During this holiday season, Marylanders can perhaps rejoice in the fact their top court is a “point of light” and not a “judicial hellhole,” according to a national organization that seeks to rein in what it considers runaway jury awards.

In its annual report, the American Tort Reform Association praises the Maryland Court of Appeals for its Sept. 24 decision upholding the state’s statutory cap on noneconomic damages. By contrast, ATRA scorns the Illinois and Georgia supreme courts for striking down their state laws limiting awards for pain and suffering.

In contrast to the “reasonableness” of Maryland’s high court, justices in those two “judicial hellholes” replaced “the policy judgments of elected legislators and governors with their own,” ATRA’s report says.

The Maryland Court of Appeals, in DRD Pool Service Inc. v. Freed, said the state legislature had a”rational basis” for enacting the cap on noneconomic damages. The General Assembly limited awards for pain and suffering to achieve the “legitimate legislative objective” of keeping insurance costs down for companies and individuals, as the cap enables insurers to better predict their financial exposure in litigation, the court said.

“In our view, the cap continues to serve a legitimate government purpose,” Judge Clayton Greene Jr. wrote for the court’s 6-judge majority.

Judge Joseph F. Murphy Jr., the sole dissenter, argued for a stricter standard. He said the cap’s defenders should have to show that it is substantially related to an important legislative objective.

Maryland’s noneconomic damages cap, which increases by $15,000 every Oct. 1, is currently $740,000.

Do you regard the court’s decision as a point of light?

Short work weeks make Mondays that much more bearable. Get a little more enjoyment out of your Monday with some law links below:

• Maryland’s top court is studying whether the court can alter the contributory negligence standard through a rule or whether it would need to do it through a judicial order. See our story on the study here.
• The Paycheck Fairness Act fails to get a vote in the Senate.
• Actor Wesley Snipes was ordered to begin serving his three-year prison sentence Friday. But no money train is going to save this guy from doing time for federal tax evasion.
• Should terror suspects be tried in civilian courts or military courts? The debate rages on after Ahmed Khalfan Ghailani was acquitted of 284 of 285 counts last week in civilian court.
• Mega insider trading case on the way?
• Manila could give India a run for its money in legal outsourcing.
• Work-life balance advocates may have hurt women in the recession.
• Superheroes band together against the LAPD.

It’s the day after Halloween. If you’re still coming down from your sugar high, here are some law links to help you sober up.

• Do non-compete clauses stymie innovation?
• Would you vote for a 25-year-old candidate for state’s attorney? Once upon a time, Baltimore County did just that.
• The Underdog blog thinks cops shouldn’t act the john in prostitution stings.
• The Maryland Court of Appeals says cell phones are allowed in courthouses. The one exception? No mobile phones in jury deliberation rooms.
• A Texas lawyer was granted an emergency continuance last week so he could attend game 1 of the World Series in San Francisco. Too bad the Rangers lost that night.
• The video game industry will be at the Supreme Court Tuesday, fighting to protect their First Amendment rights.

I wrote last week about the defamation lawsuit Rick Reinhardt filed Julie Ensor, his rival for clerk of the Baltimore County Circuit Court. The article prompted some online discussion, and the big question was one my editor posed when I initially told her about the story: Can a person be sued for defamation based on something he or she tells a police officer?

The short answer – yes. A divided Court of Appeals ruled in 1993 that statements to police are not afforded absolute privilege, meaning they are not immune from defamation lawsuits. (The case is Caldor v. Bowden if you’re scoring at home.)

Robin Leone, a media law lawyer with Saul Ewing LLP in Baltimore, said Reinhardt’s bigger challenge will be proving he was defamed. (Full disclosure: Leone has represented The Daily Record in a First Amendment matter.) Reinhardt has to show Ensor’s statement was false and that she intended to harm him when talking to police.

Read the rest of this entry »

Can the Maryland Judiciary serve as a useful model for the U.S. Supreme Court?

Sen. Patrick J. Leahy, D-Vt., seems to think so.

Leahy, who chairs the Senate Judiciary Committee, has said he might introduce legislation to enable retired justices to sit in on cases when a current justice has recused himself or herself. Sound familiar?

In Maryland, retired judges regularly sit in by special assignment for their recused brethren and sistren without much complaint from the bench or bar. If, say, Court of Appeals Judge Sally D. Adkins must recuse herself, the high court can turn to retired Judge John C. Eldridge to take her place, thus preserving its full complement of seven judges to hear the case.

Similarly, Leahy’s yet-to-be-introduced proposal would enable the Supreme Court to field its full complement of nine justices in the dozen pending cases in which new Justice Elena Kagan has said she will not participate. Kagan said she must recuse herself because she worked on those cases in the lower courts in her last job as U.S. solicitor general.

To pinch-sit for Kagan, the Supreme Court could turn to its retirees, Sandra Day O’Connor, David H. Souter and John Paul Stevens, under the Leahy plan.

“If there  is a way for retired justices to help the court fulfill its role in our democracy, I think we should consider it,” the senator told The Washington Post.

But there is perhaps a strong argument for preserving the status quo with regard to the Supreme Court and its Maryland counterpart.

O’Connor, Souter and Stevens held lifetime appointments to the bench. Thus, they voluntarily doffed their robes by retiring and, arguably, should not be permitted to don them on a part-time basis.

In Maryland, by contrast, most judges do not retire voluntarily so much as have retirement thrust upon them by the state constitution after reaching age 70. The least the state can do after sending these judges fishing is to reel them back in on occasion, the argument goes.

What do you think of the Leahy plan?

“Did they know it was your last day?” my editor asked, laughing.

I had just told her that the Court of Appeals drug possession opinion I was writing about mentioned both Cheech and Chong (Judge Harrell‘s majority opinion) and Mr. Mackey from South Park (Judge Greene‘s dissent). (An aside: bets on whether Judge Greene himself or one of his clerks inserted the Mr. Mackey bit?)

Anyway, it was a nice treat on my last day to write about an opinion full of pop culture references. So if you’re out there somewhere, Judges Harrell and Greene (I wouldn’t ordinarily assume that they read this blog, but if Judge Greene watches South Park, anything is possible), thanks for making my last day as a legal affairs writer for The Daily Record that much more fun.

Move over Prosser on Torts and make room for Tamber on the CSI Effect.

Writing for a unanimous Maryland Court of Appeals last week, Judge Lynne A. Battaglia displayed what we at On The Record regard as the great, good sense to cite our esteemed colleague Caryn Tamber’s seminal blog post, The CSI effect, in Maryland and Massachusetts. Battaglia referred to the landmark work in her opinion Friday overturning two second-degree murder convictions.

Battaglia concluded that now-retired Baltimore City Circuit Judge Charles G. Bernstein had improperly asked prospective jurors if they could put aside the television show “CSI: Crime Scene Investigation” and “convict a defendant without scientific evidence.” She said that question improperly “suggested that the [potential] jury’s only option was to convict, regardless of whether scientific evidence was adduced at trial.”

In another self-serving plug, we at On The Record note that Battaglia also cited Cynthia Di Pasquale’s article in The Daily Record of Sept. 8, 2006, Beyond the Smoking Gun: Maryland’s Legal Community Debates the ‘CSI Effect.’

Judge Lynne A. Battaglia, who sits on Maryland’s highest court, can relate to Elena Kagan, President Obama’s nominee for the U.S. Supreme Court.

Battaglia, like Kagan, had no judicial experience when then-Gov. Parris Glendening named her to the Court of Appeals in 2001.

Battaglia had most recently been U.S. attorney for Maryland from 1993 to 2001. Kagan’s last jobs were as U.S. solicitor general and dean of Harvard Law School.

Donning the judicial robes for the first time is daunting, but doing so as a member of the highest court in the state or in the land can be overwhelming.

Thus, Battaglia said she would advise Kagan — assuming she is confirmed — to meet with all eight sitting Supreme Court justices well before its new term begins in October.

Battaglia said meeting with her fellow judges “made all the difference in the world to me. I got great guidance from my colleagues.”

One judge was particularly helpful.

“I was fortunate enough to develop a mentor in [John C.] Jack Eldridge,” Battaglia said. “I was so appreciative that he was open to mentoring me.”

Battaglia said Eldridge, who is now retired but continues to hear cases by special assignment, took time to to help her answer two questions: “What does it mean to be a judge?” and “What does it mean to be a judge on the Court of Appeals?”

Eldridge, Battaglia noted, lacked judicial experience when then-Gov. Marvin Mandel appointed him to the high court in 1974.

Battaglia admitted to experiencing a learning curve when she joined the high court. But she said even those with judicial experience need time to adjust to being on the highest court, which chooses the cases it will hear and serves as “the final arbiter.”

Battaglia, despite her personal experience, disagrees with those who say governors and presidents should appoint high-court judges with experience primarily outside the judiciary.

“It would be a sad thing if we limited the perspectives of people who come to the [high-court] bench by requiring them to have been judges or not to have been judges,” she said. “I don’t think any perspective is any more valid or any less valid than any other.”

Happy Monday! Here are a few law links to start your day:

• Harford County lawyer becomes a Catholic priest, with his son, also a priest, performing vesting honors.
• In its fortunetelling opinion last week, the Court of Appeals “said essentially, (and I’m translating the legalese into plain English here) that even if claims to be able to foretell the future are total BS,  how different is that really from all the BS that comes from news reporters and attorneys?  It’s all protected BS under the First Amendment.”
• A company that operates three kosher food stands at the Mets’ Citi Field is suing the team for preventing it from selling on the Jewish Sabbath, claiming it has approval from its Baltimore-based kosher certifier, Star-K, to do so. There is no such approval, Star-K says.
• A Miami attorney was stopped from seeing jailed client because her underwire bra set off the metal detector. She ducked in a bathroom and slipped it off–and was then stopped because prison visitor dress code requires women to wear bras. HT: ABA Journal.
• The New York Times peeks inside the unit that investigates whether marriages between citizens and non-citizens are legitimate. “Some couples offer photographic evidence in the mistaken belief that the government requires proof of a marriage’s consummation,” the article says. Oh dear. HT: Above the Law.

Call this a case of The Magnificent Seven meets All in the Family.

Judge Mary Ellen Barbera, the junior jurist on Maryland’s seven-member Court of Appeals, dissented this week from the panel’s decision that police lacked probable cause to search a drug suspect’s home despite having a warrant.

In her dissent, Barbera cited the Supreme Court’s 2003 Maryland v. Pringle decision for her proposition that the bar for probable cause belief is not “particularly high.”

In Pringle, the Supreme Court called probable case “a practical, not technical conception that deals with the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.” The court added that probable cause is “a fluid concept — turning on the assessment of probabilities in particular factual contexts — not readily, or even usefully, reduced to a neat set of legal rules.”

I know what you’re thinking: What’s the big deal? Judges quote from Supreme Court decisions all the time. It’s called citing precedent, stare decisis.

True. But how many judges have the opportunity to cite Supreme Court cases that were argued by their husband?

Gary E. Bair, then with the Maryland attorney general’s office, successfully argued in Pringle that police officers had probable cause to arrest the front-seat passenger after they found cocaine in the back armrest of the car during a traffic stop.

Bair is now an appellate-defense attorney at Bennett & Bair LLC in Greenbelt, and he and Barbera co-teach criminal-procedure courses at American University’s Washington College of Law. A main topic of the classes is, you guessed it, probable cause.