Edmund v. State (Ct. of Appeals)

Issued April 17, 2007 -- Opinion of Judge Lawrence J. Rodowsky

HEADNOTE: Criminal Law - First Degree Assault - Victim in shooting fled and never located. Held: Charging document that identified victim by description, but not by name, charged a criminal offense and was not jurisdictionally defective.

Defendant was arrested after reports of an alleged shooting of a victim later described by ethnicity and race, approximate weight, height, facial and specifics of attire. After arrest, Defendant confessed to firing a handgun at such a victim after a neighborhood dispute with an unidentified victim fitting that general description. A charging document was filed in the Circuit Court for Baltimore County describing but not identifying the victim and accusing Defendant of first degree assault and handgun violations. The grand jury returned an indictment on all counts.

Defendant's counsel filed a general omnibus motion objecting, inter alia, to the sufficiency of the charging documents, but without specificity as to the nature of the insufficiency. The State objected to the timeliness of the motion but the Circuit Court ruled instead on the merits that the charging document was sufficient, notwithstanding Defendant's counsel's arguments in open court that the failure of the charging document to identify the victim was a defect depriving the Circuit Court of jurisdiction. After trial, conviction and sentence before the Circuit Court, Defendant appealed to the Court of Special Appeals, but the Court of Appeals issued a writ of certiorari sua sponte before the Court of Special Appeals ruled on the appeal.

Reviewing the text of the first degree assault statute, Code CL 3-202, the "sufficient" form of pleading provided in Code, CL 3-206, the developed common law of Maryland and of some other states and Great Britain and the text of and precedents under Article 21 of the Maryland Declaration of Rights, the Court concluded that none of those authorities required that the charging document identify the victim of the first degree assault in this case.

In summary fashion, the Court also held that the prosecution presented sufficient evidence to support a finding of guilt, and upheld the discretion of the Circuit Court to allow Defendant to present a more specific argument orally than was presented in written motion, finding no prejudice to the State in this case.

Accordingly, the Court of Appeals upheld Defendant's conviction before the Circuit Court for Baltimore County for first degree assault.

The full opinion is available in PDF form here.

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.

Baltimore v. Valsamaki (Ct. of Appeals)

Issued Feburary 8, 2007 -- Opinion by Judge Dale Cathell, joined as to the judgment only by Judge Irma Raker and Judge Glenn T. Harrell, Jr.

The City of Baltimore instituted "quick-take" proceedings against a bar and package goods store ("Magnets") located on Charles Street in the Charles/North redevelopment district designated generally for urban revitalization. Defendant, the owner of Magnets, filed a response to the proceedings. At the fact hearing, the Circuit Court for Baltimore City held that the City failed to show sufficient grounds warranting a finding of immediate necessity for the immediate taking, and declined the City's petition, reaffirming that denial upon a motion for reconsideration. The City appealed directly to the Maryland Court of Appeals.

Public Local Law Sec. 21-16 of Baltimore City provides that the City of Baltimore may institute proceedings for immediate possession of property for public use, upon a demonstration of "the reasons" for immediate possession and title towards a "public use." The Court upheld that it is the City, not the property holder, that has the burden of proof to show prima facie the reasons for the immediate taking of property for public use. In so holding, the Court distinguished the deference shown to a condemning authority in a non-quick-take regular condemnation as to the legitimacy of the condemnor's public use from the greater burden borne by the City under the quick-take proceedings, and noted the reduced due process and pre-trial procedures available to an owner of property sought for an immediate taking.

The Court upheld the Circuit Court's finding that the general needs of an urban renewal project did not meet the threshold for immediacy and necessity for a quick-take proceeding, emphasizing the specific facts of the testimony at the hearing and the City's failure to specify the factual grounds for heightened urgency justifying truncated proceedings. From the opinion:

The purpose of the quick-take power is for it to be used when the need for the public use is immediate. It was not conferred for the purpose of allowing a condemning authority to run “roughshod” over the owners of private property. When that happens, or begins to happen, the property owner’s recourse is to the courts.

In what arguably constituted dicta, the Court opined that the evidence presented by the City at the Circuit Court hearing would have been sparse even for a regular non-immediate condemnation proceeding, noting the lack of a comprehensive renewal plan demonstrating public use per the testimony of the City's witnesses. Judges Raker and Harrell indicated that they did not join in this portion of the Court's opinion.

A further clarification and augmentation of this preliminary synopsis will issue later today.

The full opinion is available here in PDF.

River Walk Apartments, LLC v. Twigg (Ct. of Appeals)

Decided January 10, 2007--Opinion by Judge Lynne A. Battaglia, with Judges Dale R. Cathell and Glenn T. Harrell, Jr. joining in the judgment only.

In November 2000, the Mayor of the City of Frederick entered into an agreement ("November Agreement") with Property Owners wherein the Property Owners would dedicate to the City for no charge "any and all rights-of-way needed for the upgrade and widening of Gas House Pike along the frontage of the Property," which was to be made "free and clear of all liens and/or encumbrances." It is unclear from the Agreement whether the conveyance was fee-simple or merely encumbered the land with a thoroughfare for the use of the public. The Property Owners also agreed to give their consent and sign all necessary documents to subject the properties to a "Tax Increment Financing District" (TIF) to enable the City to finance the completion of Monocacy Boulevard, with the caveat that the Property Owners shall have no additional tax assessment or liability as a result of the TIF.

In consideration for the Property Owners’ dedications and agreement to the TIF, the contract provided that the Properties and Property Owners would be subject to a "deferred contribution special assessment" of $1.00 per square foot of each building to be constructed to be paid once to the City "upon application to the City for the Shell Construction Permit for such building." The contract was signed by a representative of each of the Property Owners and by Mayor James Grimes for the City of Frederick.

In October 2002, the City of Frederick passed Ordinance G-02-19, §1, which titled Chapter 11 of the City Code, a reserved chapter, "Fees," and levied impact fees for the first time in the City for the purpose of requiring that new residential, commercial, institutional and industrial development pay for its appropriate share of capital improvements to the city’s water and sewer treatment and distribution systems through the imposition of water and sewer impact fees which will be used to finance, defray and reimburse the city for all or a portion of the costs of capital improvements to the city’s water and sewer treatment and distribution systems. Another fee imposed by the new chapter was the "Park Facilities development impact fee," which states in relevant part, "Any person who undertakes a residential development project shall pay a park facilities development impact fee and shall not receive a building permit until such park facilities development impact fee is paid."

In June 2004, then Mayor Jennifer Dougherty and the Property Owners entered into a second agreement entitled "Agreement to Defer Public Improvements" ("Deferral Agreement"), granting the Property Owners an exception to the Subdivision Regulations of the City of Frederick which required installation and acceptance of necessary public improvements prior to the final approval of subdivision plats.

In October 2004 and again in March 2005, applications were submitted for shell construction permits along with payment of the $1.00 per square foot for each proposed structure, as required by both the November and the Deferral Agreements. The City denied the applications, stating that "in addition to the $1.00 per square foot fee, all impact fees must be paid prior to the issuance of any of the aforementioned building permits," to include payment of water, sewer and park fees. Consequently, a complaint for a writ of mandamus and specific performance was filed against the City requesting they be directed to issue shell construction permits based on the municipality being bound by its contracts. The City responded, in part, that the Agreements only exempted the property from regulatory fees, not water, sewer and park facility impact fees, and that even if the Agreements did exempt the Property Owners from those fees, because they constitute taxes, they can only be waived by the Maryland General Assembly and therefore, without such authorization, the waiver was ultra vires and not enforceable.

Upon timely appeal of a finding for the Property Owners, the City maintained that the legislative body of the municipality must enact ordinances in order to establish impact fees and that the two Agreements were not legislatively authorized, but instead constituted private agreements between the Property Owners and the two mayors. The Court of Special Appeals reversed the Circuit Court holding that Section 2 of Article 23A and Section 7 of Article II of the City of Frederick Charter mandate that all fees imposed by the City, and any waiver thereof, must be authorized by ordinance, and because no ordinance authorizing either the November or the Deferral Agreement was enacted, both contracts were ultra vires and therefore void ab initio.

Before the Court of Appeals, the Property Owners contended that the Mayor possesses the executive power to purchase or condemn property, such as the rights-of-way at issue in this case, and as an executive act, no ordinance or legislative act was required in order for the City to enter into the Agreements. The Agreements represented nothing more than the implementation of an already authorized and existing public project and, as such, constituted executive, not legislative, actions, which the Mayor, as the chief executive officer of the City, possessed the requisite authority to do on behalf of the City. Conversely, the City maintained, in part, that before any fee can be imposed by the municipality, it must be legislatively authorized. The waiver of fees is a corollary to the imposition of fees, so it, too, would require legislative authorization.

The Court held that neither the Mayor who signed the November Agreement, nor the Mayor who signed the Deferral Agreement, possessed the requisite authority to create a special fee or to waive impact fees; those actions required legislative authority, which was never obtained. A municipality is not bound by those actions which transcend its authority and the authority of those allegedly acting on its behalf; those actions are ultra vires and unenforceable.

Judges Cathell and Harrell join in the judgment only consistent with their position in J.P. Delphey L.P. v. Mayor and City of Frederick.

The full opinion is available in PDF.

Lamone v. Capozzi (Ct. of Appeals)

Filed December 11, 2006--Opinion by Chief Judge Robert M. Bell.

This is the second of two cases involving early voting in Maryland. In the first case, Roskelly v. Lamone, the Court of Appeals affirmed the judgment of the Circuit Court for Anne Arundel County, which had dismissed the action because it was not timely filed. In this case, the Court we addressed the constitutionality of early voting, probing whether the acts establishing the process are inconsistent with, and, thus, in derogation of, the Maryland Constitution.

The Court determined that the acts authorizing Maryland Code (2003, 2006 Cum. Supp.) §10-301.1 are inconsistent with and in derogation of certain provisions of the Maryland Constitution, in particular, Article XV, §7, and Article I, §1, and are not constitutionally supported by Article I, §3; therefore, these acts are unconstitutional and void.

The full opinion is available in WordPerfect and PDF.