Raccoons are still safe

By: Elizabeth Hays

National security, equal rights, healthcare, and road kill are top priorities for any state government, at least according to Maryland Governor Larry Hogan.^[1]  When the headline first appeared – “Hogan vows to fight Maryland ‘road kill’ law” – I pictured a poor little raccoon being hauled away after being hit by some in a Ford Bronco.  If you keep reading, however, you find out that it has absolutely nothing to do with Rocky the raccoon and everything to do with the governor trying to overcome road blocks in his transportation initiatives.^[2]

In the 2016 legislative session, House Bill 1013, more affectionately called the ‘Road Kill Law,’ was passed and became law after overriding Governor Hogan’s veto.^[3]  The new law created a scoring system for approval of Maryland transportation projects.^[4]  According to the Governor, the new mandated scoring system forces the cancellation of 66 out of 73 top transportation projects; yet, Assistant Attorney General David Stamper doesn’t necessarily agree with Governor Hogan’s assertion.[5]  He stated, “the administration can pick a project with a lower score over a project with a higher score if it provides, in writing, a rational basis for the decision.”^[6]  If you believe that the legislation is only advisory, Hogan states, then you are ignorant of the facts.^[7]

Joining the exhilarating political sparing match, Delegate Brooke Lierman, the freshman Democrat from Baltimore City, who led debate on the bill in the House, said “Gov. Hogan seems to be creating his own fake news. It’s just a score, and that shows to us, the taxpayers, how we’re spending our money in a transparent way.”^[8]  Adding to the continued contradiction, Maryland Department of Transportation Secretary Pete Rahn agreed with the governor that the there was no possible way to avoid the cancellations of the projects under this new law.^[9]  In a legislative hearing held on November 18, 2016, he stated, “The one-size-fits-all ranking system mandated by this law is wrong for Maryland drivers, wrong for employers relying on needed improvements to local roads and bridges, wrong for tourists and visitors traveling to our state, and wrong for Maryland taxpayers who expect their dollars to be spent in an fair and equitable manner on projects that will improve their daily lives.”^[10]

The repeal of the ‘road kill’ law is deemed a top priority by the Hogan administration and will likely produce more and more controversy while the facts continue to be sorted out.  As far as actual road kill law in Maryland is concerned, you still need a salvage permit for removal of animals off roadways.^[11]  While it is uncertain what the 2017 legislative session will bring, for now, raccoons are still safe.

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Elizabeth Hays is a third-year day student at the University of Baltimore. She serves as a Staff Editor of the UB Law Forum and is Co-president of UBSPI. Her legal interests include, administrative and military law.  She can be reached at elizabeth.hays@ubalt.edu

Maryland Governor Doubles Down on Victims’ Rights

By: Jared Lerner

Out of the darkness comes some light, as Maryland Governor Larry Hogan provided a small beacon of hope for crime victims with his new Justice for Victims Initiative.  There is still plenty of work to be done for victims’ rights, but at least one person is taking a step in the right direction.  On Thursday, January 12, 2017, Maryland Governor Larry Hogan announced his Justice for Victims Initiative.[1]  Governor Hogan stated, “Making Maryland safer begins with making sure we have a criminal justice system that holds offenders accountable for the harm they cause, while also supporting victims and the community in the process of healing.”[2]  The Republican governor is no stranger to victims’ rights, as they continue to be a part of his focus while in office.  In the 2016 legislative session, Governor Hogan worked with the Maryland legislature to enact criminal justice reform by way of the Justice Reinvestment Act (“JRA”).[3]  The JRA reformed Maryland’s restitution system; making sure victims are compensated for financial loss from crimes.

The Justice for Victims Initiative includes four proposals: (1) Repeat Sexual Predator Prevention Act of 2017; (2) Protecting Victims of Sex Trafficking Act of 2017; (3) Transitional Housing Assistance Program; and (4) Repeat Drunk Driving Offenders Act of 2017.[4]  The Repeat Sexual Predator Prevention Act, a bipartisan measure, “will allow courts to admit evidence of a defendant’s prior history of sexual assault convictions during prosecutions for subsequent sexual offenses.”[5]  The Protecting Victims of Sex Trafficking Act will expand the definition of sexual abuse to include sex trafficking, including sexual abuse committed by a parent or an individual acting in a supervisory capacity.[6]  The Transitional Housing Assistance Program will direct up to $5 million in funding to provide up to one year of housing assistance for crime victims.[7]  The Repeat Drunk Driving Offenders Act will make drunk driving a felony for repeat offenders with three or more prior conviction.[8]  It would also make drunk driving a felony for a repeat offender who causes death or life-threatening injury.[9]

Governor Hogan calls the Justice for Victims Initiative “common sense legislation that will help protect the most vulnerable among us, improve services for the victims of crimes, and help us reduce and prevent the number of future victims of crime.”^[10] 

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Jared Lerner is a third-year law student at the University of Baltimore School of Law. He will graduate in May 2017 with a concentration in litigation and advocacy. He is currently working on a research paper that applies tort principles to company data breaches. Throughout law school, Jared gained practical experience in several practice areas, including trusts and estates, alternative dispute resolution, trial and appellate litigation, and administrative law. Most recently, he served as an honors law clerk at the U.S. Environmental Protection Agency in the Office of Enforcement and Compliance Assurance. Prior to law school, he attended the University of Central Florida where he earned a B.A. in May 2014. Jared can be reached at jared.lerner@ubalt.edu.

Maryland Lawyers May Advertise as Specialists

By: Daniel Weir

On October 13, 2016, the Standing Committee on Rules of Practice and Procedure of Maryland submitted to the Court of Appeals of Maryland a proposed amendment to Rule 19-307.4(a) to remove the prohibition against an attorney from “holding him or herself out publically as a specialist.”[1]   The debate on whether to allow lawyers in Maryland to assert themselves as “specialists” or obtain certifications reflecting a specialty has gone on for over 40 years.[2]  Maryland held out for many years despite Supreme Court decisions observing that attorney advertisements were First Amendment forms of commercial speech.[3]  At the time of the Committee hearing to change Rule 19, Maryland was only one of two states with an outright prohibition on advertising as a specialist.[4]  Many Maryland attorneys were already holding themselves out as specialists on a strictly word-of-mouth basis.[5]

It would seem that the main control over this new rule is an already existing rule – Rule 19.307.1.   The committee indicated that “[a]ll advertising by attorneys is subject to Rule 19-307.1, which precludes attorneys from making a false or misleading communication about the attorney or the attorney’s services and, in relevant part, declares a communication to be false or misleading if it ‘contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading.’”[6]

On December 13, 2016, the Court of Appeals of Maryland decided to adopt the Committee’s recommendation.[7]  An argument in favor of the change stated that lawyers who have practiced a particular type of law for a long period of time have earned the right to hold themselves out as specialists.[8]  The argument against the change was that young lawyers who are not yet specialists will have a harder time selling their services to clients if they are not yet specialists; the change could force a new attorney to simply pick one type of law and lock in early to gain the specialist title.[9]  This perspective hints at legal factionalism, whereas before, perhaps someone in a firm could primarily practice criminal law and do some immigration law work as needed.  Whether the lift on the prohibition will aid or frustrate the practice of law in Maryland will be observed when the change goes into effect April 1, 2017.[10]  Only time, and the cases opined by the Attorney Grievance Commission, will set the parameters as to how this change will truly take shape.

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Daniel Weir is a 3L Student Editor. Daniel has an interest in criminal and mental health law.  Daniel enjoys exploring the mountains of Western Maryland and performing minor automotive repairs and maintenance on domestic vehicles.  You can view is linkedin here.

What to Know Before Hiring an Exotic Dancer

By: Hillel Cohen 

A person hiring another person often faces the question of whether the hiring person’s status is one of employer or independent contractor.  This is an important distinction because employer-employee relationships are bound to minimum wage laws under the Fair Labor Standards Act (“FLSA”), the Maryland Wage and Hour Law (“MHWL”), and the Maryland Wage Payment and Wage Collection Law (“MWPWC”). [1]  The recently decided Court of Appeals for the Fourth Circuit case, McFeely v. Jackson Street Entertainment, LLC, begins to provide a clearer understanding of the definition of an “employee.” [2]

          In McFeely, an exotic dance club requested all hired dancers to sign agreements entitled “Space/Lease Rental Agreement of Business Space” that classified dancers as independent contractors. [3] The dancers claimed that they were employees and sued the dance club for minimum wage. [4]  The court created an economic realities test that contained were six factors to determine whether dancers were employees or independent contractors. [5] The six factors are:

1.  the degree of control that the putative employer has over the manner in which the work is performed;
2. the worker’s opportunities for profit or loss dependent on his managerial skill;
3. the worker’s investment in equipment or material or his employment of other workers;
4. the degree of skill required for the work;
5. the permanence of the working relationship; and
6. the degree to which the services rendered are an integral part of the putative employer’s business. [6]

Yet, the court did note that this was not a bright-line rule, and, each case would be considered based on the totality of the circumstances. [7]

After applying the factors to the present case, the court concluded that the dancers qualified as employees. [8]  The dance club created the work schedule for the dancers, established operating hours that “controlled the stream of clientele,” and paid for all overhead expenses of the dance club, including wages for all non-performing staff.9  Moreover, the dance club warned the dancers not to charge too much money to their customers and enforced many restrictions on the dancers (i.e., no drinking, smoking, or having family or friends visit them during work hours).10  Accordingly, the dancers were entitled to minimum wage under FLSA, MHWL, and MWPWC. [11]

It is important to note that in this specific case, the dance club was successful in raising a “good faith defense” to liquidated damages after September 2011. [12]  In September 2011, the dance club sought legal advice in response to a lawsuit brought by the dancers, and the club was advised to require all dancers to sign an agreement to acknowledge their status as independent contractors. [13]  However, before that date, the court rejected the dance club’s defense because reliance on legal advice is distinct to ignorance of the law. [14]   The court reasoned that ignorance of the law was not a valid defense, because this would create a substantial disincentive to the employer, i.e., no employer would be motivated to learn and conform to governing labor law. [15]

Although, this case involved exotic dancers, it has relevance for all types of workers.  The court’s six factors will likely be cited as a way to determine if a worker is an employee or an independent contractor.  Therefore, a hirer should be keenly aware of how its instituted rules and regulations may alter the hiree’s status of “independent contractor” versus “employee.”

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Hillel Cohen is a third-year day student at the University of Baltimore. He serves as a Staff Editor for the UB Law Forum. His legal interests include real estate and commercial law. He can be reached at Hillel.Cohen@ubalt.edu. You can view his LinkedIn here.

 

Bike Lanes Invade Baltimore

By: Elizabeth Hays

     Recently, Maryland Avenue has undergone a dramatic change-it’s not additional parking, it’s not a wider road, and it’s not the food truck I keep hoping for-it’s a bike lane.  It’s not just some extra space for a bike to get around cars, but an actual protected lane carved out of the already narrow two-lane road.  To many bikers, this is probably a welcomed change.  To the rest of us, this is one more reason to buy a smart car. With the addition of this bike lane comes confusing new rules of the road, which have the potential to cause traffic jams and bike-car-pedestrian collisions.

            Per Maryland law, these new bike lanes are classified as bicycle paths.[1] A bicycle path means any travel-way designed or designated by signing or marking for bicycle use, located within its own right-of-way or in a shared right-of-way, and physically separated from motor vehicle traffic by berm, shoulder, curb, and other similar devices.[2] In contrast, a bike lane means any portion of a roadway or shoulder designated for single directional bicycle flow.[3] Maryland law requires bicyclists to use a bike lane if a safe one is available on the same street; however the law is silent as to bicycle paths.[4] Therefore, bicyclists are not even technically required to use the new bicycle paths.

            While the bicycle paths are meant to be a safe solution for bicyclists and drivers to share the road, some bicyclists have voiced concerns about the bicycle paths not being wide enough to pass slow bicyclists.[5] Therefore, while they can legally move to the roadway to pass, it creates even more confusion on a road. A driver needs to keep an eye on pedestrians, traffic lights, construction, and now bicycle paths and rouge bicyclists passing. Are bicycle paths a good idea? Probably. However, the law either needs to be more clear or stricter about the enforcement and application of bicycle laws in Maryland to prevent major headaches for drivers, pedestrians, and bicyclists alike.

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Elizabeth Hays is a third-year day student at the University of Baltimore. She serves as a Staff Editor of the UB Law Forum and is Co-president of University of Baltimore Students for Public Interest (UBSPI). Her legal interests include, administrative and military law.  She can be reached at elizabeth.hays@ubalt.edu

What is Money?

By: Colin Campbell

To most of us, the definition of money seems rather simple and straightforward. However, that was not the situation for the Court of Appeals of Maryland, which was called upon to determine whether bank account assets are money or personal property under Maryland’s Forfeiture Statute.^[1]

In Bottini v. Department of Finance, Montgomery County, Montgomery County Police arrested Gianpaolo Bottini for CDS possession with the intent to distribute.^[2]  While on bail, Bottini emptied his two bank accounts, totaling $64,388.33, and placed the sum of the assets into his sister’s account.^[3]  His sister then opened a new bank account in her own name and deposited the entirety of the assets into this new account.^[4]  Upon conviction of Bottini, the Department of Finance of Montgomery County sought forfeiture of the assets in the account, claiming it was money resulting from Bottini’s illegal drug distribution.^[5]  Bottini’s sister objected, asserting that the assets were intangible personal property, not money, thus the county request was untimely.^[6]  Under Maryland’s Forfeiture Statute, CP § 12-102, requests for intangible personal property must be filed within 90-days of seizure.^[7]  Since the county did not file its complaint for forfeiture within 90-days, the request would have been untimely and should have been dismissed.^[8]

The Montgomery County Circuit Court Judge began by stating his personal understanding of what constitutes money.^[9]  According to the circuit court, the legislature intended money to be more than just fungible cash but also assets kept in a bank account.^[10]  The circuit court further stated that while the legislature has not defined money, the court does not believe it is necessary to do so.^[11]  Furthermore, the circuit court found that since the assets were transferred to Bottini’s sister to pay for his attorney’s fees, and not as a gift or loan, that the funds were Bottini’s and subject to forfeiture.^[12]  The circuit court held in favor of the county and issued an order for the $63,891.83 to be forfeited, finding that the assets were the proceeds of illegal drug transactions subject to forfeiture.^[13]

Defendants appealed the circuit court decision and in an unreported opinion the court of special appeals upheld the circuit court’s holding.^[14]  However, one judge dissented, finding that the bank account assets were “a contractual interest, claim, or right—i.e., intangible personal property—and that, as such, the complaint for forfeiture was untimely filed.”^[15]  The defendants filed a petition for writ of certiorari, which was granted.^[16]

Defendants argue that since bank account assets do not have a physical location and are only available by demand out of the bank’s assets, they are not money as intended by the forfeiture statute.^[17]  They argued that the forfeiture statute intends money to mean physical currency such as bills and coins.^[18]  The county argues that the forfeiture statute refers to physical money and wealth generally.^[19]  Furthermore, a bank account reflects the physical money available to the account holder and thus is money under the statute.^[20]

The court of appeals began by looking at the Merriam-Webster and Black’s Law Dictionary definitions of money.^[21]  Both sources defined money as physical cash and assets or wealth that can be converted to cash, such as the assets contained in a bank account.^[22]  The court further noted that the physical assets portion of the forfeiture statute did not have a heading for bank accounts.^[23]  Thus, the court of appeals found in favor of the county and affirmed the definition that bank accounts are money under the statute.^[24]  First, the court noted that this holding is consistent with the commonly held understanding of what constitutes money, and then referenced past holdings in which it had used the term “money” when referring to bank account assets.^[25]  Next, the court referenced that the legislative history of the forfeiture statute supported this definition since the intent of the statute was to encompass all funds resulting from illegal drug manufacture and distribution.^[26]  The court ultimately upheld the trial court’s finding that the county’s request for forfeiture was timely, and as such the account assets should be forfeited to the county.^[27]

The dissent argued that the county was not seeking forfeiture of the defendant’s money but rather their bank account, which housed their money.[28]  As such the property at issue was a contractual interest, or intangible personal property, subject to a filing limitation of 90-days after seizure or 1 year from the disposition of the criminal charges.[29]  Since the bank account had been seized by the county in April of 2012 and petitioned for in August of 2013, the county petition was untimely.[30]

This case establishes a bright line rule that bank account assets are money under the forfeiture statute subject to the 90-day post-criminal conviction filing date.  A rule making the financial gains resulting from drug distribution easier to be forfeited to the state.  However, the legislature should still take steps to define money in the forfeiture statute to avoid future possible issues if a similar action were to concern the assets of an investment account.

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Colin Campbell is a third-year day student at the University of Baltimore.  He serves as a Staff Editor for the UB Law Forum.  His legal interests include criminal prosecution and government contracts. He can be reached at Colin.Campbell@ubalt.edu.  You can also view his LinkedIn here.

NOISE RESULTING FROM LEGALLY PERMISSIBLE FIREWORKS DOES NOT CONSTITUTE AN ABNORMALLY DANGEROUS ACTIVITY, AND THE APPLICATION OF STRICT LIABILITY IS INAPPROPRIATE.

By: Jason C. Parkins

The Court of Appeals of Maryland held that noise emitted from a lawful fireworks display did not constitute an abnormally dangerous activity; therefore, the parties were not subject to strict liability.  Toms v. Calvary Assembly of God, Inc., 446 Md. 543, 569, 132 A.3d 866, 881 (2016).

On September 9, 2012, in Frederick County, Calvary Assembly of God, Inc. hosted a fireworks event on Auburn Farms, a property adjacent to Andrew David Toms’ (“Toms”) dairy farm.  Prior to the fireworks display, Calvary acquired all permits as required by section 10-104 of the Public Safety Article (“section 10-104”).  Calvary hired a professional fireworks company (“Zambelli”) to plan, oversee, and perform the fireworks display.  The location of the fireworks display was approved by a fire marshal prior to the event.  The fire marshal concluded that the event required a 250-foot radius, clear of structures, surrounding the firing location.  The permits acquired for the display demarcated a firing radius of 300 feet.  Additionally, a fire marshal was present at the event and supervised the display.

PURSUANT TO § 1-206(B) OF THE ESTATES AND TRUSTS ARTICLE, ARTIFICIAL INSEMINATION ENCOMPASSES IN VITRO FERTILIZATION USING DONATED SPERM; A COURT MAY USE THE GOLDBERGER FACTORS TO DETERMINE VOLUNTARY IMPOVERISHMENT; A TRIAL COURT CAN ISSUE A PERMANENT INJUNCTION FOR HARASSMENT BASED ON § 1-203(A) OF THE FAMILY LAW ARTICLE.

By: Virginia J. Yeoman

     The Court of Appeals of Maryland held that the term “artificial insemination” includes in vitro fertilization using donated sperm, and that a consenting husband is presumed to be the father of the child born as a result of the procedure.  Sieglein v. Schmidt, 447 Md. 647, 652, 136 A.3d 751, 754 (2016).  The court also held that the circuit court did not abuse its discretion in finding the husband to be voluntarily impoverished or in issuing a permanent injunction based on harassment.  Id.

     Stephen Sieglein (“Sieglein”) and Laura Schmidt (“Schmidt”) married in 2008.  Before marrying Schmidt, Sieglein had a vasectomy.  When Schmidt desired a child, Sieglein refused to have his vasectomy reversed, but agreed to accompany Schmidt to the Shady Grove Fertility Reproductive Science Center (“Shady Grove”).  In 2010, they both signed a consent form at Shady Grove, which demonstrated their desire to undergo assisted reproduction treatment, and their understanding of the risks and obligations involved.

Despite not formally objecting, defense counsel properly preserved the issue of whether the circuit court inappropriately weighed defendant’s decision not plead guilty at sentencing; the circuit court did not impermissibly consider defendant’s rejection of the plea offer at sentencing.

By: Colin Campbell

     The Court of Appeals of Maryland held that defense counsel’s statements conveyed an objection to the circuit court’s perceived consideration of the defendant’s decision not to plead guilty at sentencing.  Sharp v. State, 446 Md. 669, 113 A.3d 1089 (2016).  As a result, the court held that defense counsel sufficiently preserved the issue for appellate review.  Id. at 684, 113 A.3d at 1098.  Ultimately, though, the circuit court’s statements at sentencing did not give rise to the inference of an impermissible consideration.  Id. at 701, 113 A.3d at 1108.

     On March 17, 2003, Raymond Evianiak (“Evianiak”), Justin Sharp (“Sharp”), and others were drinking at a party.  While intoxicated, Evianiak insulted Sharp, leading to an argument.  A few hours later Sharp proceeded to punch Evianiak and beat him with a bottle, in response to the earlier insult.  At no point did Evianiak defend himself or retaliate against Sharp.  Sharp was charged with attempted first-degree premeditated murder, first-degree assault, and openly wearing and carrying a dangerous weapon with the intent to injure.

     On April 30, 2014, Sharp appeared in court for trial where he was advised of the maximum penalties he faced if convicted.  The State offered a plea of first-degree assault and recommended a twenty-five year sentence, with all but ten years suspended.  The court counter-offered a twenty-year sentence, with all but eight years suspended.  Sharp declined both offers, pled not guilty, and elected a jury trial, at which point the court withdrew its plea offer.

Pursuant to § 10-402(C)(2)’s exception to the wiretap ban, an individual is not under the supervision of an investigative or law enforcement officer when interceping an oral communication, absent restrictions on equipment use and some subsequent contact.

By: Ashley N. Simmons

     The Court of Appeals of Maryland held that a detective providing recording equipment to an individual, absent any limitations for use and no interaction thereafter, did not amount to the individual acting under supervision of an investigative or law enforcement officer.  Seal v. State, 447 Md. 64, 80, 133 A.3d 1162, 1172 (2016).  The court found that guidelines must be given to the person conducting the wiretapping, as well as at least some contact to monitor the progress.  Id. at 79-81, 133 A.3d at 1172.

     During the summer of 1982, ten-year-old Donald W. (“Donald”) frequently stayed at his step-grandmother’s house. Donald’s step-uncle, David Seal (“Seal”), also resided in the Montgomery County home.  Donald testified that he awoke one night to Seal fondling his private parts.  The sexual abuse continued until Donald entered the seventh grade.  Approximately twenty years later, Donald contacted Seal about the abuse.  Seal apologized for his prior behavior and offered to make payments to Donald, which Donald declined.

     On January 22, 2013, Donald, a resident of West Virginia, went to the Montgomery County Police Station and spoke with Detective Tracey Copeland (“Copeland”) regarding the abuse.  Copeland and Donald made several unsuccessful phone calls to Seal in an attempt to obtain a confession.  Ultimately, Copeland provided Donald with the recording device, showed him how to operate it, and then sent him home with the equipment.