August 8, 2013

Fun New Declaratory Judgment Case in Ocean City

There is an interested federal court opinion that came out this month on a street artist/violinist who was barred by a police officer from playing the Ocean City boardwalk. Faced with the threat of
arrest, three months in jail and a $500 fine, plaintiff waited a year and filed a lawsuit.

Plaintiff filed a motion for injunctive relief, asking the court order Ocean City not to enforce a 30-foot audibility restriction on the O.C. boardwalk.

Judge Hollander looked at the factors to consider in warranting injunctiive relief. The most interesting to me is: who do you think will win? Judge Hollander believes the plaintiff will win.

This is a classic declaratory relief opinion, the same stuff I use when teaching torts to my students. It will be taught in Maryland law schools, I bet, because it is a fun application of the relevant factors. You can find the opinion in Hassay v. Ocean City here.

July 2, 2013

Attorney Gets Punished for Faking In-State Tuition 13 Year Before

Sometimes, I think we should be harder on lawyers who have bad intent. But this is a little over the top for me.

In Attorney Grievance Commission v. Kepple, a lawyers was given an indefinite suspension of at least 30 days because 13 years ago she she hid her real state of residence so she could get in-state tuition. Basically, she pretended she lived in West Virginia to get in-state tuition.

How did she get caught? Her spiteful ex-husband ratted her out.

Lawyers who lie and steal from their clients need to be punished, probably more than they are now in Maryland. But this was a long time ago, she actually had good contacts with West Virginia because she worked there for a time... I just think this is a little over the top.

You can find the court's opinion here.


July 1, 2013

Maryland Dairy Farm Creamery Decision... Finally

After almost six years, the Maryland Court of Appeals shuts down a public interest’s group attempt to block the creation of a dairy farm creamery. The court found that the third party group did not have standing because the easement they sought to enforce did not include them. A long fight for someone who, as it turned out, had no skin in the game.

Here is what happened. Defendants own an organic dairy farm that is located on 199 acres in the Long Green Valley area of Baltimore County. The Maryland Agricultural Land Preservation Foundation (MALPF) is a statutorily created organization that buys easements on farm owner’s lands, making them promise that that they will only use it for farming purposes. Competition to get into the program is fierce, but in 1997, Bellevale sold a MALPF easement to MALPF for $796,500.

In 2007, the defendant proposed to build a 10,000 square foot creamery operation on the land, and received approval from the MALPF because it created and stored milk, cheese, and other dairy products. The terms were compliant with MALPF’s statutory and organizational goals. However, another land preservation organization, the Long Green Valley Association (LGVA), took issue with the creamery, and filed several complaints and emergency hearings with the Deputy Zoning Commissioner for Baltimore County. All of the bureaucratic avenues ultimately declared that the creamery counted as a “farm” and was being created for “farming purposes.” Finally, the LGVA filed a lawsuit in the Circuit Court of Baltimore County.

In May, 2008 LGVA made a complaint asking the court for the correct enforcement of the MALPF easement, the declaration that the creamery violates the easement because of its commercial/industrial use, and an injunction preventing the defendant from building the creamery. Bellevale made a motion for summary judgment, saying the plaintiffs lacked standing, and MALPF said it was acting within the statutory limits and was insulated from judicial scrutiny. The judge agreed with Bellevale and dismissed the counts. The Court of Special Appeals and the Court of Appeals both affirmed.

The plaintiffs argued that because the MALPF easement was a given to a government actor, it counted as a charitable trust, which enabled third-party persons (such as the LGVA) to ask the court to enforce the easement as “interested parties.” In order to determine if the easement was to be considered a trust the Court looked at the specific language and intent of the parties. Trusts are legal title that is held by one or more persons in which an equitable obligation exists to use the title for the benefit of another (or in the case of charitable trusts, to the community). Charitable trusts must be express, and it is the LGVA’s burden to show that one existed.

Contrary to private trusts, no particular language must be used, but the intention to be in a fiduciary relationship to benefit the community must be clearly stated. The Court holds that the language of trust creation is ambiguous at best, and the explicit terms only include the Grantor and Grantee-- there is no instruction for the Grantor to accommodate anyone else. In fact, the deed made a point to state that the right of public entry is not created, and that the MALPF only could review proposals for use of the land.

Next, the Court finds that the creamery is compatible the intended application of the easement. The easement says nothing about curbing “urban blight”, and the sale of agricultural products does not violate the ban on commercial or industrial use. The Court claimed that the petitioner confused the purpose of MALPF; just because it is a government entity which practices and results benefit the populace at large does not mean it is a charitable organization. MALPF is designed to increase land profitability while ensuring that agricultural methods are used.

You can find the opinion here.

June 17, 2013

Arizona Citizenship Law Is Toast

The Supreme Court today shot down an absolutely ridiculous Arizona law that made voters provide proof they were U.S. citizens when they vote. Justice Antonin Scalia wrote the 7-2 opinion. Justices Clarence Thomas and Samuel Alito dissented.

The National Voter Registration Act forbids states to demand that an applicant submit additional information beyond that required by the Federal Form, the court found. The court's ruling does not stop states from denying registration based on information in their possession establishing the applicant’s ineligibility. It just means they can't make you show evidence when you walk up to register.

The Alito's dissent's point is that the statute is ambiguous and states should be able to decide to approach it however they like. Justice Thomas' point was that the statute requires that you follow a form but the state can require whatever additional information it wants when voters register.

I can't speak to these legal issues. I don't know who has the law right. What I do know is that it was silly all along to pretend that voter fraud was a big issue in this country. Immigrants have a voting problem: they don't vote enough and their voice is not being heard. I don't think many illegal immigrants are sneaking in to vote.

May 29, 2013

DNA Testing in Maryland Criminal Cases

The subject of DNA testing has been increasingly prevalent in Maryland courtrooms. In the past few months, a Maryland case (Maryland v. King) was argued in the Supreme Court on the topic of whether an arrested person’s DNA could be legally taken. No matter one’s view on its collection, DNA sometimes plays a large role on determining who did or did not do something. However, they recently decided that Brown v. Maryland shows an example of how allegedly exonerating DNA results that might not even matter.

Brown features a particularly violent assault and rape of a young woman. She was abducted, beaten, handcuffed, and tortured-- among other things that the court understated as being “not pretty.” I think the word "unimaginable" works. Anyway, Brown was found guilty and convicted to eighty-five years in prison. Now he attempted to utilize a new Maryland statue that granted a new trial if post-conviction DNA was (1) favorable to the petitioner and there was (2) a substantial possibility…that the petitioner would not have been convicted if the results were known at trial.

There was no physical evidence linking Brown to the crime, and the post-conviction DNA results showed that Brown’s DNA was nowhere to be found on any of the main weapons involved in the incident. He compares his case to two examples in which the government alleged that DNA evidence (blood on sweatpants and on a knife) was inconsistent with the theory of the case.

However, the court rejected the comparison, stating that in the current case, the government had made no such implication that Brown’s DNA was on the scene. In fact, Brown was convicted with no mention of his DNA at all and with specific instructions to the jury stating that there was no such forensic evidence. The testimony of the victim, corroborating evidence, and statements to the police were enough for the jury.

May 20, 2013

Black Police Officers Sue Annapolis

Four former and current black police officers in Annapolis have filed suit in federal court against the city. The officers claiming they were discriminated against because they are black and, as a result, were turned down for promotions and opportunities to advance.

These kinds of cases are so hard to prove even when they are true. Two of the officers argue disparate treatment which means while the City of Annapolis might be using facially neutral employment practices, they have had a unjustified adverse impact on these black officers. In other words, maybe it was not intentional discrimination but it is.

The Baltimore Sun reports that the city has 26 black officers on its 117-member force which sounds reasonable. But that does not mean there was not discrimination. You just can't read a story like this and know what happened.

April 18, 2013

Ripken Baseball Gender Discrimination Lawsuit to Continue

A federal judge in Baltimore ruled that a gender discrimination lawsuit against Ripken Professional Baseball will continue, rejecting Ripken's argument that the case should be dismissed or that arbitration should be compelled.

Interesting facts. Woman takes a job with Ripken Baseball in 2006 as an Account Representative. She gets promoted to Assistant General Manager of Ticket Sales in 2010. In 2011, she started dating a subordinate employee which she claims happened all the time at Ripken (like it does in the rest of the world) in spite of the fact that the employee handbook says it is a no-no. Ripken - not Cal, I'm referring to the organization - fires her, citing the relationship and, perhaps more importantly, that they told others to lie about the affair. Woman alleges that she was treated differently from her male colleagues who engaged in similar behavior with subordinates.

If true, maybe she was discriminated against? But that does not answer the question. Maybe she was discriminated against because she was not as good an employee as the others. The question in this case is whether she would have been fired if she was a man. Boy, that is a tough question for a judge or jury to figure out.

Anyway, the issue for now is in much closer grasp: can Ripken compel arbitration? The court says no for two reasons. First, there was no consideration for the arbitration clause. But, more interestingly, at least to me because it might relate to nursing home cases, is that two defects in the arbitration agreement make it unfair and unconscionable because it denies the woman access to a neutral forum.

In this case, Ripken PSP’s arbitration's provision gives them exclusive control over the list of arbitrators that may be used. In other words, the deck is stacked against the Plaintiff. We see this with the insurance companies all of the time. They want to use the same arbitrators that have never seen a case they can't undervalue. It is just, the court concludes, not fair.

The arbitration clause Ripken wanted to invoke also failed to provide sufficient rules by which arbitration would proceed, giving the plaintiff no assurance of procedural due process.

Boy, the local media has steered clear of this story. I mean, Cal may not of even met the woman. I can't image he is remotely involved in these issues. But the fact that it is "Ripken baseball" does make it news. I think it is fair to say - and maybe he has earned it - that Cal Ripken would get at least one free murder in Baltimore without consequences.

(If you are reading this post, please keep in mind my firm does not handle gender discrimination or any other types of employment claims. We handle only serious personal injury cases. That's it!)

April 18, 2013

In-N-Out Burger and Grab-N-Go Burgers Work It All Out

Our national nightmare is over. In-N-Out Burger has reached a settlement it is trademark infringement lawsuit against claims against Grab-N-Go Burgers.

In-N-Out-Burger's lawsuit alleged that Grab-N-Go stole its menu ideas and graphic design. Think McDowell's and McDonald's in Coming to America.

According to the lawsuit, the restaurant is clearly modeled after In-N-Out’s restaurants. The name of the restaurant, particularly the use of “N” as short for the word “and,” the menu selection, the color scheme, and the design of the restaurant... it all screams copycat.

It is all good humor but I can see why companies want to defend their trademarks which are all registered.

April 4, 2013

Accounting Firm Loses Bid to Secure Coverage

Judge William D. Quarles Jr. denied a motion for summary judgment filed by an account firm in a declaratory judgment action seeking coverage for a malpractice claim.

A claim against Trice, Geary & Myers alleged that the firm recommended that its clients participate in a defined benefit pension plan which caused them to unnecessarily be audited and forced to incur attorneys' fees and tax debt.

The insurance company, CAMICO Mutual, denied coverage because, well, that is what insurance companies do. CAMICO Mutual says it had no duty to defend the accounting firm because the underlying allegations related to the insureds' work as insurance agents and that the policy excluded claims "in connection with or arising out of any act, error or omission by any Insured in his/her capacity as an (insurance) agent or broker." (Actually, they might have a point here, I hate to say.)

I remember having a case in from of Judge Quarles when I was a defense lawyer that I thought was ripe for summary judgment. His response then was essentially, "You probably do but let discovery play itself out a little bit first." Similarly, here the court found discovery appropriate to flush out the arguments. That's not a bad idea but I bet that discovery will shed little light on the interpretation of what appears to be an ambiguous contract.

One good piece of advice comes out of this case. Get enough coverage to cover any claims that might get filed against you. This is a $180,000 claim with only 100k in coverage even if they can get CAMICO on the hook.

You can find the full opinion in Trice, Geary & Myers, LLC v. CAMICO Mutual here.

February 28, 2013

Gun Control Coming to Maryland

The Maryland Senate today took a big step forward on gun control today, approving legislation to require the training, licensing and fingerprinting of handgun purchasers and the banning of purchase of semi-automatic assault weapons.

The Sandy Hook tragedy continues to have long tentacles. Let's see what the House of Delegates does.

February 27, 2013

Maryland Court of Appeals Overturns 2006 Exxon Gas Leak Verdict

The Maryland Court of Appeals overturned a jury's verdict this week against Exxon Mobil for its role in the 2006 gasoline leak that contaminated the well water of homes in nearby Jacksonville. Two years ago, a jury awarded the homeowners $1 billion in punitive damages against Exxon.

The Court found that Exxon did not willfully defraud homeowners. According to retired Baltimore County Circuit Court Judge John Fader, "Punitive damages in Maryland can't be awarded unless there is fraud proven." The Court also struck down portions of separate verdicts totaling $650 million in compensatory damages.

This of course leaves the residents shocked and disappointed, many of which unknowingly drank the water and even made baby formula with the water. At this point, the homeowners' only option is to appeal to the U.S. Supreme Court - which is doubtful at best. Sad, but expected, outcome for these homeowners.

There were two opinions in this case. You can read them here and here.

February 13, 2013

Kayata Confirmed by Senate

The U.S. Senate finally confirmed William Kayatta Jr. 1st Circuit after making him wait for a year. Kayatta is the first new circuit judge to take the bench since the summer. Kayatta is not a judge but an obviously very well thought of lawyer in Maine. It is full circle for him; Kayatta once clerked on the 1st Circuit.

You can learn more about his confirmation here.