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.

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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.


Secret Police Surveillance over Baltimore City

By: Elizabeth Hays

For the past few months, the Baltimore Police Department, pressured to find a new way to reduce crime, conducted a secret aerial surveillance program over the city.[1]  The police recorded over 300 hours of surveillance, which covered approximately 32 square miles each flight.[2]  The Police commissioner and the mayor, Stephanie Rawlings-Blake, knew about the surveillance program from the beginning.[3]

           Maryland lawmakers and the American Civil Liberties Union (“ACLU”) are now considering legislation that would regulate police surveillance programs.[4]  The legislation would prevent the police department from acquiring new surveillance technology without public approval.[5]  Although the resolution on the cameras is too low to identify particular individuals, it can be used to track individuals and vehicles from crime scenes.[6]  The ACLU as well as other critics voiced concerns about possible Fourth Amendment violations.[7]  In fact, the footage from the plane was used to track down the suspects accused of killing two elderly siblings back in February.[8]   However, the police did not refer to the aerial surveillance in charging documents that were presented in court.[9]  Although this may be a benefit for law enforcement, citizens’ civil rights must be protected throughout this process.[10]  While the plane is not currently conducting surveillance, the police state that it might be used later during the Baltimore Running Festival in mid-October.[11] The future legislation regarding this matter could result in an impact on anything where the police have cameras that view the public, such as body cameras, CCTV cameras, or even dash cameras.[12]


unnamed-3Elizabeth 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

What’s That Smell You Ask? That’s Just My Fourth Amendment Rights

 

By: Jared Lerner

A sniff is considered a search, according to the Court of Appeals of Maryland.[1]  Maryland’s highest appellate court ruled in favor of Terrance Jamal Grant (“Grant”) when it determined that the sniff search of his vehicle, by a police officer, following a routine traffic stop violated his Fourth Amendment rights.[2]

At the suppression hearing, the Circuit Court for Frederick County found the following: Deputy First Class Chad Atkins (“Deputy Atkins”) observed Grant speeding and pulled him over;[3] from the video of the traffic stop, Deputy Atkins’ head appeared to have breached the windowpane into Grant’s car;[4] and it was unclear from the video and Deputy Atkins’ testimony as to when he smelled the odor of marijuana.[5]  The trial court denied the suppression motion,[6] and Grant appealed to the Court of Special Appeals of Maryland,[7] which determined, under a totality of the circumstances standard, that the stop and search were reasonable.[8]

The standard of review of a circuit court’s denial of a motion to suppress is limited to the record of the suppression hearing, and facts are considered in the light most favorable of the prevailing party, the State.[9]  However, constitutional challenges to a search or seizure are reviewed de novo, and factual findings of the circuit court will not be disturbed unless they are clearly erroneous.[10]

The Court of Appeals determined the initial stop, due to Grant’s speeding, and detention to be constitutional,[11] but the case depended on when Deputy Atkins detected the odor of marijuana – before or after he breached the windowpane.[12]  The court provided a detailed Fourth Amendment analysis,[13] culminating with a finding that Grant’s vehicle was protected from illegal searches and seizures.[14]  Next, the court determined that Deputy Atkins conducted a search when he “inserted his head into the constitutionally-protected area of [Grant’s] vehicle” without a warrant or other justification.[15]  It explained that there were no exigent circumstances that made the warrantless search reasonable.[16]

The court determined that the exclusionary rule applied since it was unclear when Deputy Atkins observed the odor of marijuana.[17]  The State failed to meet its burden of proof by failing to show that Deputy Atkins discovered the odor of marijuana prior to breaching the windowpane.[18]  Thus, the Court of Appeals determined that the circuit court erred in denying Grant’s suppression motion.[19]

Maryland attorneys should take note of the circumstances surrounding the Grant case.  In suppression hearings for evidence obtained as a result of the detection of marijuana, it is important to identify the exact moment that the searching officer identified the odor in the car.  The State must meet its burden of proof with a showing that the searching officer detected the odor of marijuana before breaching the windowpane of the defendant’s car.  Without such a showing, the evidence obtained as a result of the search should be excluded.


unnamed-1Jared 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.

The Criminalization of Juveniles within the Confines of the Baltimore City Public School System

 

 By: Pascale Cadelien

            In 2008, although blacks and Hispanics comprise about 25% of the United States population, they accounted for 58% of all prisoners.[1] The disproportionate number of minorities who are imprisoned results from intersectionality, or the codependency of social identifiers, such as race, gender, and class, in the systemic perpetuation of discrimination.[2] In Baltimore, the problem of intersectionality made national headlines following Mayor Stephanie Rawlings-Blake’s request that the Department of Justice (“DOJ”) conduct an investigation into the city’s police force.[3] In its August 10, 2016 report, the DOJ described the Baltimore Police Department’s (“BPD”) pattern of performing unconstitutional searches, abusing individuals’ civil rights, and failing to hold cops accountable for their misconduct.[4]

Aside from underscoring that Baltimore has a long way to go in fixing its police-citizen interactions, the DOJ report also raised the troubling concern of how the BPD’s presence in Baltimore City public schools significantly perpetuates the school to prison pipeline.[5] According to the Maryland Department of Juvenile Services, in 2015, at least 3,390 juveniles were arrested in Baltimore, the majority of which were black.[6] Of those arrests, 427 occurred in school.[7] At 45%, this majority black school district, which comprises only 10% of the State’s primary education population, disproportionately accounts for Maryland’s school arrests.[8] Even more alarming, is that these juveniles who are being arrested are not “hardened criminals.”[9] Research of 400 school-based arrests in the 2013 and 2014 academic years established that 75% of kids arrested in city public schools either had their charges dismissed or were found not guilty.[10]

Examining the origin of the policing of Baltimore City public schools illustrates how this system has persisted. In 1967, the legislature’s creation of a school security division coincided with the newly-elected mayor, Thomas D’Alesandro III’s, school integration plan.[11] Around this time, the black-student population in city schools increased while the city maintained its pre-integration districts.[12]  In 1984, the school security division transitioned to an official police force as the crack epidemic made its way through Baltimore.[13] Finally, in the 1990s, the legislature enacted a bill that enabled city schools’ security to have the same functions as standard police officers.[14]

As this piece demonstrates, there are grave consequences when intersectionality fulfills its purpose of systemic discrimination. Communities become broken and children, the most vulnerable, get caught in the crosshairs.


Pascale Cadelien is a third-year day student from Prince George’s County interested in criminal defense. This spring, through the Criminal Practice Clinic, she is gaining litigation experience as student-attorney. Pascale is also a Staff Editor on UB’s Law Forum. Prior to joining UB, she attended Salisbury University on the eastern shore.  In 2013, she graduated cum laude with a B.A. in English and as a member of the English Honors Society.  Pascale can be reached at pascale.cadelien@ubalt.edu.