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Court of Appeals begins new term Wednesday

Maryland’s top court begins its 2011-2012 term Wednesday with an air of mystery: Who will succeed retiring Judge Joseph F. Murphy Jr. on the Court of Appeals?

Murphy, 67, announced in January that he would step down in August — about 2½ years shy of the mandatory retirement age of 70 — to work with his daughter Erin at the law firm Silverman, Thompson, Slutkin & White LLC, where she is an associate.

Murphy, who has served on the high court since 2007, said he intended for his announcement to allow the process of appointing a successor to be completed by the start of the new term. But it recently became clear that an appointment will not be made until November at the earliest, he added.

In the absence of a successor, Murphy said this month that he will stay on the bench until Sept. 30 and be available for special assignment as a retired judge through Oct. 31 before joining the law firm in November.

“The coach will turn into a pumpkin at the end of October,” Murphy said of his new plan.

Murphy will head the Baltimore litigation firm’s alternative dispute resolution practice and confine his state court practice to litigation support.

The judge accepted in stride that his retirement from the bench has been put on hold.

“It is what it is,” Murphy said. “The system moves the way it moves. It just gives me a couple of more months to serve with my colleagues. I was happy to readjust [my schedule].”

A combination of factors conspired to delay the appointment of Murphy’s successor, said attorney Sheila K. Sachs, who chairs the commission that advertises for and screens applicants for appellate judgeships.

These factors included the need for Gov. Martin O’Malley to reappoint members of the Appellate Judicial Nominating Commission this year, a process he completed at the end of March, Sachs said.

Further delays were caused by the requirement that prior judicial vacancies — including one at the Court of Special Appeals and 13 at the circuit court level — be considered by nominating commissions before Murphy’s vacancy, she added.

In addition, Sachs said she wanted to set a date when all 17 appellate commission members could meet —rather than just a quorum of 10 — to discuss the applicants’ qualifications for a position as important as a judge on the state’s top court.

“You don’t want to have the bare minimum,” said Sachs, a partner at Gordon, Feinblatt, Rothman, Hoffberger & Hollander LLC in Baltimore. “You want as full a complement as you can get.”

The commission has settled on Sept. 8 as the due date for applications to fill Murphy’s seat and Nov. 1 as the day the panel will meet to winnow the list of candidates and send those names to O’Malley.

The governor, if he holds to custom, will appoint the next Court of Appeals judge from that list.

Murphy’s seat, under the state Constitution, is reserved for a resident from Maryland’s 2nd appellate circuit, which comprises Harford and Baltimore counties.

“I was very mindful of Judge Murphy’s vacancy” and desire to have his successor named by the start of the term, Sachs said. “I hoped to achieve that but it wasn’t possible.”

Starting a new term

Among the approximately 160 arguments the court will hear during the coming “September 2011” term is a case concerning a former Washington Redskins punter seeking workers’ compensation after suffering a career-ending back injury, as well as that of a man looking to hold a company liable for a crash allegedly caused by its overworked employee on his drive home.

The court will also hear arguments that revolve around a unique question of paternity; the legal protections afforded to a newspaper reporter; and a convicted murderer’s claim that his purported victim had actually committed suicide.

Career-ending injury

Ex-punter Tom Tupa claims the Redskins owe him workers’ compensation under Maryland law for the career-ending back injury he suffered during preseason game warm-ups in 2005. Redskins’ management, Pro-Football Inc., and its insurance company counter they need not pay Maryland compensation because Tupa’s employment contract expressly stated that all disputes would be resolved under the laws of Virginia, where the team practices and has its corporate office.

But Tupa’s argument has prevailed so far, as Maryland’s workers’ compensation commission, the Prince George’s County Circuit Court and the intermediate Court of Special Appeals have all held in favor of his request for disability benefits under state law.

The intermediate appellate court said in February that Maryland’s strong public policy of protecting workers in the state trumped the contract provision.

Tupa qualified as a Maryland employee because his job was to play National Football League games in the state — at FedEx Field in Landover — even though he spent most workdays at the Redskins’ Ashburn, Va., practice facility, the court added.

“Here it is clear that the purpose of Tupa’s employment was to play in games, not to practice,” Judge Robert A. Zarnoch wrote for the intermediate court.

“All of Tupa’s time in Virginia, whether practicing or attending team meetings, was geared towards improving his performance at the games,” Zarnoch added. “Tupa’s employment in Maryland was consistent and predictable: eight regular season and two pre-season games every year.”

Pro-Football Inc. and its insurer, Ace American Insurance Co., sought review by the Court of Appeals through their attorney, David O. Godwin Jr. Godwin, a former commissioner on Maryland’s Workers’ Compensation Commission, is with Godwin, Erlandson, MacLaughlin, Vernon & Daney LLC in Ellicott City.

Godwin did not return telephone messages seeking comment.

The high court has not yet scheduled arguments in the case, Pro-Football Inc. t/a Washington Redskins et al. v Thomas J. Tupa Jr., No. 29 Sept. Term 2011.

The injury that ended Tupa’s 17-year career and gave rise to his workers’ compensation claim occurred when he landed awkwardly after a practice punt on Aug. 19, 2005, before a preseason game at FedEx Field. Tupa, who was in the second year of a four-year contract with the Redskins, was ultimately diagnosed with marked disc collapse and was told he would not likely be able to return to the NFL, according to the Court of Special Appeals opinion.

Doctors have told him the condition will gradually worsen and he will eventually need surgery, Tupa said last week.

“I got hurt playing,” added Tupa, now recreation director for the town of Brecksville, Ohio. “You hope they [the Redskins] will do the right thing and take care of this problem.”

Tony Wyllie, the Redskins’ senior vice president of communications, did not return telephone messages seeking comment.

Asleep at the wheel

In the car crash case, the high court will consider whether a company that allegedly works its employees to exhaustion can be held liable when one of its workers falls asleep at the wheel while driving home and severely injures another motorist.

In his appeal, former Anne Arundel County police sergeant Michael S. Barclay is urging the court to revive his lawsuit against Ports America Baltimore Inc.

Barclay claims that a stevedore, or dock worker, whom the company permitted — and even encouraged — to work a 22-hour shift at the Dundalk Marine Terminal crashed his car into the officer’s vehicle in New Windsor.

The stevedore, Christopher E. Richardson, was killed in the Jan. 17, 2006, crash. Barclay suffered severe injuries that ended his police career and led to more than $1.5 million in medical expenses and a similar loss in future income and pain and suffering, according to the complaint.

Lower courts had dismissed Barclay’s lawsuit, saying the company owed him no duty because Richardson was not on the clock at the time of the crash.

Barclay’s attorney, Henry L. Belsky, then sought review by the Court of Appeals.

In papers filed with the high court, Belsky argued that companies should be held liable for car crashes caused by their exhausted workers.

“A policy insulating employers, in shift worker industries, from any responsibility when the danger of sleep deprivation related harm to the public is both foreseeable and likely, encourages employers to make scheduling decisions without regard to public safety,” wrote Belsky, of Schlachman, Belsky & Weiner PA in Baltimore. “In order to protect the public and encourage safety consciousness of employers, the Maryland Court of Appeals needs to provide guidance as to what is appropriate, or at least let the jury decide the issue.”

Ports America’s attorney JoAnne Zawitoski said the high court should not create a new law that holds companies liable for employees who choose to drive home when they are too tired to operate a car safely.

“The law is well established in Maryland that there is no employer liability in this sort of case,” said Zawitoski, of Semmes, Bowen & Semmes in Baltimore.

The high court has not yet scheduled a date for arguments in Barclay v. Ports America Baltimore Inc., No. 83 Sept. Tem 2011.

Born out of wedlock

In a case that reads like a soap opera, the Court of Appeals will consider whether a man who had an affair with a woman separated from her husband has a statutory right to a paternity test because the child allegedly conceived from their relationship was born after the woman’s divorce.

The Court of Special Appeals held for the man, William Corbett, in April and ordered the paternity test, which has been postponed pending appeal.

In its decision, the court said Amy Mulligan’s prenatal divorce from Thomas Mulligan removed the legal presumption that her husband at the time of the child’s conception is the father.

The court held the child was “born out of wedlock” even though Mulligan was still married when the child was conceived.

In cases of out-of-wedlock births, Section 5 of Maryland’s Family Law Article requires courts to “order the mother, child and alleged father to submit to blood or genetic tests” to determine if he can be excluded as the child’s father, the court said.

The appellate court’s holding reversed Frederick County Circuit Court Judge Theresa M. Adams’ denial of Corbett’s motion for a paternity test and request for visitation with the child he says he fathered.

Amy Mulligan, who has had a stormy relationship with Corbett, has fought his request for a paternity test and visitation, saying it would not be in the child’s best interest.

Mulligan, through attorney Laura N. Venezia, argues on appeal to the high court that Maryland’s Estates and Trusts article governs the case. That law presumes that the husband at the time of conception is the child’s father and, unlike the Family Law Article, gives judges discretion to order a paternity test if a positive result would be in the child’s best interest.

The case presents “an interesting legal argument,” said Venezia, of Conklyn & Associates in Frederick. “Both statutes have to be interpreted. The child fits under both. If you pick one, you have to exclude the other.”

The high court should rule that the Estates and Trusts Article applies because “’wedlock’ should be broadly interpreted” to include a marriage that existed at the time of conception or birth, Venezia said. Thus, Thomas Mulligan, because he was married to Amy Mulligan at the time of conception, must be presumed to be the child’s father, Venezia added.

Corbett’s attorney, Keith N. Schiszik, did not return telephone messages seeking comment. Schiszik is with Day & Schiszik in Frederick.

The high court has not yet set an argument date for the case, Mulligan v. Corbett, No. 43 Sept. Term 2011.

Double-murder defamation

A former nightclub owner is urging the high court to revive his lawsuit alleging that the Baltimore City Paper defamed him by reporting that some people thought he might have been involved in a double murder.

The Baltimore City Circuit Court dismissed the lawsuit brought in December 2007 by Nicholas Piscatelli, co-owner of the former Redwood Trust nightclub. The Court of Special Appeals upheld the dismissal, saying the paper and reporter Van Smith were protected by fair reporting and fair comment privileges.

The newspaper reported on the killings of the nightclub’s manager, Jason Convertino, and a friend, Sean Wisniewski, at Convertino’s home in April 2003. Anthony Jerome Miller, a former security guard at the club, was convicted of both murders on March 15, 2007, and sentenced to two 30-year terms.

Smith’s reporting on the case included comments from Convertino’s mother that unnamed sources had told her Piscatelli had threatened to kill Convertino and was behind the murder of the two men. Smith also interviewed Piscatelli, who denied any wrongdoing.

Piscatelli’s attorney, Peter A. Prevas, argues in his appeal to the high court that Smith’s reporting presented the nightclub owner in a false and defamatory light and that the articles are not protected by the privilege for “fair and reasonable” opinion pieces.

“You have every right to state your opinion,” Prevas said. But the opinion pieces also asserted as true the allegation that Piscatelli was involved in the killings, he added.

“It’s not a pure matter of opinion,” said Prevas, of Prevas & Prevas in Baltimore. “It’s an opinion based on underlying ‘facts’” that are wrong and defamatory, he added.

Attorney Peter F. Axelrad, who represents the newspaper and Smith, countered that the reporting was protected as “fair comment” on a matter of public concern, namely a double homicide.

“A newspaper has the right, certainty, to publish a story … about a matter of consequence to the community it serves,” said Axelrad, of Council, Baradel, Kosmerl & Nolan PA in Annapolis. “Not only did we not disparage the plaintiff, we offered him an opportunity to respond and he did … and we quoted him in the article.”

The court will hear arguments Oct. 7 in the case, Piscatelli v. Van Smith et al., No. 18 Sept. Term 2011.

‘Traumatizing life experiences’

Former U.S. Army Ranger Gary James Smith will urge the high court to overturn his second-degree murder conviction and 35-year prison sentence for the Sept. 25, 2006, shooting death of fellow ranger Michael McQueen II at the Gaithersburg apartment they shared.

The “cornerstone” of Smith’s defense was that McQueen shot himself after “traumatizing life experiences,” including having seen combat in Iraq and Afghanistan, breaking up with his girlfriend and being arrested in Georgia on a driving-while-intoxicated charge, stated Smith’s appellate attorney in a brief to the high court.

But the trial judge barred defense counsel from introducing testimony regarding McQueen’s purported suicidal depression while permitting the prosecution to have seven witnesses testify to McQueen’s “non-depressed” state of mind, added attorney Gary E. Bair.

The planned defense witness was a Georgia police officer who spoke with McQueen after his DWI arrest a month and half before his death. McQueen allegedly told the officer, “This is the last thing I need in my life right now, on top of all the other s— going on in my life.”

Montgomery County Circuit Court Judge Eric M. Johnson said McQueen’s statement to the officer, made about 45 days before his death, was too remote, and thus not relevant evidence. The Court of Appeals agreed, prompting Smith’s appeal.

“This disparity in treatment of the two sides’ evidence was patently unfair and unduly prejudicial to Petitioner’s defense,” wrote Bair, of Bennett & Bair LLC in Greenbelt. “By excluding [the officer’s] testimony, the trial court stripped petitioner of evidence that was central to his defense theory, evidence that readily could have created reasonable doubt in the minds of jury members.”

The court will hear arguments Oct. 12 in the case Gary James Smith v. Maryland, No. 10 Sept. Term 2011.