Recent Maryland Decisions – March, 2012


Constitutional Law, Right to counsel in post-conviction proceedings: Criminal defendant had no right to counsel in post-conviction collateral proceedings, and therefore circuit court did not abuse its discretion in allowing defendant to discharge counsel and continue pro se. Grandison v. State, No. 117, Sept. Term, 2010. RecordFax No. 12-0222-20, 48 pages. Page

 Criminal Procedure, Request for DNA testing: The trial court did not abuse its discretion in denying defendant’s petition for production and testing of DNA material, pursuant to CP §8–201(b), where the State’s search was reasonable and defendant failed to establish that the requested evidence exists more than 20 years after his conviction. Washington v. State, No. 22, Sept. Term, 2011. RecordFax No. 12-0221-20, 51 pages. Page

Professional Responsibility, Unauthorized practice of law: Reprimand was the appropriate sanction for New York-licensed attorney found to have engaged in the unauthorized practice of law in Maryland by failing to limit his practice to federal immigration matters. Attorney Grievance Commission of Maryland v. Ambe, Misc. Docket No. 6, Sept. Term, 2011. RecordFax No. 12-0222-22, 50 pages. Page

Torts, Public Duty Doctrine: The public duty doctrine did not foreclose liability in plaintiff’s claim of negligent training and supervision, which did not allege harm resulting from an external injurious force but rather alleged harm from State’s negligent training of deputy sheriffs in allegedly unconstitutional arrest procedures, because public duty doctrine does not apply if law enforcement is not engaged in protecting the public from an injurious force but rather is itself the alleged injurious force. Jones v. State, No. 37, Sept. Term, 2011. RecordFax No. 12-0222-24, 35 pages. Page

Torts, Public Duty Doctrine: The public duty doctrine barred a negligence claim against the State for damages arising when plaintiff’s 5-year-old daughter suffered a serious allergic reaction after consuming peanut butter given to her under her school’s free lunch program. Pace v. State, No. 132, Sept. Term, 2010. RecordFax No. 12-0222-21, 27 pages. Page

Torts, Wrongful death: The circuit court abused its discretion in dismissing the plaintiffs’ wrongful death claims as a sanction for their omission of a potential beneficiary as a use plaintiff. University of Maryland Medical Systems Corporation v. Muti, No. 42, Sept. Term, 2011. RecordFax No. 12-0221-21, 29 pages. Page

Workers’ Compensation, Jurisdiction: Under LE §9–736(b), the Workers’ Compensation Commission retains jurisdiction to hear new issues while other issues in the same claim are pending on appeal, so long as no evidence was taken or decision made on the new issues in the hearing from which the appeal was taken. Potomac Abatement, Inc. v. Sanchez, No. 56, Sept. Term 2011. RecordFax No. 12-0221-22, 29 pages. Page

Family Law: Attorneys’ fees: The gratuitous cost of pro bono legal services, provided to a party in a custody modification proceeding, may not be considered in awarding attorneys’ fees to the other party unless the circuit court first determines that both sides had substantial justification for bringing or defending the action. Davis v. Petito, No. 30, Sept. Term, 2011. RecordFax No. 12-0227-20, 19 pages. Page

Professional Responsibility, Disbarment: Disbarment was the appropriate sanction for an attorney who knowingly made false statements to Bar Counsel and engaged in conduct involving dishonesty, fraud and deceit. Attorney Grievance Commission of Maryland v. Payer, Misc. Docket AG No. 8, Sept. Term, 2011. RecordFax No. 12-0222-23, 24 pages. Page

Tax Law, Statute of limitations on partnership refund claim: The one-year statute of limitations for plaintiff to file her Maryland tax refund claim after a federal audit of a partnership of which she was a limited partner began to run on the date that the IRS issued its report identifying the adjustments to her personal tax liability. King v. Comptroller of the Treasury, No. 32, Sept. Term, 2011. RecordFax No. 12-0224-20, 26 pages. Page


Administrative Law, Line-of-Duty Disability Benefits: Preexisting degenerative disc disease did not disqualify police officer from line-of-duty disability due to an injury sustained while working in the line of duty. Employees’ Retirement System of City of Baltimore v. Dorsey, No. 2818, Sept. Term, 2010. RecordFax No. 12-0210-01, 19 pages. Page

Administrative Law, Record on appeal: For purposes of Maryland Rule of Procedure 7-206, which applies to actions for judicial review of agency decisions, the “record” of a hearing need not include transcript of hearings in which no witness testimony was offered. McReady v. University System of Maryland, Nos. 1668, 1669, 1670, Sept. Term, 2010. RecordFax No. 12-0209-02, 24 pages. Page

Election Law, Public Local Law Referendum petition: County Board of Elections was prejudiced by petitioner’s failure to submit a memorandum when seeking judicial review of the board’s finding that petitioner’s Public Local Law Referendum petition was insufficient, and dismissal was therefore proper. Swatek v. Board of Elections of Howard County, No. 1557, Sept. Term, 2010. RecordFax No. 12-0209-01, 15 pages. Page

 Torts, Medical malpractice:In light of the abundance of expert witness testimony indicating that newborn’s injuries could have been prevented, evidence was legally sufficient to support a finding by a preponderance of the evidence that injuries were caused by a breach of the standard of care by the doctor. University of Maryland Medical System Corporation v. Gholston, No. 2505, Sept. Term 2010. RecordFax No. 12-0210-00, 22 pages. Page

Workers’ Compensation, Course of employment: Courthouse employee was not entitled to workers’ compensation benefits for injury sustained when, without a supervisor’s permission, he went home during work hours to change his shirt and tie so as to present a more professional appearance. Garrity v. Injured Workers’ Insurance Fund, No. 1185, Sept. Term, 2010. RecordFax No. 12-0209-00, 19 pages. Page

Real Property, Presumption of aggrievement: As adjacent property owners, plaintiffs were considered prima facie aggrieved by defendant’s proposed construction and operation of a creamery, in violation of an agricultural preservation easement held by Maryland Agricultural Land Preservation Foundation, and, therefore, defendants had the burden of rebutting the presumption of aggrievement. Long Green Valley Assoc. v. Bellevale Farms, Inc., No. 0228, September Term, 2009. RecordFax No. 12-0214-03, 54 pages. Page


Immigration Law, Moral character: Even though resident’s conviction for distribution of cocaine in a drug-free zone was “set aside” pursuant to D.C. Youth Rehabilitation Act following resident’s successful completion of his probationary period, Citizenship and Immigration Services properly denied resident’s naturalization application based on prior conviction, because conviction was set aside on rehabilitative grounds having nothing to do with merits of underlying criminal judgment, and resident therefore failed to satisfy burden of proving that he was a person of “good moral character.” Phan v. Holder, No. 10-1794. RecordFax No. 12-0201-60, 10 pages. Page

Immigration Law, Moral turpitude: Alien who pleaded guilty to misdemeanor of contributing to delinquency of a minor, under state statute that encompassed crimes not involving moral turpitude, was not subject to removal under federal statute providing for removal of an alien convicted of crime involving moral turpitude, even though police report indicated that he had engaged in consensual sexual intercourse with a minor. Prudencio v. Holder, No. 10-2382. RecordFax No. 12-0130-60, 33 pages. Page

 Torts, Privacy Protection Act: Police had probable cause to believe a photojournalist had conspired with vandals or aided and abetted their offenses; therefore, a subsequent search of her home pursuant to a valid search warrant did not violate Fourth Amendment, and the U.S. was entitled to summary judgment in photojournalist’s action for alleged violations of Privacy Protection Act under the Act’s “suspect exception.” Sennett v. United States, No. 11-1421. RecordFax No. 12-0130-61, 11 pages. Page

Constitutional Law, Right to bear arms: Criminal statute prohibiting a felon from possessing a firearm was constitutional on its face and as applied to defendant who had multiple criminal convictions for common-law robbery and assault with a deadly weapon, because defendant did not fall within category of responsible, law-abiding citizens protected under the Second Amendment. United States v. Moore, No. 10-4474. RecordFax No. 12-0125-60, 21 pages. Page

Criminal Law, Selective prosecution: District court properly denied defendant’s request for discovery relating to his claim of selective prosecution, because defendant, an African-American who was prosecuted federally under a federal-state law enforcement initiative, failed to produce some evidence that he was “similarly situated” to white defendants who were not prosecuted federally. United States v. Venable, No. 11-4216. RecordFax No. 12-0118-61, 20 pages. Page

 Criminal Procedure, Indictment error: In its indictment against defendant for two counts of assault, government’s failure to allege intent to commit another felony and to allege infliction of bodily injury constituted plain error; however, these deficiencies did not seriously affect the fairness, integrity, or public reputation of the judicial proceedings. United States v. Thomas, No. 11-4065. RecordFax No. 12-0125-61, 11 pages. Page

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