A state agency’s enabling act is constitutional if their decisions are subject to judicial review; Maryland law provides guidelines for state agencies when using their discretion to issue penalties

By: Nicholas Mastracci

     The Court of Appeals of Maryland held that the Maryland Underground Facilities Damage Prevention Authority enabling act does not violate the Judicial Vesting Clause of the Maryland Constitution or the Separation of Powers Clause of the Maryland Declaration of Rights.  Reliable Contracting Co. v. Md. Underground Facilities Damage Prevention Auth., 446 Md. 707, 729, 133 A.3d 1112, 1125 (2016).  The court also ruled that the Authority was a state agency based on the relationship between the Authority and the State of Maryland.  Id. at 729, 133 A.3d at 1124-1125.  As such, section 10-1001 of the State Government Article provides guidelines when assessing civil penalties.  Id.

     In February 2013, a local utility notified the Maryland Underground Facilities Damage Prevention Authority (the “Authority”) that Reliable Contracting Company (“Reliable”) began an excavation project without permission.  Reliable’s conduct was in violation of section 12-101 of the Public Utilities Article (“PU”), which establishes the one-call system.  As a result, Reliable caused damage to the local utility’s facilities.  On April 16, 2013, after an investigation, the Authority assessed a civil penalty of $2,000 for excavating without notifying the one-call system, and a $1,000 penalty that could be waived if Reliable completed training offered by the Authority.

Successive Post-Conviction petitions are not barred by the doctrine of Res Judicata or Maryland Rule 4-704; a petition for DNA testing will be denied if the evidentiary threshold for a wrongful conviction claim is not met.

By: Kayla M. DiNuccio

     The Court of Appeals of Maryland held that the doctrine of res judicata and Maryland Rule 4-704 do not bar successive DNA petitions.  Jackson v. State, 448 Md. 387, 406, 139 A.3d 976, 987 (2016).  The court further held that denying Jackson’s petition for DNA testing without a hearing under Maryland Rule 4-709 was proper, because none of his assertions would have produced exculpatory evidence.  Id. at 411, 139 A.3d at 990.

     In 1993, Steven Jackson (“Jackson”) entered an Alford plea to second-degree rape of Patricia M. in the Circuit Court for Baltimore County.  Jackson was sentenced to twenty years imprisonment with all but four years suspended and five years supervised probation.  In 1995, the balance of Jackson’s sentence was suspended and he was placed on probation.  While released on probation, Jackson was convicted of two additional counts of second-degree rape.

     Thereafter, Jackson filed numerous petitions for DNA testing pursuant to section 8-201(c) of the Criminal Procedure Article of the Maryland Code (“section 8-201(c)”) for the rape of Patricia M.  In 2005, Jackson filed his first petition for DNA testing, which was granted, but yielded inconclusive results.  In 2008, Jackson filed another petition, which was denied.  In 2009, Jackson filed a petition for post-conviction relief, which was denied.  In 2013, Jackson filed a fourth petition for DNA testing, which was again denied.  Jackson subsequently appealed the denial of the 2013 petition but later withdrew.

An applicant must satisfy the unwarranted hardship standard to be granted a variance; the variance must have no adverse impact on the environment and conform to the purpose of the critical area program.

By:  Michael Louis Brown

     The Court of Appeals of Maryland held that the Worchester County Board properly applied the “unwarranted hardship” standard and correctly granted a variance under local critical area law.  Assateague Coastal Trust, Inc. v. Schwalbach, 448 Md. 112, 140, 136 A.3d 866, 882 (2016).  The court held that the variance would not have an adverse impact on the environment and the development was in conformity with the Critical Area Program’s purpose and intent.  Schwalbach, 448 Md. at 143-44, 136 A.3d at 883.

     Roy T. Schwalbach (“Schwalbach”) owned waterfront property in a community where piers and boating were common.  In order to reach navigable water next to his property, Schwalbach sought a variance from a Worcester County ordinance that limited the length of piers to 100 feet.  The variance was granted by the Worcester County Board of Zoning Appeals (the “Board”).  In a written decision, the Board determined that Schwalbach would not be able to reach navigable water without the variance.  Furthermore, the Board noted that the environmental impact would be mitigated, because Schwalbach’s permits were issued under the condition that he would fulfill specific planting requirements.

A foreign limited liability company lacking compliance with state registration requirements may maintain suit after infirmity is cured; the company must also meet the “person aggrieved” requirements of standing.

By: Alicia M. Kuhns

     The Court of Appeals of Maryland held that a foreign limited liability company, though unregistered at the time of filing, could resolve its lack of compliance and maintain its action for judicial review.  A Guy Named Moe, LLC v. Chipotle Mexican Grill of Colo., LLC, 447 Md. 425, 447, 135 A.3d 492, 505 (2016).  The court further held that one does not have standing as a “person aggrieved” based solely on the desire to eliminate business competition.  Id. at 453, 135 A.3d at 508.

     A Guy Named Moe, LLC (“Moe”) and Chipotle Mexican Grill of Colorado, LLC (“Chipotle”) are two foreign limited liability companies that operate separate chain restaurants.  In 2012, Chipotle applied for a special exception to build a restaurant in Annapolis, Maryland.  The proposed location was approximately 425 feet from one of Moe’s established restaurants.  With approval from the Department of Planning and Zoning for the City of Annapolis, the City Board of Appeals (the “Board”) approved Chipotle’s application.

Maryland State Bank: The Responsible Solution for Fostering the Growth of Maryland’s Medical Cannabis

By: David Bronfein*

     In 2013, Maryland passed its initial medical cannabis law.[1]  Although seemingly a success in the medical cannabis reform movement, the law only allowed for “academic medical centers” to participate in the program.[2]  In essence, an academic medical center could dispense medical cannabis to patients who met the criteria for participation in their research program.[3]  The success of this type of program structure was a concern for medical cannabis advocates,[4] and the concerns were validated when no academic medical centers decided to participate.[5]  As a result of this lackluster program, the General Assembly responded by passing a bill[6] during the 2014 Regular Session to create a more inviting program, thereby making Maryland the 21st state to enact a comprehensive medical cannabis law.[7]  Under H.B. 881, the program was broadened to allow patients, physicians, growers, processors, and dispensaries to operate within a framework that would be set up by the Natalie M. LaPrade Medical Cannabis Commission (the “Commission”).[8]  The General Assembly further augmented Maryland’s medical cannabis law with the passage of H.B. 490.[9]   The purpose of this legislation, among other things, was to make access to the program easier for patients and physicians.[10]

     Maryland’s medical cannabis law tasks the Commission with the generation and promulgation of regulations that govern the medical cannabis program.[11]   When H.B. 881 was enacted, the law called for adoption of regulations by the Commission “on or before September 15, 2014,”[12] but, due to many administrative delays, the program’s regulations were not promulgated until September 14, 2015.[13]  After the governing regulations were completed, the Commission focused its energy on the creation of an application for which growers, processors, and dispensaries would apply for licensure into the program.[14]  These applications were released on September 28, 2015, and called for all interested parties to submit their applications no later than November 6, 2015.[15]  The fact that the Commission received 1,081 applications was a testament to the evolution of Maryland’s medical cannabis law and the inviting regulations promulgated by the Commission.[16]  More specifically, there were 146 applications for fifteen growers licenses,[17] 124 applications for fifteen processors licenses,[18] and 811 applications for 94 dispensary licenses.[19]

The Regression of “Good Faith” in Maryland Commercial Law

By: Lisa Sparks

“Good faith,” in the affirmative or as the absence of bad faith, has always been a challenge to define and judge as a matter of conduct, motive, or both.  Different tests apply a subjective standard, an objective standard, or even a combination of the two.  Some parties may be held to different expectations than others.  This determination of good faith has always been fact-driven and somewhat transcendental.  Until recently, however, the question invoked a construct of fairness, resting on a two-pronged metric, at least insofar as several key titles of the Maryland Uniform Commercial Code were concerned.  Since June 1, 2012, the various Maryland Uniform Commercial Code definitions of good faith have been stripped to the bare, subjective “honesty in fact.”[1]  The ramifications of this deviation from the Uniform Law Commission’s[2] promulgated Uniform Commercial Code (“UCC”) and decades of jurisprudence with consistency among most states have yet to unfold; the bench and bar are just discovering the change.  This comment explores how this occurred and what the potential consequences are and also recommends remediation of Maryland’s statutory language to conform to the UCC.

Baltimore Law Clubs: A Tradition Promoting the Integrity of the Bar through Scholarship and Congeniality

By: The Honorable Stuart R. Berger and Bryant S. Green

     Since before the civil war, lawyers and judges in Baltimore have had a tendency to organize informal, intimate, and exclusive clubs for the purpose of promoting congeniality and scholarship. Although this Anglo-American tradition traces back to as early as the sixteenth century, the institution of law clubs in the United States appears to have been a unique, local phenomenon until the 1960s and 1970s.  Today, this tradition continues in Baltimore City, which currently plays host to no fewer than eight individual law clubs, with many more existing throughout the state. These law clubs offer their members the opportunity to pursue scholarly endeavors while also providing a social outlet for members of the bench and bar alike. While the members of these organizations certainly realize the intrinsic benefits attendant membership, Baltimore’s law clubs also benefit the legal profession by promoting scholarship and congeniality.

In Conover Case, Court of Appeals Reinstates De Facto Parental Status in Maryland

By: Denise Blake

In July 2016, the Court of Appeals of Maryland decided Conover v. Conover, which held that Maryland courts should recognize de facto parent status for individuals who have assumed a parental role but lack a biological or adoptive relationship with their children.[1]  This holding provides legal standing for de facto parents to contest custody or visitation without being required to show parental unfitness of the biological or adoptive parent, or exceptional circumstances.[2]  This decision overruled the high court’s 2008 decision in Janice M. v. Margaret K., which abrogated de facto parent status as a legal status in Maryland.[3]

            Brittany and Michelle Conover were in a relationship for seven years when they decided to conceive a child via artificial insemination.[4] Brittany became pregnant and gave birth to a baby boy.[5]  Six months after their son Jaxon was born, Brittany and Michelle were legally married.[6]  However, after one year of marriage, they separated.[7]  In the months following the separation, Brittany allowed Michelle overnight and weekend visits with Jaxon.[8]  However, after almost a year of separation, Brittany abruptly terminated Michelle’s visitation with their son.[9] Almost eighteen months after separating, Brittany filed a divorce complaint in which she claimed that the parties had no children.[10]  Michelle filed an answer and a counter-complaint requesting visitation.[11]  Although Michelle was not biologically related to the child and had not legally adopted him, she had resided with her son during his early life, had a close relationship with him, and both parties had signed a handwritten joint custody agreement.[12]  The trial court ruled that Michelle was legally a third party and lacked standing to contest custody and visitation.[13]  The Court of Special Appeals affirmed.[14]

            Conover is significant for family law practitioners with LGBT clients because it reinstates the doctrine of de facto parental status that was established in S.F. v. M.D. in 2000 and abrogated by Janice M. v. Margaret K. in 2008.[15]  Janice M. was detrimental to LGBT parents seeking custody or visitation of a child to whom they were not related biologically or by adoption.[16]  In that case, the court held that de facto parents were third parties and had to overcome the rebuttable presumption that parental custody was in the child’s best interest by showing parental unfitness or exceptional circumstances.[17]  The court’s ruling in Conover acknowledges the important role of de facto parents in their children’s lives despite the lack of biological or legal parenthood, and recognizes that this type of strong parental relationship should not require a showing of parental unfitness or exceptional circumstances before determining whether custody or visitation with the de facto parent would be in the child’s best interests.



Denise A. Blake is a third-year day student at the University of Baltimolaw-forum-blog-photo-for-denise-blakere. She serves as a second-year Staff Editor of the UB Law Forum. Her legal interests include Family Law and Trusts and Estates. She earned a Master of Arts in Sociology from Tulane University. She can be reached at denise.blake@ubalt.edu. You can also visit her LinkedIn profile here.

 

2016 Law Changes Criminal Penalties for Certain Drug Related Offenses

By: Ashlyn Campos

The 2016 Legislative session passed numerous bills into law.  Senate Bill 1005 (“S.B. 1005”) was one that found permanence in the Maryland legal landscape.  S.B. 1005 was drafted on the recommendations of the Justice Reinvestment Coordinating Council (“JRCC”).[1]  This council was developed as a section of the Governor’s Office of Crime Control and Prevention.[2] The JRCC was created for the purpose of using a data-driven approach to develop a statewide policy framework of sentencing and corrections policies in order to reduce the State’s incarcerated population, reduce spending on corrections, and reinvest in strategies to increase public safety and reduce recidivism.[3]

Civil Liability for Adults Who Host

By Kayla DiNuccio

Previously, Maryland law did not recognize a cause of action for social host liability for adults or minors and only had criminal penalties imposing fines for furnishing alcohol to minors, or allowing minors to consume alcohol on their premises.[1]  Any person who violates Maryland’s drinking statute is “guilty of a misdemeanor and on conviction is subject to: (1) a fine not exceeding $2,500 for a first offense; or (2) a fine not exceeding $5,000 for a second or subsequent offense.”[2]  This meant even if an adult knowingly allowed minors to drink at their homes and one of those minors left and injured themselves or another, the adult could only face a small fine.[3]

Although there have been a number of cases that have raised the issue of whether social hosts should be civilly liable in Maryland, two cases have greatly impacted the law regarding social host civil liability.[4]  In Davis v. Stapf, an intoxicated minor got into the bed of a pickup truck driven by another intoxicated guest of the party and was killed on his way home.[5]  His mother, Nancy Davis, sought to hold the adult host, Ms. Staph, civilly liable because she was home, knew minors were drinking, and let them drive.[6]  Similarly, in Kiriakos v. Phillips, a minor, who was drinking at his friend Brandon Phillips’ house, an adult, left in the early hours and struck Manal Kiriakos while walking her dogs, causing life-threatening injuries.[7]  The Court of Special Appeals of Maryland denied relief to both parties, however, the Court of Appeals of Maryland granted their writs of certiorari.[8]

Decided together on July 5, 2016, Maryland’s highest court reversed and remanded both cases and held that adults who host underage parties can be civilly liable for injuries caused by or suffered by the intoxicated guest.[9]  The court held that because section 10-117 is founded on principles of public policy, adults who allow minors to drink on their property, who subsequently go on to injure themselves or others, may owe a civil duty to the persons injured.[10]  The court reasoned that underage drinkers cannot be solely responsible for their actions because they are unaware of the dangerous effects of drinking alcohol.[11]  This new form of limited social host liability adopted by Maryland is a huge step.  For years, courts have refused to recognize a cause of action for social host liability, reasoning that it was the minor’s intoxication that was the cause for any such injuries.[12]  Additionally, given its relatedness to dram shop laws, it will be interesting to see if Maryland changes those laws in the near future.


picKayla DiNuccio is a third-year day student at the University of Baltimore. She serves as a Staff Editor of the UB Law Forum. Her legal interests include Personal Injury Law, and Family Law. She can be reached at Kayla.DiNuccio@ubalt.edu or you could visit her LinkedIn.