration that Hayes preserved her claim of error. Nevertheless, I believe that the Court should have begun and ended its analysis with the State’s waiver of any preservation challenge.

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It’s Official: Maryland Accepts Daubert as Controlling Law for Admitting Expert Testimony

Editor’s Note: The author of this post represented the Defendant in the appeal. This article does not address any case-specific facts and instead focuses on the holding’s impact on Maryland law generally. As with all of our posts, it contains only the author’s personal opinions, not those of his firm or his clients. This is the blog’s first substantive post on Rochkind, and we expect to have more. If you are interested in submitting a guest post, please contact the editor-in-chief.

By Derek Stikeleather

After more than a decade of incrementally adopting the Daubert standard—and the steady erosion of Frye-Reed as an independent, additional requirement for trial courts applying Maryland Rule 5-702—the Court of Appeals has clarified Maryland law on expert testimony. In Friday’s landmark Rochkind v. Stevenson opinion (its final of the Term), the Court formally adopted the Daubert standard as controlling Maryland law.[1] In doing so, it retired the superfluous Frye-Reed test, which had not only become riddled with exceptions but also evolved into the same “analytical gap” test that courts use when applying Rule 5-702 to expert testimony.

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The Shots Heard Round Richmond

By Megan E. Coleman

Richmond, Virginia. Formerly, the home of the largest slave-trading center in the Upper South and the capital of the Confederacy during the American Civil War. Currently, the site of protests against police brutality and racial injustice, with activists removing or refacing Confederate monuments. The Chief Judge of the United States Court of Appeals for the Fourth Circuit recently said: “As a country, we are in a moment of reckoning.” See United States v. Curry, No. 18-4233 (Decided: July 15, 2020, Amended: July 16, 2020) (Gregory, C.J., concurring at 38).

United States v. Curry is a case stemming from the suspicionless stop of a pedestrian by the Richmond Police Department less than one minute after multiple gunshots were fired in a high crime area of Richmond. It is a fascinating opinion for a myriad of reasons. Read More…

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…