COSA Dissent Watch: Defining a “Collection Agency”
[Dissents in the Court of Special Appeals are, as we’ve noted here before, an infrequent thing — but quite useful. Many times, disagreement in the intermediate court portends consideration and resolution by the Court of Appeals, or highlights thorny issues that appellate practitioners can take up in future cases. In this new feature, the Blog tracks and analyzes split decisions at the Court of Special Appeals.]
The case: Old Republic Ins. Co. v. Gordon, No. 1020 (Sept. Term 2014)
The question: Did the circuit court err in its construction of the phrase “collection agency” under BR § 7-101(c)?
The facts: Old Republic Insurance Company sold Countrywide Home Loans a “credit insurance policy,” pursuant to which Old Republic would pay for losses caused by defaults in loans held by Countrywide; in return, Countrywide would subrogate its rights of recovery to Old Republic. Countrywide submitted a claim for Nancy Gordon’s default on her approximately $70,000 loan, and Old Republic paid it. Old Republic then exercised its subrogation rights to pursue repayment.
The company filed suit in circuit court and moved for summary judgment. Ms. Gordon opposed the motion on the grounds that, under Maryland law, Old Republic was barred from bringing its claims because it was acting as a collection agency subject to the Maryland Collection Agency Licensing Act but wasn’t licensed to do so. The court agreed and granted summary judgment to Ms. Gordon.
Rationales on the way for per curiam orders in the cases of officers charged in death of Freddie Gray
By Michael Wein
On March 8, the Maryland Court of Appeals issued two per curiam orders, found here and here, in the cases of the police officers charged in the death of Freddie Gray — yet the reasons underlying the orders (which permitted the State to have Officer William Porter testify, prior to his own retrial, against all his fellow officers) remain a mystery. As reported in various media outlets, that became a problem for the trial judge last week when, based on the per curiam orders, he granted the State’s request to have another officer testify as a witness before his trial. The defense counsels reserved the right to reargue the matter after the high court provided its rationales for the orders.
“Hailstorm” decision could create turbulence for tracking tactics
By John Grimm
Guest contributor
Last month, the Court of Special Appeals handed down a major Fourth Amendment decision, holding that police need a warrant to use “cell site simulators” to track people’s locations through their mobile phones. State v. Andrews, No. 1496, Md. Ct. Spec. App. (March 30, 2016), involved the warrant-less use of the portable tracking device — also called an “IMSI catcher” and better known by various brand names including “StingRay” or “Hailstorm” — which mimics cellular network towers and causes all cell phones in its range to send a signal with the phone’s unique “international mobile subscriber identity,” or “IMSI,” number. With that number, police can measure the direction and relative strength of the phone’s signal to determine the phone’s location in real time. Because “people have a reasonable expectation that their cell phones will not be used as real-time tracking devices by law enforcement” and “an objectively reasonable expectation of privacy in real-time cell phone location information,” Slip Op. at 2, the court found that use of cell site simulators to track phones is a Fourth Amendment search, and “the government may not use a cell phone simulator without a warrant or, alternatively, a specialized order that requires a particularized showing of probable cause, based on sufficient information about the technology involved to allow a court to contour reasonable limitations on the scope and manner of the search, and that provides adequate protections in case any third-party cell phone information might be unintentionally intercepted,” id. at 64.
Supreme Court split delays resolution of dues question
As we await the appointment of a successor to the empty seat on the U.S. Supreme Court, one of the early casualties of a tie vote has already occurred. Many public employers and employees had their eyes on a recent case involving 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. Instead of a scintillating analysis by the Court, a tie vote yielded only a one-line order that left the decision of the Ninth Circuit Court of Appeals intact along with the existing precedent from the 1970s and 1980s. See Friedrichs v. California Teachers Ass’n, No. 14-915.
Justice Kagan tells criminal defense bar to go big or go home
By Steve Klepper (Twitter: @MDAppeal)
In Luis v. United States, a fractured Supreme Court found that, in a prosecution for Medicare fraud, the federal government could not freeze untainted assets needed to retain defense counsel. The vote alignment was unusual, and none of the four opinions commanded a majority. The opinion drawing the most attention is Justice Kagan’s solo dissent, which Ian Millhiser has called “the most interesting opinion the Court has handed down this year.” That dissent, read together with a prior opinion on pretrial seizures, sends an important message to the criminal defense bar – go big or go home. Read More…
Second Amendment threatens state stun gun bans
By John Grimm
Guest contributor
Last week, in a short per curiam opinion, the U.S. Supreme Court vacated a Massachusetts woman’s conviction for possessing a stun gun, holding that it violated her Second Amendment rights. Caetano v. Massachusetts, No. 14-10078, — S. Ct. — (2016). For Maryland lawyers (and clients), the case is no mere academic matter; at least three jurisdictions have laws on the books banning stun guns: Defendants can get up to six months in jail for possessing a stun gun in Baltimore and Howard Counties, or 60 days in Baltimore City. It’s hard to imagine these ordinances surviving Caetano, at least as applied to simple possession of a stun gun without some additional element (such as possession by a minor or someone with a prior conviction for a crime of violence, which are both illegal in Maryland).
A new Supreme Court decision could affect State v. Syed
By Steve Klepper (Twitter: @MDAppeal)
At times, the attorneys’ arguments in the February 2016 hearing in State v. Syed followed a familiar script on the question of prejudice – that is, whether facts that previously didn’t make it into the record would have made a difference. Read More…
Preservation Overrides the First Amendment
The First Amendment to the U.S. Constitution protects a tapestry of expression in our society, including speech, association, art, dance, attire, and music. Few exceptions exist, and when they do they are extreme—obscenity and incitement to riot are never protected, although the line does not always appear to be bright and clear. The Court of Special Appeals recently reminded us of a much simpler exception to the protection in Thana v. Board of License Commissioners for Charles County, Ct. Spec. App., Sept. Term 2014, No. 1981 (January 29, 2016): when the First Amendment issue is not preserved for appellate review.
Spoliation of the Physical Subject of the Case Can Lose It
When we hear the word “spoliation,” we tend to think about the loss of electronically stored information, such as e-mail messages or other computer generated data. That’s because the loss of that type of evidence, and the drastic sanctions that result, is highlighted and seared into our consciousness by legal-news services. But earlier this week the Court of Special Appeals decided a spoliation case that concerned the destruction of a physical object – a house – that was “itself the subject of the case.” Cumberland Ins. Group v. Delmarva Power, No. 72 Sept. Term 2015, Slip Op. at 8 (Feb. 1, 2016). Balancing the fault of the destroying party with the level of prejudice suffered by the other party, the Court held that spoliation had occurred, that sanctions were warranted, and that the circuit court had not abused its discretion by granting summary judgment in favor of the prejudiced litigant.
Court of Appeals latches onto State’s laches argument to limit availability of coram nobis relief
In Jones v. State, No. 16, Sept. Term 2015, 2015 WL 8109905 (Md. Dec. 7, 2015), the Court of Appeals of Maryland significantly limited defendants’ ability to challenge their convictions and sentences through a writ of error coram nobis many years after the fact. Up until now, there have been many instances in which individuals in Maryland have had prior convictions overturned years after the fact because of a constitutional or other significant error that was overlooked at the time of conviction. That run of post-conviction successes may well be largely over after Jones.
Maryland Appellate Blog 