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Opinions – Maryland Court of Appeals: 2/7/11

Criminal Law

Weapons possession

BOTTOM LINE: Defendant’s constitutional challenge to CL §4-203(a)(1)(i), which prohibits wearing, carrying or transporting a handgun without a permit and outside of one’s home, was rejected because the statute is outside of the scope of the Second Amendment’s right to bear arms.

CASE: Williams v. State, No. 16, Sept. Term, 2010 (filed Jan. 5, 2011) (Judges Bell, Harrell, BATTAGLIA, Greene, Murphy, Adkins & Barbera). RecordFax No. 11-0102-20, 27 pages.

FACTS: Officer Molake with the Prince George’s County Police Department observed Charles Williams going through a backpack near a wooded area and placing something in the brush area as if he was hiding something. When Officer Molake asked Williams what he was doing, Williams told him he was going through the backpack to see what was in it. Molake then asked Williams what he was hiding in the bushes, and Williams stated “my gun.” Officer Molake then recovered a Glock handgun with 15 rounds in the magazine in the brush area.

Williams gave a written statement, admitting to possession of the gun and placing the gun in the brush area where the officer subsequently located it. Williams claimed that he purchased the gun for self-defense, and that on the date of this arrest he had just left the gun at his girlfriend’s house. When he got off work, he went to her residence and picked it up and was on his way home when the arrest occurred.

Williams was found guilty of wearing, carrying, or transporting a handgun in violation of CL §4-203(a)(1)(i) and was sentenced to three years’ incarceration, with two years suspended. The Court of Special Appeals affirmed.

Williams appealed to the Court of Appeals, which affirmed.

LAW: Section 4-203(a)(1)(i) prohibits wearing, carrying, or transporting a handgun, without a permit and outside of one’s home. The exceptions to the prohibition are contained in §4-203(b). The relevant exceptions are §4-203(b)(2), which permits the wearing carrying, or transporting by a person to whom a permit has been issued under PS §§5-301-5-314, and §4-203(b)(6), which permits the wearing, carrying, or transporting of a handgun in one’s residence.

Here, Williams did not apply for a permit. Moreover, at the time of his arrest, he was not wearing, carrying, or transporting a handgun in his residence, as permitted by the statute.

Nevertheless, Williams relied upon the Supreme Court’s opinion in District of Columbia v. Heller, 128 S.Ct. 2783 (2008), in asserting that the Second Amendment establishes a general “right of persons to keep and bear arms for lawful purposes.”

In Heller, Mr. Heller had applied for and was denied a “registration certificate” to possess a handgun in his home, pursuant to the District of Columbia’s gun control scheme. Section 7-2502.01(a) of the D.C. Code prohibited “possess[ion] or control” of any firearm, without a “valid registration certificate.”

Section 7-2502.02(a)(4) of the D.C. Code prohibited the registration of handguns, without an exception for possession in one’s home. Further, §7-2507.02 of the D.C. Code mandated that any other firearm within one’s home be kept “unloaded and disassembled or bound by a trigger lock.” Sections 22-4504(a) and 22-4515 of the D.C. Code made carrying an unlicenced pistol in one’s home or on one’s land a misdemeanor.

Heller filed a complaint seeking declaratory and injunctive relief from the denial of his application for a “registration certificate” to possess a handgun in his home. The District Court dismissed the complaint, and the United States Court of Appeals for the District of Columbia Circuit reversed, reasoning that the Second Amendment precluded the District from “flatly ban[ning] the keeping of a handgun in the home.” Parker v. District of Columbia, 478 F.3d 370, 400 (D.C.Cir.2007).

Embracing an original meaning approach, the Court interpreted the language of the Second Amendment as conferring an individual right “to keep and bear Arms.” Heller, 128 S.Ct. at 2791. Similarly, the phrase “bear Arms,” reasoned the Court, referred to the “carrying of weapons,” both in an organized militia and for other purposes, such as self-defense. Id. at 2793-94. The Court concluded that “preserving the militia” was not the only aim of the Second Amendment, as the founders “most undoubtedly thought it even more important for self-defense and hunting.” Id. at 2801.

This right “to keep and bear Arms,” however, has limitations: “Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.” Id. at 2816-17.

In declaring the D.C. Code unconstitutional, the Court emphasized that handguns were “overwhelmingly chosen by American society” for self-defense and determined that under any standard of scrutiny, “banning from the home the most preferred firearm in the nation to keep and use for protection of one’s home and family, would fail constitutional muster.” Id. at 2817-18.

The trigger-lock requirement, contained in §7-2507.02, did not fare any better, according to the Court, because the provision “ma[de] it impossible for citizens to use [firearms] for the core lawful purpose of self-defense” within the home. Id. at 1218. Therefore, the prohibition against handguns, even within one’s home, as well as the trigger-lock requirement for all firearms kept within the home, was declared unconstitutional.

Shortly thereafter, in McDonald v. City of Chicago, 130 S.Ct. 3020 (2010), the Supreme Court was asked to consider whether the Second Amendment applied to the States. In that case, Otis McDonald, Adam Orlov, Colleen Lawson, and David Lawson filed a complaint in the United States District Court for the Northern District of Illinois, seeking a declaratory judgment that several Chicago ordinances violated the Second and Fourteenth Amendments. The Chicago residents alleged that the City had denied their applications to register handguns for possession in the home, in violation of the Constitution.

Section 8-20-040(a) of the Chicago, Illinois Code prohibited possession of a firearm unless registered, while §8-20-050(c) provided that “[n]o registration certificate shall be issued for any of the following types of firearms…(c) Handguns.” The only non-governmental exception to the prohibition against handguns was for “[t]hose validly registered to a current owner in the City of Chicago prior to [1982].” Section 27-2-1 of the Oak Park, Illinois Code also provided that “[i]t shall be unlawful for any person to possess or carry, or for any person to permit another to possess or carry on his/her land or in his/her place of business any firearm.” Section 27-1-1 defined “firearms” as including handguns.”

The district court judge entered judgment on the pleadings for both municipalities. The 7th Circuit affirmed, reasoning that the Supreme Court had never considered whether the Second Amendment should be applied to the States through the Due Process Clause of the Fourteenth Amendment.

In reversing, the Supreme Court determined that the Second Amendment right to keep and bear arms “is fundamental to our scheme of ordered liberty,” and as a result, the Due Process Clause rendered it applicable to the States. Id. at 3036. The Court characterized Heller as safeguarding an individual right of “self-defense,” when home possession was in issue, id. at 3036, but reiterated that regulatory schemes prohibiting handgun ownership by dangerous individuals, or prohibiting wearing, carrying, or transporting handguns in various public places outside of the home, were permissible. Id. at 3047.

Here, Williams attempted to bring his conviction of wearing, carrying, or transporting a handgun in public, without a permit, within the ambit of Heller and McDonald by claiming that those opinions would prohibit his conviction. This is not the case, because Heller and McDonald emphasize that the Second Amendment is applicable to statutory prohibitions against home possession.

Williams was convicted of wearing, carrying, or transporting a handgun in public, rather than for possession of a handgun in his home, for which he could not be prosecuted under §4-203(b)(6). It is the exception permitting home possession in §4-203(b)(6) that takes the statutory scheme embodied in §4-203 outside of the scope of the Second Amendment.

Section 4-203(b)(6) clearly permits wearing, carrying, or transporting a handgun “by a person on real estate that the person owns or leases or where the person resides,” without registering or obtaining a permit, wholly consistent with Heller’s proviso that handguns are “the most preferred firearm in the nation to keep and use for protection of one’s home and family.” Heller, 128 S.Ct. at 1217-18.

Accordingly, Williams’ conviction was affirmed.

COMMENTARY: Williams argued that PS §5-301, as well as COMAR Title 29, subtitle 3, together governing handgun permitting, impose an impermissible burden on citizens seeking to exercise the right to “keep and carry a handgun.” Williams acknowledged that he has not filed an application for a permit to carry a handgun, but asserted that as a result of the regulatory scheme, any such application would have been denied.

“[A]n individual or an organization ‘has no standing in court unless he has also suffered some kind of special damage from such wrong differing in character and kind from that suffered by the general public.’” Evans v. State, 396 Md. 256, 328 (2006). See also Gregg v. State, 409 Md. 698 (2009).

Because Williams failed to file an application for a permit to carry a handgun, he lacked standing to challenge the constitutionality of PS §5-301, as well as COMAR Title 29, subtitle 3.

PRACTICE TIPS: The defendant’s conviction for “unlawful possession of ammunition,” after police found two boxes of ammunition in his bedroom, was reversed because “the Second Amendment guarantees a right to possess ammunition in the home that is coextensive with the right to possess a usable handgun there.” Herrington v. United States, 2010 D.C.App. LEXIS 611, 12 (D.C.2010).

Criminal Procedure

Waiver of counsel

BOTTOM LINE: The defendant’s failure to request an indigency inquiry did not amount to a waiver of her right to counsel, since the trial court was required to conduct an independent inquiry to determine if the defendant was entitled to court-appointed counsel.

CASE: State v. Walker, No. 48, Sept. Term, 2010 (filed Jan. 21, 2011) (Judges Bell, HARRELL, Battaglia, Greene, Murphy, Adkins & Barbera). RecordFax No. 11-0121-23, 25 pages.

FACTS: Charged with second-degree assault, Constance Walker requested a jury trial. On the date of trial, Walker appeared without counsel. As a result, the case was postponed.

When Walker appeared for trial on the rescheduled date, she again was without counsel. The trial court asked Walker whether she received a copy of the charging document, to which she replied “yes.” She also stated that she understood that she had a right to be represented by an attorney.

Walker informed the court that she had applied to the Office of the Public Defender (OPD) right after the incident, but they told her she wasn’t eligible for representation. She then told the court that she wanted to proceed to trial without a private attorney because she could not afford to get one.

Walker proceeded pro se and was convicted of second-degree assault. The Court of Special Appeals reversed, holding that, based on Thompson v. State, 284 Md. 113 (1978), the trial court erred in determining that Walker waived her right to counsel under Rule 4-215(b) when, after she explained that she was denied representation by the OPD and could not afford private counsel, the trial court failed to inquire further as to whether she may be entitled to court-appointed counsel by reason of indigency.

The State appealed to the Court of Appeals, which affirmed.

LAW: As tools with which to implement and protect the right to counsel, a “fundamental constitutional protection,” Johnson v. State, 355 Md. 420, 442 (1999), the Court of Appeals adopted Rule 4-215 and its immediate predecessor. See Johnson, 355 Md. at 444.

Thompson v. State, 284 Md. 113, 114 (1978), decided under the former rules on waiver of counsel, discussed the duties imposed on a trial court, when informed that the defendant in a criminal case has been denied representation by the OPD for lack of indigency, before that court may determine that the defendant waived his or her constitutional right to counsel.

Thompson explained that Rule 723(b)(6) required the trial court to “[a]dvise the defendant that if the Public Defender declines to provide representation, the defendant should immediately notify the clerk of the court so that the court can determine whether it should appoint counsel “ and Rule 723(c) required the trial court to be assured that the defendant “fully comprehends” that if he or she “is found financially unable to retain private counsel, the Public Defender or the court would, if the defendant wishes, provide counsel to represent him.”

Based on these provisions, the Thompson Court found that “there is the clear duty imposed on the court, in order to decide whether it should appoint counsel, upon the Public Defender declining to do so, to make its own independent determination whether a defendant is indigent and otherwise eligible to have counsel provided.” Thompson, 284 Md. at 128-29.

In 1984, a Rules Order rescinded all of the then extant Rules of Chapter 700 of the Rules of Procedure and substituted new Rules in their place. Of particular import here are Rules 4-215 and 4-202.

Rule 4-215 provides that the right to counsel may be deemed waived under (b), if, pursuant to (a), the judge: “(1) Make[s] certain that the defendant has received a copy of the charging document containing notice as to the right to counsel. (2) Inform[s] the defendant of the right to counsel and of the importance of assistance of counsel. (3) Advise[s] the defendant of the nature of the charges in the charging document, and the allowable penalties, including mandatory penalties, if any. (5) If the trial is to be conducted on a subsequent date, advise[s] the defendant that if the defendant appears for trial without counsel, the court could determine that the defendant waived counsel and proceed to trial with the defendant unrepresented by counsel.”

Further, pursuant to (b), “the court may not accept the waiver until after an examination of the defendant on the record conducted by the court,…the court determines and announces on the record that the defendant is knowingly and voluntarily waiving the right to counsel.”

Rule 4-202(a)(7) added the requirement that the charging document in a circuit court criminal case inform a defendant that “[i]f you want a lawyer but you cannot get one and the Public Defender will not provide one for you, contact the court clerk as soon as possible.”

The Rules Committee’s notes to the pertinent Rules Order reveal that “[t]he committee [wa]s aware that the consolidated rule eliminates several specific requirements for notice or advice to the defendant of his rights in regard to counsel. It was the intent of this rule to leave the principal enumeration of the advice concerning counsel to the charging document content rule.” Criminal Rules Subcommittee Letter; see Eighty-Seventh Report of the Standing Committee on Rules of Practice and Procedure, Vol. 10 Md. Reg. (9 December 1983) (Standing Committee Report).

As part of its waiver inquiry, a trial court no longer must advise a defendant who has been declined representation by the OPD that he or she “should immediately notify the clerk of the court so that the court can determine whether it should appoint counsel,” as former Rule 723(c)(4) provided.

Yet, regardless of when or how a defendant in a criminal case becomes aware of his or her potential right to court-appointed counsel, there is no other way to fulfill the courts’ constitutionally-mandated duty to provide representation to indigents unable to obtain representation without a trial court, itself and independently, conducting an indigency inquiry when triggered by a defendant’s ongoing claim of inability to afford privately-retained counsel. See Office of the Public Defender v. State, 413 Md. 411 (2010).

Thus, under the prevailing constitutional and statutory framework, it is incumbent upon a trial court, upon learning that a defendant in a criminal case has been denied representation by the OPD and who maintains nonetheless an inability to afford to retain private counsel, to conduct its own independent indigency inquiry, in accordance with the statutory criteria, to determine if the defendant is entitled to court-appointed counsel.

Here, after Walker informed the trial court that she was denied representation by the OPD, the trial court asked Walker merely if she wanted to request a postponement to obtain counsel, to which Walker responded that she could not afford one. Because the trial court conducted no further inquiry into whether Walker was indigent, such that she would be eligible for court-appointed counsel, it committed reversible error.

Accordingly, Walker’s conviction for second-degree assault was reversed.

COMMENTARY: Pursuant to Rule 8-604, an appellate court may “remand the action to a lower court” if “the Court concludes that the substantial merits of a case will not be determined by affirming, reversing or modifying the judgment, or that justice will be served by permitting further proceedings.” Rule 8-604(a)(5)(d). The limited remand remedy “is n[ot] an ‘antidote’ for the errors…committed during [a] trial.” Southern v. State, 371 Md. 93, 104 (2002).

In Mitchell v. State, 337 Md. 509, 517 (1995), the Court of Appeals stated: “Limited remand cannot be used to correct procedural defects at the trial level when the procedure involved is so intertwined with the defendant’s constitutional right to counsel that a limited remand would cause unfair prejudice. Failure to conduct the Rule [4-215](d) inquiry at the proper time, therefore, mandates a new trial. The exact circumstances in the instant case under which the original inquiry should have occurred cannot be recreated, and we cannot require the defendant to meet that burden.” Id. at 518.

A limited remand for the trial court to conduct an indigency inquiry would require Walker to reconstruct her financial situation from early 2008, the ability of which would depend on Walker’s record-keeping efforts during the pendency of the litigation. This would conceivably impose a great burden on Walker.

Accordingly, because “the error adversely affected the defendant’s right to a fair trial,” id., a limited remand was not proper.

PRACTICE TIPS: When inquiring into the indecency of defendant, a trial court should consider “any information offered by the parties which may reasonably bear upon the defendant’s ability to afford private counsel, and the real key to determining indigence (eligibility) is stated in §7(a) [now CP §16-210(b)].” Baldwin v. State, 51 Md.App. 538, 550 (1982).


Admissibility of testimony

BOTTOM LINE: The trial court did not err in admitting the testimony of the investigating detective regarding a key witness who struck a deal with the State, since the testimony did not infringe upon the jury’s fact-finding obligation.

CASE: Tyner v. State, No. 51, Sept. Term, 2010 (filed Jan. 21, 2011) (Judges Bell, HARRELL, Battaglia, Greene, Murphy, Adkins & Barbera). RecordFax No. 11-0121-24, 14 pages.

FACTS: In 2006, Darrell Artist was congregating outdoors with several people, including two brothers, Donte and Tavon Tyner. At some point, Donte and Artist threw punches at each other. Moments later, shots were fired. Seventeen bullets struck Artist, leaving him mortally wounded. Baltimore police recovered two different types of ammunition from his body and at the crime scene, leading the police to believe that there were two gunmen.

After the shooting, Donte, Tavon and others got into a van and a car, and fled — Donte in the car and Tavon in the van. The van was driven by Latosca McCullough.

A few days later, the police caught up with McCullough. They asked her about her van, which was parked in the driveway. She acknowledged that she owned the vehicle, whereupon she was arrested and taken to the Homicide Unit for questioning. Once there, she told Detective Irvin Bradley that she was not present at the shooting and knew nothing about it.

McCullough was charged with murder. However, she struck a deal with the State. In exchange for her truthful testimony, the State agreed to drop the murder charge.

McCullough then shared with Detective Bradley a different story of the shooting than she originally told. She claimed that, while others were listening to music and singing, she remained in her van. After Donte and Artist began fighting, she heard various “pops” and a “boom.” Looking toward the direction of those sounds, she saw Tavon standing next to her van with “sparks coming from his hand.” Tavon then got into the van and ordered her to “pull off.”

Donte and Tavon instructed McCullough to say she was not at the crime scene and that she saw the brothers only earlier that day. McCullough complied with the directions because she proclaimed that she feared for her life.

Donte and Tavon were arrested and charged with first-degree murder, conspiracy to commit murder, use of a handgun in a crime of violence, and lesser related offenses. At trial, Detective Bradley testified that McCullough made a deal with the State to tell the truth as to what happened, who was involved, and what happened after the murder. Defense counsel objected to Bradley’s testimony, but the trial judge overruled the objections.

A jury convicted Donte and Tavon on all charges. The trial judge denied their motion for a new trial and imposed on each a life sentence. The Court of Special Appeals affirmed.

The Tyners appealed to the Court of Appeals, which affirmed.

LAW: Donte and Tavon characterized Detective Bradley’s testimony as asserting that McCullough should be trusted because, in his opinion as a 29-year veteran of the police force, she was telling the truth. Such bolstering testimony, they claimed, should have been struck.

In Bohnert v. State, 312 Md. 266 (1988), a child accused Bohnert of sexual abuse. The State offered no physical evidence inculpating Bohnert. The State produced as a witness, however; a social worker named Dora Temple. See id. at 270-71. After questioning extensively Temple about her credentials, the State offered-and the trial court accepted-her as an expert in the field of child sexual abuse. Although Temple conducted a less-than-thorough examination of the child victim, she concluded that the child “was, in fact, a victim of sexual abuse.” Id. at 271. The defendant took the stand and denied the charges. Id. at 270. In its closing argument, the State emphasized repeatedly that Temple was an expert, her testimony was uncontroverted, and she corroborated the child’s allegations. Id. at 273-74.

The Court of Appeals acknowledged that, because of the lack of physical evidence, the child’s “credibility was crucial.” Id. at 270. Thus, “[i]n the circumstances of this case,” the State used intentionally Temple’s testimony to bolster improperly and prejudicially the child’s allegations. Id. at 277. Accordingly, the trial court should have prevented Temple’s testimony from being considered by the jury. Such bolstering testimony is irrelevant and, therefore, violative of Rule 5-402. See id.

The Court concluded, however, not that the trial judge abused his discretion, which would have been the proper standard if relevancy was the ultimate issue. See Merzbacher v. State, 346 Md. 391, 404-405 (1997). Rather, “[Temple’s] opinion was inadmissible as a matter of law because … [i]t encroached on the jury’s function to judge the credibility of the witnesses and weigh their testimony.” Bohnert, 312 at 277. See also Hunter, 397 Md. at 595 (questions concerning the defendant’s opinion as to whether the police were lying were impermissible as a matter of law because they encroached on the province of the jury by asking petitioner to judge the credibility of the detectives and weigh their testimony).

Here, McCullough, consistent with her final investigatory statements to police (but inconsistent with her previous statements before she was charged), testified that she heard “pops” and saw “sparks.” She also testified that, after the shooting, Donte and Tavon instructed her to lie to the police and assured her that, if she followed through as directed, she would not be charged with anything. She testified also that she made an agreement with the State to tell the truth and that if she came to trial and told the truth, the charges against her would be dropped.

With its last witness in its case-in-chief, Detective Bradley, the State took the opportunity to summarize the case against the Tyner brothers. Detective Bradley reiterated the chronological process of the investigation. With respect to McCullough, Detective Bradley testified that, at first, when she was arrested and brought in for questioning, she reported not being at the scene. After the interview, McCullough was charged with first-degree murder. McCullough subsequently made an agreement with the State to tell the truth as to what happened on that night.

To explain why McCullough changed her story over the course of the police investigation, the State elicited the fact that it struck a cooperation agreement with McCullough. It was not illogical or violative of any rule or legal principle for the State to elicit the terms of that agreement. Such information, by whoever adduced, might help a jury determine what weight it should accord the witness’s testimony.

The cooperation agreement’s main, if not only, condition was that McCullough testify truthfully. That Detective Bradley acknowledged this fact was not impermissible bolstering or vouching; it was simply a recounting. Detective Bradley did not state that what another witness responded was accurate or truthful, only that the witness had an obligation, pursuant to a cooperation agreement, to state truthfully what occurred. Whether McCullough was truthful remained for the jury to decide.

The State used Detective Bradley to verify the existence and terms of a cooperation agreement entered into by one of its key witnesses. Therefore, in these circumstances, Detective Bradley’s testimony did not infringe upon the jury’s fact-finding obligation. Thus, there was no error in the trial court’s decision to admit Detective Bradley’s testimony regarding McCullough’s cooperation agreement.

Accordingly, the judgment of the Court of Special Appeals was affirmed.

COMMENTARY: Notwithstanding the fact that the cooperation agreement was discussed preemptively in McCullough’s direct examination, Tavon’s trial counsel challenged McCullough’s motives and questioned her trustworthiness on cross-examination, asking, among other things, “What did you want out of [the] meeting [with the State’s Attorney’s Office]?”; “Did you want the charges dropped against you?”; “Did you tell the State’s Attorney that you wanted to get out of jail and have the charges dropped against you?”; and “[h]ow soon after making this statement did you get out of jail?”

Thus, defense counsel was allowed and did seek to impeach McCullough’s trial testimony with her prior inconsistent statement and the deal.

Healthcare Law

Subpoena for medical records

BOTTOM LINE: Physician who failed to comply with a subpoena for patient records was subject to a reprimand and fine because neither he nor the patients took action to challenge the subpoena, such as filing a motion to quash or a motion for a protective order.

CASE: Maryland State Board of Physicians v. Eist, No. 110, Sept. Term 2007 (filed Jan. 21, 2011) (Judges Harrell, Battaglia, Greene & ELDRIDGE (retired, specially assigned)) (Judges Bell, Raker (retired, specially assigned) & Cathell (retired, specially assigned) dissenting). RecordFax No. 11-0121-20, 29 pages.

FACTS: The Maryland State Board of Physicians received a complaint from the estranged husband of a patient of Dr. Harold Eist, a psychiatrist, alleging misconduct by Dr. Eist. The Board wrote to Dr. Eist notifying him that a complaint had been filed against him and attaching a copy of the complaint. Along with the letter, the Board issued a subpoena duces tecum which stated that, pursuant to Maryland Health Occupations §14-206(a) and §14-401(g), Dr. Eist was to produce a copy of all medical records of patients, including the wife and two sons of the complainant, treated at his facility.

Dr. Eist forwarded a copy of the subpoena to his patient and requested that she inform him whether she or her attorney were taking any action to oppose compliance with this subpoena.

Dr. Eist received a copy of a report filed by the children’s court-appointed attorney, stating that the court-appointed attorney refused to waive the “privilege” that existed between the children of the complainant and Dr. Eist, or “any mental health professional.” Furthermore, his patient, the wife of the complainant, told Dr. Eist that she refused to allow him to release her medical record to the medical board. Additionally, his patient’s attorney sent a letter to the Board, noting that the patient did not waive her privilege with Dr. Eist and has asked that he not release her records in response to the request.

The Board sent Dr. Eist another letter, informing him that, based on the complaint received, the Board had opened an investigation. The letter also included another request for the medical records covered by the subpoena.

Dr. Eist failed to produce the patients’ records. During the entire process, neither Dr. Eist nor his patients instituted any judicial proceedings to quash the subpoena issued by the Board or to obtain a protective order. Consequently, the Board charged Dr. Eist with a violation under HO §14-404(a)(33). Thereafter, Dr. Eist did turn over the patients’ records to the Board.

The Maryland Psychiatric Society Peer Review Committee ultimately determined that Dr. Eist had not breached any applicable standard of care in his treatment or conduct with the patients. The Board then dismissed the husband’s complaint

On the charge that Dr. Eist failed to cooperate with a lawful investigation by the Board, a hearing took place before an Administrative Law Judge (ALJ) of the Office of Administrative Hearings. The ALJ granted the Dr. Eist’s motion for summary decision, denied the Board’s motion for summary decision, and recommended that the charges be dismissed.

The Administrative Prosecutor filed with the Board exceptions to the ALJ’s recommended decision. The Board rejected the ALJ’s recommended decision and found that Dr. Eist had failed to cooperate with a lawful investigation. The Board issued a final order reprimanding Dr. Eist and imposing a $5,000 fine.

The circuit court remanded the case for the Board to decide whether Dr. Eist acted “reasonably and in good faith.” On remand, the Board again referred the case to an ALJ who again decided the matter in Dr. Eist’s favor. The Board again disagreed with the ALJ and sanctioned Dr. Eist with a reprimand and a fine of $5,000.

The circuit court reversed the Board’s decision and ordered the Board to dismiss the charges against Dr. Eist. The Court of Special Appeals affirmed the judgment of the trial court.

The Board appealed to the Court of Appeals, which reversed and remanded.

LAW: HO §§14-401(i) provides that the “Board may issue subpoenas…in connection with any investigation.” See also HO §14-206(a). HO §14-404(a)(33) authorizes the Board to “reprimand any licensee, place any licensee on probation, or suspend or revoke a license if the licensee: (33) Fails to cooperate with a lawful investigation conducted by the Board.” Furthermore, if the Board finds grounds to suspend or revoke a physician’s license, or to reprimand a physician, the Board may also impose a fine upon the physician. See HO §14-405.1.

The pertinent statutory provisions governing the confidentiality and disclosure by health care providers of medical records, including mental health medical records, are set forth in Health-General Article §§4-301 through 4-309. HG §4-306 provides: “(b) A health care provider shall disclose a medical record without the authorization of a person in interest. (2) Subject to the additional limitations for a medical record developed primarily in connection with the provision of mental health services in § 4-307 of this subtitle, to health professional licensing and disciplinary boards, in accordance with a subpoena for medical records for the sole purpose of an investigation regarding: (i) Licensure, certification, or discipline of a health professional; or (ii) The improper practice of a health profession. “

HO §4-306(b)(6) contains statutory forms of notice to accompany subpoenas for medical records and each mandates that if there is any objection to the production of the documents, a motion for a protective order or a motion to quash the subpoena must be filed no later than 15 days from the date the notice is mailed.

The General Assembly, by using the word “must,” expressed the intent that a motion to quash or a motion for a protective order is the exclusive remedy for a recipient of the subpoena who objects to the production of the records.

Section 4-307, concerning mental health medical records, reiterates that, in connection with a Board investigation, records must be provided to the Board regardless of a patient’s authorization, and that the appropriate procedure for weighing a patient’s privacy interests against the Board’s need for the records is for the patient or the health care provider to file a court action to quash the subpoena or for a protective order. See §4-307(k)(1)(v)(1).

With respect to a health care provider’s or patient’s remedy, §4-307(k)(6) states: “(6) This subsection may not preclude a health care provider, a recipient, or person in interest from asserting in a motion to quash or a motion for a protective order any constitutional right or other legal authority in opposition to disclosure.”

Consequently, when the Board is investigating a complaint against a health care provider and subpoenas certain medical records in his or her possession, the health care provider is required to provide the medical records to the Board regardless of the patient’s authorization. If the patient and/or the health care provider believe that there are grounds for not producing the records, the patient or the health care provider “must” file a motion to quash the subpoena or a motion for a protective order pursuant to Rules 2-403 or 2-510.

The General Assembly did not provide for an action by the Board to enforce the subpoena. Furthermore, the General Assembly did not provide that the health care provider could refuse to comply with the subpoena, fail to file a motion to quash or a motion for a protective order, and later, in a disciplinary action, defend on the ground that the patient’s privacy rights were infringed by the subpoena.

The Court of Special Appeals and the ALJ, in weighing the patients’ privacy rights against the Board’s need for the medical records in Dr. Eist’s possession, extensively relied upon Doe v. Maryland Board of Social Work Examiners, 384 Md. 161 (2004), and upon Dr. K. v. State Board of Physician Quality Assurance, 98 Md.App. 103 (1993).

In both of these cases, the appellate courts weighed the agencies’ need for the subpoenaed records against the clients’ and/or patients’ privacy rights in the records and held that the agencies’ need for the records outweighed the privacy interests of the clients and/or the patient.

However, both Doe and Dr. K were judicial actions to quash the subpoenas issued by the administrative agencies during the agencies’ investigations. They were not, like the present case, actions for judicial review of final adjudicatory decisions by the administrative agencies. See also Unnamed Attorney v. Attorney Grievance Commission, 409 Md. 50 (2009); Lubin v. Agora, 389 Md. 1 (2005).

Under HG §4-306 and §4-307, Dr. Eist’s exclusive judicial remedy was to file, in the circuit court, a motion to quash the subpoena or a motion for a protective order. He was not entitled to refuse timely compliance with the subpoena, refrain from filing a motion to quash or a motion for a protective order, and later, in this collateral contested case administrative proceeding, challenge the subpoena.

Accordingly, the judgment of the Court of Special Appeals was reversed.

COMMENTARY: Even if HG §§4-306 and 4-307 had not expressly provided that Dr. Eist’s exclusive remedy was to file in the circuit court a motion to quash the subpoena or a motion for a protective order, the result would be the same.

It is a settled principle that when a tribunal having jurisdiction issues to a person an order, that person may not refuse to obey the order on the theory that it is unlawful or unwarranted and, in a later collateral proceeding such as a contempt action or other disciplinary action, defend by attacking the earlier order. Instead, that person is required to challenge the order directly, in a proceeding available for such challenges, such as a motion to quash or an appeal. See, e.g., Attorney Griev. Comm. v. Garland, 345 Md. 383, 398-399 (1997); Harford Co. Educ. Ass’n v. Board, 281 Md. 574, 585-588 (1977).

There is no reason why the same principle should not be applicable to an administrative agency such as the Board, where the Legislature authorized the agency to issue a subpoena and authorized a court to punish a person, “as for contempt of court,” who disobeyed the subpoena. See HO §14-206(b).

This principle, however, would not apply in cases involving subpoenas issued by federal grand juries or federal agencies because denial of a motion to quash by a federal trial court is not appealable even though the denial of the motion terminates the proceeding in the trial court. See United States v. Ryan, 402 U.S. 530 (1971); Cobbledick v. United States, 309 U.S. 323 (1940). If the recipient of a federal subpoena desires to continue challenging it after the trial court denies a motion to quash, the recipient must disobey the subpoena and challenge it in a collateral proceeding such as a contempt action.

The Court of Appeals, however, has consistently refused to follow the non-appealability rule. When a Maryland trial court denies a motion to quash or a motion for a protective order, and that action terminates the proceedings in the court, the trial court’s denial is appealable even though administrative proceedings, or investigative proceedings, or separate court proceedings where the recipient of the subpoena was not a party, are ongoing. See, e.g., Unnamed Attorney v. Attorney Grievance Commission, 409 Md. 509, 513-514 n. 2 (2009); St. Joseph’s v. Cardiac Surgery, 392 Md. 75, 88-91 (2006).

DISSENT: According to the dissent, Dr. Eist was represented by a highly respected and competent attorney who was advising Dr. Eist throughout these proceedings. Dr. Eist relied in good faith upon the advice of his counsel and he did not fail to cooperate with an investigation of the Board.

PRACTICE TIPS: When the General Assembly intends that a state agency issuing the subpoena should bring a court action to enforce the subpoena when there is a failure to comply, the General Assembly knows how to provide for such a procedure, as seen in SG §20-1010(c), relating to the enforcement of subpoenas issued by the Maryland Commission on Human Relations, and CP §11-701(c), providing that when there is a “refusal to obey a subpoena,” the Securities Commissioner may apply to a court for enforcement of the subpoena.