Federal Courts: Polishing the Tarnished Silver Platter Doctrine Gwendolyn S

Volume XLVIII • Number 1 Jan./Feb. 2015

Constitutional Law

January 2015 Maryland Bar Journal 1 2 Maryland Bar Journal January 2015 Volume XLVIII • Number 1 Jan./Feb. 2015

4 38

Published bimonthly by the Maryland State Bar Association, Inc. The Maryland Bar Center “Constitutional Law” 520 W. Fayette St. Baltimore, Maryland 21201 Telephone: (410) 685-7878 (800) 492-1964 Website: www.msba.org Features Executive Director: Paul V. Carlin Editor: W. Patrick Tandy 4 Constitutional Musings Assistant to the Editor: Bryan M. Nichols By Henry E. Dugan, Jr. Design: Jason Quick Advertising Sales: Network Media Partners Subscriptions: MSBA members receive 12 The Intersection of the U.S. Constitution and Bankruptcy the maryland bar journal as Court Jurisdiction: Anna Nicole Smith Goes to Washington $20 of their dues payment goes to publication. Others, $42 per year. By Richard L. Costella, Kristen M. Siracusa, and Patricia B. Jefferson Postmaster: Send address change to the maryland bar journal 18 Re-Wired: Students’ Constitutional Rights in the 520 W. Fayette St. Baltimore, MD 21201 digital Schoolhouse

The Maryland Bar Journal welcomes By Margaret-Ann F. Howie articles on topics of interest to Maryland attorneys. All manuscripts must be original 24 Deleting God’s Name in Vain: A Critique of Recent Legislation work, submitted for approval by the Special Committee on Editorial Advisory, to Delete Maryland’s Age-Old Oath Text and must conform to the Journal style By E. Hutchinson Robbins, Jr. and Menachem Lanner guidelines, which are available from the MSBA headquarters. The Special Committee reserves the right to reject any 30 The Separation of Powers in Maryland and the Right to manuscript submitted for publication. Counsel – Checks and Balances or Weights and Measures Advertising: Advertising rates will be By the Honorable Steven I. Platt (Ret.) and Kristine Modica furnished upon request. All advertising is subject to approval by the Editorial 38 The Privilege Of Public Service ~ A Conversation with Chief Advisory Board. Judge Mary Ellen Barbera, Court of Appeals of Maryland Editorial Advisory Board Courtney Ann Blair, Chair By Patrick Tandy James B. Astrachan Alexa Elena Bertinelli Cameron Andrew Brown Peter Anthony Heinlein Departments Hon. Marcella A. Holland 42 Practice Tip By Jeffrey T. Wennar Louise Ann Lock Victoria Henry Pepper Federal Courts: Polishing the Tarnished Silver Platter Doctrine Gwendolyn S. Tate 44 Ethics Docket 2009-12 By the Ethics Committee MSBA Officers (2014-2015) President: Debra G. Schubert Propriety of Billing Clients for Costs Based on an Estimated Monthly Percentage President-Elect: Hon. Pamila J. Brown Secretary: Harry C. Storm 46 attorney Grievance Commission By Glenn M. Grossman and Lydia E. Lawless Treasurer: Sara H. Arthur Disciplinary Defaults Statements or opinions expressed herein are those of the authors and do not necessarily reflect those of the Maryland State Bar Association, its officers, Board of Governors, the Editorial Board or staff. Publishing an advertisement does not imply endorsement of any product or service offered.

January 2015 Maryland Bar Journal 3 Constitutional Musings By Henry E. Dugan, Jr.

here have been relatively few true turning points Tin the political history of Western Civilization, but certainly ranked among them is the achievement of the 55 delegates (usually 30-42) who met in Philadelphia in the Summer of 1787. Although 70 delegates were appointed by the states, only 55 attended at some point including 34 attorneys. When push came to shove, 39 voted in favor of the proposed Constitution.

4 Maryland Bar Journal January 2015 Constitutional Musings

January 2015 Maryland Bar Journal 5 The theoretical groundwork and which would be retained by the determined by adding to the had been somewhat prepared states. There was, as well, the ques- whole Number of free Persons, by Enlightenment Era authors, tion of small states and large states, including those bound to Service most notably John Locke and small populations and large popu- for a Term of Years, and exclud- Montesquieu, yet the ultimate prod- lations and states with large popu- ing Indians not taxed, three fifths uct was clearly unique to the point lations of slaves with somewhat of all other Persons.” of being breathtakingly unlike any- smaller populations of non-slaves. thing that had ever gone before it. The Constitution was ultimately There were, of course, no Native Locke had talked about the social a document driven by compromise Americans or three-fifths persons contract but here was a nation being in order to achieve the one over- in Philadelphia taking part in founded upon a contract, a very arching goal of a United States, and the discussions or making these brief piece of paper by a small right there in Article I, Section 2, is compromises, but the saving group of state representatives who perhaps the greatest and most pain- grace in Article V was the pos- were supposedly meeting just to ful compromise: sibility of having Amendments to fine-tune the developing problems “Representatives and direct the Constitution. Significantly, in of the confederation. Taxes shall be apportioned the strenuous disputes over rati- The various states had extremely among the several States which fication within each of the states, diverse views and concerns about may be included within this particularly Massachusetts, New exactly what powers would be Union, according to their respec- Hampshire, Virginia and New York, ceded to the federal government tive Numbers, which shall be it was Article V that saved the day

6 Maryland Bar Journal January 2015 January 2015 Maryland Bar Journal 7 for ratification. the place of, and with any other This ability when plugged in to After ratification, the Amendment which there might be a probability the ancient political art of gerryman- process of Article V continued to of obtaining.” dering (it is named after Governor allow our nation to move closer At the present time, there is per- Elbridge Gerry of Massachusetts, toward what has sometimes been haps nothing more striking about who initially employed it in 1812) referred to as the soul of our the state of our Country than the can and does result in the present Constitution, The Declaration of gridlock of government as a result clash of political factions capable of Independence. Abraham Lincoln of intense passions of various and bringing our Federal Government clearly recognized this when he sundry groups exerted on our to a total standstill. No objective referred not to the Constitution politicians and political parties. person could conclude that this is itself but to Thomas Jefferson’s James Madison as “Publius” in The beneficial to our Republic. It works anthem of freedom in order to find Federalist X would refer to such rather as a divisive, corrosive fea- the other 2/5 of the “other persons.” groups as “factions”: ture that alienates, discourages, and So although our Constitution was “By a faction I understand a ultimately disenfranchises large not born perfect, it fully recognized number of citizens, whether numbers of voters for they have that imperfection by allowing for amounting to a majority of the been gerrymandered into ad hoc change. It did not pretend to be the whole, who are united and actu- minorities who feel that their vote final word carved in stone nor did ated by some common impulse simply does not count, so conse- many of its creators want it to be. of passion, or of interest, adverse quently they do not vote. Not vot- George Washington writing to to the rights of other citizens, or ing further aggravates the situation Patrick Henry said he wished the to the permanent and aggregate allowing one-issue no-compromise Constitution “had been made more interests of the community.” candidates of the favored faction perfect” but since “the constitu- to then come to the fore. These are tional door is opened for amend- Madison believed that the rep- all related ills for our society – ger- ment hereafter” its adoption was resentational form of government rymandering, non-voting, one-issue desirable. over such a large physical area no-compromise candidates with the Thomas Jefferson said there were and number of citizens would be potential of a controlling majoritar- good articles in it and bad and he a “Republican remedy for the dis- ian faction with narrow goals that did not know which preponder- eases most incident to Republican are extremely destructive to minori- ate but also that it “is unquestion- Government!” He thought that the ties of whatever ilk. ably the wisest ever yet presented “influence of factions leaders may Since the Supreme Court of the to men.” Benjamin Franklin said kindle a flame within their par- United States long ago gave its there were parts of it that he did ticular States, but will be unable imprimatur to gerrymandering, it not approve and he was not sure to spread a general conflagration is very difficult to see any way out he would ever approve of them but through the other States…” He basi- of this morass. Neither party in asked all to “doubt a little of his cally argued that the very fact that possession of these gerrymandered own infallibility.” James Madison, there were so many factions would districts will be willing to surrender “The Father of the Constitution,” lead to some type of immunization its protected bailiwick unless all of was a pragmatist: “That unanim- against any particular faction gain- them are surrendered at the same ity is not to be expected in any ing the upper hand as a majority in time, and then who will draw up great political question…that if any a large country with a large popula- the new districts? Constitution is to be established by tion like ours. This is not, however, constitu- deliberation and choice, it must be Unfortunately, Madison can be tional failure. It could be corrected examined with many allowances, forgiven for not foreseeing the by legislative or even judicial inter- and must be compared not with the incredible sweep of the Internet. vention, but it cannot be corrected theory, which each individual may Now, our entire country can be piecemeal on a state-by-state basis frame in his own mind, but with linked in one fell swoop. Factions but only by across-the-board federal the system which it is meant to take can now be “supersized.” action. Gerrymandering by defini-

8 Maryland Bar Journal January 2015 tion is creative of factions yet our factions and not simply one. power by the Supreme Court. Constitution was consciously con- Perhaps this sounds like tilting at Alexander Hamilton, in May 1788, structed to ameliorate the deleteri- windmills, but we have to at least The Federalist LXXVIII stated that ous effect of factions. It is at pres- recognize the problem before any “…the judiciary, from the nature of ent because of computers and the potential fix can occur. It is inter- its functions, will always be the least Internet one of the gravest threats esting that registered voters in our dangerous to the political rights of to our constitutional form of gov- own state have on their own been the constitution; because it will be ernment just as factions were recog- increasingly registering themselves least in a capacity to annoy or injure nized by our founders to be one of as Independents to the point where them.” This, he stated, is because the great threats to Republican gov- there are only a couple of hundred the judiciary has no influence over ernment – it is factions on steroids. thousand fewer Independents than either the sword or the purse. When one looks at some recent there are Republicans. Perhaps a After serving as President for presidential races, it is remarkable large enough nationwide contin- two terms of office with his cousin how close the split is based on pop- gent of Independents could help John Marshall as Chief Justice of the ulation and not the electoral system. lead to a solution if no one else will Supreme Court, Thomas Jefferson Perhaps this means that sophisti- take the bull by the horns. could not have disagreed more: cated computer modelling presently As though the creation of the “At the establishment of our con- used to gerrymander could possibly super-factions at present were stitutions, the judiciary bodies be co-opted to try to balance things not enough of a challenge to our were supposed to be the most out so that a candidate would have Constitution in 2015, there is for helpless and harmless members to appeal to all of the different voter some the unbridled exercise of of the government. Experience,

January 2015 Maryland Bar Journal 9 however, soon showed in what United States would be controlled Ginsberg stated) is the attitude way they were to become the by papal levers. toward women. It is disturbing in most dangerous; that the insuf- Putting a more benign spin on that it is blind to how central an ficiency of the means provided the opinion the five may, in fact, issue this is for gender justice. for their removal gave them a be philosophically inclined by their The same five Justices appear free hold and irresponsibility in religious cultural background and to have an across-the-board atti- office, that their decisions, seem- see themselves in the constitution- tude that treating everyone equally ing to concern individual suitors ally intended role of protecting achieves justice. That sounds on only, pass silent and unheeded religious minorities. However, one its face like exactly what everyone by the public at large; that these need not be an atheist, agnostic, or desires, to be treated equally – to be decisions, nevertheless, become skeptic to appreciate the need to on a level playing field. However, law by precedent, sapping, by lit- keep a strong separation of Church because of cultural and gender- tle and little, the foundations of and State, as our founders were based differences, treating men and the constitution, and working its not. We are truly a melting pot women equally manifestly does not change by construction, before of not simply ethnicity, race, and achieve justice. The most obvious any one has perceived that that national origin but also of creeds. example is that women have babies invisible and helpless worm has Interestingly many of our country’s and men do not, and culturally been busily employed in con- founders were Protestant and his- women are expected to take a pre- suming its substance. In truth, torically were prepared for sepa- dominant role in responsibility for man is not made to be trusted for ration of Church and State while raising the children impacting, of life, if secured against all liability at the present time there are no course, on the woman’s career. If, to account.” Letter to Monsieur Protestants on the Supreme Court. after raising the children, there is A. Corray, October 31, 1823. Culture matters as it is a great a divorce is it just to simply divide infuser of philosophies of life and, everything in half and send each Once again, our contemporary consequently, of law as well. All equally on their way although the capabilities of mass communica- Jewish members of the Court were one spouse has a huge head start on tion no longer permit the hold- in dissent. the ability to earn a living because of ings of the Supreme Court to “pass The only Roman Catholic woman the childrearing and homemaking silent and unheeded by the public on the Court significantly was with sacrifices of the other? Does any- at large.” The opinions are imme- the other two women in the Court in one really believe that contracep- diately assessed by the factions and the minority. Perhaps more impor- tive access for men and women has stamped “for” or “against.” Burrell tant than their religion was the gen- equal consequence for their lives? v. Hobby Lobby Stores, Inc., decided der of the Justices. The simple fact is that achieving June 30, 2014, resulted on July 3, Clearly the issue in the case had justice requires more than picking 2014 in a full-page statement in to do with life-altering issues for one point in time and saying now The New York Times by the Freedom women and it appears to be beyond we are going to treat you equally from Religion Foundation attack- tone deaf for a male majority to have without understanding the histori- ing the five “all-male” “all-Roman espoused the position it did when cal and cultural context. Catholic” members of the majority every single one of the women on This Supreme Court majority has as males and as Roman Catholics for the court (including the sole Roman used the same false equality argu- espousing a position they viewed Catholic woman) was diametrically ment in other areas as well. It is as parroting the position of the opposed. Justice Ginsberg’s scath- determined to do away with affir- Catholic Bishops while being incon- ing dissent is of particular merit. mative action so that everyone is sistent with constitutional separa- In the Hobby Lobby case, the more treated equally – again refusing to tion of Church and State. Probably disturbing aspect long term (since recognize that justice requires put- not since John F. Kennedy ran for the religious aspect is ultimately ting the issue into its historical-cul- president has there been such a necessarily a dead end under the tural context when for the economi- concern that the government of the law for all of the reasons Justice cally deprived class education is the

10 Maryland Bar Journal January 2015 primary avenue of advancement in effectively by African-American and control factions as espoused in our society and this group is start- voters. The Federalist Papers has not been ing at a disadvantage. Finally, and conceivably most achieved by the judiciary. Next, consider those states and damaging of all, the recent decisions Perhaps Thomas Jefferson, in his jurisdictions with a history and cul- in Citizens United and McCutcheon in letter to Corray, was correct – so how ture of voting suppression – they the guise of equality for corporate about a Constitutional Amendment want to be treated equally with “persons” have opened the flood- to limit Supreme Court Justices to those states with no such history. gates for the money of the rich one term of 10 or 15 years no mat- So the Supreme Court strikes down and powerful, including corpora- ter at what age they are appointed? Section 5 of the Voting Rights Act tions, to influence, or worse, all That way at least “the invisible and which required federal pre-clear- kinds of elections including, most helpless worm(s)” will be limited in ance of changes in voting proce- dishearteningly, judicial elections how much of “the foundations of dures. Virtually the same day Texas in many states, which is another the constitution” they can consume. announced a strict photo ID law, whole article in itself. Obviously soon to be followed by Mississippi this also discourages less wealthy Mr. Dugan is a Past President of the Maryland State Bar Association. and Alabama, while Georgia and voters from being involved in the Florida moved to restrict early vot- process. Suffice it to say that the ing which had been employed very initial intent to protect minorities

January 2015 Maryland Bar Journal 11 The ofIntersection the U.S. Constitution and Bankruptcy Court Jurisdiction: Anna Nicole Smith Goes to Washington

12 Maryland Bar Journal January 2015 By Richard L. Costella, Kristen M. Siracusa, and Patricia B. Jefferson

f the practice of bankruptcy law seemed alien and esoteric to non-bankruptcy practitioners prior to the Supreme Court’s 2011 decision in Stern v. Marshall, 131 S. Ct. 2594 (2011), then the nearly decade-long legal battle between the late jeans model turned reality television star Anna Nicole Smith and the estate of her octogenarian billion- aireI husband likely did little to alleviate such views regarding the specialized practice of bankruptcy law. Stern is arguably the most significant decision dealing with the constitutional limitations of federal bankruptcy court jurisdiction since N. Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50 (1982). However, it has raised many more questions than it answers, and the bankruptcy bench and bar are still attempting to unravel the practical implications of the decision several years later.

January 2015 Maryland Bar Journal 13 As many lawyers and non-lawyers U.S. Const. Art. III, § 1. The judges of determination. Id. The Court further likely know, Anna Nicole was 26 years- these Article III courts, including the held that the type of state law breach old when she married 89-year-old oil judges of the federal circuit courts of of contract claims brought by the bank- tycoon J. Howard Marshall in 1994. appeal and district courts, enjoy life ruptcy estate against non-creditors in Unfortunately for Anna Nicole, not tenure and undiminished compensa- Marathon Pipe Line involved private to mention J. Howard, the marriage tion. The federal bankruptcy courts, as rights and the parties were entitled to lasted mere months when J. Howard courts that are created solely by acts have an Article III court finally deter- died in August 1995. Marshall’s failure of Congress rather than under Article mine those claims. Id. to provide for Anna Nicole in his will III of the Constitution, are not Article Congress responded to Marathon Pipe resulted in nearly ten years of legal III courts and, therefore, can only hear Line with the Bankruptcy Amendments wrangling between Anna Nicole and and determine certain cases that they and Federal Judgeship Act of 1984 (the J. Howard’s family that resulted in are statutorily authorized by Congress “Amendments”). The Amendments two trips to the United States Supreme to hear. Congress’s power to prescribe gave district courts authority to refer Court and two major decisions that not and authorize bankruptcy courts to “all cases under title 11 and any or all only helped to define the role of fed- hear certain matters, however, is limited proceedings arising under title 11 or eral courts in state probate matters, but by the Constitution. The federal bank- arising in or related to a case under also began to define the constitutional ruptcy courts are Article I courts, under title 11” to the federal bankruptcy limitations of our federal bankruptcy which Congress has the power to create courts. 28 U.S.C. § 157(a) (2014). The courts to hear and decide certain types “adjunct tribunals,” subject to the con- Amendments also divided bankruptcy of matters. See Marshall v. Marshall, 547 trol and review of the Article III courts. related matters into “core” and “non- U.S. 293 (2006) and Stern v. Marshall, Marathon Pipe Line, 458 U.S. at 77. core” proceedings, with bankruptcy 131 S. Ct. 2594 (2011). The Bankruptcy Reform Act of courts having the ability to hear and Despite the confusion created by the 1978, commonly referred to as the enter final judgments in core proceed- Stern decisions, the Court has decided Bankruptcy Code (the “Code”), was ings. §§ 157(a), 157(b)(1), and (c)(1). one additional case since 2011 that pro- enacted to replace the Bankruptcy In matters delineated as non-core, the vided some guidance on the bankrupt- Act of 1898 and established bankrupt- bankruptcy court could still hear the cy court’s jurisdictional limitations, cy courts in each judicial district as matter, but it could not enter final and the Court also recently granted adjuncts to the district courts, as well orders and was only permitted to sub- certiorari in another jurisdiction-relat- as providing that bankruptcy judges mit proposed findings of fact and con- ed case that should serve to provide would be appointed to serve 14-year clusions of law to the district court for even more guidance on the issues left terms with salaries subject to statutory de novo review. § 157(c)(1). unanswered by Stern: Exec. Benefits Ins. adjustment. Essentially, the Code gave Agency v. Arkison, 134 S. Ct. 2165 (2014); bankruptcy courts expansive authority Wellness Int’l Network Ltd. et al. v. Sharif, to enter final judgment on any and all Stern v. Marshall 727 F.3d 751 (7th Cir. 2013), cert. granted claims that may affect a bankruptcy With the Supreme Court’s decision in in part, 134 S. Ct. 2901 (Jul. 1, 2014). estate, including actions to avoid fraud- Marathon Pipe Line and the enactment ulent and preferential transfers. In 1982 of the Amendments, the constitutional that changed dramatically when the stage is now set to return to the story Background on the Supreme Court held in Marathon Pipe of Anna Nicole Smith and her jour- Constitutional Limits Line that such expansive authority to ney to our nation’s capital and into of Bankruptcy Court hear all such matters was unconstitu- bankruptcy history. It should not be Jurisdiction tional under Article III. 458 U.S. at 87. In forgotten, however, that Stern had far Article III of the United States doing so, the Marathon Pipe Line Court reaching constitutional implications Constitution provides that “[t]he judi- distinguished between public versus that wreaked substantial havoc on cial power of the United States, shall be private right matters, and found that the practice of bankruptcy law for vested in one Supreme Court, and such only matters involving public rights several years. It not only created great inferior courts as the Congress may may be removed from Article III courts uncertainty in the practice of bank- from time to time ordain and establish.” and delegated to Article I courts for ruptcy, but was responsible for major

14 Maryland Bar Journal January 2015 inefficiencies in a system designed to it was required to treat the bankruptcy III would not. The Supreme Court provide a fresh start to those who find court’s judgment as proposed findings reasoned that when “a suit is made of themselves in financial distress. of fact and conclusions of law pursuant the stuff of the traditional actions at As briefly discussed in the intro- to 28 U.S.C. § 157(c)(1), and proceeded common law” and “is brought within duction, Vickie Lynn Marshall mar- to adjudicate the matter itself and find the bounds of federal jurisdiction, the ried J. Howard Marshall in 1994. J. in Vickie’s favor, albeit at a reduced responsibility for deciding that suit Howard died shortly after the mar- award of $88 million. Id. at 7, 58. rests with Article III judges in Article riage and despite her assertions that he The Ninth Circuit Court of Appeals III courts. The Constitution assigns had promised to take care of her after reversed the district court’s decision that job to the judiciary.” Stern, 131 his death, he left nothing for Vickie in on an issue different from that ulti- S. Ct. at 2609 (internal citations omit- his will. Not long after his death, Vickie mately decided in Stern. 392 F.3d 118, ted). “Article III could neither serve its filed a petition in bankruptcy and J. 1137 (9th Cir. 2004). In Vickie’s first purpose in the system of checks and Howard’s son, Pierce Marshall, filed an visit to Washington, D.C., the Supreme balances nor preserve the integrity of action against Vickie in the bankruptcy Court reversed the Court of Appeals judicial decision making if the other alleging that she had made defamatory on that issue and remanded. Marshall, branches of the Federal Government statements that he fraudulently han- 547 U.S. at 314-315. On remand, the could confer the Government’s ‘judicial dled his father’s estate. Pierce also filed Ninth Circuit found that Vickie’s coun- power’ on entities outside Article III.” a proof of claim in the bankruptcy for terclaim was non-core and, thus, the Id. Accordingly, the Supreme Court the damages he sought in the lawsuit. bankruptcy court could have at most concluded that “Congress, in one iso- Vickie responded to the proof of claim entered proposed findings of fact and lated respect, exceeded [the Article III] by asserting a counterclaim against conclusions of law on the counter- limitation in the Bankruptcy Act of Pierce for tortious interference with her claim. The Court of Appeals concluded 1984.” Id. at 2620. attempts to garner a recovery from J. that that the counterclaim was non- Ultimately, the Supreme Court Howard’s probate estate. core because “the counterclaim was affirmed the judgment of the Court of The bankruptcy court ultimately not so closely related to [Pierce’s] claim Appeals and held that, as non-Article granted summary judgment in favor of that they essentially merged,” taking a III courts, bankruptcy courts lack the Vickie and awarded her $449 million in two-step approach and reasoning that “constitutional authority to enter a compensatory damages and $25 million a bankruptcy judge may render a final final judgment on a state law counter- in punitive damages. In post-judgment judgment only if the matter “meets claim that is not resolved in the pro- filings, Pierce argued that the bankrupt- Congress’ definition of a core proceed- cess of ruling on a creditor’s proof of cy court lacked jurisdiction to enter final ing and arises under or arises in title claim.” Id. Therefore, even though the judgment on the counterclaim because it 11.” In re Marshall, 600 F.3d 1037, 1040 bankruptcy court has statutory author- was not a core proceeding as set forth in (9th Cir. 2010) (emphasis added). ity under 28 U.S.C. § 157(b) to enter a 28 U.S.C. § 157(b)(2)(C). The bankruptcy Neither Vickie (who passed away final judgment on the counterclaim, it court disagreed, finding her counter- in 2007) nor Pierce (who passed away lacks constitutional Article III authority claim to be core pursuant to 28 U.S.C. § in 2006) made it to the Supreme Court to render a final judgment. 157(b)(2)(C) and that it could therefore on the second appeal involving the enter a final judgment. On appeal, the bankruptcy court’s authority to enter district court reversed the bankrupt- a final judgment on Vickie’s counter- The Aftermath of Stern: cy court decision and found that even claim. The executors of their respec- Unintended Consequences? though counterclaims were specifically tive estates proceeded with the second Although the Supreme Court’s holding listed as a core matter in § 157(b)(2), appeal to the Supreme Court and certio- in Stern was described in the major- Vickie’s counterclaim for tortious inter- rari was granted in 2010. On the second ity opinion as being narrow and of ference was not core because it was only trip, the Court found that even though limited application, noting that it did somewhat related to Pierce’s claim for 28 U.S.C. § 157(b)(2)(C) would permit “not think the removal of counter- defamation. Marshall v. Marshall (In re the bankruptcy court to enter a final claims such as [the debtor’s] from core Marshall), 275 B.R. 5, 10 (C.D. Cal. 2002). judgment on Vickie’s counterclaim as bankruptcy jurisdiction meaningfully Accordingly, the district court held that a statutorily core proceeding, Article changes the division of labor in the

January 2015 Maryland Bar Journal 15 current statute,” the dissent in Stern certiorari in Exec. Benefits Ins. Agency v. lently transferred to EBIA prior to the clearly recognized the potential confu- Arkison, expecting additional guidance bankruptcy filing. Exec. Benefits Ins. sion and unintended consequences of from the Court on the issues of bank- Agency v. Arkison (In re Bellingham the decision, as well as the anticipated ruptcy court jurisdiction that have con- Ins. Agency, Inc), 702 F.3d 553, 557 eagerness of learned practitioners to founded both lawyers and judges since (9th Cir. 2012). The bankruptcy court challenge the boundaries of bankrupt- Stern. As most experienced bankruptcy granted summary judgment in favor cy court jurisdiction post-Stern. Id. For practitioners now know, however, the of the trustee and EBIA appealed. The example, after Stern, courts were divid- Arkison decision, while providing some district court, reviewing the grant of ed on numerous issues regarding bank- clarity and guidance on issues of bank- summary judgment de novo, affirmed ruptcy court jurisdiction, including: (i) ruptcy court jurisdiction left unsettled the bankruptcy court’s decision. While on which of the varied and numerous after Stern, sidestepped one issue of the appeal to the Ninth Circuit Court common law claims that arise under great importance – whether parties can of Appeals was pending, the Supreme state law, claims which are brought consent to entry of a final judgment by Court issued its decision in Stern, before bankruptcy courts on a regular the bankruptcy court on purely state and EBIA objected to the bankruptcy basis, could the court enter a final judg- law claims. judge’s entry of final judgment, argument on, even if the claim is identified ing for the first time that the bankrupt- as core under the Amendments; and cy court “was constitutionally pro- (ii) whether the parties to an action The Court Gets Practical scribed from entering final judgment could consent, expressly or impliedly, in Arkison on the Trustee’s claims.” Id. to entry of final judgments by the In Arkison, the chapter 7 bankrupt- There was little argument that the bankruptcy court. cy trustee sued Executive Benefits fraudulent conveyance claims at issue in Therefore, the bench and bar alike Insurance Agency (“EBIA”) to recover Arkison were so-called “Stern-claims”; were hopeful when the Court granted funds the trustee alleged were fraudu- i.e., statutorily delineated “core” pro-

16 Maryland Bar Journal January 2015 ceedings involving private rights of sidered core even if it is categorized as Implications for Practitioners non-creditor parties that derive from such under the statute, it is in actual- The issue of consent presented in the common law. Id. Thus, the Ninth ity non-core and should be treated as Executive Benefits and Wellness, and the Circuit had little problem finding the other non-core claims. Id. Accordingly, Supreme Court’s ultimate ruling in fraudulent conveyance actions were the bankruptcy court can still hear Wellness next term, could have sig- Stern-claims and the bankruptcy court Stern-claims and issue proposed find- nificant consequences not only for the could not enter a final judgment unless ings of fact and conclusions of law to bankruptcy community, but for the the parties consented. Id. at 562, 567. the district court for de novo review. entire bar. For example, invalidating The Ninth Circuit went on to find, To the dismay of many practitio- consent as a basis for bankruptcy court however, that EBIA had impliedly con- ners, the Court sidestepped the issue adjudication of non-core claims could sented to the bankruptcy court’s juris- of whether parties can consent to entry have far reaching implications on the diction and as a result upheld both of a final judgment by the bankruptcy current structure of the federal magis- the bankruptcy court’s jurisdiction and court. The Court reasoned that the de trate system, as the two systems share judgment. Id. at 567. novo review by the district court of the similar structures with respect to the The Supreme Court granted cer- bankruptcy court’s final judgment was issue of consent. The Court is keenly tiorari and it appeared fairly clear all that was constitutionally necessary aware of this problem as it was raised that the issues to be decided were: under Article III of the Constitution by more than one Justice during the (i) whether a party’s implied consent and it need not reach the issue of con- oral arguments in Arkison. to a bankruptcy court’s entry of final sent. Id. at 2170, fn. 4. In other words, Further, it is important for litigants, judgment on a Stern-claim can waive “EBIA received the same review from attorneys, and the bench to recognize the party’s right to have the claim the District Court that it would have and evaluate whether particular claims adjudicated by an Article III court; received had the Bankruptcy Court in a case may be Stern-claims, core and (ii) whether the authority given to treated the claims as non-core proceed- claims, or non-core claims, and wheth- the bankruptcy court pursuant to 28 ings under § 157(c)(1).” Id. er the bankruptcy court has jurisdic- U.S.C. § 157(c), which allows a bank- tion to enter a final order. Such evalu- ruptcy court to submit proposed find- ations can have significant impact on ings of fact and conclusions of law to The Story Continues: where a case should be filed, whether the district court on non-core matters, What’s Next? a claim is even before the appropriate would also permit the bankruptcy Perhaps recognizing the importance of court, and whether an order entered court to submit proposed findings of the consent issue it declined to address by a bankruptcy court is subject to fact and conclusions of law on a core in Arkison, the Supreme Court granted collateral attack at some later time. matter that was of the type identified certiorari in the case of Wellness Int’l Therefore, if you find that your client in Stern. The Supreme Court, in a Network Ltd. v. Sharif, a decision out of has been dragged to the steps of your unanimous decision, found that there the Seventh Circuit where the Court local bankruptcy court, keep in mind was no “statutory gap” and deter- of Appeals held that the bankruptcy that other avenues may be available if mined that even when a Stern-claim is court lacked the constitutional authority you remember the tale of Ms. Smith’s involved and the bankruptcy court is to determine whether purported trust journey to Washington. not permitted to enter final orders, the assets were property of the debtor’s claim is not taken out of the statutory bankruptcy estate. 727 F.3d 751 (7th Cir. Mr. Costella and Ms. Jefferson are both principals in the Baltimore office of Miles scheme and the bankruptcy court can 2013), cert. granted, in part, 134 S. Ct. 2901 & Stockbridge, P.C., and members of the still submit proposed findings of fact (Jul. 1, 2014). In Wellness, the Supreme firm’s Creditors’ Rights and Bankruptcy and conclusions of law to the district Court will have yet another opportunity Group. Ms. Siracusa is an associate in the Baltimore office of Miles & Stockbridge, court pursuant to 28 U.S.C. § 157(c). to address the issue of whether the par- P.C., and also a member of the firm’s Arkison, 134 S. Ct. at 2173-74. In a very ties in a bankruptcy matter can consent Creditors’ Rights and Bankruptcy Group. practical approach to the interpreta- to entry of a final judgment on a non- tion of 28 U.S.C. § 157, the Court con- core claim. Oral argument is scheduled cluded that once it is determined that for January 2015. a claim cannot constitutionally be con-

January 2015 Maryland Bar Journal 17 18 Maryland Bar Journal January 2015 Re-Wired: Students’ Constitutional Rights in the Digital Schoolhouse By Margaret-Ann F. Howie

tudents do not “shed their constitutional rights Sat the schoolhouse gate,” the Supreme Court famously declared in Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503, 506 (1969). In the digital age, however, the application of Tinker has been complicated by the fact that the schoolhouse “gate” is no longer limited to a brick and mortar structure, but may now be a student’s home computer, tablet, or cellular phone.

January 2015 Maryland Bar Journal 19 In recent years, the proliferation of hensive authority of the States and of 652 F.3d 565 (4th Cir. 2011), the Fourth social media and cellular technology school officials, consistent with fun- Circuit affirmed discipline imposed has provided educators and advo- damental constitutional safeguards, upon student Kara Kowalski, who, cates alike with challenges regarding to prescribe and control conduct in in the privacy of her own home and the legal regulation of student con- the schools” existed. Thus, in order with the use of her personal com- duct, speech and expression—and to achieve such a balance, student puter, created a discussion group whether the famous Tinker declara- speech could be regulated and sup- webpage on MySpace.com that ridi- tion remains constant in the digital pressed when school officials could culed a fellow student, Shay N. The schoolhouse. This article will brief- prove that the student’s exercise of webpage, which included pictures, ly outline some of the recent cases her First Amendment rights would claimed that Shay N. had herpes. concerning the regulation of public “materially and substantially disrupt the Upon learning of the webpage, Shay school students’ First and Fourth work and discipline of the school.” decided not to attend classes because Amendment rights in the cyber age. (emphasis added) she was uncomfortable. Kowalski In Bethel School Dist. No. 403 v. received an out-of-school suspension Fraser, 478 U.S. 675 (1986), the Court and was prevented from participat- The First Amendment: applied the Tinker “material and ing in certain school social events. Tinker and Fraser Standards substantial disruption” standard The court, while acknowledg- Tinker outlines the foundational to in-school student speech. Fraser, ing that Kowalski’s conduct had principles for analyzing student con- who delivered a speech full of sexu- occurred off-campus, determined stitutional rights. Five high school ally explicit metaphors, received a that the “speech caused the inter- students sought an injunction under three-day suspension for violating a ference and disruption described in §1983 to prevent school officials Tinker-fashioned school rule prohib- Tinker as being immune from First from disciplining them for violating iting the use of obscene language. Amendment protection.” While the the school district’s dress code. The The Court determined that Fourth Circuit acknowledged that the challenged dress code prohibited a “marked distinction” existed school’s interest in order and well- students from wearing black arm between the speech in Fraser and the being possesses a limited scope, it bands to protest the Vietnam War. arm bands in Tinker: declined to define that limit further. In a school system of more than [I]n upholding the students’ right Similarly, the Eighth Circuit, in 18,000 students, only five were sus- to engage in nondisruptive, pas- S.J.W. and S.W.W. v. Lee’s Summit pended for violating the dress code. sive expression of a political view- R-7 School District, 696 F. 3d 771 (8th The Supreme Court noted that the point in Tinker this Court was Cir. 2012), found that a material and armbands did not disrupt “the work careful to note that the case did substantial disruption had occurred of the schools or any class,” nor were not concern speech or action that as a result of the twin student plain- there any “threats or acts of violence intrudes upon the work of the tiffs’ online speech. The students’ on school premises.” Additionally, schools or rights of other students. Web site, which included a blog, the school system did not prohib- According to the Court, because contained racist and sexually explicit wearing “all symbols of politi- Fraser’s speech did not merit First it comments about fellow students, cal or controversial significance.” Amendment protection, school who were identified by name. At Therefore, the regulation’s sole pur- administrators had the absolute trial, both teachers and administra- pose was to suppress the students’ authority to suppress it. tors testified about the disruption to Vietnam protest. the school day and the educational The Court characterized the stu- environment: dents’ arm bands as “a silent, passive Tinker and Fraser Lee’s Summit North teachers expression of opinion, unaccompa- in the Digital Age testified they experienced dif- nied by any disorder or disturbance.” It is within this analytical framework ficulty managing their classes The Court acknowledged that a bal- that recent cases regarding online stu- because students were distracted ance between the First Amendment dent expression have been decided. and in some cases upset by [the rights of students and the “compre- In Kowalski v. Berkeley County Schools, Web site]; at least two educators

20 Maryland Bar Journal January 2015 Photo courtesy of aclu.org Mary Beth Tinker and her mother

described December 16 as one occurred was unimportant, because Landon Wynar’s assertion that of the most or the most disrup- the online speech could “reasonably threats posted on MySpace were tive day of their teaching careers. be expected to reach the school or protected by the First Amendment. …[A]dministrators testified that impact the environment.” The Court The Court aptly summarized the local media arrived on campus succinctly concluded that “[u]nder tension between school safety and and that parents contacted the Tinker, speech which actually caused student speech: school with concerns about safety, a substantial disruption to the educa- With the advent of the Internet and bullying and discrimination, both tional environment is not protected in the wake of school shootings on December 16 and for some by the First Amendment.” (emphasis at Columbine, Santee, Newtown time afterwards. added) and many others, school admin- In Wynar v. Douglas County School istrators face the daunting task of The Eighth Circuit found that District, 728 F.3d 1062 (9th Cir. 2013) evaluating potential threats of vio- the location from which the posts the Ninth Circuit rejected student lence and keeping their students

January 2015 Maryland Bar Journal 21 safe without impinging on their overreact and to take into account ing that the suspension violated his constitutional rights. It is a feat the creative juices and often star- First Amendment rights. The Ninth like tightrope balancing, where an tling writings of the students. Circuit declined to provide a bright error in judgment can lead to a line test, noting that it was “reluc- tragic result. … But the challenge In Wynar, the plaintiff student, tant to try and craft a one-size fits all for administrators is made all the a high school sophomore, “collect- approach” to student speech cases. more difficult because, outside of ed weapons and ammunition and Instead, finding Landon’s posts to be the official school environment, reported owning various rifles, “alarming,” the Court quickly ruled students are instant messaging, including a Russian semi-automatic that such speech should not receive texting, emailing, Twittering, rifle and a .22 caliber rifle.” Many First Amendment protection. Tumblring, and otherwise com- of Landon’s MySpace posts were municating electronically, some- focused on April 20 (Adolf Hitler’s times about subjects that threaten birthday) and the anniversary of the TLO: The Fourth the safety of the school environ- Columbine shooting. Amendment in ment. At the same time, school After receiving a 90-day suspen- Public Schools officials must take care not to sion, Landon’s father sued, claim- In New Jersey v. T.L.O., 469 U.S. 325 (1984), the Supreme Court established the standard for analyzing the legality of student searches in public schools. More importantly, the Court ruled that Fourth Amendment rights do exist in the public schools. In T.L.O., two high school girls were caught smoking in the lavatory, a violation of school rules. A school administrator, who demanded to inspect T.L.O.’s purse, immediately found a pack of cigarettes. A more thorough search ensured, reveal- ing marijuana, a pipe, empty plastic bags, a roll of money in one dol- lar bills, and a list of students who owed T.L.O. money. When T.L.O.’s case was referred to juvenile court for disposition of charges for the possession and sale of marijuana, T.L.O. argued that the school administrator’s search of her purse had violated her Fourth Amendment rights. While the Court declined to hold that the search was illegal, it concluded that the Fourth Amendment’s general prohibition on illegal searches and seizures applied to searches by public school officials. Tinker’s “school house gate” stood firm: We have held school officials sub-

22 Maryland Bar Journal January 2015 ject to the commands of the First during a counseling session and was member’s actions to be reasonable, Amendment ... if school authori- later found in his car using his cel- explaining that “[i]n assessing the ties are state actors for the pur- lular phone. Cell phone use was pro- reasonableness of the defendants’ poses of the constitutional guar- hibited by school rules. Concerned actions under T.L.O., a crucial factor antees of freedom of expression about G.C.’s suicidal intent and drug is that [the student] was caught using ... it is difficult to understand use, school officials searched his text his cell phone at school.” why they should be deemed to messages. Although the lawsuit had The court further reasoned that “[u] be exercising parental rather than asserted that both searches were pon witnessing a student improperly public authority when conduct- improper, at oral argument, G.C. con- using a cell phone at school, it strikes ing searches of their students ... ceded that the March 2009 search was this court as being reasonable for a “justified.” school official to seek to determine to While the Fourth Amendment The plaintiffs did not make the what end the student was improperly applies, public school officials do same concession about the September using that phone.” not require a warrant prior to con- 2009 search. G.C. was caught texting In G.C., the Sixth Circuit spe- ducting a search. The standard, as during class. School policy barred cifically rejected Desoto’s rationale articulated by the Court, involves a the use of cell phones in classrooms. holding, noting that “using a cell two-pronged analysis: The cell phone was confiscated; once phone on school grounds does not The legality of a search of a again, the administrators searched automatically trigger an essentially student should depend simply his text messages “to see if there was unlimited right enabling a school on the reasonableness, under all any indication that he was thinking official to search any content stored the circumstances, of the search. about suicide.” on the phone that is not related Determining the reasonableness G.C. asserted that the September either substantively or temporally of any search involves a twofold search failed the first prong of the to the infraction. Because the crux inquiry: first, one must consider T.L.O. analysis and was unjustified at of the T.L.O. standard is reasonable- whether the action was justified its inception. School officials, on the ness, as evaluated by the circum- at its inception; second, one must other hand, asserted that the search stances of each case, we decline to determine whether the search as was justified because of G.C.’s “doc- adopt the broad standard set forth actually conducted was reason- umented drug abuse and suicidal by…Desoto.” ably related in scope to the cir- thoughts.” The Court failed to be As of the date of this writing, no cumstances which justified the persuaded by the school’s argument: other circuits were considering this interference in the first place. “We disagree… that general back- issue. ground knowledge of drug abuse or depressive tendencies, without more, Student Cell Phones: Fourth enables a school official to search a Conclusion Amendment Considerations student’s cell phone when a search “You are an analog girl, living in a digi- In G.C. v. Owensboro Public Schools, would otherwise be unwarranted.” tal world.” Neil Gaiman 711 F.3d 623 (6th Cir. 2013), the Sixth The opposite conclusion was Circuit Court of Appeals applied reached by a federal district court in The analog standards established by T.L.O.’s standards to the search of a J.W. v. Desoto County School District, the Supreme Court in Tinker and student’s cellular phone. 2010 WL 4394059 (N. D. Miss. 2010). T.L.O have been stretched to accom- School officials had searched In Desoto, a faculty member had modate the digital schoolhouse and G.C.’s cell phone on two occasions: in observed a student using his cell its growing native population. Public March and September of 2009. G.C., phone in class, took the cell phone education has been forced to adapt who had experienced disciplinary from the student, and had “opened to the ever-increasing demands of problems, admitted to school officials the phone to review the personal our cyber-savvy students. The laws his depression, suicidal ideation and pictures stored on it and taken by governing them must do the same. drug use. In March of 2009, G.C. had [the student] while at his home.” left the school without permission The district court found the faculty Ms. Howie is General Counsel for Baltimore County Public Schools.

January 2015 Maryland Bar Journal 23 24 Maryland Bar Journal January 2015 Deleting God’s Name in Vain: A CRITIQUE OF RECENT LEGISLATION TO DELETE MARYLAND’S AGE-OLD OATH TEXT

By E. Hutchinson Robbins, Jr. and Menachem Lanner

January 2015 Maryland Bar Journal 25 The Oath Text and Its In our view, not only is adminis- States reversed the decision of the Subtle Disappearance From tering the Oath Text constitutional Maryland Court of Appeals, hold- the Maryland Code under Torcaso, but, in the appropri- ing that Article 37’s religious test Prior to October 1, 2014, the Maryland ate circumstances, is required under for public office “unconstitutionally Code had long required that “the the Maryland Declaration of Rights invaded Torcaso’s freedom of belief form of judicial oaths and all other (“MDR”). and religion.” Torcaso, 367 U.S. at oaths to be taken or administered 495. Specifically, the Court reasoned in this State . . . shall be as follows: that, under the Establishment Clause, ‘In the name of Almighty God I do Torcaso, Its Progeny and Its “neither a state nor government can solemnly promise or declare’,” (the Application to Section 10 constitutionally force a person to pro- “Oath Text”), Md. Code (1898), Art. 1, Roy R. Torcaso was appointed to the fess a belief or disbelief in religion,” § 8a (“Section 10”). Well into the 20th office of Notary Public for Montgomery and “the fact that a person is not century, the Oath Text was actively County by the governor of Maryland. compelled to hold public office can- administered in a wide range of con- Torcaso, 367 U.S. at 490. At the time of not possibly be an excuse for . . . texts. See, e.g., Jacobs v. State, 45 Md. his appointment, Article 37 of the MDR impos[ing] criteria forbidden by the App. 634, 644 (1980) (administering (“Article 37”) required “a declaration constitution.” Id. Oath Text to testifying witnesses); of belief in the existence of God” in Not long after the Torcaso court State v. Panagoulis, 253 Md. 699, 703 order for a person to hold “any office of found Article 37 unconstitutional, (1969) (same); Parker v. Leighton, profit or trust in this State,” including Maryland’s Court of Appeals had 131 Md. 407, 554 (1917) (referenc- office of Notary Public. Id. at 489 (quot- the opportunity to review the con- ing administration of Oath Text to ing Md. Const. of 1851, Decl. of Rts., stitutionality of other Maryland signatories to a will); In re Matter of Art. 37). As a devout atheist, Torcaso statutes under Torcaso’s rationale. Braverman, 399 F. Supp. 801, 813 (D. refused to make the required declara- In Schowgurow v. State, 240 Md. 121 Md. 1975), rev’d on other grounds, 549 tion and, as result, his appointment (1965), for instance, the Maryland F.2d 913 (4th Cir. 1976) (administer- was revoked. Id. Torcaso sued the Clerk Court of Appeals reviewed – and ing Oath Text to individual seeking of the Circuit Court for Montgomery struck down – Article 36 of the MDR admission to Maryland bar); Ligget & County, claiming that Article 37 of the which provides that “no person oth- Myers Tobacco Co., Inc. v. Imbragugulia, MDR violated the First and Fourteenth erwise competent shall be deemed 73 F. Supp. 909, 913 (D. Md. 1947) Amendments of the U.S. Constitution. incompetent as a juror on account (referencing oath that was adminis- Id. Specifically, Torcaso argued that of his religious belief . . . provided, tered to court bailiff). the requirement to declare belief in he believes in the existence of God.” In 1961, the Supreme Court of the existence of God as a precondition Md. Const. of 1851, Decl. of Rts., Art. the United States decided Torcaso v. to holding office “deprives him of his 36. The criminal-defendant appel- Watkins, 367 U.S. 488 (1961) which ‘liberty’ to disbelieve in God.” Torcaso lant in Schowgurow argued that the caused Maryland’s Court of Appeals – v. Watkins, 223 Md. 49, 57 (1960). The jury which indicted him was empan- and ultimately the Maryland General Circuit Court for Montgomery County eled in violation of the Establishment Assembly – to believe that admin- upheld the decision to revoke Torcaso’s Clause because “Article 36 required istering the Oath Text was uncon- appointment under Article 37 of the them to express a belief in the exis- stitutional under the Establishment MDR. Id. On appeal to Maryland’s tence of God.” Id. at 125. The Court Clause of the U.S. Constitution. U.S. Court of Appeals, the decision below agreed with the appellant, hold- Const. Amend. I. As a result, the Oath was affirmed on the grounds that ing that “under the decision of the Text was officially deleted from the Torcaso “was not compelled to believe Supreme Court in Torcaso, we are Maryland Code on October 1, 2014. or disbelieve, under threat of punish- constrained to hold that the provi- See Md. Code (1957, 2011 Repl. Vol.) ment or other compulsion. True, unless sions of the Maryland Constitution Art. 1, § 10 (1957). he makes the declaration of belief, he requiring demonstration of belief in The purpose of this article is to cannot hold public office in Maryland, God as a qualification for service as demonstrate that the decision but he is not compelled to hold office.” a grand or petit juror are in violation to delete the Oath Text from the Id. at 58. of the Fourteenth Amendment, and Maryland Code was unwarranted. The Supreme Court of the United that any requirement of an oath as to

26 Maryland Bar Journal January 2015 such belief, or inquiry of prospective rendered Section 10 unconstitutional, (G. Alan Tar ed.) (Praeger Publishers jurors, oral or written, as to whether Maryland’s General Assembly passed 2006) (2006) (“Since the decision by they believe in a Supreme Being, is a bill requiring the deletion of the the U.S Supreme Court in Torcaso v. unconstitutional.” Id. at 131. Oath Text from the Maryland Code, Watkins, 367 U.S. 488 (1961), hold- In White v. State, 244 Md. 188 (1966), effective October 1, 2014. See 2014 ing that Maryland’s constitutional the Maryland Court of Appeals, Maryland Laws Ch. 94 (H.B. 270) oath of office, Md. Const., Decl. of addressed the constitutionality of (“the former requirement to include Rts., Art. 37, which included a dec- Section 10 under Torcaso. Charles F. the phrase ‘in the presence of the laration of belief in God, violated the White, the appellant, was arrested Almighty God I do solemnly promise establishment clause of the federal 1st pursuant to an arrest warrant and or declare’ is deleted as unconstitu- Amendment, it has been generally was ultimately convicted of assault. tional under Torcaso v. Watkins, 367 understood that this article [Article Id. at 190. Relying on Schowgurow, U.S. 495, 81 S. Ct. 1683 and White v. 39] is also unconstitutional.”); White sought to appeal his conviction State, 244 Md. 188 (1966)”). Nowhere Kenneth L. Lasson, Religious Freedom on the grounds that, in order to obtain in the bill, however, does the General and the Church-State Relationship in the arrest warrant against him, the Assembly explain why it waited until Maryland, 14 Cath. Law 4, 29 (1968) complaining witness was obligated nearly fifty years after the White deci- (“Article 39, while never specifically to declare her belief in God. Id. White sion was issued to strike the purport- challenged in the courts, is not likely assumed that the declaration of belief edly unconstitutional language. to withstand the wind of Torcaso as in God was necessary to obtain the long as it refers to a Divine Being”); arrest warrant because Article 26 of Charles A. Rees, State Constitutional the MDR provides that “all warrants Understanding Section 10 Law for Maryland Lawyers: Individual to seize any person must be on oath As White observed, Section 10 was Civil Rights, 7 U. Balt. L. Rev. 299, 305 or affirmation” and, in turn, under intended to “implement” Article 39 n.46 (1978) (“the validity of Article Article 39 of the MDR and its “imple- of the MDR (“Article 39”). White, 244 39’s requirement of ‘attestation of the menting statutes,” i.e., Section 10 and Md. at 191. Article 39 provides as fol- Divine Being’ has been questioned”). Md. Code (1957), Art. 1, § 9 (“Section lows: However, both Article 39’s plain 9”), “belief in a Divine Being was that the manner of administer- language and its legislative history the foundation of an oath or affirma- ing an oath or affirmation to any make clear that the oath by “attestation.” Id. at 191. The Maryland Court person, ought to be such as those tion of the Divine Being” may only be of Appeals opined that, if not for of the religious persuasion, profes- administered to those whose religious Torcaso, “it is crystal clear that the sion, or denomination, of which beliefs permit as much. Article 39 Maryland constitutional and statu- he is a member, generally esteem provides that the manner of admin- tory provisions we have set out or the most effectual confirmation by istering an oath to any person should referred to . . . support the contentions the attestation of the Divine Being. be “such as the religious persuasion, of appellant.” Id. at 191. However, the profession, or denomination, of which Court concluded, “from June 19, 1961 Concededly, Article 39 “requires” he is a member.” (Emphasis added). (date of Torcaso opinion), it has been that an oath be administered by Clearly, Article 39 only addresses apparent that declaration of belief “attestation of the Divine Being.” See those who profess ‘membership’ to in the existence of God could not be Torcaso, 223 Md. at 56 (stating in a religion. Atheists, however, who required in Maryland of . . . a wit- connection with the word ‘ought’ profess membership to no religion, ness.” Id. at 192. Curiously, the White as found in the MDR that “it is are not within the ambit of Article 39 court itself observed that, even prior a general rule that constitutional altogether and are thus not bound by to Torcaso, the affirmation required by provisions are not given directory its requirement of taking an oath by the Maryland Code did not “inquire construction”). And indeed, for this “attestation of the Divine Being.” as to whether the affiant believed in reason, constitutional scholars – fol- Moreover, as initially ratified in the existence of God.” See id. (citing lowing White’s cue – have argued 1776, Article 39 (then Article 36) pro- to Maryland Rule 5c (1957)). that Article 39 is unconstitutional vided, in pertinent part, as follows: On the basis of Torcaso and the lan- under Torcaso. See Dan Friedman, that the manner of administering guage in White indicating that Torcaso The Maryland State Constitution 44 an oath to any person, ought to

January 2015 Maryland Bar Journal 27 be such as those of the religious persuasion, profession, or denomination, of which he is a member, generally esteem the most effectual confirmation by the attestation of the divine being. And that the people called Quakers, those called Dunkers, and those called Menonists, holding it unlawful to take an oath on any occasion, ought to be allowed to make their solemn affirmation in that manner that Quakers have heretofore allowed to affirm, and to be the same avail as an oath in all such cases as the affirmation of Quakers hath been allowed and accepted within this state instead of an oath. And further, on such affirmation, warrants to search for stolen goods, or the apprehension or commit- ment of offenders, ought to be granted or security for the peace awarded and Quakers Dunkers or Menonists ought also be on their solemn affirmation as aforeseaid, to be admitted as witnesses in all criminal cases not capital.

Md. Const. of 1776, Decl. of Rts., Art. 36 (emphasis added). By permitting Quakers, Dunkers and Menonists to “affirm” in lieu of taking an oath on the basis of their religious beliefs, Article 36 further assured that the oath was only to be administered to an individual whose religion so permitted. Although the 1776 version of Article 36 was condensed in 1851 (into the current text of Article 39), the condensed version did not revoke this assurance. To the contrary, it had the effect of extend- ing the right to affirm rather than swear to all individuals – not just Quakers, Dunkers and Menonists – whose religious beliefs prohibit oath taking. Whitehill v. Elkins, 258 F. Supp.

28 Maryland Bar Journal January 2015 589 (D. Md. 1966) (“Article 39 of The Inapplicability of the individual’s religious beliefs the Maryland Declaration of Rights Torcaso to Article 39 and are consistent with that require- guarantees the right of any person Its Implementing Statutes ment. Nothing in Torcaso (or the to affirm rather than swear, agree- The fact that Article 39 and its imple- Establishment Clause more gener- ably to his religious beliefs.”); see menting statutes “guarantee” the ally) suggests that such a require- also Lasson, Religious Freedom and the right to take an oath or affirm agreement is unconstitutional. In fact, Church-State Relationship in Maryland, ably to one’s religious beliefs makes courts applying Maryland law have 14 Cath. Law 4, p. 23. Torcaso entirely inapplicable to those expressly observed – in direct con- Article 39’s obligation to take an statutory provisions. What Torcaso trast to White – that Section 10 is oath by the “attestation of the Divine found to offend the U.S. Constitution constitutional by virtue of Section 9, Being” – as well as its “guarantee” was the fact that Article 37’s obliga- which permits one to affirm where of the right to affirm for those whose tion to declare belief in God was he or she is “conscientiously scru- religious beliefs prohibit oath taking imposed upon individuals who did pulous” of taking an oath. Jackson – were perfectly captured by Article not believe in God. See Smith v. State, v. Garrity, 250 F. Supp. 1 (D. Md. 39’s “implementing statutes.” White, 240 Md. 464, 468 (1965) (“It was only 1966) (“Witnesses in Maryland are 244 Md. at 191. Section 10 required the fact that all prospective jurors not required to declare their belief in that the Oath Text be administered were required to take the oath irre- G-d. A witness may affirm instead of to oath takers as a general rule. This spective of their individual beliefs taking an oath. . . . ‘In the presence of requirement corresponds to Article about religion and affirm their belief Almighty G-d’ . . . is not improper.”); 39’s obligation that “any person” in God that, under Torcaso, rendered Brown v. Brough, 248 F. Supp. 342 n. “ought” to take an oath by the “attes- the manner of selection invalid.”); 2 (D. Md. 1965) (“Petitioner does not tation of the Divine Being.” Section Murray v. Curlett, 228 Md. 239, 248 challenge the form of the oath which 9, Articles 39’s other “implementing (1962) (“In that case [Torcaso] the was taken by all of the jurors, unless statute,” See Id., permits those who Court was concerned with the com- one or more of them elected to affirm, are “conscientiously scrupulous of pulsion which required a non-believ- as permitted by Art. 1, sec. 9 of the taking the oath” to affirm instead. er to profess a belief in God in order Annotated Code of Maryland. The Indeed, the affirmation text canon- to qualify for public office.”). See also oath began with the words, ‘in the ized by Maryland law makes no Rutan v. Republican Party of Illinois, presence of Almighty G-d.” . . . Such mention of God or belief in Him. 49 U.S. 62, 77 (1990) (“We premised a challenge would be unavailing; Maryland Rule of Civil Procedure 5c Torcaso v. Watkins, 367 U.S. 488, 81 the form of oath is not improper”). (1957) (defining ‘affirmation’ as sim- S.Ct. 1680, 6 L.Ed.2d 982 (1961), on Accordingly, the Maryland General ply “a solemn promise and declara- our understanding that loss of a job Assembly’s decision to delete the tion made under the penalties of per- opportunity for failure to compro- Oath Text from the Maryland Code jury by a person who conscientiously mise one’s convictions states a con- on the basis of Torcaso was, ironically declines to take an oath, that a certain stitutional claim.”); State v. Madison, enough, a leap of faith. statement of fact is true”). 240 Md. 265, 275-76 (1965) (Horney, In sum, the combined effect of Mr. Robbins leads the Commercial and J., dissenting) (“Torcaso v. Watkins, Business Litigation practice group at Section 10 and Section 9 – and, what 367 U.S. 488, 81 S.Ct. 1680, 6 L.Ed.2d Miles & Stockbridge P.C., where he rep- Article 39 contemplates – is that “a 982 (1961), held that a nonbeliever resents a broad array of businesses and individuals in business litigation. Mr. person is not permitted to affirm, in seeking an appointment as a notary Lanner is an associate in the Commercial lieu of taking an oath, unless he is public could not be compelled to and Business Litigation practice group at Miles & Stockbridge P.C., where he conscientiously scrupulous of tak- declare he believed in the existence represents individuals, companies, and ing an oath. He is allowed to affirm, of God.”). financial institutions in disputes arising only, because of his conscientious By contrast, Article 39 and its from complex business and commercial matters. scruples.” Mathews v. Dare, 20 Md. implementing statutes, as discussed 248, 253 (1863). above, only require an individual to take an oath in the name of the Divine Being/Almighty God where

January 2015 Maryland Bar Journal 29 THE SEPARATION OF POWERS IN MARYLAND AND THE RIGHT TO COUNSEL – CHECKS AND BALANCES OR WEIGHTS AND MEASURES

30 Maryland Bar Journal January 2015 By the Honorable Steven I. Platt (Ret.) and Kristine Modica

othing has disturbed the relationship between the three branches of Maryland’s state govern- Nment more than the recent decision of the Court of Appeals of Maryland – DeWolfe v. Richmond – that indigent persons accused of crimes should have the right to be represented by counsel at initial appearance before a District Court Commissioner.

January 2015 Maryland Bar Journal 31 Those cases – which include 2012 a crime, with or without a warrant, the Commissioner would look at the (“Richmond I”) and 2013 (“Richmond to be brought before a District Court defendant’s prior record, his or her ties II”) decisions made by the Court of Commissioner (“Commissioner”) for to the community and family, employ- Appeals – evolved from a unique his- an initial bail hearing within twenty- ment status, character and reputation, torical context which began as most four (24) hours of the arrest. Md. Rule and the nature of the offense. Id. At the of the case law on the right to counsel 4-212(e), (f). At this Initial Appearance request of the Commissioner, within this country did with the Supreme which was also, in most cases, the out mentioning that statements made Court of the United States (“SCOTUS”) accused’s initial bail hearing, the could be used against them, arrestees decision in Gideon v. Wainwright, 372 Judicial Officer, or Commissioner, were expected to answer all questions U.S. 335 (1963), in which lawyers were advised the defendant of his or her on topics related to their release or described as “necessities not luxu- rights and the charges and penal- confinement. Prior to Richmond arrest- ries.” Most presciently, the Court of ties faced; made a probable cause ees had no declared right to counsel Appeals of Maryland years later in the determination if a warrantless arrest to represent them during this process. “Richmond Cases” referenced Justice took place; and if applicable, deter- These initial hearings in many Sutherland’s powerful statement in mined conditions of pretrial release as instances took place in cramped Powell v. Alabama, 287 US 45 (1933) authorized by Maryland Rule 4-216. booths and other confined quarters that “the right to be heard would be Md. Rule 4-213; CJP § 2-607(1)-(2). In where communication occurred by in many cases of little avail if it did essence, the Commissioner made all of speaker system, to a Commissioner not comprehend the right to be heard the determinations the District Court on the other side of an acrylic win- by counsel. A criminal defendant Judge would thereafter consider at dow. These hearings were not open requires the guiding hand of counsel the defendant’s next appearance. If to the public. They were not recorded at every step in the proceeding against the Commissioner determined that and still aren’t. Access to the hearings him.” (emphasis added) the arrest was supported by prob- was controlled by the Commissioners. However, SCOTUS did not recog- able cause, the defendant was entitled No on-the-record judicial review of nize Justice Sutherland’s language as to be released prior to trial on per- the Commissioners decisions was con- an immediate constitutional right to sonal recognizance or on bail, with or templated or implemented. counsel. In Gerstein v. Pugh, citizens without conditions imposed unless, Although the Commissioners arrested without a warrant were held the Commissioner concluded that no determination was and is subject to entitled to a post-arrest determination condition of release will ensure: (1) review by a District Court Judge, sta- of probable cause within forty-eight the appearance of the defendant as tistics presented in the 2001 “Pretrial (48) hours of their arrest. 420 U.S. required; and (2) the safety of the Release Project: a Study of Maryland’s 103, 105 (1975). An adversary hearing alleged victim, another person, and Pretrial Release and Bail System,” was found not to be required when the community. Md. Rule 4-216(f). commissioned by now retired Chief conducting a Gerstein hearing. Thus, Possible conditions imposed by Judge Robert M. Bell, concluded that under Gerstein the Sixth Amendment the Commissioner to ensure a defen- some judges heavily relied on the right to counsel for indigent defendant’s appearance included submit- Commissioners’ determination with dants did not initially apply at the ting defendant to the custody of a over half affirming the bail set by the defendant’s first appearance before a designated person or organization Commissioner at bail review hear- judicial officer. that agreed to supervise the defen- ings and that “most judicial officers dant and agreed to ensure the defen- decided whether to release on recog- dant’s appearance in court; placing nizance or a financial bail without The Pre-Richmond the defendant under supervision of having essential information about Maryland Pretrial System a probation officer or other appropri- the person’s employment status, fam- (The Commisioner System) ate public officials; or subjecting the ily and community ties, and ability to Prior to the Court of Appeals of defendant to reasonable restrictions afford bail.” Id. Maryland’s decisions in the “Richmond with respect to travel, association, or District Court Commissioners are Cases” Maryland’s Pretrial System residence during the period of release. governed by the laws and Constitution required every person arrested for In deciding what conditions to impose of the State of Maryland. Md. Const.,

32 Maryland Bar Journal January 2015 Art. IV § 41G. The position was cre- who lacked representation. The study should expand its pretrial release ated to minimize the need for judges also found that suspects accused of investigative services statewide and to issue arrest warrants on cases they non-violent offenses were more likely invest greater resources in supervising could potentially be required to adju- to be released, released earlier, and pretrial detainees, particularly those dicate later and to provide 24/7 access receive lower bails. The study also charged with nonviolent offenses; to citizens and to police. Currently concluded that, generally, the arrest- (2) the Office of the Public Defender there are around two-hundred-and- ees were of the opinion that they were should represent indigent defendants seventy-nine (279) Commissioners treated more fairly. Moreover, rep- statewide at the initial appearance statewide. In 2013, they conducted resentation of arrestees at this stage before a commissioner and at the nearly 153,000 initial appearances. appeared to lower recidivism rates bond review hearing; (3) an Assistant Commissioners are appointed and reduce local jail costs. State’s Attorney should be present at by the Administrative Judge of the As a result of the Lawyers at Bail bond review hearings; (4) monetary district court where they reside, are Project’s research and findings, the bonds should be used sparingly, lim- required to be over the age of eighteen Maryland State Bar Association ited to situations when according to (18), and be a resident of the coun- requested that the Maryland Court Maryland Rule 4-216(c), “no other ty in which they serve. Id. A newly of Appeals create a committee to condition of release will reasonably appointed Commissioner must attend study the state of pretrial release deci- assure” appearance along with victim one-hundred-and-twenty (120) hours sion-making throughout Maryland. and community safety. of training including orientation; That committee released its Deeley In March 2006, two students from subject-based training on topics such Report in 2001. Report to the Pretrial the Justice Clinic gained an impor- as determining probable cause, pre- Release Subcommittee of the Task Force tant ally when they presented their trial release, civil orders, bonds, and to Study the Laws and Policies Related findings to the Venable law firm. On research; and database and software to Representation of Indigent Criminal November 13, 2006, Venable attor- training. This training is followed by Defendants by the Office of the Public neys Michael Schatzow and Mitchell one-hundred-and-sixty (160) hours of Defender. That same year, the Abell Y. Mirvis joined with the Access to on the job training as a mentee to Foundation published its own report Justice Clinic to file the Complaint a current commissioner. Continued on the pretrial release decision-mak- which would bring Richmond before education includes an annual training ing in Maryland, reporting there was the Court of Appeals. requirement of thirty-two (32) hours. a “dearth of essential information College or law school is not required available to judicial officers at initial for appointment. appearances and bail review hear- The Richmond Cases ings.” The report noted “lack of coun- Odyssey sel for the accused, a complete pretrial Although no Odysseus, Quinton The Movement Leading To release investigation, and an assistant Richmond (“Richmond”) and 10 other Richmond state’s attorney input means a lack individuals detained at the Central Starting in August 1994, the of critical data about the defendant’s Booking facility in Baltimore City, University’s of Maryland Francis King community ties and financial ability on separate offenses, became the Carey School of Law’s “Access to to pay.” Id. The Report concluded that Richmond plaintiffs, and embarked Justice Clinic” began the “Lawyers at for nearly half of arrestees, bail was set on their own odyssey, ultimately Bail Project”. The project focused on too high particularly for low-income reaching not Ithaca but the Court of pretrial release in Maryland and col- defendants, predominantly those Appeals of Maryland. These persons lected arrest data over an 18-month charged with non-violent crimes. Id. representing all indigent individuals period. The Abell report tied the lack of similarly situated by being detained The results of the project’s research information and input to the judi- in Baltimore City were denied their showed indigent defendants repre- cial officers’ high use of monetary requests for representation by counsel sented by counsel at bail review hear- bonds. Both the Deeley and the Abell at their initial bail hearing appearance ings were 2 ½ times more likely to be Foundation reports made the follow- before a District Court Commissioner. released on recognizance than those ing recommendations: (1) Maryland Plaintiffs’ complaint sought declar-

January 2015 Maryland Bar Journal 33 atory and injunctive relief against the Defendants for violating their statutory and constitutional rights. On December 7, 2007, the Circuit Court for Baltimore City granted summary judgment in favor of the defendants. The plaintiffs appealed to the Court of Special Appeals. But in 2008, before all appeals were heard, SCOTUS ruled that, “[a] criminal defendant’s initial appearance before a judicial officer, where he learns the charge against him and his liberty is subject to restriction, marks the start of adversary judicial proceedings that trigger attachment of the Sixth Amendment right to counsel.” Rothgery v. Gillespie County, 554 U.S. 191, 212 (2008). To the Richmond plaintiffs and their counsel, this ruling appeared to address the issue of when and what is the earliest judicial proceeding in which an indigent defendant in Maryland has the right to state-appointed counsel. While Richmond was pending in the Court of Special Appeals, the Court of Appeals of Maryland issued a writ of certiorari and on March 5, 2010, the Court of Appeals vacated the circuit court’s judgment entered on December 7, 2007. It remanded the case with the direction and condition that plaintiffs amend their complaint by April 6, 2010, to join the Public Defender as a party. On remand, with the Public Defender joined as a Defendant, Baltimore City Circuit Court Chief Judge Alfred Nance granted summary judgment in favor of the plaintiffs and granted declara- tory judgment on September 30, 2010. But he denied plaintiffs’ request for injunctive relief. The parties appealed and cross-appealed to the Court of Special Appeals. The plaintiffs filed a Petition for Writ of Certiorari to the Court of

34 Maryland Bar Journal January 2015 Appeals of Maryland. The Public by an estimate made by the Public The Saga Of Richmond II Defender filed a Cross-Petition for Defender that it would cost at least The Legislatures “quick fix” of Certiorari. Both were granted. $27 million annually to implement. amending the Public Defender’s Act On January 4, 2012, the Court of While Motions for Reconsideration to disclaim any statutory right of an Appeals unanimously affirmed the of Richmond I were pending, the indigent defendant to counsel before Circuit Court’s holding that, “the bail- General Assembly of Maryland a Commissioner required the Court of hearing portion of the initial appear- passed amendments to the Public Appeals to decide the constitutional ance before the Commissioner is a Defender Act, to provide, “represen- issue of whether indigent defendants ‘critical stage’ of a criminal proceed- tation is not required to be provid- had a federal or state constitution- ing, as that term is employed in § ed to an indigent individual at an al right to state-appointed counsel 16-204(b)(2) of the Public Defender initial appearance before a District at their initial appearance before a Act” and “indigent defendants are Court Commissioner.” Instead the District Court Commissioner. On entitled to public defender represen- Legislature mandated that the Office August 22, 2012, the Court of Appeals tation at any initial appearance proof the Public Defender provide repre- issued an amended order requiring ceeding conducted before a commis- sentation for all indigent defendants additional briefing and oral argument sioner.” DeWolfe, 434 Md. at 453-54, at the initial Bond Review Hearing on this issue. 76 A.3d at 1024-25. Judges Harrell before a District Court Judge. This On September 25, 2013, four Judges, and Adkins dissented but only to the revised statute resulted in indigent including Retired Specially Assigned majority’s refusal to grant the Office defendants beginning to receive repre- Judge John C. Eldridge and soon-to-be of the Public Defender’s request for sentation at these hearings throughout Retired Chief Judge Robert M. Bell, a stay of the judgment until June the state beginning in 2012. over the vigorous dissent of Judges 20, 2012. The Dissent noted that the The new law also required the Mary Ellen Barbera, Glenn T. Harrell, implementation of such a right would establishment of a Task Force to Study Jr., and Sally Adkins held that under require a combined effort of the Office the Laws and Policies Relating to the due process protections of Article of the Public Defender, the Governor, Representation of Indigent Criminal 24 of the Maryland Declaration of the Legislature, and others. Both dis- Defendants by the Office of the Public Rights, an indigent criminal defen- senters emphasized the need for the Defender. It was to (1) study the ade- dant appearing at an initial hearing construction of facilities, appropria- quacy and cost of State laws and before a District Court Commissioner tion of additional funding, and addi- policies relating to representation has a right to state-appointed counsel. tional attorneys and security to carry of indigent criminal defendants by DeWolfe v. Richmond, 434 Md. 444, 76 out this newly declared statutory right, the Office of the Public Defender, as A.3d 1019 (2013). The law was decided; as well as the time necessary to accom- well as the efficiency and fairness of the means of implementation were not. plish the affirmed relief. the District Court Commissioner and The Court issued that ruling, known This ruling, known as Richmond Pretrial Release System; and (2) con- as Richmond II, without any reference I, was wording statutory interpreta- sider and making recommendations or even acknowledgement of the time tion of the Maryland Public Defender regarding options for and costs of and cost of implementation. Act. The Act passed in 1957 estab- improving the system of representa- lished the scope of the Office of the tion of indigent criminal defendants, Public Defender which is responsible before District Court Commissioners The Legislative Reaction To for the legal representation of indigent as well as improving the Pretrial Richmond II criminal defendants throughout the Release Systems. Suffice it to say the Legislative reaction to Richmond II state. §§ 16-101 through 16-403 of the Task Force had a minimal impact holding a state constitutional right to Criminal Procedure Article. which largely was confined to having counsel at an initial appearance before The General Assembly’s reaction to its recommendations looked at by a a Commissioner resulted in a combi- Richmond I was heated debate about subsequently established “Governor’s nation of fiscal reality-based shock, the responsibility for implementing Commission to Reform Maryland’s chagrin, and in some cases anger. the dramatically expanded right to Pre-Trial System”. Richmond II extended, impractically counsel. The debate was exacerbated in the view of the General Assembly’s

January 2015 Maryland Bar Journal 35 for that purpose. The implicit message from the more political branches of Maryland’s state government to the Judiciary was “You created the problem – You pay for it.” A footnote to the Budget mandated that local government would have to make up the difference if the $10 million allocated from the Judicial Branch’s budget was insufficient. This amendment to the budget triggers other questions. For one, there is no directive of where the funds are being re-appropriated from. Without know- ing which services are now compro- mised, the Judiciary cannot adequate- ly prepare for budget cuts, especially when there is no speculation on what happens after the 2015 Fiscal Year ends as the $10 million is only for one year. Ultimately, the legality of the budget process may be undermined Leadership as well as its rank and to Reform Maryland’s Pretrial because the Maryland Constitution file a right to a politically unpopular System monitored and staffed by The clearly states the budget system is a class of citizens which could cost $30 Governor’s Office of Crime Control function led by the executive branch. to $35 million dollars which the state and Prevention”. The Commission Md. Const., Art. II, § 17. Although didn’t have. The resistance to provid- was to submit a final report to the limited to specific circumstances the ing funding for this purpose was uni- Governor and the General Assembly General Assembly may amend the versal. The suggested means to avoid no later than December 1, 2014. Budget Bill by increasing or dimin- it however were diffuse and fragment- ishing the items therein relating to ed. During the 2014 General Assembly the judiciary. However, the General Session, Richmond II was the number The Future Assembly is restricted from redirect- one topic of discussion, yet all bills The General Assembly and the ing funding for other purposes by Md. introduced to address it failed. Executive Branch will need to address Const., Art. III, § 52(6). how to implement this newly declared Judicial Budget Amendments are state constitutional right. That will addressed in § 7-208.1 of the State The Executive Branch include deciding which branch of Finance and Procurement Article. That Reaction government is ultimately responsible provision clearly authorizes the Chief The prospect of a 2013 legislative for representation of indigent arrest- Judge of the Court of Appeals, and solution to Richmond II faded; the ees and the cost of that representa- only the Chief Judge to implement Executive Branch remained quiet. It tion. In 2014, the Legislature reject- budget amendments which are limit- did, however, reject the Maryland ed the Public Defender’s proposed ed to re-directing funds between pro- Public Defender’s budget projections budget for implementing the process grams of the judicial branch. In addi- for implementing the right to counsel, needed to protect the constitutional tion to these budget procedural issues, estimated at $30 million. In essence, right. They tossed the process to the which are problematical at best, the the Governor’s contribution was to Judiciary by amending the Judiciary’s General Assembly’s unilateral amend- issue an Executive Order establish- budget and re-appropriating $10 mil- ment of the allocation of the funds ing on May 27, 2014, a “Commission lion dollars of the Judiciary’s budget of the Judiciary Budget to specifi-

36 Maryland Bar Journal January 2015 cally provide for the salaries of a non- classified positions, i.e., the attorney’s volunteering to represent defendants at their initial appearance before a www.grfcpa.com • (301) 951-9090 Commissioner probably violated Md. State Fin. & Proc. § 7-208.1(c)(1). Business Valuation and Amendment limitations on salaries Forensic Accounting Services also include a restriction on increasing a salary for a non-classified Shareholder Disputes • Fraud Detection Services • Divorce Cases position so that the salary exceeds Estate and Gifting Plans • Forensic Accounting Investigations the amount established in the most Internal Corporate Investigations • Litigation Support Consulting recently enacted State budget bill. Id. Fraud Risk Assessments • Expert and Fact Witness Testimony Finally, it is at least arguable that since Due Diligence and Background Investigations • Forensic Computer Analysis these funds are specifically appropriated to implement a constitutional right, the Governor may be required Walter H. Deyhle, CPA, CFP, ABV to appropriate funding specifically Tax and Business Valuation Director for the implementation of the newly [email protected] conferred state constitutional right to representation before a District Court Rick Potocek, CPA, MBA, CFE Commissioner. A Governor cannot Forensic and Dispute Services Principal solve the problem by simply allowing [email protected] the legislature to usurp that executive power by re-directing funding. if and when the $10 million dollars of ally required, not shifted to the wrong District Court Chief Judge John the Judiciary’s own funds transferred branch of government. Morrissey has been given the respon- to implement DeWolfe v. Richmond run The solution to these issues particu- sibility for implementing Richmond out. Arguably county and Baltimore larly the funding issues is the estab- II and despite no budget; insufficient City funding are then mandated to lishment of a broader Commission to staff; no ability or staff to train law- implement the Court of Appeals deci- Study the Institutions and Operations of yers; and no authority to regulate sion but for the reasons previously the Maryland Criminal Justice System. attorneys, he has done a commendable discussed not without controversy. Many of the institutions of Maryland’s job under uncommonly challenging The Office of the Public Defender Criminal Justice System are dated and circumstances. However, this role that was created by statute to represent obsolete, and their funding by all Judge Morrissey has assumed should indigent criminally accused. It is an three levels of government is convo- not be institutionalized. Without the Executive Branch Agency of State luted and illogical. That includes the structure to manage a Lawyer Referral Government and should have that Pre-Trial System which is structured Service, the Chief Judge of the District responsibility from the initial appear- in a way that may no longer make Court’s hard work and distinguished ance through appeals. There is no sense in the 21st Century. We ought service is not a reason to continue logical reason to not have the Office to get on with the business of making to house that function in clearly the of the Public Defender discharge that the system work fairly, efficiently and wrong branch of government. It also responsibility now and in the future. If Yes – economically. has the potential in the not too distant the Public Defender’s Budget requests or even its needs are not agreed upon Judge Platt is a Retired / Recalled Circuit future to precipitate a serious con- Court Judge and was a member of stitutional separation of powers and by the Governor and/or the General the Governor’s Commission to Reform intergovernmental relations problem. Assembly, then his agency and its Maryland’s Pre-Trial System. Ms. Modica is a Law Student at the Washington These issues could potentially put the operations should be funded to the College of Law at American University, judiciary into an adversarial position extent that the Governor and the Washington, D.C., and has assisted Judge vis-à-vis county and city governments General Assembly find is constitution- Platt in his work on the Commission.

January 2015 Maryland Bar Journal 37 The Privilege Of Public Service

A Conversation with Chief Judge Mary Ellen Barbera, Court of Appeals of Maryland By Patrick Tandy

Change has resounded within and without the wood-paneled walls of Maryland’s highest court since July 6, 2013, when Governor Martin O’Malley appointed the Honorable Mary Ellen Barbera as the new Chief Judge of the Court of Appeals of Maryland. Not only did Barbera, a former Baltimore City Public School teacher, become the first woman to head the Court of Appeals, but O’Malley’s concurrent promotion of then-Court of Special Appeals Judge Shirley M. Watts to the high court also established the Court of Appeals’ first-ever female majority in its nearly 240-year history.

38 Maryland Bar Journal January 2015 However, this shift in the bench’s Anne Arundel County. gender dynamic was but the first of “It’s been a multiyear process,” says many changes coming to a Judiciary Barbera, noting that much of the proj- facing a new technological era and ect’s planning predated her July 2013 tectonic shifts in the practice of law. appointment. Indeed, the system owes By the time of Barbera’s appoint- a great debt especially to the work ment, the high court had drawn criti- of retired Maryland District Court cism from some who felt that its deci- Chief Judge Ben C. Clyburn, long- sions – some of which came several time chair of the Judiciary’s MDEC years after argument – did not reflect Advisory Committee, and MDEC a timely administration of justice. In Project Manager Joan Nairn. October 2013, the new Chief Judge Nevertheless, by the time of the boldly declared that decisions on all e-filing and electronic case manage- arguments presented to the Court of ment system’s scheduled statewide Appeals would be rendered before completion in 2018, says Barbera, the end of the term in which they Maryland will have one of the first 501(c)(3) charitable organization that, were heard. fully electronic state judiciaries in the working in conjunction with the “Everyone was on board with it,” nation. While the system is admittedly MSBA Lawyer Assistance Program, Barbera says, referring to her fellow “complex,” that same complexity, she helps fund necessary treatment for judges on the Court of Appeals. “They adds, will ultimately benefit its end- Maryland attorneys and judges who said, ‘We stand shoulder-to-shoulder users. (Further details about MDEC are struggling with addiction or men- on this. It is necessary, it is important, may be found online at http://www. tal health issues through special loans. and it is doable.” courts.state.md.us/mdec/.) The Judiciary’s latest technological And doable it was; Barbera and Barbera particularly praises MSBA strides also include an online calendar her colleagues in fact issued opinions Immediate Past President Michael J. that chronicles “each case from the on all 127 cases the Court of Appeals Baxter for his “strong” and “effec- date of filing to the date of argument heard during its 2013-2014 term, four tive” supporting testimony on behalf to the date of the decision.” Such days in advance of its self-imposed of funding for MDEC’s implemen- improvements to the website, Barbera August 31 deadline. tation before the Maryland Senate says, are part of a greater effort to “Everything was filed within the Judicial Proceedings Committee identify the Judiciary’s mission and year,” she says, noting that “most during the 2014 Legislative Session how best to satisfy the goals estab- of the opinions were actually filed of the Maryland General Assembly. lished therein. within two or three months from the Though that measure ultimately The Chief Judge notes that her date of argument.” failed, the Chief Judge calls such interactions with local bar asso- supportive efforts by the Bar ciations and the MSBA, such as President especially “helpful” on an her September 17, 2014, speaking Technology issue expected to resurface during engagement before the MSBA Senior For Barbera, “transparency and the 2015 Legislative Session. Lawyers Section, also reflect ongo- communication are hugely impor- Barbera also lauds Baxter’s dili- ing attempts to “better communicate tant to representing everyone we gent collaboration with the Court of both within and without [the legal serve.” Spearheading such efforts Appeals in helping to secure, in May profession].” To that end, she invites is the Judicary’s e-filing initiative, 2014, a one-time $500,000 transfer from members of the bar to “let us know Maryland Electronic Courts (MDEC), a reserve surplus held by the Attorney what we need to improve upon,” the six-month pilot program for Grievance Commission of Maryland because “there are always many which debuted October 14, 2014, in to the Bates/Vincent Foundation, a things to improve upon.”

January 2015 Maryland Bar Journal 39 Appointed Attorneys Barbera recalls “the happy coinci- marriages, “the courts aren’t gener- Program dence” of encountering two young ally places where people come when In 2013, the Court of Appeals stirred attorneys who, under the program, they’re happy,” says Barbera. “They’re the political pot with an expand- had volunteered to represent indi- usually fearful or frustrated or angry ed interpretation of the Maryland viduals during their initial presen- or confused.” Constitution in the case of DeWolfe tation before the Commissioners. “We have those universal challeng- v. Richmond, ruling that an indigent “They were enthusiastic and eager,” es,” the Chief Judge acknowledges, arrestee has a right to counsel start- notes Barbera, “and [in the pro- “but the successes are many.” ing with his or her initial appearance cess] they were learning from one before a District Court Commissioner. another.” However, when covering the Although permanent budget- Access To Justice Maryland Public Defender’s esti- ary arrangements for the Appointed In September 2014, Barbera approved mated $30 million price tag to imple- Attorneys Program have yet to be the creation of an Access to Justice ment the program proved problem- made, for the moment, says Barbera, Department within the Judiciary, atic during the 2014 Legislative “we are making it work.” to be headed by Pamela Cardullo Session, the General Assembly, as Ortiz, who for seven years served as a stopgap measure, reallocated $10 Executive Director of the Department’s million of the Judiciary’s budget Statewide Tour predecessor, the Maryland Access to toward its cost. Meanwhile, adminis- The same week in which she Justice Commission. The work of that trative judges of the District Court of addressed the MSBA Senior Lawyers Commission under its Chair, retired Maryland were tasked with appoint- Section the Chief Judge also conclud- Maryland Court of Appeals Judge ing volunteer attorneys to help fulfill ed a yearlong tour of every court- Irma S. Raker, generated a plethora of this need when public defenders house in the state. For Barbera, the “innovative ideas” on which the new were unavailable. trip reaffirmed, among other things, Department, in collaboration with When Barbera appointed the her conviction that the state’s nearly external partners including legal ser- Honorable John P. Morrissey to the 300 incumbent judges “couldn’t oper- vices providers, will focus. post of Chief Judge of the District ate without” the support of the “50 Barbera foresees the Department Court of Maryland in early 2014, or 60 retired judges who support the as concentrating on, among other she informed Morrissey that two courts as recall judges.” things, the needs of “vulnerable” unique projects would accompany But just as important, she says, populations, such as those for whom his regular workload. “One will be are the approximately 4,200 staffers, language-barriers can prevent effec- MDEC,” she recalls, “and the other including clerks and administrators, tive access to law-related resources. will be implementing the at-that- “who support what the judge does, The legal needs of Maryland’s veter- time very new charge by the General and then, of course, the judge him or ans – a key focus for MSBA President Assembly of creating a program to herself.” Such an opportunity to “see Debra G. Schubert – are similarly link attorneys to arrestees at their what they do, talk with them, and important for the Chief Judge, who initial appearance.” thank them for what they do” first- in May 2014 approved the creation Morrissey “hit the ground run- hand left the Chief Judge “thrilled.” of a pilot Veterans Court in Prince ning,” says Barbera, particularly not- “The folks I’ve met around the state George’s County. “I’m proud and ing the extraordinarily small window have said, ‘We love working for the pleased that President Schubert is so of time – one month after his appoint- Judiciary – it’s hard work, but we interested in serving that particular ment took effect on June 1 – at his love serving the people,’” she says. portion of our population,” she says. disposal in which to establish the Barbera finds such a prevailing sen- The plight of pro se litigants will also Appointed Attorneys Program, which timent “heartwarming,” particularly be a top priority for the Access to Justice pays its volunteers $50 per hour. “I’m given the weight of burgeoning casel- Department. In addition to bolstering proud of the work he has done.” oads and the often contentious nature existing efforts like the People’s Law During a recent visit to the District of the work. Library of Maryland (http://www. Court Commissioners in Hyattsville, But for the possible exception of peoples-law.org/) and the Judiciary’s

40 Maryland Bar Journal January 2015 importance of civility to the legal profession. Be it through interactions between attorneys and litigants, or judges and the lawyers who appear before them, such “crucially important” matters of “courtesy, professionalism, and pre- paredness” are a “two-way street,” requiring effort at all levels. “Again, none of us could really operate without the whole of us working together,” she says.

Conclusion The new Chief Judge of the Court of Appeals of Maryland regards her current post as reflecting a career- long dedication to public service that began nearly four decades ago with her “wonderful, life-informing new Self-Help Video Library (http:// Other Issues experience” as a teacher – a role mdcourts.gov/reference/videoli- In 2010, 18.6 percent of the state’s that, indeed, she has yet to relin- brary.html), the Department will over- population was over the age of 60. quish entirely. “I have never given see the expansion of the District Court By 2030, the Maryland Department of up teaching,” Barbera, grinning, says of Maryland’s free self-help center in Aging expects that number to exceed with a glint in her eye. “I still teach, Glen Burnie into neighboring Prince one-quarter of the state’s projected at the American University School of George’s County, where walk-in assis- population of 6.7 million. Barbera Law. I’m privileged to do be able to tance will supplement the center’s expresses concern for the courts’ abil- do both, really.” growing online and telephone ser- ity to address the future implications She credits her parents for instill- vices. “Providing information to as of this so-called “Silver Tsunami”, ing in her the notion that “helping many people as effectively as we can including, but not limited to, health, others who are less fortunate or who is really important,” says Barbera. guardianship, and estate-related have unmet needs” is not only a civic However, despite stepped-up issues, as well as those of physical responsibility, but a very human efforts to serve self-represented liti- accessibility to the state’s courts and one as well. To be sure, despite the gants, “I don’t think there’s a per- other legal resources. ever-changing dynamics of both the son who would challenge the notion “There are so many issues atten- Maryland Judiciary and the modern that justice is best served when an dant to an aging population,” says the practice of law, Barbera continues to individual has representation,” says Chief Judge. “We’re talking numbers, “spend as much time as I reasonably Barbera. She lauds the pro bono we’re talking programs – we want can talking with people and learning efforts of MSBA and its members as to plan to be ready, because we need and listening.” “a wonderful thing,” adding that “I, to be.” At the same time, the former “Listening,” she emphasizes, “is and others, will be looking to the public school teacher is also “very probably the most important thing state bar association for continued interested” in juvenile justice matters to do.” efforts in that respect.” and how the courts may best serve “I’m passionate about making full “We’re all in the boat, to use the current and future needs in areas like use of the opportunity that Governor metaphor – let’s have the oars pulling custody, visitation, and the criminal O’Malley handed me,” adds the Chief in the same direction,” she adds. justice system, to name a few. Judge. “We’re going to work very Barbera also stresses the perennial hard, and try to do the best we can.”

January 2015 Maryland Bar Journal 41 Federal Courts: Polishing the Tarnished Silver Platter Doctrine

By Jeffrey T. Wennar

The Exclusionary Rule marks its 100th directed toward the federal government platter’ was used for the first time in anniversary in 2014. The Rule excludes and its agencies. conjunction with the Exclusionary Rule. from criminal trials all evidence deemed On June 17, 1949, the United States The second case decided by the to be the product of an unconstitutional Supreme Court issued two opinions, Supreme Court on June 17, 1949 was search and seizure. Wolf v. Colorado, 338 U.S. 25 (1949), and Wolf. The Court examined the Due This article examines the Silver Lustig v. United States, 338 U.S. 74 (1949), Process Clause to determine if evidence Platter Doctrine that existed from the that further defined the broadening admitted in a state criminal prosecu- onset of the Exclusionary Rule through parameters of the Rule and provided to tion should have been excluded in that the early 1960s when it was discarded it a descriptive nickname. venue because it would have been by the very court that gave birth to it. In Lustig, a United States Secret Service excluded in a federal venue pursuant The Silver Platter Doctrine permitted agent alerted local police of possible to Weeks. The Court stated “ [t]here state law enforcement officers who had criminal activity. Local police obtained are…reasons for excluding evidence violated the Fourth Amendment to offer an arrest warrant based on a local ordi- unreasonably obtained by federal police the evidence to federal prosecutors who nance. During a search incident to arrest, which are less compelling in the case of were then permitted to introduce the police found evidence that the defendant police under state and local authority.” evidence in federal court. Conversely, later sought to suppress. The District 338 U.S. at. 32. Acknowledging that federal law enforcement officers who Court Judge found the Secret Service the Fourth Amendment was part of violated the Fourth Amendment were agent had no part in making arrange- the Due Process law guaranteed by the permitted to offer the fruits of their vio- ments or participating in the search. The Fourteenth Amendment against state lation to state prosecutors for prosecu- Supreme Court accepted that as fact action, the Court nonetheless declined tion at that level. and also accepted the fact that the Secret to apply the Exclusionary Rule to the In Weeks v. United States, 232 U.S. 383 Service agent was contacted by the local states, reasoning that it was not part of (1914), police entered the defendant’s police and responded to the location the Constitutional right per se, and leav- home without a warrant and seized doc- of the search, and “… share[d] in the ing it to the individual states to imple- uments and items. These documents and critical examination of the uncovered ment the Fourth Amendment as they items were turned over to United States articles as the physical search proceed- deemed appropriate. Marshals. Police and Marshals returned ed.” Lustig at 78. The Court stated, “…a Later, in Elkins v. United States, 364 to the defendant’s home later that day search is a search by a federal official if U.S. 206 (1960), the Court acknowl- and seized additional documents. This he had a hand in it; it is not a search by edged a prong of the silver platter second search and seizure was also with- a federal official if evidence secured by doctrine had been vitiated by Wolf. . out the benefit of a search warrant. state authorities is turned over to fed- “The foundation upon the admissibil- Justice Day, writing for the Court, found eral authorities on a silver platter.” Id. at ity of state seized evidence in a federal that the papers and property seized by the 78-79. The salient factor, the Court held, trial originally rested – that unreason- police occurred without a search warrant, “…is the actuality of a share by a federal able state searched did not violate the thus without authority, and made “…the official in the total enterprise of securing Federal Constitution – thus disappeared [Fourth] Amendment applicable to such and selecting evidence by other than in 1949.” 364 U.S. at 213. unauthorized seizures.” The Exclusionary sanctioned means.” Id. at 79. The lower The Elkins Court went on to say that Rle was born, and based on its facts, was court was reversed, and the term ‘silver only two circuit courts of appeals had

42 Maryland Bar Journal January 2015 followed the Wolf mandate and articu- of law enforcement itself, chooses to a foreign search is not admissible in lated what had been implicit in Wolf, suspend its enjoyment.” Id. an American prosecution if the foreign “…evidence obtained by state officers It appears, however, that the federal search violated foreign law.”) . during a search, which, if conducted by Silver Platter Doctrine is being resur- The Getto Court considered as deter- federal officers, would have violated the rected in an international context. United minative the extent of the United States defendant’s immunity from unreason- States v. Getto, 729 F.3d 221 (2nd Cir. 2013). law efforcment officials in the inves- able searches and seizures under the In Getto, the defendant was the subject tigation. The Court did not consider Fourth Amendment is inadmissible over of searches and surveillance undertaken the providing of the American case file the defendant’s timely objection in a in Israel by the Israeli National Police along with telephone numbers of sus- federal criminal trial.” 346 U.S. at 223. (INP) pursuant to a request by the pected conspirators a substantial role Indeed, the Elkins Court recognized that Federal Bureau of Investigation. Fruits or a significant contribution by the FBI the purpose of the Exclusionary Rule of the Israeli investigation were used to the Israeli investigation. It appears, “is to deter – to compel respect for the in the United States District Court for but for the FBI contacting the INP and constitutional guaranty in the only effec- the Southern District of New York. That requesting assistance, the INP would tively available way – by removing the Court denied the defendant’s motion to not have been aware of, or, initiated incentive to disrgegard it.” Id. at 217.. suppress the evidence obtained in Israel, police action on their own. The Court A year later, the Supreme Court and the ruling was affirmed on appeal found this to be of no consequence. Nor issued their opinion in Mapp v. Ohio, to the Second Circuit.. The FBI had pro- did the Court find persuasive that there 367 U.S. 643 (1961). In Mapp, Cleveland vided the INP with “details of the inves- was “a live feed allowing American law police officers had seized “lewd and tigation in the United States, includ- enforcement agents to view surveillance lascivious books and pictures” with- ing Israeli phone numbers belonging to footage in real time….” 729 F.3d at 231. out benefit of a search warrant. The suspected conspirators” 729 F.3d. at 226. The appellate court found no error in Ohio state court upheld the seizure, Based on this information the INP con- the admission of the evidence against which led to the defendant’s conviction, ducted a comprehensive investigation. the defendant. because the evidence was not taken by The defendant argued he was entitled Addressing the exclusionary rule, the physical force. The state court relied on to the exclusion of the evidence: “(1) the Court in United States v. Janis, 428 U.S. Wolf for the proposition “‘… that in a INP was working jointly with the FBI, 433, 446 (1976) stated “[T]he prime pur- prosecution in a State court for a State and (2) the actions of the INP in obtain- pose of the rule, if not the sole one, crime the Fourteenth Amendment does ing the evidence were sufficient[ly] is to deter future unlawful police con- not forbid the admission of evidence egregious to trigger application of the duct.” The re-emergence of the Silver obtained by an unreasonable search and Fourth Amendment. Id.. Platter Doctrine, this time on an interna- seizure.’” 367 U.S at 615 – 616. A fundamental question presented by tional level, allows evidence improperly The Supreme Court, however, found Getto is whether the exclusionary rule seized by foreign officers abroad, to be that Wolf had been “bottomed on applies to foreign police action when admissible in American courts. Judge factual considerations” that the Court the fruits of that action are sought to be Cardoza, later Justice Cardoza, advised no longer found to be relevant or used in American courts. Addressing that “the criminal is to go free because controlling. 367 U.S. at 654 – 657. The what the Court referred to as the “inter- the constable has blundered.” People v. Mapp Court held permitting a federal national silver platter doctrine,” 7, rely- Defoe, 242 N.Y.13, 21 (1926). This axiom officer to testify in state court as to ing on its own precedent, the Court is the foundation of the Exclusionary evidence unconstitutionally seized by addressed “two circumstances where Rule. The Silver Platter Doctrine between him was a “double standard” and evidence obtained in foreign jurisdic- state and federal law enforcement has an “ignoble shortcut to conviction tions may be excluded [:] [f]irst, where been declared a violation of the Fourth left open to the State” that “tends to the conduct of foreign officials in acquir- Amendment. American courts should destroy the entire system of consti- ing the evidence is so extreme that not spend an additional 47 years wait- tutional restraints on which the lib- it shocks the judicial conscience and ing to undo a wrong that can be undone erties of the people rest.” 367 U.S. second where cooperation with foreign now by doing away with the interna- at 661. In reversing the Ohio Court, law enforcement officials may implicate tional Silver Platter Doctrine. the Supreme Court further held that, Constitutional restrictions.” .729 F.3d “we can no longer permit [the right of at 228, see. United States v. Mito, 880 Mr. Wennar is a Senior Assistant State’s Attorney in Montgomery County and an st privacy] to be revocable at the whim F2d. 1480, 1484 (1 Cir. 1989)(Rejecting Adjunct Professor at American University. of any police officer who, in the name argument that evidence derived from

January 2015 Maryland Bar Journal 43 Propriety of Billing Clients for Costs Based on an Estimated Monthly Percentage

ETHICS DOCKET NO. 2009-12

In your letter you relate that your firm Committee does not approve proposed The Court also relied on ABA Formal incurs significant out of pocket costs fee agreements or the text of other law- Opinion 93-379 entitled “Billing for on behalf of its clients, including, but related documents. As such, this opin- Professional Fees, Disbursements and not limited to, postage, faxes, photo- ion will neither address nor approve or Other Expenses”, which stated: copying, scanning and long distance disapprove of the sample billing policy “When a client has engaged a law- charges. In addition to the actual costs, presented to the Committee by your yer to provide professional services for there is significant administrative time law firm, but will provide guidance a fee (whether calculated on the basis incurred to track, monitor and bill with respect to the questions posed. of the number of hours expended, a such costs. Your inquiry to the Ethics Both the scope of representation and flat fee, a contingent percentage of the Committee is whether it is acceptable the fees to be charged must be estab- amount recovered or otherwise) the to charge clients a fixed percentage lished at the commencement of the rep- client would be justifiably disturbed on their monthly invoices to cover the resentation, and both must be reason- if the lawyer submitted a bill to the costs of these expenses. able. See Rule 1.2(c), 1.5(a). Rule 1.5(b) client which included, beyond the pro- In addition, you have submitted a mandates that both the scope of the fessional fee, additional charges for copy of your billing policy which is representation and the fees or expenses general office overhead. In the absence attached to each retainer letter that is that will be charged be communicated of disclosure to the client in advance of presented for signature to a client and to the client. the engagement to the contrary, the cli- the billing policy is expressly incorpo- We caution you to review Attorney ent should reasonably expect that the rated by reference within such retainer Grievance Commission v. Kreamer, 404 lawyer’s cost in maintaining a library, letter, where you propose to charge Md. 282, 946 A.2d SOO (2008), where securing malpractice insurance, rent- each client costs on a basis of a percent- the Court of Appeals held that the ing of office space, purchasing utilities age not to exceed 5% of the actually lawyer’s costs and expenses in main- and the like would be subsumed with- monthly billed fees. taining his or her practice of law are in the charges the lawyer is making for Per the Maryland Bar Association subsumed within the charges the law- professional services.” Committee on Ethics Guideline 1(c), the yer is billing for professional services. The Court of Appeals did, however, In other words, the ordinary and usual say that “[S]hould a lawyer wish to costs of operating a law office - rent, charge clients for overhead costs and Upcoming utilities, accounting and administra- expenses, such a charge, including tive services and the like - should not its method of calculation, ought to be Maryland Bar Journal be individually billed to the client [946 explained to the client prior to the start A.2d 534]. This was discussed in the of representation, and expressly stated context of a lawyer billing for opening in the written retainer agreement, which Election Law files and preparing accounting services the client must consent in advance to (which was nothing more than prepar- the additional fees and their method of Mar./Apr. 2015 ing the time sheets); the Court found calculation.” (emphasis supplied). the lawyer to have violated Rule 1.5. Although the Court of Appeals

44 Maryland Bar Journal January 2015 PHILLIPS & GREEN, M.D. Limited Partnership appears to suggest that this practice may be acceptable in a written agree- Orthopaedic Surgery Arthroscopic Surgery Physical Therapy ment, signed by the client, we would be Personal Injury Workman's Compensation wary of what we regard as their rath- AMA Guide Ratings IME's EMG / NCS testing er unenthusiastic endorsement of this practice, in light of their further state- We are pleased to announce the opening of our ment that “”.the ordinary and usual Columbia, Maryland Office costs of operating a law office - rent, Located at utilities, accounting and administrative Lakeview Office Park services and the like - should not be 9821 Broken Land Parkway, Suite 101 individually billed to the client, in addi- Columbia, Maryland 21046 tion to a charge for legal representation, (410) 648-4444 - (301) 798-6400 absent some other extenuating circum - stances ... “ (emphasis supplied). Jeffrey H. Phillips, M.D., Ph.D., F.A.C.S. Neil A. Green, M.D., F.A.C.S. In your inquiry you raised concern Fredric L. Salter, M.D., F.A.C.S. Richard S. Meyer, M.D., F.A.A.O.S. about the administrative time incurred K. Thomas Wagner, Jr., M.D., F.A.A.O.S. Board Certified Orthopaedic Surgeons to track, monitor and bill out of pocket costs. We think Kreamer, supra, makes Our other office locations it clear that administrative costs should 9400 Livingston Road #210, Fort Washington, MD - (301) 248-2100 8403 Colesville Road #160, Silver Spring, MD - (301) 495-2626 not be individually billed to the client. 456 Quince Orchard Road #100, Gaithersburg, MD - (301) 590-2609 Although headnote [1] of Rule 1.5(a) 6404C Seven Corners Place, Falls Church, VA - (703) 534-9680 in part states: “A lawyer may seek reim- All offices provide X-ray, Physical Therapy, and EMG Testing services. bursement for the cost of services per- formed in-house, such as copying, or for an amount that reasonably reflects the not fit within the intent of that headnote. other expenses incurred in-house, such cost incurred by the lawyer, it is this The Committee hopes it has as telephone charges, either by charging Committee’s opinion that charging any addressed your inquiry and thanks a reasonable amount to which the client out of pocket expenses based on a per- you for your interest. Our opinions are has agreed in advance or by charging centile basis is not appropriate, and does available online at www.msba.org. TheAdvertising Index 1-800 Process...... 7 Dugan, Babij & Tolley...... Cover 3 Gelman, Rosenberg & Freedman, PC...... 37 LawPay...... Cover 2 Phillips & Green MD...... 45 The McCammon Group...... Cover 4

January 2015 Maryland Bar Journal 45 Disciplinary Defaults

In Attorney Grievance Commission v. the averments in the Petition as admit- facts that may have significance not Thomas, Misc. Docket AG No. 63, Sept. ted when no answer had been filed only in determining whether ethical Term 2013 (filed November 20, 2014), the and an order of default entered. This, rules have been violated but whether Court of Appeals of Maryland reviewed notwithstanding the judge’s conclusion aggravating circumstances were pres- Maryland’s default judgment jurispru- that the evidence entered at trial was ent. The vulnerability of the complain- dence. As all civil litigators undoubtedly inconsistent with the facts alleged in ant, for example, is a possible aggra- know, when a defendant fails to deny an the Petition or that the evidence did not vating factor, and a matter that can be averment in a complaint or petition, the meet the standard of proof. The Court of assessed by the testimony of the witness averment is deemed admitted pursuant Appeals, following several precedents, before the factfinder. Bar Counsel, as to Maryland Rule 2-323(e). determined that the hearing judge was Judge McDonald stated in his concur- In Thomas, Bar Counsel filed and obliged to accept the well-pleaded aver- ring opinion in Thomas, attempted to served a Petition for Disciplinary ments of the Petition as admitted. There “put a face on a cold record of default.” or Remedial Action alleging the was no need for a “full-blown” eviden- After Thomas, the calling of wit- Respondent, Gayton Joseph Thomas, tiary hearing and the admitted facts nesses after a default has been entered Jr., Esquire, gave incorrect advice to a were sufficient to warrant the conclu- will be the exception rather than the client in an immigration matter and sion that the Respondent violated the rule. In a footnote, the Court noted misled the client as to the status of his Rules of Professional Conduct alleged. that the default rule, in the disciplinary matter, failed to respond to the client’s Thomas was disbarred. context, should be understood to war- inquiries about the case and failed to Attorney Grievance matters are dis- rant the taking of additional evidence respond to Bar Counsel’s requests for tinguished from civil litigation where, only when new and material evidence information. Thomas failed to respond once an order of default has been comes to light since the filing of the to the Petition and an order of default entered and liability is therefore estab- Petition, or, perhaps, when the hear- was entered. Thomas never moved to lished, an ex parte proof hearing is held ing judge expresses doubt about an vacate the order of default and the court to determine the amount of damages. averment or lack thereof and invites set the matter in for an ex parte hearing. Up until Thomas, in disciplinary mat- additional testimonial or demonstra- At the hearing, Thomas did not appear ters, Bar Counsel often called a witness tive evidence. The Court further noted and Bar Counsel called one witness, Mr. to testify at the hearing, even when that “by attempting to apply too many Hamed, Thomas’ former client and the an order of default had been entered. layers of gloss to already established complainant. There were several reasons for this prac- facts, so as to obscure and bring into The hearing judge, in making find- tice. First, pursuant to Maryland Rule doubt the clarity of the thorough and ings of fact, determined that Mr. 16-757(a), a complainant may testify well-pleaded facts from a [petition]” Hamed’s testimony was conflicting in as to the effect the alleged misconduct may ultimately do more harm than some aspects and not credible in others. had on her. Although the Rule may not good. Well-pleaded facts in a Petition The hearing judge concluded that the be the basis for calling the witness to (usually accompanied by unanswered only misconduct supported by clear the stand in a default setting, the Rule admissions), with few exceptions, will and convincing evidence was Thomas’s undoubtedly was meant to permit the be the Petitioner’s entire case in future failure to respond to Bar Counsel’s judge to allow the complainant to have disciplinary default hearings. inquiries. Bar Counsel filed exceptions her “day in court,” often after long and and asked the Court to conclude that stressful delays; and also to determine Glenn M. Grossman, Bar Counsel Lydia E. Lawless, Assistant Bar Counsel the hearing judge should have treated the totality of the circumstances; to take

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