Recent Maryland Decisions 12/12/12

MARYLAND COURT OF APPEALS

Administrative Law, Suspension of driver’s license: Where a driver agreed to take a breathalyzer test but performed it improperly seven times, the test technician’s certification that the driver refused to take the test, accompanied by a certification that the procedure had been explained to the driver and that he appeared to be in good health, was prima facie evidence to support the Administrative Law Judge’s finding that the driver had refused to take the test by conduct. Motor Vehicle Administration v. McMillan, No. 60, Sept. Term 2010. RecordFax No. 12-0924-22, 14 pages.

Education Law, Public school construction: A county board of education, which must ordinarily procure construction services through a locally-conducted competitive bid process, may purchase roofing repair services for public schools through an intergovernmental purchasing cooperative when it acts pursuant to authority granted by the Board of Public Works in regulations authorized by the General Assembly. Building Materials Corporation of America d/b/a GAF Materials Corporation v. Board of Education of Baltimore County, No. 71, Sept. Term 2011. RecordFax No. 12-0924-20, 27 pages.

Professional Responsibility, Dismissal of petition: Although attorney may have engaged in gamesmanship and was possibly negligent in the handling of his deceased father’s hotly contended estate, the Attorney Grievance Commission’s petition for sanction was dismissed because there was no evidence of intent to defraud. Attorney Grievance Commission v. Zeiger, Misc. AG No. 28, Sept. Term 2007. RecordFax No. 12-0924-21, 16 pages.

Election law, Referendum: The Maryland Dream Act, which directly mandates and requires an increase in future appropriations for community colleges and which regulates amount of tuition revenue received by University System of Maryland, is not a law making an “appropriation” within the meaning of Article XVI, section 2 of the Maryland Constitution, because its primary object was not to appropriate money by assigning public monies to a particular use; therefore, the Act was not exempt from referendum. Doe v. Maryland State Board of Elections, No. 131, Sept. Term, 2011. RecordFax No. 12-0925-21, 28 pages.

Professional Responsibility, Conditional Diversion Agreement: Attorney’s substantive and procedural due process rights were not violated by the denial of her untimely request for a legislative continuance to respond to Bar Counsel’s request to revoke a conditional diversion agreement she had entered with the Attorney Grievance Commission two years earlier. Attorney Grievance Commission of Maryland v. Alston, No. 13, Sept. Term, 2011. RecordFax No. 12-0925-20, 33 pages.

Torts, Assumption of risk: In a suit for injuries sustained while walking in an area of a store that was open during renovations, the defendant retailer’s asserted defenses of contributory negligence and assumption of risk were not substantially the same, as voluntarily encountering such a risk would not necessarily be negligent; therefore, the jury should have been allowed to consider each defense separately. S & S Oil, Inc. v. Jackson, No. 122, Sept. Term, 2011. RecordFax No. 12-0925-22, 31 pages.

COURT OF SPECIAL APPEALS

Criminal Law, Sexual solicitation: Where defendant did not “command, authorize, urge, entice, request, or advise” his 15-year-old victim before assaulting her, the evidence was insufficient to support his conviction for sexual solicitation of a minor; however, his challenge to a related conviction for a third-degree sexual offense was not preserved for appeal. Poole v. State, No. 2126, Sept. Term, 2010. RecordFax No. 12-0926-03, 24 pages.

Evidence, Comparative Bullet-Lead Analysis: Appellant was not entitled to post-conviction relief because the prosecution’s introduction of and reliance on Comparative Bullet–Lead Analysis evidence at his murder trial did not render the trial so fundamentally unfair that it violated his right to due process. Kulbicki v. State, No. 2940, Sept. Term, 2007. RecordFax No. 12-0926-01, 46 pages.

Real Property, Justiciable controversy: A justiciable controversy existed over whether the implementation of conditions necessary for plaintiff to obtain approval of the subject project by the Planning Board violated defendant’s easement over the property. Michael, LLC v. 8204 Associates LLC, No. 0601, Sept. Term, 2011. RecordFax No. 12-0926-06, 14 pages.

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