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.



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.

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.