Important Maryland Cases: Coleman v. Soccer Association of Columbia

The Court of Appeals reaffirmed Maryland’s long-standing doctrine of contributory negligence in Coleman v. Soccer Association of Columbia. Judge Eldridge wrote for the majority, while Judge Green concurred separately with three other members of the Court joining, affirming the capacity but not the wisdom of the Court’s alteration of Maryland law on this point. Judge Harrell, with Chief Judge Bell joining, wrote a strong and lengthy dissent critiquing the doctrine as perhaps the last of the dinosaurs not killed by an asteroid or other extinction event 65 million years ago.

Coleman was a soccer player who, after kicking a goal, reached up to grab the crossbar of the goal which had been inadequately anchored; the grab pulled the crossbar down onto Coleman’s face, resulting in severe injuries. The jury found factually that both the Soccer Association and Coleman had contributed negligently to the injuries that he sustained, which finding barred any recovery under Maryland’s contributory negligence doctrine.

Judge Eldridge’s 15-page majority opinion held that for the Court to exercise its power to change the common law of Maryland would be “inconsistent with the Court’s long-standing jurisprudence.” The 4-page concurrence took a slightly softer take on the issue, holding that the Court had the power to change common-law legal doctrines, had done so previously and that there was merit to preferring comparative negligence over contributory negligence. The concurrence noted, however, that it was better merely to encourage the General Assembly to consider the changes rather than to force the General Assembly to take action in response to an alteration of Maryland law, and that a change from contributory negligence would have practical effects on other tort doctrines and statutes best analyzed by the General Assembly.

Judge Harrell’s 51-page dissent explicitly stated that it was speaking not to the majority opinion in dialogue but into the future to provide guidance to a later composition of a Court of Appeals that would in fact overturn the contributory negligence doctrine, relegating it to a “tar pit” of judicial paleontology. The opinion makes a strong case for “pure comparative fault” as the preferred doctrine, by which even a mostly culpable tort plaintiff may make a claim for partial recovery for some damages. The dissent provides an exhaustive analysis of the Maryland General Assembly’s efforts to reconsider comparative fault and the judicial and legislative acts of other states in adopting comparative fault.

At present, Maryland, Virginia, North Carolina, Alabama and the District of Columbia are the only jurisdictions that maintain the contributory negligence doctrine. Conservative, pro-business states like New Hampshire, Texas, Utah and Alaska have rejected it. I often joke that in many ways Maryland is “England junior”, holding more firmly than most states to the common law as a right and entitlement of the inhabitants of Maryland (Md. Dec. of Rights Art. 5(a)(1).) Notwithstanding the dissent, Maryland’s courts have not been quick to change the common law. This case reinforces that observation. One suspects, however, that the next General Assembly will have a lot to consider from Judge Harrell’s lengthy dissent.

Important Maryland Cases: Martens Chevrolet v. Seney (1982)

In Martens Chevrolet v. Seney, 292 Md. 328 (1982)the Court of Appeals affirmed the existence of a tort of negligent misrepresentation in Maryland separate from the tort of fraud/deceit.

The Court interpreted the record in the light most favorable to the plaintiffs in rendering its ruling, since the trial court entered on the count of negligent misrepresentation a directed verdict at trial.  In the Court’s factual summary, would-be buyers of a car dealership received from the sellers an informal financial statement to the effect that the dealership was mildly profitable and, believing that they could make a weak but technically profitable business better, agreed to purchase and ultimately purchased the dealership.  The sellers’ accountants had prepared more rigorous financial statements that showed very substantial losses, but the sellers did not provide those statements to the buyers nor any notice of their existence.  Upon learning of the true financial position of the dealership. the plaintiffs sued for inter alia deceit and negligent misrepresentation.

The Court noted that at common law, no tort of negligent misrepresentation existed; one needed to prove outright fraud or deceit in order to prevail.  In 1938, the Court of Appeals did recognize a tort of negligent misrepresentation in cases where there was a physical injury, but by implication the holding in that case, Virginia Dare Stores v. Schuman, 175 Md. 287 (1938), was limited to physical injury.  The Court allowed for pecuniary losses from negligent misrepresentation in the 1960s, but expressed some reason for doubt regarding the viability of that tort in a prior case Delmarva Drill Co. v. Tuckahoe Shopping Center, 268 Md. 417 (1973).  In this case, the Court overruled Tuckahoe to the extent that it appeared to eliminate the tort of negligent misrepresentation.

The Court proceeded to state the elements of the tort of negligent misrepresentation:

(1) the defendant, owing a duty of care to the plaintiff, negligently asserts a false statement;

(2) the defendant intends that his statement will be acted upon by the plaintiff;

(3) the defendant has knowledge that the plaintiff will probably rely on the statement, which, if erroneous, will cause loss or injury;

(4) the plaintiff, justifiably, takes action in reliance on the statement; and

(5) the plaintiff suffers damage proximately caused by the defendant’s negligence.

and emphasized that it was permissible to plead both deceit and negligent misrepresentation in the same pleading under the Maryland Rules. The Court ruled that the Circuit Court erred in entering a directed verdict on the negligent misrepresentation tort against the plaintiffs, in that the evidentiary record was sufficient to allow a jury to find in favor of the plaintiffs and that the tort did indeed exist in this State.  The Court also entered rulings on more collateral evidentiary issues in the case on remand.

This case matters for four reasons. First, it represents the development of Maryland common law in derogation of, or supplement to, the common law of England as it stood on Independence Day 1776, which law is until changed by statute or ruling an entitlement of the people of Maryland.  Second, it represents an effort by the Court to reverse a (mis?)interpretation of its fairly recent prior precedent.  Third, it moves the public policy of Maryland away from the overall rule of caveat emptor to a rule mandating the same sorts of duties of reasonably prudent care in speech inducing reliance that we apply in the most of the rest of human endeavors.  Finally, it does a nice job (as the Court of Appeals often does in its “signaling” cases) of providing to the law student or practitioner a concise black-letter law kernel for pleadings and practice going forward.

Important Maryland Cases: State v. Werkheiser

The Court of Appeals of Maryland decided in State v. Werkheiser, 299 Md. 529 (1984), that the failure by the police to administer an alcohol test properly as mandated by statute in a drunk driving case did not mandate the dismissal of the charges, but did justify to the motorist a favorable inference about what the results would have been.

In Werkheiser, the office responding to a one-car accident did not direct a qualified medical person to administer to the unconscious driver/defendant a blood alcohol test as required by Maryland statute.  At trial in Queen Anne’s County, the presiding judge dismissed the charges, holding that the State had denied the defendant due process by violating its own mandatory requirements.  On appeal to the Court of Special Appeals, the Court of Appeals (Maryland’s highest court, for visitors to this site from out-of-state) intervened and took the case.

The Court noted that the mandatory language of the blood alcohol test statute did not provide a remedy in the event of a breach of the statute, and looked to the intent and purpose of the statute overall in determining a remedy.  The Court noted that the purpose of the statute was to facilitate the prosecution of drunk driving charges and the protection of the public, and that no provision of the law made administering the test a prerequisite of any prosecution.  It noted further that the General Assembly provided for the exclusion from evidence at a drunk driving trial of a refusal to take a breath test and of the results of a preliminary breath test (PBT) administered in the field, drawing from those provisions that had the General Assembly wanted to preclude prosecutions when a blood alcohol test was not administered properly, it could have done so and did in fact make similar provisions in other areas of criminal law.

The Court cited with approval a Colorado case that noted that “the State must not suppress evidence, but it need not gather evidence for the accused.”  The Court indicated that the best remedy was a favorable inference to the defendant regarding what the result of the test might have been had it been administered properly, to be weighed with all other evidence including the intention of the law enforcement officer who failed to administer the test.  The Court noted that other provisions of the law did not bar the introduction of other evidence when a alcohol test result was introduced, and that it was logical not to bar other evidence when such a test was not introduced.  Reversing the dismissal. the Court of Appeals remanded the matter for trial back to the Queen Anne’s County Circuit Court.

This case has practical applications for the more common DUI alcohol breath test.  If an officer fails to offer a breath test, or induces a motorist per State v. Forman into refusing the test through a deviation from the DR-15 Advice of Rights “script”, Werkheiser may allow a favorable inference.  There is no constitutional right of a defendant to a breath test or a breath test result.  Werkheiser should be read in harmony with State v. Forman (inducement by an officer deviation from the DR-15 “script” may result in a “no action” at a license suspension hearing) and Brosan v. Cochran (defendant has a right to counsel, though not a right to be notified of that right, before deciding to take or not to take the breath test.)  Case notes on these two cases will appear later in this Important Maryland Cases series on this blog.

Important Maryland Cases: Fellner v. Bar Association of Baltimore City

Newer Maryland attorneys, this is the case to which the “old-timers” in your office may reference as the “slug” case. Every Maryland attorney needs to know this case.

In Fellner v. Bar Association of Baltimore City, 213 Md. 243 (1957), the Court of Appeals disbarred an attorney based upon proof that he had employed slugs as a means of stealing parking meter time from the City of Baltimore in a municipal lot. Fellner stands for two main propositions valid to this day:

1)  that a criminal conviction for conduct prejudicial to the administration of justice is not necessary to disbar an attorney for that conduct; and

2) even relatively small thefts or misappropriations of money or benefits/services valued in money may result in disbarment.

In Maryland, prosecutions of attorney discipline cases now occur before the Maryland Court of Appeals after a substantial administrative process before the Attorney Grievance Commission.  The Court of Appeals generally delegates the conduct of an evidentiary hearing to a Circuit Court.  Bar Counsel exists as a state agency.  These facts were not the case in 1957; at that time, local Bar Associations had standing to prosecute attorney discipline cases before courts of general jurisdiction.  Those courts would make not only findings of fact but also specific recommendations of discipline including disbarment in certain cases; the Court of Appeals would review the proceedings and the recommendations.

In Fellner, the Supreme Bench of Baltimore City (equivalent to a Circuit Court elsewhere in the State and today named the Circuit Court for Baltimore City) made a factual finding that Fellner had used slugs as a means of stealing parking time.  While the evidence was not absolutely clear, the logical conclusion based on the operation of the parking meter was that the last coin into the meter was a valid nickel, visible through an window on the meter known as a “Scotch Eye“, but that the motorist had used quarter-sized slugs to obtain parking time.  The meters charged 5 cents per hour; two quarter-sized slugs followed by a valid nickel would cost only 5 cents for 10 hours of parking (plus the price of the slugs, whose value was not determined.

Upon investigation of several slug incidents at the meter, motorist and attorney Fellner was arrested and the vehicle in question was registered to Fellner’s wife.  (The opinion did not identify the opinion of either Mr. or Mrs. Fellner.)  Mr. Fellner was charged with a violation of the Maryland Annotated Code, Art. 27 (the old Criminal Law article before recodification), section 74.  At the time, the articles and sections of the Annotated Code of Maryland were often numbered in alphabetical order, i.e. attorneys were covered in article 10, while crimes were covered in article 27, etc.  Apparently, this method did not appear self-evidently insane to prior General Assemblies of Maryland.  Most numbered articles have been recodified into topical articles, i.e. Criminal Law article, Transportation article, etc.  It is unclear from at-hand resources what precise crime section 74 defined, though I’d be grateful for any “old-timers” with a still-intact Article 27 who can so advise; I do not believe that it was theft/larceny itself but another crime.

Regardless, Fellner did not admit to the crime and was not convicted thereof either, but instead pled nolo contendere, certainly not the last Marylander to attempt that plea with mixed success.  Maryland law at the time provided for disbarment upon a conviction of a crime of moral turpitude.  The Court of Appeals noted, however, that it was not upon the court disposition itself but rather the testimony of the same witnesses in the disciplinary proceeding that supported a finding of conduct “prejudicial to the administration of justice” which phrase later became incorporated into Maryland Rule of Professional Conduct 8.4(d) (cognate to the ABA Model Rule.)  It was not the nolo contendere plea but the actual evidence itself that demonstrated conduct prejudicial.

In today’s misconduct rule 8.4, conduct that involves deception or deceit is misconduct even if it does not involve prejudice to the administration of justice, per se.  The Court of Appeals has, however, interpreted a number of forms of conduct as prejudicial to the administration of justice even if that conduct does not implicate either deceit or the court system itself, such as willful failure to file federal income tax returns.

Back to Fellner.  The Court also addressed the point regarding the arguably trivial size of the amount of damage to the Mayor and City Council of Baltimore and the severity of the sanction, namely disbarment.  Citing its prior Meyerson decision, the Court of Appeals reaffirmed that no “… moral character qualification for Bar membership’ is more important than truthfulness and candor.”  The Court noted that Mr. Fellner gave a fictitious name to law enforcement and denied in his disciplinary pleadings any involvement in the offense up through the disciplinary proceeds themselves, but was found with a bag of slugs inside the car in question.  Fellner refused to take the stand in the disciplinary hearing, however, a fact that the Court of Appeals noted as adverse to his disciplinary case since, unlike in a criminal proceeding, an attorney-respondent has no right to practice law or to remain silent within the attorney disciplinary context.  Finding the recommendation of the Supreme Bench well-reasoned and amply justified by precedent and evidence, the Court of Appeals disbarred Fellner.

This case is fairly well known as the “slug case” but Mr. Fellner’s bad acts included more than just stealing parking time with one 25 cent slug; he lied to the police, formed an apparent scheme by which to continue to steal parking time and refused to take the stand in his own defense at the disciplinary proceeding even after the Court had accepted a nolo contendere plea in his criminal case.  Fellner is still good law and the Court of Appeals has cited it many times even in recent decades (you can Shepardize the case to confirm this.)  The triviality of the size of the theft – literally mere coins’ value of parking time – did not in any way mitigate the wrongful character of the attorney’s acts.

If you have a law license, and especially if you supervise other attorneys’ conduct, you should read Fellner as, despite major procedural changes since 1957, it is still good law in this State.

Important Maryland Cases: Owens-Illinois, Inc. et al., v Zenobia, et al., 325 Md. 420 (1992)

In Owens-Illinois, Inc., et al., v. Zenobia, et al.,  325 Md. 420 (1992), the Maryland Court of Appeals enunciated a “malice” standard for punitive damages in Maryland.

Plaintiffs Zenobia and Dickerson in the original cases were victims of asbestos exposure and sued several defendants who produced, supplied or installed products containing asbestos.  At trial, the only theory of liability was strict liability. The jury awarded both compensatory damages against five defendants for Dickerson and four defendants for Zenobia and awarded further punitive damages against three defendants in favor of Dickerson and against two Defendants in favor of Zenobia. Pursuant to a stipulation, all defendants were considered to have cross-claimed against each other,  and one defendant with whom Plaintiffs had struck a settlement found itself in bankruptcy.  The procedural posture of these cross-claim awards is relevant to the case but not to the ultimate precedential value of this case as a major Maryland case.

On appeal by the five of the Defendants to the Court of Special Appeals, that Court upheld all of the compensatory damage awards but did reverse the punitive damages against one defendant only, Porter-Hayden Co.  Zenobia and Dickerson cross-appealed

Owens-Illinois, Inc, Porter-Hayden Co. and defendant MCIC petitioned the Court of Appeals for certiorari on several issues involving improper jury instructions on duties to warn, improper admission of deposition evidence and, in the case of Owens-Illinois, the propriety the punitive damage award.  Zenobia and Dickerson filed conditional cross-petitions for certiorari on the issues of contribution and indemnification among the Defendants, issues that they had raised before the Court of Special Appeals; the petitions were conditional upon the granting of the prior certiorari petitions.  In response to Zenobia’s and Dickerson’s conditional cross-petitions, Anchor Packing Co. then filed a petition for certiorari on four issues.

Confused yet?  The Court of Appeals granted all petitions for certiorari.

The Court’s opinion addressed issues involving the admission of deposition testimony and the denial of a motion for a new trial in its first three sections, but those issues do not constitute the primary precedential value of the case i.e. what makes this case a “Important Maryland Case.”  In section IV of the opinion, the Court engaged in a lengthy discussion of the standards for punitive damages in a strict liability products liability case, with the intent to examine the characterization of a trial defendant’s conduct in such cases, define precisely the standard which in a non-intentional tort case may give rise to punitive damages and in fact to heighten that standard.

The court discussed and, for non-intentional tort purpose, ultimately dismissed the “Testerman-Wedeman” standard, named after two prior cases.  In those cases, the Court of Appeals had ruled that in the context of a contractual relationship, conduct occurring before the formation of a contractual relationship could give rise to punitive damages on a finding of “implied malice”, i.e. wanton or reckless disregard, whereas under that prior standard punitive damages for conduct occurring after the formation of a contractual relationship could lie only on a showing of “actual malice,” that is, “evil motive, intent to injure, fraud, or actual knowledge of the defective nature of the products coupled with a deliberate disregard of the consequences.”  The Court of Appeals explicitly abandoned that rule in this case because the purpose of punitive damages is to punish heinous conduct by a defendant, regardless of when that heinous conduct occurred.

The Court proceeded to examine the historical standard of “actual malice” for punitive damages, noting that in one 1972 case involving a motor vehicle accident the Court had allowed punitive damages upon a showing of mere implied malice, i.e. gross negligence, but warned in that case against the broader application of a more liberal standard.  Notwithstanding the limitation warning, a number of subsequent cases in Maryland relied on Smith v. Gray Concrete Pipe Co., 267 Md. 149 (1972), more liberal standard outside of motor vehicle cases.  The Court proceeded explicitly to overrule Smith upon a review of the policy arguments against the inconsistent results that had occurred in facts with similar cases and after examining how Maine’s Supreme Court had recently modified its implied malice standard in similar cases.

The Court proceeded to note that in a products liability case, it is difficult to show “actual malice” by a manufactureras previously defined as evil intent, intent to injure, ill will, or fraud.  The Court then stated that actual knowledge of a defect and associated danger connected therewith, and a conscious or deliberate disregard of that danger to consumers, together constituted the product liability standard for “actual malice.” The Court emphasized that mere constructive knowledge or “substantial knowledge” are not enough to meet this standard.  The Court stated further that a punitive damages claim was possible from a strict liability or negligence-based tort theory, if the facts otherwise met the punitive damages standard.  Perhaps most significantly, the Court followed the reasoning of several other U.S. courts in applying a heightened standard of “clear and convincing evidence” to any tort claim for punitive damages, reflecting their penal nature and potential for debilitating harm.

The Court noted that its change of the evidentiary standard for punitive damages was a change to the common law within the Court’s constitutional jurisdiction, and would apply prospectively to all trial started from that day forward.  On the other hand, the Court deemed its overturning of Smith and the Testerman-Wedeman standard not to be a change to the common law but rather an overruling of decisions that were decided erroneously, and therefore the law would apply retroactively to any case where the issue had been properly preserved for appeal.  The Court remanded the plaintiffs’ claims back for a new trial under the narrowed legal standard and the heightened evidentiary burden, to the extent applicable under the evidence presented by all parties that the new trial.

Judges McAuliffe and Bell (the latter later Chief Judge) issued separate opinions.  Judge McAuliffe concurred in the result of the majority opinion but urged that in cases where a defendant met a standard of depraved indifference short of “intent” which could satisfy the “malice” standard for common-law murder, punitive damages should be at least theoretically available since in both cases the intent of the law was to punish.  Judge Bell concurred with the majority in the overruling of Smith and the Testerman-Wedeman doctrine but dissented strongly as to the raising of the standard for punitive damages to “actual malice”:

“In cases where there is no actual malice, the totality of the circumstances may reveal conduct on the part of a defendant that is just as heinous as the conduct motivated by that actual malice and, so, for all intents and purposes is the same.”

Zenobia‘s influence on tort law in Maryland has been rather strong.  One year after Zenobia, the Court of Appeals went on to hold in Komornik v. Sparks (which this Important Maryland Cases series will cover at a later date) that even in cases involving drunk driving – which criminal courts can punish with incarceration – punitive damages cannot lie in the absence of a finding of actual malice.  A cautious person may ask: if a court can punish a wrongdoer with punitive jail to prevent a harm, why not with punitive civil damages that go to an actual human victim of the conduct which the criminal statute seeks to deter, restrain and punish?  Regardless of one’s opinion of the opinion, Zenobia is a mandatory read for any Maryland tort litigator and definitely qualifies as one of the most Important Maryland Cases.

Important Maryland Cases: Diehl v. State 294 Md. 466 (1982)

Important Note: The Law Office of Bruce Godfrey takes no position as to the legal, political or social merits of recent “occupy” political demonstrations such as “OccupyBaltimore” or “OccupyWallStreet,” and is not a participant in such demonstrations. The purpose of this post is to discuss law that may be relevant to such news events.  Also, this post contains a professional discussion of language laws and First Amendment obscenity/indecency that is not suitable for most workplaces; you are hereby WARNED of the NSFW character of this article.

In Maryland, one has a clear right to resist an illegal arrest and to shout the word “Fuck” at an officer who is attempting to conduct such an illegal arrest. In a 4-3 decision that has been cited by a number of other courts, the Maryland Court of Appeals held in Diehl v. State, 294 Md. 466 (1982), that the word “fuck” used as an expression of dissent towards illegal conduct did not constitute disorderly conduct and could not be prosecuted at all absent compelling circumstances.

In Diehl, the Defendant was exiting a stopped car when an officer ordered him back into the vehicle.  The Defendant refused, stating that he knew his rights and had the right to leave the scene on foot.  The officer, Chief Gavin, told Diehl that he would be arrested if he did not re-enter the vehicle; Diehl responded with the phrase ultimately at issue in the case, “Fuck you, Gavin.”

The Court of Appeals held that such a phrase could not be prosecuted in itself as a violation of the Maryland disturbing the peace statute, which prohibited “willfully disturb[ing] any neighborhood …. with loud and unseemly noises” or “profanely curs[ing] and swear[ing] or us[ing] obscene language in any neighborhood.” As a matter of statutory construction, the Court of Appeals held that Diehl’s word did not willfully disturb anyone and did not constitute “loud or unseemly noises” since Diehl’s words were clearly communicative speech rather than mere “noises.” Similarly, Diehl’s words were deemed not “profane” in the sense of religiously blasphemous nor “obscene” as defined under Supreme Court obscenity insofar as “Fuck” here expresses anger or indignation rather than erotic interest. Accordingly, there was no basis whatsoever for finding that “Fuck you, Gavin” violated the disturbing the peace statute.

The Court further held that the Diehl’s words did not constitute a provocation to Gavin himself to breach the peace. After reviewing Supreme Court jurisprudence on “fighting words” the Court of Appeals held that Diehl’s use of “Fuck you, Gavin” did not constitute the sort of abusive epithet prohibited as “fighting words” but merely constituted an objection to a meritless order not to leave an automobile under threat of arrest, which the Court noted was an illegal threat given a lack of probable cause for any crime by Diehl.

From the opinion:

“We conclude, therefore, that where, as here, a person is acting in a lawful manner (a passenger getting out of a stopped car) and is the object of an unlawful police order, it is not usually a criminal violation for such person to verbally protest a police officer’s insistence upon submission to such an order.”

Diehl at 479.  The Court of Appeals went on to note that the charge of resisting arrest lacked merit as a matter of law under established precedent, since under Maryland law one had a clear right to resist an unlawful arrest by reasonable force and no probable cause existed for any arrest.

I am not certain that a content-based restriction on “blasphemous” references to the Deity or religious object would survive First Amendment scrutiny.  In many predominantly Catholic parts of the world, religiously-themed vulgarities predominate over sexual and excretory ones.  The word “calisse” (literally meaning “chalice”) and the much stronger “tabernac” (“tabernacle”) are so commonly used as a vulgarity in Quebec that some Catholic bishops actually took out ads explaining that “calisse” and other similar terms referred to Catholic liturgical equipment and concepts and were not merely a curse word.  In Bavaria one can still hear “Sakrament” as a strong oath.  Words like “fuck” and “cunt” which are truly severe in American English are not as shocking among, say, Francophone Quebecers or Irish speakers of English.  I am not a scholar of the right to curse or to blaspheme in America or in Maryland, but would be skeptical that the use of “blasphemy” conveying even the slightest substantive content could be prosecuted.

As for those who would be participating in any “occupy” events, there is a lot to consider. One has some protection of your right to express yourself with vulgarities, if it’s really necessary (and wise?)  One has the right to resist an illegal arrest; that is well-established, though an arrestee might have to win a few appeals to get that right upheld.  And, not to put to fine a point on it, the Chief Judge of the highest court in this state was arrested for political activism at age 16 in lunch-counter sit-ins for civil rights.  Whether any participant in any demonstration wants to spend a few years talking with trial and appellate lawyers – that’s a tougher question.

(None of this constitutes legal advice or creates a lawyer-client relationship with ANYONE – this is mere political commentary.)

Important Maryland Cases: State v. Atkinson, 331 Md. 199 (1993)

Boyce Atkinson was charged with driving while intoxicated in Harford County.  His attorney at trial agreed to with the State to a not guilty statement of facts, recounting that Mr. Atkinson was found slumped over in the driver’s seat with the keys in the ignition and engine off.  Upon being awakened by the officer, Mr. Atkinson emitted a strong, also described as “very strong” odor of an alcoholic beverage.  Per the statement of facts, Mr. Atkinson  declined the officer’s request to perform a field sobriety test and was thereupon arrested.  Mr. Atkinson refused field sobriety tests at the emergency room and was taken back to the station.

Mr. Atkinson was convicted by the trial court upon these facts and was sentenced to 15 days of live time in jail and was fined.  His attorney filed an appeal to the Court of Special Appeals; the Court of Appeals intercepted the case on its own certiorari motion.

The issue considered on appeal was whether the evidence presented proved, to the sufficient standard of proof, that Mr. Atkinson was in “actual physical control of the vehicle” under § 11-114 of the Md. Ann. Code, Transportation article, which definition § 21-902 of that article incorporated in its definition of “drive” for “driving while intoxicated.” Insufficient evidence, per the Court, appeared in the record to the effect that Mr. Atkinson committed actions fairly described by the circular term “drive” or the terms “operate” or “move” included within the statutory definition of “drive” under § 11-114; only the fourth definition of “drive,” being in “actual physical control of the vehicle,” might apply.

The Court discussed prior precedent that had not specifically addressed the issue of what behavior might constitute being in “actual physical control,” due to a charging defect in that prior case’s charging document, and another precedent where circumstantial evidence allowed a finding that the drunk motorist’s vehicle – with the engine off but hot, the lights on and the gear shift in drive – had in fact been operated very recently while the motorist was still drunk.  Accordingly, the court found that that case was no guidance to the question of when a motorist was in “actual physical control” of a vehicle, since that four definition was not needed for the conviction of that motorist.

The Court discussed how a number of other states defined similar language in their drunk driving statutes, noting diverse definitions.  Some seem to be motivated by a policy of deterrence and defined the term very broadly.  The Court rejected this approach, finding that to convict those who merely sat in the driver’s seat in possession of ignition keys would effectively create a new crime that the General Assembly of Maryland did not create.  From the decision, “We do not believe the legislature meant to forbid those intoxicated individuals who emerge from a tavern at closing time on a cold winter night from merely entering their vehicles to seek shelter while they sleep off the effects of alcohol.”

The Court rejected the approach of Arizona’s highest court, which allowed for motorists who were already intoxicated to pull over and sleep off a drunk without fear of reprisal, noting that that approach might encourage drunk drivers to test their skills first before deciding to pull over.  The Court noted that a number of factors may influence whether a motorist is considered in “actual physical control,” including:

1) whether or not the vehicle’s engine is running, or the ignition on;

2) where and in what position the person is found in the vehicle;

3) whether the person is awake or asleep;

4) where the vehicle’s ignition key is located;

5) whether the vehicle’s headlights are on;

6) whether the vehicle is located in the roadway or is legally parked.

The Court concluded that there was not evidence beyond a reasonable doubt that Mr. Atkinson was in actual physical control of his vehicle, and on that basis reversed the conviction. The Court warned, however, that its decision was not an invitation to motorists under the influence to test their luck on the roads and sleep off a night of drinking, and that evidence that the vehicle already had been operated, moved or driven while the motorist was already intoxicated could still lead to a conviction.

In my view, this decision is a fair reading of the statute involved and the balancing test is wise. Nonetheless, I think that there should be a public policy in favor of mitigating the DWI penalty when motorists who conclude that they actually had one too many pull off the road and shut the vehicle down, and it’s better to pull oversooner than to try to make it to the next exit, find a motel or all-night diner and exit the vehicle once the motorist has reached that unfortunate conclusion. If the motorist is tipsy, do we want her off the road here and now, or later three miles down the road at the Motel 6? I’d favor allowing such drivers to face a fine only, or a nominal jail sentence of 1-2 days, not because drunk driving is mild but because stopping drunk driving is important. I suspect that a decent number of drivers conclude only after they start driving that between their BAC and their fatigue, they should be off the road; they should be encouraged to pull over soonest with mitigated criminal exposure.

That opinion stated, it is something for a legislature to consider, not an appellate court, though a trial court may and must consider the overall conduct of a motorist when it imposes any sentence and attempting to mitigate the effects of a bad choice certainly merits a mitigated sentence.

Important Maryland Cases: State v. Hicks, 285 Md. 310 (1979)

This post is one of a series addressing major cases in Maryland’s appellate courts that, in the author’s view, every Maryland practitioner of law should now.

Few criminal cases in Maryland have had the practical impact for prosecutors and for defense counsel that State v. Hicks, 285 Md. 310 (1979) has had since that decision over 30 years ago.  Every criminal defense attorney and every prosecutor should know its holding by heart, even those that don’t practice primarily in Circuit Court, the primary forum affected by the holding of Hicks affirming the State’s administrative duty to bring a defendant to trial with the mandated timeframe and a severe remedy for violations of that requirement.

Harley Hicks was in 1978 serving jail time in Delaware and was brought to Wicomico County for trial on charges and was found guilty on those charges, and was sentenced to time to run consecutive to his Delaware sentence.  While awaiting return to Delaware, the State filed yet additional charged against Hicks through an eight-count indictment.  Shortly after the filing, Hicks was returned to Delaware to serve out the rest of his Delaware term; the Public Defender entered his appearance on April 24, 1978 for Hicks and the clerk set a trial date for August 8, 1978after the P.D.’s entry of appearance.

At the trial date, the State requested a postponement on the grounds that the Defendant was in Delaware, not Maryland, and that the trial could not proceed.  The Circuit Court granted that postponement.  On August 25, 1978, the Public Defender moved to dismiss the indictment on the grounds that the 120-day rule set by statute and court rule was mandatory and only “extraordinary” cause per the rule could justify a postponement, which cause was allegedly not present.  The Circuit Court agreed and dismissed the indictment.

The Court of Appeals noted that it had previously viewed the statute setting the 120-day trial date as merely “directory,” i.e. not mandatory, since the General Assembly had not mandated the dismissal of charging documents violating the 120-day rule by explicit language.  The Court noted that it had passed court rule 746 establishing the same timeline as the General Assembly had set, but that the court’s rule was in fact mandatory and was justified under the court’s state constitutional authority to govern the administration of justice.

The Court found, however, that the trial court erred insofar as it concluded that the State had failed to show extraordinary cause; the absence of the Defendant rose to that level of cause and the State’s failure to extradite or otherwise bring the Defendant into court did not weaken that extraordinary cause.  The Court noted that the court rule is not implicated by Sixth Amendment constitutional jurisprudence:

The time limits prescribed by Rule 746 are not, however, the measure of the Sixth Amendment right to a speedy trial. While the rule was adopted to facilitate the prompt disposition of criminal cases, it stands on a different legal footing than the Sixth Amendment’s constitutional right to a speedy trial.

The Court reversed the prior decision and remanded the matter to the trial court to reinstate the indictment.

A strong dissent by Judge Davison, joined by two of the other six judges of the Court of Appeals, urged that the State had not shown extraordinary cause insofar as the State did have the power to compel the presence of the Defendant and elected or failed to do so, and that to view the 120-day statute as having less force than the Sixth Amendment in fact undercut the speedy trial rights of all persons including Hicks.

On a motion for reconsideration by the State a month later, the Court further stated that, due to prior ambiguities in the interpretation of the applicable rules, the holding in Hicks was to be applied only prospectively to cases with defendants making a first appearance in court or their attorneys entering an appearance after the date of the supplemental opinion.  The Court also stated that dismissal of a charging document for a failure to try the case timely would not be appropriate in cases where the Defendant had assented to a later trial date, or in cases where the trial date was within 120 days but the Clerk had merely taken longer than 30 days to set the date, also required by the applicable rule.

What do we as practitioners take away from Hicks?  Hicks is not a Sixth Amendment speedy trial right case but a court administration case applying mandatory rules authorized under the power of the courts under Maryland’s Constitution to administer their own affairs.  The mandatory trial date, almost always referenced as the “Hicks date”, is now 180 days after the earlier of the defendant’s appearance or the entry of appearance of counsel under Md. Rule 4-271.  But Hicks remains a critical case.

I remain skeptical of the Court’s reasoning.  On the one hand, the Court seems to describe its own Rule as the fulfillment of legislative intent.  On the other hand, the Court seems to be imposing severe results – dismissal – for violations of its own rule when the statute did not require such a drastic result for a failure to show “extraordinary cause.”  Does this case constitute judicial obedience to statute or an aggressive judicial branch power grab in excess of what the Constitution and applicable statute required?  Either way, neither the General Assembly nor the Court of Appeals has seen fit to recalibrate any separation of powers questions in this case; Hicks remains very good law in Maryland.

Your blogger is a total Homicide: Life on the Streets fan.  (Note: the FTC requires me to disclose the attached link to the left is an affiliate link to Amazon, which occasionally pays this blog a commission for sales of goods.)  In one of the final episodes of the series, Detective Tim Bayliss learns to his horror that a sexual predator got released from custody and his charges dismissed due to the failure of the State to get its necessary witnesses and the Defendant into court within the Hicks date.  Bayliss later executes the predator on the streets of Baltimore, and confesses to that killing to his former partner Frank Pembleton in a Homicide movie special after the end of the series.

On a lighter note, I recall hearing about (though not confirming) the ire of a West Virginia resident who objected that he deserved better from the State of Maryland than to be subjected in its official correspondence to the abusive reference of the “Hick’s date.”  I don’t know whether this is a true story but dear Heaven it deserves to be true.

Important Maryland Cases: State v. McCallum, 321 Md. 451 (1991)

This is the first in a series of important legal cases which, in my judgment as a practicing Maryland attorney, Maryland attorneys should simply know cold, be able to cite them almost from memory and have them as close to their fingertips as we do major U.S. cases like Brown v. Board of Education or Roe v. Wade.  Maryland is a sovereign state with its own legal tradition; that fact deserves intellectual and civic respect in its own right.  The emphasis in this series will be on cases most practically useful to legal practitioners, as opposed to more theoretical cases or cases dealing with issues lacking practical significance in the modern era.

In this series, citations will be to the Maryland Reports and Maryland Appellate Reports volumes for, respectively, the Court of Appeals of this sovereign State and the Court of Special Appeals, our intermediate court.  It is customary to cite also to regional reporters per the diktat of the Blue Book, a legal style manual produced by some non-Maryland law schools located, inter alia, in Cambridge, Massachusetts.  This series will not cite to the Atlantic Reporter just as I would not cite to a Supreme Court case volume that combined our nation’s legal decisions with those of France, Canada, Germany and Ireland.

An important case for traffic and criminal defense attorneys to know is State v. McCallum, 321 Md. 451 (1991).  In McCallum, the Court of Appeals was faced with the conviction of a motorist for driving while suspended and sentenced to ninety days of actual jail time.  The issues on appeal by the State were whether the trial court had erred, as the Court of Special Appeals had ruled, in denying a scienter/mens rea jury instruction and in allowing the jury to see the motorist’s extensive driving record replete with highlighted marks, rather than merely relevant excerpts thereof.

The Court ruled on the jury instruction issue and did not rule formally on the evidentiary issue, giving only a general warning to the trial court to provide only relevant evidence to the jury on a future trial.  In a 4-1 decision (two members of the court not participating), the Court focused on three factors:

  • the inferred punitive intent of certain suspensions for failing to take a breath test, pay a court fine or the like;
  • the penalty allowing for a year in jail on a first offense and up to two years on a subsequent offense; and
  • the fact that a motorist without actual knowledge of a suspension simply would not be in the  state of mind to avoid driving

and concluded that the driving while suspended statute was largely punitive in character, as opposed to a mere regulatory enactment for the cause of the public welfare.  While public welfare enactments can be enforced under a standard of strict liability for violations (my example: not knowing you are speeding is no defense), punitive statutes require a showing of guilty knowledge of the facts or “mens rea” and therefore the Defendant was entitled to a jury instruction on the issue of mens rea.  The Court of Appeals upheld the opinion of Court of Special Appeals, which had reversed the conviction.

A concurrence by Judge Chasanow, joined Chief Judge Murphy, discussed how willful or blind ignorance of facts could constitute guilty knowledge.  Judge McAuliffe dissented, expressing the concern that those who were most responsible in their follow-through would be the most vulnerable to prosecution while those who were negligent would be most rewarded.

In my view, both the State and the defense bar overread McCallum frequently ; the case allows a mens rea instruction and affirmed the element of mens rea but does not provide much guidance as to how much guilty knowledge constitutes guilt for driving while suspended.  In the specific facts of this case, the Defendant had spent significant time in jail, missed suspension notices and had not provided a forwarding address to the MVA; most DWS defendants are both “better” and “worse” than Malcolm McCallum was in his 1991 trial.  Most DWS defendants don’t have current incarceration as both a mitigating and potentially aggravating factor.

Finally, most DWS defendants are charged under 16-303(h), which provides a substantially lower maximum penalty of 3 points, $500 in fines and 60 days in jail than does 16-303(c) with 12 points, 1 year and $1000.00 in maximum fines or more.  The “c” charge is for major suspensions while the “h” charge is for suspensions arising out of missing a court date or failing to pay a court fine in traffic court.  Most motorists found guilty of the fairly common “h” charge do not see actual jail, but are given probation before judgment and a minor fine or perhaps are convicted without a jail sentence.  While this “h” charge would apparently be punitive under the analysis of the court, the penalty is actually lower for the “h” charge than for suspensions for e.g. having a medical impediment to driving, for which suspensions the more severe 16-303(c) penalties apply.  Yet one would hardly consider a suspension for epilepsy or blindness to be “punitive” as a punishment for medical problems, rather than merely protective of the public welfare.

I would hope that Apple or Google would solve this problem.  There ought to be an app for that, i.e. an email service or other insta-check to confirm valid status on a vehicle or license.  On the iPhone sitting next to my laptop, there is a camera that can take a picture of a bar code and report pricing and availability on the product; I would love an app that could photograph a driver’s license card or vehicle registration and report back whether the paperwork is out of status.  Everyday I am in traffic court, I see motorists who are charged with driving a vehicle with suspended registration, 95%+ of the time due to the failure to complete emissions testing timely.  Any entrepreneurial takers?