Stewart v. State (Ct. of Appeals)

Filed May 11, 2007--Opinion by Judge Irma Raker, Dissent by Chief Judge Robert M. Bell.

Stewart was indicted in a multi-count indictment alleging child abuse, second degree sexual offense, third degree sexual offense, and fourth degree sexual offense. The court sentenced him to a term of incarceration of twenty years on the child abuse offense and merged the sexual offenses into the child abuse conviction for sentencing purposes. The single issue in this appeal involves the failure of the circuit court to ask certain questions to the venire panel during voir dire that were requested by defense counsel.


Defense counsel submitted two voir dire documents -- "Defendant's Requested Voir Dire," containing eighteen questions, and "Amended Defendant's Requested Voir Dire," containing fifty-two questions. Defense counsel withdrew the initial voir dire request and substituted the amended version. It is the failure of the trial court to ask the questions on the amended voir dire request that is the subject of this appeal.

In Maryland, the sole purpose of voir dire is to ensure a fair and impartial jury by determining the existence of cause for disqualification and not, as in many other states, to include the intelligent exercise of preemptory challenges. The scope of voir dire and the form of questions propounded rests firmly within the discretion of the trial judge, as it is the responsibility of the trial judge to conduct an adequate voir dire to eliminate from the venire panel prospective jurors who will be unable to perform their duty fairly and impartially and to uncover bias and prejudice. In reviewing the court's exercise of discretion during voir dire, the standard is whether the questions posed and the procedures employed created a reasonable assurance that prejudice would be discovered if present. Further, on review of voir dire, the appellate court looks at the record as a whole to determine whether the matter has been fairly covered.

As to the scope of inquiry and the decision as to whether to permit a particular question, the trial judge is not required, with some limited exceptions, to ask specific questions requested by trial counsel. Questions which are not directed at a specific ground for disqualification, which are merely fishing for information to assist in the exercise of preemptory challegnes, which probe the prospective juror's knowledge of the law, ask a juror to make a specific commitment, or address sentencing considerations are not proper in voir dire.

Here, the record is replete with indications that the court fulfilled its duty to empanel an impartial jury. Therefore, the Court held the trial court did not abuse its discretion in declining to propount appellant's requested voir dire.

The full opinion is available in PDF.

Attorney Grievance Commission v. Goff (Ct. of Appeals)

Filed May 8, 2007. Opinion by Chief Judge Robert M. Bell.

Respondent ("Goff") was charged with violating Rules 1.1, Competence, 1.3, Diligence, 1.15, Safekeeping Property, 5.3, Responsibilities Regarding Non-lawyer Assistants, 8.1, Bar Admission and Disciplinary Matters, and 8.4, Misconduct, and the petitioner (the "AGC") recommended an indefinite suspension, while Goff suggested no sanction was needed, or at the most a reprimand or 30 day suspension. After considering the report of the hearings judge, the Court agreed with the AGC, and ordered the indefinite suspension of Goff, with the right to apply for readmission after 60 days.

As an adjunct to a client's request to handle the sale of certain parcels of land owned by various members of the client's family, Goff agreed to open three estates for deceased family members who held record title to several parcels. After the sale, most of the proceeds were distributed without controversy, but the portion of proceeds held on behalf of one estate were not timely distributed, and Goff was not responsive to inquiries by family members and their counsel. Some time after a complaint had been filed with bar counsel, Goff distributed the remaining proceeds.

Goff was incompletely and less than timely responsive to bar counsel's repeated requests, and the subsequent investigation revealed many shortcomings in Goff's records and escrow account administration. When several overdraft notices were subsequently received by bar counsel, the investigation was widened to include several of Goff's other escrow accounts, and more errors and inappropriate practices were revealed. Computer crashes, and the failure to make timely and adequate backups, had added to the problem by destroying blocks of escrow account records. Throughout, Goff exhibited behavior that the hearing judge characterized as "lackadasical" and "unreliable", leading to the conclusion that Goff's representation was "incompetent".

The Court had little trouble finding no merit in Goff's multiple exceptions, including his claim that, because most of his professional activities were as a title insurance agent, he was exempt from liability under the Code of Professional Conduct. On that point, the Court found the conduct here was clearly legal representation, easily distinguishable from prior cases where the conduct in question was solely as a title agent.

By contrast, the Court upheld the AGC's exceptions, correcting a "technical" error in referring to the current rather than the then-existing statute, and finding an additional violation not confirmed by the hearing judge below.

The opinion is available in PDF format.

Pendleton v. State (Ct. of Appeals)

Filed April 13, 2007. Opinion by Judge Robert M. Bell.

Issue: Did a pleading asserting a claim for negligence against the State based upon abuse that the plaintiff suffered in a State licensed home sufficiently allege a duty on the part of the State where the complaint alleged that, "upon information and belief," the State "knew or should have known" of the perpetrator's propensity for violence?

Held: No. The Circuit Court's dismissal of the claim against the State defendants is affirmed. For a pleading to be sufficient in the context of a negligence action, it must allege “with certainty and definiteness” facts to show a duty on the part of the defendant to the plaintiff . Whether a legal duty exists is a question of law, to be decided by the court. Stating that, upon information and belief, a party knew or should have known about a third party’s alleged propensity for violence, without more, is not a sufficient factual allegation from which a duty may arise.

Facts: The plaintiff sued the State in the Circuit Court for Baltimore City for negligence in connection with alleged sexual and physical abuse that the plaintiff suffered at the hands of his roommate while he was residing in a group home licensed by the State. The plaintiff alleged that, "upon information and belief," the State knew or should have known of the perpetrator's propensity for violence.

The plaintiff did not allege that the perpetrator had committed assaults prior to those alleged in the complaint, or that the State had knowledge of any sexual tendencies the perpetrator may have had or that he had a history of sexual assaults. The State moved to dismiss, and the trial court granted the motion.

On appeal, the Court of Appeals noted that there was "no factual allegation as to the basis for the knowledge attributed to the State or that related why the State should have been aware of any deviant tendencies that [the perpetrator] may have had, or even that he, in fact, had such tendencies prior to the alleged incidents that occurred with the [plaintiff]. The Court stated that, "in simple situations involving an easily recognized breach of duty, a general averment of negligence following a simple statement of the defendant’s act or omission will be regarded as an ultimate fact; while in more complex situations where the breach of duty is not readily apparent, such an averment will be regarded as a mere legal conclusion.”

Finding that the situation presented by the complaint was not one "where the plaintiff’s right and the defendant’s [corresponding] duty are simple and easily perceived, or involve an easily recognized breach of duty," the Court affirmed the dismissal.

The opinion is available in PDF format.

Harford County v. Saks Fifth Avenue Distribution Company (Ct. of Appeals)

Files April 17, 2007. Opinion by Chief Judge Robert M. Bell.

From the official headnote:

PROPERTY TAXES - MONEY JUDGMENTS - REFUNDS - INTEREST
When taxpayer overpaid its personal property taxes, it was entitled to a refund of those monies, as to which both the interest on the refunded taxes and pre-judgment interest on that interest are also payable.

On appeal from a decision of the Court of Special Appeals reversing the decision below denying interest on the refund of personal property taxes mistakenly overpaid by the taxpayer ("Saks") and remanding for consideration whether pre-judgment interest is due on the amount of refund interest due, the Court of Appeals AFFIRMED the Court of Special Appeals' decision as to reimbursement of interest, and REVERSED as to the need for remand, instead ordering pre-judgment interest at the legal rate to be paid on the refund interest.

In a case with distinctly limited general applicability, since the statute being interpreted had been changed even prior to consideration of this case to eliminate the right to interest on refunds of overpaid personal property taxes, the Court found that the statute then in effect entitled Saks to interest on the amounts it had overpaid in personal property taxes. That overpayment occurred when Saks mistakenly included the value of personal property it leased in its own personal property return for several years, when taxes on the same property had been paid by the lessor and the lessor reimbursed by Saks. When Saks filed amended returns, the taxing authorities ("the County") agreed to and did pay the requested refund amounts, but Saks' claim for interest.

Saks filed suit, and the trial court dismissed for failure to state a claim. On appeal, the Court of Special Appeals reversed the judgment below, finding that interest was in fact due, but remanded the case to the trial court for a determination whether pre-judgment interest would be due on the refund interest. The Court of Appeals then granted a writ of certiorari.

Reviewing the statutory language, Court found no ambiguity in the provisions providing for interest on overpaid personal property taxes at the same rate that would have been collected had the amounts been un- or underpaid. It also had little difficulty finding that the filing of amended returns by Saks constituted an "appeal" under the statute, and Saks' failure to file an appeal of the favorable ruling below (that it was due a refund) did not result in administrative finality precluding the issue from being raised in this case.

The final issue was whether pre-judgment interest was due on the interest held due but unpaid on the refunded amounts. Although it is the exception rather than the rule, the Court found that the necessary criteria for pre-judgment interest had been met here, since the obligation to pay interest on any refund was established by the statute, the amount of interest due on the refund amounts was certain, definite and liquidated on the date the refund was made to Saks, and the withholding of that interest deprived Saks of the use of those amounts. The Court therefore overruled the remand ordered by the Court of Special Appeals and awarded pre-judgment interest at the "legal rate" of 6% per annum as a matter of law.

The opinion is available in PDF format.

Liddy v. Lamone (Ct. of Appeals)

The second of two cases involving the eligibility requirements for a candidate for Maryland Attorney General. The first case, Abrams v. Lamone, discussed in this post, considered a petition challenging the eligibility of Thomas E. Perez to hold the office. The Court found that Perez had not been a member of the Maryland Bar for the requisite period and thus was not eligible. This case challenged the eligibility of Doug Gansler, based on the argument that Gansler had not practiced law in Maryland for at least ten years. The Court did not reach that question. Addressing a threshold issue, the Court determined that the appellant had waited too long to bring the action. The challenge was filed more than three months after a similar action, almost 2 months after the Court’s Order in that case, and just 18 days before the general election. Hence, the Court held it was barred by laches.

The opinion is available in PDF.

Abrams v. Lamone (Ct. of Appeals)

Filed March 26, 2007. Plurality Opinion by Chief Judge Robert M. Bell, joined by Judge Alan M. Wilner (now retired, specially assigned) and Judge Dale R. Cathell. Concurring opinion by Judge John C. Eldridge (retired, specially assigned), joined by Judge Irma S. Raker and, as to Parts I and II only, by Judge Glenn T. Harrell, Jr. and Judge Clayton Greene, Jr. Concurring opinion by Judge Alan M. Wilner. Concurring opinion by Judge Glenn T. Harrell, Jr. and Judge Clayton Greene, Jr.

From the official headnote:

CONSTITUTIONAL LAW - INTERPRETATION - ELIGIBILITY REQUIREMENTS - ATTORNEY GENERAL
The constitutional requirements, as prescribed by Article V, § 4 of the Maryland Constitution, for the office of the Attorney General of Maryland mandate that a candidate for that office be a member of the Maryland Bar for at least ten years and be a practitioner of law in Maryland for an identical requisite period. Where a candidate was a member of the Maryland Bar for only five years, and practiced, albeit for a period of more than ten years, primarily outside of the State, he was ineligible to run for the office of the Attorney General in the primary election.

In a companion case to Liddy v. Lamone (discussed in this post), the Court of Appeals, in a rare plurality decision with three separate concurring opinions, a total of 104 pages in the slip opinions, unanimously REVERSED the decision of the Prince George's County Circuit Court that had found a candidate for the office of Attorney General ("Perez") qualified, on the grounds that he had not "practiced Law in this State for at least ten years" as prescribed by the eligibility requirements of Article V, Section 4 of the Maryland Constitution.

Before declaring his candidacy for the office of the Attorney General of Maryland ("AG"), Perez had submitted a request for an opinion of the AG as to the sufficiency of his credentials. In sum, Perez had been a member of the Maryland Bar for only five years, beginning when he joined the faculty of the University of Maryland School of Law, but before then he had been an attorney representing the federal government in various capacities since 1989, including cases involving the federal government's interests in Maryland courts. The AG issued an opinion that concluded that Perez was in fact qualified to hold the office of AG. Based upon that opinion, Perez announced his candidacy for AG, running as a Democrat. A Republican candidate for that office ("Abrams") challenged Perez's qualifications and sought declaratory and injunctive relief against the State Administrator of Elections and the State board of Elections ("Lamone") to keep him off the ballot.

While rejecting Lamone's motion to dismiss on the grounds of laches, the court below granted Perez's motion for summary judgment. An appeal was noted, and the Court of Appeals granted certiorari. Oral argument was held on August 25, 2006, and that day the Court issued its order reversing the judgment below. The plurality and concurring opinions set forth the reasons for that order.

The Court reviewed the history of the office of the AG, and of the constitutional provision setting forth the qualifications for that office, as well as the parties' arguments on the issue. Looking at the plain language of the the provision, the Court noted that it had previously refused to adopt a precise definition of the term "practice law", but now held that, as used in Article V, Section 4, the term means practiced law in Maryland, as a member of the Maryland Bar, finding that the practice of law in Maryland and Maryland Bar admission are "coterminous". The Court found support for its position in the legislative history of the provision, as well as the responsibilities to be acquitted by the AG, and no reason to interpret the provisions more liberally than the plain meaning would support. The Court also declined to equate Perez's admission to federal bar and authorization to appear in Maryland courts with respect to the interests of the federal government as equivalent to "practicing law" in Maryland. The Court then went on to articulate a two-part test for eligibility under Article V, Section 4:

that the person (1) has been admitted by this Court to practice law in Maryland for [ten years], and (2) pursuant to that admission, has, in fact, practiced here for that period.

The Court cautioned that it was not creating a Federal-State dicotomy, since Maryland practice include participation in federal courts and federal courts address issues of Maryland law, nor must the person actually appear in any court in order to "practice law" in Maryland. The Court found that Perez had neither been admitted to the Maryland Bar nor had he practiced law in Maryland as required by the Maryland Constitution, and consequently held him to have been ineligible for the office of AG.

In a concurring opinion joined by Judge Raker, and in part by two other judges, Judge Eldridge agreed with the result, and in particular with the requirement that the candidate must have been admitted to the Maryland Bar for ten years to be eligible, but disagreed with the need for a second prong of the plurality's test for eligibility, since the first prong alone is dispositive, and to reach the second prong requires the Court to address an issue not presented by the litigants. In a portion of the concurring opinion not joined by the two other judges, Judge Eldridge found no support in the language or legislative history for imposition of the second prong, suggesting that, "if ever adopted by the majority of this Court," the second prong of the test set forth in the plurality opinion might exclude numerous Maryland lawyers who would otherwise qualify, on the basis of their having practiced in other jurisdictions or primarily under federal law, and would serve as the basis for endless challenges to qualifications in the future.

In a concurring opinion, Judge Wilner took exception to Judge Eldridge's "peculiar conclusions" that the Constitutional provision only requires admission to the Maryland Bar, and did not require any actual practice of law. In a final concurring opinion, Judges Harrell and Greene agreed with the portion of Judge Eldridge's opinion that indicated it was unnecessary to go beyond Perez's failure to have been admitted to the Maryland Bar for the required ten years, but unlike Judge Eldridge they were unwilling to reach the merits of the second prong of the plurality opinion's two-part test.

The plurality and concurring opinions are available in PDF format.

Department of Human Resources, Child Care Administration v. Roth (Ct. of Appeals)

Filed: (undated in the original, but posted March 22, 2007) Opinion by Chief Judge Robert M. Bell.

From the official headnote:

JURISDICTION - MOOTNESS
"A case is moot when there is no longer any existing controversy between the parties at the time that the case is before the court, or when the court can no longer fashion an effective remedy." In re Kaela C., 394 Md. 432, 452, 906 A.2d 915, 927 (2006). In October 2001, the relevant portions of the Code of Maryland Regulations 07.04.01.02 and 07.04.01.47 were amended, changing the language from the "Office of Child Care Licensing and Regulation" to the "Child Care Administration." Thus, there was no longer any existing controversy between the parties.

This matter arose out of the revocation of a registered family day care facility license held by the respondent ("Roth") by the appellant ("CCA"), following an investigation that found Roth had hit and inappropriately supervised children in her care. The revocation was upheld by an administrative judge, but overturned by the Circuit Court for Harford County, on the basis that CCA had no authority to revoke family day care licenses, that authority having been entrusted by regulation to the Office of Child Care Licensing and Regulation ("OCCLR"). The judge noted that some, but not all, references to OCCLR in the regulations had previously been changed from OCCLR to CCA. CCA timely appealed to the Court of Special Appeals, and the Court of Appeals issued a writ of certiorari prior to consideration by that court.

The court found this case to be moot, since the regulations in question had since been amended to clarify that CCA, rather than its former incarnation, OCCLR, was empowered to regulate family day care licensing. Further, Roth was no longer operating a family day care facility. However, the court did VACATE the decision below and REMAND the matter to the trial court with instructions to affirm the decision of the Department of Human Resources.

The opinion is available in PDF format.

Attorney Grievance Commission v. Hill (Ct. of Appeals)

Filed March 21, 2007--Opinion by Chief Judge Robert M. Bell.

Respondent was retained by Edward Beier to prepare and obtain an Eligible Domestic Relations Order ("EDRO") necessary to enable him to obtain half of his ex-wife's State employee's retirement benefit. In his engagement letter, Respondent conditioned commencement of work on payment by Beier of a minimum fee of $500.00, of which $200.00 was paid on the date of retention and the balance more than three months later. Despite Beier's numerous requests, Respondent did not prepare the EDRO or cause it to be executed prior to Beier's remarriage and consequent ineligibility to share in his ex-wife's pension. After several letters and telephone calls over the course of four months from Bar Counsel, Respondent provided Bar Counsel with a written response and refunded Beier's entire fee, admitting he had done no work on Beier's case.

In the meanwhile, Respondent was retained to represent John Wilson in connection with a domestic relations case involving visitation and access issues relating to his daughter. Respondent was paid a $2,000.00 retainer, attended a pre-trial conference with his client, his client's ex-wife and her counsel, and, as a result of an agreement, agreed on the record to prepare and submit a written consent order within two weeks of that date. Despite calls from the Master's office, Respondent had not prepared the order for more than six months. In response to an Order from the Circuit Court for Respondent to appear in court and "explain the reason for his failure to submit the order and show cause why sanctions and costs should not be imposed," he prepared a consent order, sent it to opposing counsel and submitted it, signed by both counsel, to the court on the date scheduled for the show cause hearing. Respondent neither sent the consent order to his client for review, nor even inform his client that he had prepared one.

Based on the findings of fact, the hearing court concluded that Respondent, by failing to act expeditiously in both cases, by not timely preparing the EDRO in the Beier case and by his delay in preparing the consent order in the Wilson case, violated Rule 1.3. The inaction in the Beier case was, in addition, a violation of Rule 8.4(d). The hearing court further concluded that in each case, Respondent violated Rule 1.4.

Having found the rules violations charged, the hearing court also offered findings of mitigation. Neither Petitioner nor Respondent filed exceptions to the hearing court's findings of fact or conclusions of law. While both appeared at oral argument and offered their respective recommendations orally, only the Petitioner submitted a written recommendation, urging Respondent's suspension for a one year period.

The purpose of attorney discipline is not to punish the erring attorney but to protect the unsuspecting public. Respondent presented evidence, and the hearing court found the existence of, mitigating factors which, it concluded, were responsible, at least in part, for Respondent's misconduct. Additionally, Respondent expressed remorse and, consistently, there was testimony that such conduct was out of character for him. Taken together, it may be inferred that Respondent's misconduct is not likely to be repeated. Accordingly, the court found the public will be protected if a thirty-day suspension from the practice of law is imposed.

The full opinion is available in PDF.

Tina A. Hall v. UMMS (Ct. of Appeals)

Filed March 21, 2007 -- Opinion by Judge Robert Bell.

Issue: Whether notes contained in the hospital record of a pregnant mother were hearsay and/or not pathologically germane in a medical malpractice case brought by the child who was born of the pregnancy.

Held: The Circuit Court erred in excluding the records because they were admissible under the business records exception to the hearsay rule and because they were pathologically germane.

Facts/Court Analysis: Plaintiff "Teonna" is the minor biological daughter of Joyce Boyce. Plaintiff was born on November 12, 1992 with, among other things, cerebral palsy, mental retardation, and developmental delay. Teonna claimed that her conditions were caused by defendant's delay in performing a c-section on her mother. "The parties agreed that liability was dependent on one factor - when appellant's mother presented and was treated at the hospital." Teonna claimed that her mother had first arrived at defendant hospital at 12:30 am on November 12, 1992, complaining of abdominal pain. Defendant UMMS claimed that Teonna's mother first presented at 6:45 am.

In attempting to establish her case, plaintiff sought to introduce records from defendant hospital indicating that her mother had presented to defendant hospital at 2:00 am on November 12, 1992. These records were prepared by physicians at the end of their shift on November 12 (at approximately 4:45 pm and at approximately 5:00 pm). The recording physicians each testified at deposition that the information in their notes came from a person with personal knowledge of Teonna's history. The lower court held that the records were inadmissible as hearsay and that they were not pathologically germane.

The Court of Appeals reversed, holding that the records were admissible under the business record exception to the hearsay rule. While generally a determination of admissibility is left to sound discretion of the trial court, where it involves a legal determination, the decision will be reviewed de novo. A trial court's decision to exclude evidence based on hearsay is generally a decision of law and is to be reviewed de novo. Ordinarily, hospital records will be admitted as an exception to the hearsay rule. Notes made at the end of a doctor's shift "are within the meaning contemplated by the words in Rule 5-803(B)(6)(A) 'at or near the time.'" Any issues regarding the recording physicians personal knowledge of the facts contained in the notes goes to the weight of the evidence and not its admissibility. Finally, the discrepancy between the mother's testimony of arriving at the hospital at 12:30 am and the information in the notes that the mother arrived at 2:00 am was not so serious as to indicate a lack of trustworthiness sufficient to exclude the evidence.

The Court of Appeals also found that the information in the notes was pathologically germane. To be pathologically germane, information "'must fall within the broad range of facts which under hospital pracitice are considered relevant to the diagnosis or treatment of the patient's condition.'" "As a general proposition, we fail to understand how the medical treatment of the mother of an unborn baby within hours before delivery is not pathologically germane to the treatment of an unborn (or newborn) baby."

Pye v. State (Ct. of Appeals)

Filed March 19, 2007–Opinion by Chief Judge Robert M. Bell.

This opinion resolves three cases: Teel v. State (No. 123), Womack v. State (No. 114), and Pye v. State (No. 113). With one exception, all three cases address essentially the same legal issue and involve essentially the same argument with respect to the merger of certain handgun related offenses. That issue is restated as follows:

"Whether the holding in Frazier v. State, 318 Md. 597, 569 A.2d 684 (1990), that the offenses of carrying a handgun and possession of a firearm by a convicted person do not merge, is still viable even though, subsequent to that decision, the General Assembly increased the penalties associated with the crime of possession of a firearm by a convicted person."

This Court held Frazier is still viable. The exception is the second issue, presented only in Pye:

"Did the trial judge err in denying Pye’s motion to dismiss and acquit by sentencing him to a five year no parole sentence for possession of a firearm by a person with a prior conviction under Article 27, § 449(e) where Pye previously had been convicted of a felony but not a crime of violence?"

Concluding that § 449(e) requires an individual to have been previously convicted of a crime or crimes that were both a felony and a crime of violence, the Court answered in the affirmative holding that the trial judge erred as a matter of law by denying Pye’s motion for judgment of acquittal on that count.

The full opinion is available in PDF.

Attorney Grievance Commission v. McCulloch (Ct. of Appeals)

Filed March 19, 2007. Opinion by Chief Judge Robert M. Bell.

This case arose out of the representation by McCulloch of a client in a pending divorce action, for which McCulloch asked and received a retainer of $2,500. The retainer, including the unearned portion thereof, was deposited by McCulloch into her operating account rather than an escrow account.

Beginning about two weeks thereafter, the client began a series of e-mail requests to McCulloch, urging her to "move forward" on the case, to which she did not respond until about a month later, stating that the documents "were in progress". By e-mail about three weeks later, the client "discharged" McCulloch, and asked for a complete refund within a week. McCulloch responded the same day, with a copy of the letter and pleadings she had prepared, and a bill showing a credit due of $1,474, but no check. Two days later, McCulloch e-mailed the client, urging him to reconsider his decision to discharge her. Other than a few inconclusive e-mails, there was no further communication from McCulloch about the case for almost three months.

The client filed a complaint with the Attorney Grievance Commission ("AGC"), and AGC forwarded a copy of the complaint on to McCulloch, requesting a response from her within 15 days, She did not respond to that or to two subsequent letters until more than four months later, by which time the client had written directly to McCulloch, seeking a refund of the $1,474 he had been advised was due. In the meantime, AGC had written again, this time seeking copies of her trust account and client cards. With her response, McCulloch included an amended bill, with a revised credit due of $880, which she had refunded to the client "directly from her trust account" after she had received a settlement on an unrelated matter in the amount of $960. Her operating account had had a negative balance during the time the refund was due to the client.

Referred for a hearing, the hearing judge found, by clear and convincing evidence, the above facts, and violations of Rules 1.4(a)(3), 1.15(a), 1.16(d), 8.4(b), (c) and (d) of the Rules of Professional Conduct, Rule 16-604 and Sections 10-304 and 10-306 of the Business Occupations and Professions Article, but rejected the argument that McCulloch had committed theft.

Neither party excepted to the hearing judge's findings, but AGC did file exception to the recommended sanction, requesting disbarment rather than indefinite suspension. It relied upon the Vanderlinde, Blum, Duvall and Roberts cases for the proposition that misappropriation of funds by an attorney will result in the disbarment of an attorney in the absence of compelling extenuating circumstances justifying a lesser sanction, and that no such circumstances are present here.

The court disagreed, noting that the circumstances in this case were much less egregious than in the other cases, that McCulloch had admitted to her wrong conduct without making excuses, had expressed remorse and that she expected consequences from that conduct, only requesting something short of disbarment. The court also noted that the finding below on the theft charge was at best ambiguous on the issue of the conduct being dishonest and deceitful, and was inclined not to impose disbarment on "such a finding". The court further noted that McCulloch had no prior grievance history, and from McCulloch's remorse the court noted that it could infer that the conduct was less likely to recur. Given that the purpose of attorney discipline was to protect the public and not to punish the erring attorney, the court was satisfied the appropriate sanction was to suspend McCulloch indefinitely, rather than disbarment.

The opinion is available in PDF format.

Pfeufer v. Cyphers, Personal Representative of the Estate of James Russell Hoffman (Ct. of Appeals)

Filed March 19, 2007 -- Opinion by Judge Robert Bell

Issue: Whether a will directing the P.R. to pay estate taxes "without apportionment" required the P.R. to deduct the estate taxes prior to distribution where some legatees were to be taxed and others were exempt.

Held: The P.R. must deduct the taxes prior to distribution, effectively splitting the taxes among all legatees even though some were tax-exempt. Interestingly, the Court found that there are no cases expressly stating the standard of review for legal determinations of an Orphans' Court. In this matter, the Court of Appeals saw "no need to deviate from the standard of review that we have applied to interpretations and conclusions of law by courts of general jurisdiction."

Facts: James Russell Hoffman ("Decedent") died leaving a will instructing the P.R. to pay all estate taxes from the estate without apportionment. This is in contrast to Md. Code Ann. Tax-General 7-203(b), which exempts certain family members of the decedent from inheritance tax. In this case, three of the four legatees were family members exempt from taxation. The P.R. initially paid the inheritance taxes owed by the fourth legatee from the entire estate, so that, effectively, each legatee paid 1/4 of the taxes due by the one non-exempt legatee. Subsequently, the P.R. reversed herself and deducted the entire tax due from the share of the one non-exempt legatee. The Orphans' Court for Montgomery County affirmed the decision of the P.R.

The Court of Appeals reversed, holding that a will is to be construed to effectuate the intent of the testator. In this case, the Court found, the will was clear and should be effectuated by not apportioning the estate tax.

The full opinion is available in PDF.

Fritszche v. Maryland State Board of Elections (Ct. of Appeals)

Filed February 12, 2007. Opinion by Chief Judge Robert M. Bell.

From the opinion's headnote:

ELECTIONS - ABSENTEE VOTING - DEADLINES

The mere occurrence and/or experiencing of processing problems with absentee ballots does not justify an extension of time for the filing of such ballots, absent proof that those problems were the direct cause for voters not voting.

In an interlocutory appeal from the decision of the Circuit Court for Anne Arundel County, the petitioner asked the Court to overturn the decision below, which had denied a temporary restraining order against election officials stemming from the alleged late delivery of some absentee ballots.

The petitioner is a Maryland resident and student living in New York who had, in mid-August 2006, requested an absentee ballot from the County Board of Elections in Catonsville. The absentee ballot sent to her was postmarked on November 1, 2006 but did not arrive in New York until November 6, 2006, the day before the election. The returned ballot was postmarked November 7, 2006, and was not counted in the final tally since it was not "completed and mailed before election day," as required by the relevant section of COMAR.

The petitioner filed suit, asserting a violation of the "right to vote" provisions of Article I, Sections 1 and 3 of the Maryland Constitution and Article 7 of the Declaration of Rights, the "equal protection" guarantees of Article 24 of the Declaration of Rights and the 14th Amendment of the federal Constitution, and the provisions of Section 9-304 of the Election Law Article of the Maryland Code, and asking that all absentee ballots postmarked on Election Day be accepted. The petitioner noted the extraordinary number of absentee ballots requested in this election, prompted in part by concerns over use of the new electronic voting machines, as expressed by Governor Ehrlich and others, and a number of examples of very late mailing of many of those ballots.

The respondents noted that there is no constitutional right to an absentee ballot, and argued that the regulations were reasonable restraints designed to protect the integrity of the voting process. Moreover, the petitioner had not sufficiently demonstrated harm, in that the ballot could have been hand-delivered to the polling place and counted on election day. The judge agreed, and denied the petitioner's request for a TRO.

On appeal, the petitioner argued that the respondent, by failing to answer the overwhelming call for absentee ballots in a timely fashion, had denied the petitioner the right to vote, or at least had imposed a severe burden on that right, and that the COMAR provision was only a discretionary exercise of the respondent's regulatory powers and was not required by statute. The respondent countered that it was impossible to determine the actual reason for the late mailings, since a number of factors were simply unknown. The Court agreed, noting that the skimpy record below gave little reason to overturn the judge's decision below in denying the TRO, given the petitioner's burden to prove 1) the likelihood that the petitioner would succeed on the merits, 2) the 'balance of inconvenience' between granting or denying the TRO, 3) the petitioner would suffer irreparable injury, and 4) the public interest.

The Court also rejected the petitioner's argument that Lamb v. Hammond required that state election statutes be strictly applied notwithstanding the negligence of state officials, instead finding that, in a absence of any clear evidence of the opposite conclusion, Lamb compels the exclusion of the noncompliant votes in order to safeguard the election process.

The full opinion is available in PDF.

The case was a "highlighted case." Thus, the briefs and other material are posted online by the Court of Appeals and are available here.

Lloyd v. General Motors (Ct. of Appeals)

Issued February 8, 2007 -- Opinion by Chief Judge Robert M. Bell -- Concurring Opinion by Judge John C. Eldridge

From the Court's headnote beginning its lengthy opinion:

Even in the absence of actual personal injury, economic loss, the cost to fix the defect alleged, is recoverable where it is also alleged that such defect has caused, in other cases, serious bodily injury and, thus, constitutes an unreasonable risk of death or serious injury.

Petitioners Mr. and Mrs. Lloyd ("Lloyd") were the representative plaintiffs for a class action on behalf of designated purchasers of vehicles with certain types of front seats installed. They sought to recover from the respondents the cost of repairing and/or replacing the front seats in each class vehicle. Lloyd alleged that the seats were unsafe because they would allegedly collapse rearward in moderate and severe rear-impact collisions. None of the petitioners or any putative class members alleged that he or she had experienced personal injury as a result of the mechanical failure that caused the alleged defect.

In its Amended Complaint, Petitioners alleged seven causes of action:

1. negligence
2. strict liability
3. implied warranty of merchantability
4. "negligent failure to disclose, failure to warn, concealment and misrepresentation" ("negligent misrepresentation")
5. fraudulent concealment and intentional failure to warn
6. unfair or deceptive trade practices
7. civil conspiracy

The core issue examined by the court in responding to the Respondent's Motion for Dismiss for failure to state a claim was whether the risk of harm that has not yet occurred was sufficient to sustain a legal claim for each of the counts in the Amended Complaint, in particular those in tort. After a review of Maryland precedent, the Court of Appeals held that the facts alleged, if proven at trial, would satisfy each of the severity and probability "prongs" of the test for economic loss recovery in tort from Morris v. Osmose, 340 Md. 519, 533:

"Thus, if the possible injury is extraordinarily severe, i.e., multiple deaths, we do not require the probability of the injury occurring to be as high as we would require if the injury threatened were less severe, i.e. a broken leg or damage to property. Likewise, if the probability of the injury occurring is extraordinarily high, we do not require the injury to be as severe as we would if the probability of the injury were lower."

This precedent, driven by policy concern balancing a skeptical eye toward mere speculative damages against the policy of averting harms either reasonably foreseeable or severe, led the Court to uphold in turn each of the seven counts in Lloyd's Amended Complaint.

In his concurring opinion, Judge Eldridge noted his agreement with the holding and reasoning of the Court's opinion, but maintained his agreement today with his support of the dissenting opinion in the Morris case and one other precedent cited in the opinion, in which cases Judge Eldridge had previously dissented as an active member of the Court.

The full texts of both the opinion of the Court and Judge Eldridge's concurring opinion are available here in PDF.

In Re: Timothy J. (Ct. of Appeals)(Per Curium Order)

Per Curium Order filed February 2, 2007. Order signed by Chief Judge Robert M. Bell.

In its entirety:

The Court having considered the briefs and oral argument submitted by the parties in the above-captioned case, it is this 2nd day of February, 2007,

ORDERED, the the Court of Appeals of Maryland, that the appeal be, and it is hereby, dismissed as moot. Costs to be evenly divided between the parties.

The Per Curium Order is available in PDF format.

Spry v. State (Ct. of Appeals)

Decided January 16, 2007—Opinion by Judge Lynne Battaglia, dissent by Chief Judge Robert Bell.

Petitioner, George Junior Spry, sought review following the affirmance by the Court of Special Appeals of his conviction for failure to obey a police officer's reasonable and lawful order to prevent a disturbance to the public peace, in violation of Section 10-201 (c)(3) of the Criminal Law Article, Maryland Code (2002). Spry was convicted after he had been arrested pursuant to a warrant secured on the day following the disturbance. The Court of Appeals affirmed the conviction, holding that a police officer does not have to arrest an individual immediately after the first disobedience of a lawful order made to prevent a disturbance to the public peace to initiate prosecution under Section 10-201 (c)(3).

Chief Judge Bell dissented. In Judge Bell's view, the object of the statute is the prevention of a disturbance of the public peace, and when the arrest is made both the threat to the public peace and the willful failure to obey the order made in pursuance of abating it must still persist. Judge Bell considers that the offense was not committed where the defendant complies and there is no threat to the public peace. The record showed that the petitioner complied with the officer's order, albeit belatedly and accompanied by profanity and a disrespectful attitude. Judge Bell opined that the use of profanity and the failure to show what an officer may regard as proper respect are not the elements of the offense, and thus can not, and should not, be the basis for his conviction.

The full opinion is available in PDF.

State v. Borchardt (Ct. of Appeals)

Filed January 12, 2007--Opinion by Judge Irma Raker. Dissenting opinion by Chief Judge Robert Bell in which Judge Lynne Battaglia joins, in part, and in which Judge Clayton Greene, Jr., joins, in part.

The Defendant had been convicted of two counts of murder and robbery with a deadly weapon and had been sentenced to death. His conviction had been sustained on appeal. However, the Circuit Court for Anne Arundel County granted a Petition for Postconviction Relief pursuant to Md. Code (2001, 2005 Cum. Supp.), §7-102 of the Criminal Procedure Article. The Circuit Court concluded that the Defendant was denied effe ctive assistance of counsel in the sentencing proceeding.

The Court of Appeals held, in essence, that various decisions by the Defendant's counsel at the sentencing proceeding not to present certain evidence were expressions of reasonably sound trial strategy. In dissent, Chief Judge Bell, joined by Judge Battaglia, argued that the various decisions made by Defendant's trial counsel were not "fully informed."

Also, before the Circuit Court, the Defendant alleged, on the basis of Dr. Raymond Paternoster's study entitled "An Empirical Analysis of Maryland’s Death Sentencing System With Respect to the Influence of Race and Legal Jurisdiction" (the "Paternoster Study"), that the Maryland death penalty permits the arbitrary and capricious selection of capital defendants in violation of the Eighth and Fourteenth Amendments to the U.S. Constitution. This issue was not considered by the Circuit Court.

The Court of Appeals held that the Circuit Court erred and should have considered questions arising under the Paternoster Study. However, the Court also concluded that the Defendant's claim was without merit because he "makes no claim whatsoever that there is any specific evidence of discrimination in his case." Chief Judge Bell, joined by Judge Greene, argued that:

The simple fact is that [the Defendant] is asserting a claim that he was selectively prosecuted in violation of his constitutional rights,and that this affected his conviction.

Additionally, and more important, an adequate presentation of specific evidence of discrimination by the defendant cannot occur without adequate discovery from the State. It follows, then, that until an adequate presentation of specific evidence of discrimination is heard, the merits cannot be decided; to do so would be premature. The Paternoster study illustrates that death-eligible defendants in Baltimore County are more likely to receive a sentence of death than in any other county. This study alone satisfies the [U.S. v.] Armstrong standard, justifying further discovery.

The opinion and dissent are available in PDF.

Attorney Grievance Commission v. Rees (Ct. of Appeals)

Filed December 20, 2006--Opinion by Chief Judge Robert M. Bell

The Respondent was charged with violating a number of the Rules of Professional Conduct. Following a hearing, the Circuit Court for Baltimore County found that the Respondent did not respond to Bar Counsel's request for information in a timely manner and had withdrawn fees from her escrow account before they were earned. The hearing court rejected allegations that the Respondent had failed to communicate with her clients, charged an unreasonable fee, or fabricated her billing statements and did not actually perform the services for which she billed. The Respondent did not file any exceptions to the hearing court’s findings of fact or conclusions of law and, at argument, had expressly acknowledged her misconduct and made clear that she was not challenging that aspect of the case.

The Attorney Grievance Commission took exceptions to the hearing court's failure to find violations of Rules 1.15 (b) and 1.16 (d) because the Respondent had acknowledged that she failed to send copies of her billing statement to her clients in response to a letter from them and that she was aware of an error in billing her clients and owed them a refund of $257.00 that had not yet been made.

Because the lower court's findings also reflected that it found that a refund was in fact owed, the Court of Appeals sustained the exceptions. Finding that the misconduct that the Respondent had been found to have engaged in was quite serious but, also, that it was isolated and not likely to be repeated, the Court determined that a thirty-day suspension would protect the public interest and be appropriate.

The full opinion is available in WordPerfect and PDF.

Evans v. State (Ct. of Appeals)

Filed December 19, 2006—Opinion by Judge Alan Wilner, joined as to Nos. 107 and 124 by Judge Clayton Greene, dissent by Chief Judge Robert Bell, in which Judge Greene joined as to Parts C and D only.

The Court considered four appeals – Nos. 107, 122, 123, and 124 – which it consolidated. In Nos. 107 and 124, two substantive issues were raised: (1) Whether Evans was entitled to a new sentencing hearing because his attorneys at the 1992 re-sentencing hearing failed to investigate and present mitigating evidence relating to his background, thereby rendering their service, under principles enunciated in Wiggins v. Smith and Rompilla v. Beard, constitutionally deficient and prejudicial; and (2) Whether, under Miller-El v. Dretke, he was entitled to a new trial as to guilt or innocence because the State, in selecting a jury at the 1984 trial, exercised peremptory strikes in a racially discriminatory manner.

The issue in No. 123 was whether the Circuit Court for Baltimore County abused its discretion in denying, without affording discovery, Evans's third motion to reopen the 1995 post conviction proceeding in order to present the complaint that "selective prosecution by the Baltimore County State's Attorney's Office and systemic statewide racial and geographic discrimination rendered his sentence unconstitutional."

Appeal No. 122 arose from an action for injunctive relief filed in the Circuit Court for Baltimore City. Maryland Code, §3-905 of the Correctional Services Article requires that the manner of executing a sentence of death be by lethal injection. The Division of Correction (DOC) has adopted a comprehensive set of execution protocols, including a detailed description of the manner in which the lethal drugs are to be administered. Joined by three co-plaintiffs – the NAACP, the ACLU, and Maryland Citizens Against State Executions (CASE) – Evans contended that those aspects of the execution protocol were (1) inconsistent with the statutory requirements, and (2) in the nature of a regulation that was promulgated without compliance with the State Administrative Procedure Act. The appeal was from the Circuit Court's denial of a temporary injunction that would have restrained DOC from using its protocol.

The majority affirmed the Circuit Court on Appeal Nos. 107, 123, and 124, but found merit in the second aspect of Evans's complaint in No. 122, holding that Evans was not entitled to a new sentencing proceeding or to a new trial, but that the part of the DOC protocol that directs the manner of administering the lethal injection is ineffective until either (1) it is adopted as a regulation in accordance with the Administrative Procedure Act, or (2) the Legislature exempts it from the requirements of that Act.

Thus the majority held that those aspects of the EOM that direct the manner of executing the death sentence – the Lethal Injection Checklist – constitute regulations under SG §10-101(g) and, because they were not adopted in conformance with the requirements of the APA, are ineffective and may not be used until such time as they are properly adopted. The majority reversed the ruling of the Circuit Court for Baltimore City, remanding so that a final injunction could issue.

In dissent, Chief Judge Robert Bell did not disagree with the majority’s resolution of the "regulation" issue, but took strong exception to the majority's other holdings. In Part C, Judge Bell wrote that the merits of the selective prosecution claim were not yet on the table; but that Evans had satisfied the threshold inquiry into whether discovery on that issue was warranted. In Part D, Judge Bell agreed with the majority’s disposition of the "regulation" issue, but further concluded that the DOC procedure does not comport with, and is in fact violative of the statute. Judge Greene joined in Parts C and D only of the dissent.

The full opinion is available in WordPerfect and PDF.

Web Commentary: Crablaw, Sentencing Law & Policy, Ohio Death Penalty Information, Underdog Blog, Capital Defense Weekly, Lethal Injection, Maryland Moment, Baltimore Crime, Crime and Consequences, Andrew Cohen in the Washington Post.

Attorney Grievance Commission v. Ward (Ct. of Appeals)

Filed December 18, 2006 - Opinion by Chief Judge Robert M. Bell.

Upon disciplinary referral from the Court of Appeals, the Circuit Court for Baltimore City found the following facts to be true:

1. Respondent agreed to represent the complainant, an interested party in a unfiled decedent's estate, and took a retainer for such representation. The decedent had domiciled in Montgomery County, but Respondent agreed to pursue a claim of the decedent's estate in Anne Arundel County regarding decedent's real estate claims there involving a disputed debt and lien. Respondent failed to open an estate in Anne Arundel County, and ignored several notices from the Registrar of Wills and the Orphans' Court of that county including an adverse petition for judicial probate.

2. Respondent represented to the complainant that he was able to proceed in Maryland or the District of Columbia without assistance of other counsel. Respondent did proceed to file a civil action in the District of Columbia with an attorney barred in that jurisdiction, but Respondent was not a barred attorney in the District of Columbia at any time relevant.

3. Respondent made a further false representation on his pro hac vice motion to the Superior Court of the District of Columbia, stating that he had no open disciplinary actions in Maryland when the Attorney Grievance Commission has opened and notified Respondent of a then-unresolved disciplinary proceeding approximately two months prior to his statement. Due to service of process issues, the civil action co-filed by Respondent was dismissed twice without prejudice, but Respondent falsely represented to the complainant on one such dismissal that the case had merely been continued, not dismissed.

4. The Orphans' Court for Anne Arundel County proceeded to transfer the related probate case to the Orphans' Court for Montgomery County, but Respondent failed to make many required estate filings in that court, prompting a threat of discharge of the complainant as personal representative of the decedent's estate and her discharge of Respondent as her counsel.

5. During the period of Respondent's failure to act, the size of a disputed debt claim against the decedent's estate rose from approximately $50,000,00 to $57,000.00 and continued to grow with interest thereafter.

The Circuit Court for Baltimore City found violations of Rules 1.1 (competence), 1.3 (diligence) (two such violations), 1.4 (a) (duty to keep client informed) and (b) (duty to explain for informed decision-making), 1.5(a) (fees commensurate with services) and 8.4 (misconduct and conduct prejudicial to the administration of justice.)

Neither party took subsequent exception to these findings of fact or of Rule violations by the Circuit Court. The Court of Appeals accordingly accepted them as established for purposes of imposing a sanction. Respondent had already been suspended indefinitely by the Court of Appeals for the conduct giving rise to the disciplinary action identified in paragraph 3 above. In light of that aggravating factor and weighing the totality of Respondent's dishonest and unprofessional conduct in this matter, the Court of Appeals disbarred Respondent.

The full opinion is available in WPD and PDF.