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Opinions – 10/17/11: Maryland Court of Appeals

Administrative Law

Contested case hearings

BOTTOM LINE: Prior to the termination of housing assistance benefits administered pursuant to the Section 8 housing program, the Department of Housing and Community Development must, upon request, provide a “contested case” hearing.
CASE: Walker v. Department of Housing and Community Development, No. 97 Sept. Term 2010 (filed Sept. 23, 2011) (Judges Bell, Battaglia, Greene, Adkins & BARBERA) (Judges Harrell & Murphy dissenting). RecordFax No. 11-0923-20, 35 pages.

FACTS: The Section 8 Housing Program, otherwise known as the Housing Choice Voucher Program (HCVP), was enacted for the purpose of “aiding low-income families in obtaining a decent place to live.” 42 U.S.C. §1437f(a). The HCVP is administered by the Department of Housing and Urban Development (HUD), the regulations for which are found in 24 C.F.R Part 982. Under the HCVP, HUD enters into contracts with, and provides funding to, state public housing agencies (PHAs) for the purpose of providing rental subsidies to eligible program participants.

Each PHA must adopt an Administrative Plan that conforms with the statutory requirements and HUD regulations. Individuals seeking to participate in the HCVP program must apply to the designated PHA. The PHA, in conformance with criteria set forth by 42 U.S.C. §1437f(o)(4), HUD regulations, and the procedure established by its Administrative Plan, is responsible for processing and qualifying the low income applicants. See 42 U.S.C. §1437f(o)(6).

Pursuant to the statute and HUD regulation, participants in the HCVP must meet, at the outset and on an ongoing basis, specified family obligations. See 24 C.F.R. §982.551. Furthermore, a PHA may terminate program assistance under certain conditions. See 24 C.F.R. §982.552(c)(1).

Prior to making a determination to terminate assistance, “a PHA must give a participant family an opportunity for an informal hearing to consider whether the [ ] PHA decision [ ] … [is] in accordance with the law, HUD regulations and PHA policies.” 24 C.F.R. §982.555(a)(1). Part 24 C.F.R. §982.555(e) directs the PHA to establish procedures for conducting informal hearings and provides a general framework for conducting the proceeding.

The Maryland Department of Housing and Community Development (Department) is the PHA responsible for administering the HCVP program in Maryland. As required by the federal statute and HUD regulations, the Department has adopted an Administrative Plan governing the administration of the HCVP program. The Administrative Plan provides for the possible termination of a participant’s assistance payments for failing to comply with family obligations, failing to provide an accurate report of family income, and failing to repay the Department for any overpayments.

The Administrative Plan further provides that, prior to the termination of a participant’s housing assistance benefits, the participant must be given an opportunity for an informal hearing. See 24 C.F.R. 982.555(e).

In 2009, Tonya Walker resided with her children in a house she rented. The Department, alleging that Walker was in violation of her family obligations, notified Walker that her rental assistance payments were being terminated. As a result of the termination, Walker requested and was given an informal hearing to appeal the termination decision.

The hearing officer issued a written decision, summarizing the evidence, but making no findings of fact. The decision included the hearing officer’s conclusion, without elaboration, that “[t]he testimony and evidence in this matter indicates that the decision of the [Department] should be upheld.”

Walker filed in the circuit court a petition for judicial review pursuant to SG §10–222. The circuit court affirmed the hearing officer. The court found that the hearing held by the Department was required only be regulation, 24 C.F.R. §982.555(a)(v). Therefore, the matter was not a “contested case” and the APA requirements did not apply. The court nonetheless went on to find that there was substantial evidence in the record to support the Department’s termination decision.

Prior to argument before the Court of Special Appeals, the Court of Appeals, on its initiative, issued a writ of certiorari and reversed and remanded.

LAW: SG §10–202(d)(1) defines “contested case” as including “a proceeding before an agency to determine[ ](i) a right, duty, statutory entitlement, or privilege of a person that is required by statute or constitution to be determined only after an opportunity for an agency hearing [.]” When a “proceeding” meets the definition of a contested case, the agency is required to provide certain trial-type procedures during the hearing. See Sugarloaf Citizens Ass’n v. Northeast Maryland Waste Disposal Auth., 323 Md. 641, 651 (1991).

The parties agreed that the Department is a State agency to which the APA applies. See SG §§10–202, 10–203. Termination of HCVP benefits, moreover, constitutes a “right, duty, statutory entitlement, or privilege” as set forth in the definition of “contested case.” SG §10–202(d)(1). The parties disputed, however, whether a statute or constitutional principle requires that a decision regarding termination of HCVP benefits be made only after “an opportunity for an agency hearing.”

The APA itself does not grant a right to an administrative hearing. Rather, the right must come from another source, such as a statute, due process principles, or a regulation. See Carven v. State Retirement & Pension System of Maryland, 416 Md. 389, 410 (2010).

In Goldberg v. Kelly, 397 U.S. 254, 266 (1970), the Supreme Court held that termination of welfare benefits without first affording the recipient an opportunity for an evidentiary hearing violates the Due Process Clause of the Fourteenth Amendment.

Similarly, the Due Process Clause — and not the relevant federal regulations alone — requires, upon request, a hearing prior to the termination of HCVP benefits.

SG §10–202(d)(2) provides: “‘Contested case’ does not include a proceeding before an agency involving an agency hearing required only by regulation unless the regulation expressly, or by clear implication, requires the hearing to be held in accordance with this subtitle.”

The plain language of SG §10–202(d)(2) demonstrates that that section is applicable only when neither a statute nor a constitutional principle — e.g., due process — requires a hearing prior to certain agency action.

Therefore, the focus was on subsection (d)(1) to ascertain whether the pre-termination hearing meets the definition in that subsection of a “contested case.”

In Sugarloaf Citizens Ass’n v. Northeast Maryland Waste Disposal Auth., 323 Md. 641 (1991), the Northeast Maryland Disposal Authority had proposed to construct a municipal solid waste incinerator near Sugarloaf Mountain. The first step in the process was for the Disposal Authority to obtain a Prevention of Significant Deterioration (PSD) permit, which would then be followed by obtaining a construction permit and, finally, an operation permit.

Concerned citizens living in the area requested that the Air Management Administration (Agency) hold an “adjudicatory hearing” prior to ruling on the permit. The Agency denied the request. The citizens then filed in the circuit court a complaint for declaratory judgment, asking the court to declare that the Agency must hold a contested case hearing prior to final action on the PSD permit. Id. at 648–49.

The circuit court granted summary judgment in favor of the Agency, finding that a contested case hearing during the PSD permit process was not required by statute, regulation, or due process.

In the Court of Appeals, the Sugarloaf plaintiffs contended that EN §2–404 and COMAR 26.11.02.10C obligated the Agency to provide a contested case hearing prior to PSD permit approval. Id. at 653. The Court of Appeals disagreed, explaining that the “statute or regulation which grants the right to a hearing may negate the fact that the hearing is to be a ‘contested case’ or ‘adjudicatory’ hearing.” Id. at 653. The Court rejected outright EN §2–404 as a basis for a contested case hearing at the PSD permit stage. It reasoned, based on the language of that provision, that it was not until the construction permit stage that the statute provides the right to a “public hearing,” which was construed to mean a contested case hearing. Id. at 656.

With regard COMAR 26.11.02.10C, the Court found important the portion of it authorizing the Agency to implement the hearing procedures used by the Environmental Protection Agency in PSD proceedings at the federal level. The federal regulation, in turn, provided for “non-trial type public notice and comment hearings” and specified that PSD permits “may never be subject to an ‘evidentiary hearing.’” Id. at 655. That language clearly evinced an intent by the EPA that the hearing not be treated as a contested case. Id. Accordingly, the COMAR regulation — the source of the right to a hearing — did not contemplate a contested case hearing. Id. at 659.

Subsequent to the filing of the initial opinion in Sugarloaf, the Agency filed a motion for reconsideration. Id. at 659. In reaffirming its interpretation of that statutory provision, the Court of Appeals explained: “Under Maryland administrative law, where a statute, regulation or due process principles provide that a particular administrative function be done after an agency hearing, it is the definition in the Administrative Procedure Act, and not the statute dealing with the underlying administrative function, which ordinarily determines whether the hearing is a ‘contested case’ hearing.” Id. at 663.

Though due process requires an informal HCVP hearing, the somewhat limited rights (as compared to those provided at a contested case hearing) afforded a participant by due process do not constitute the “express[ ] or clear implication” necessary to negate treatment of the hearing as a contested case under Maryland’s APA. See Sugarloaf, 323 Md. at 665–66 n. 6. In the absence of the requisite evidence of negation, once due process or a statute requires a hearing prior to certain agency action, it is the definition of contested case found within the APA that is controlling. See also Bouie v. New Jersey Department of Community Affairs, 972 A.2d 401 (N.J.Super.Ct .App.Div.2009); Aguiar v. Hawaii Housing Authority, 522 P.2d 1255 (Haw.1974).

Pursuant to Goldberg, the Due Process Clause requires that HCVP participants be given an opportunity for an informal hearing prior to termination of benefits. Absent the express or clearly implied evidence of negation required by Sugarloaf, HCVP benefits termination hearings are contested cases under the APA.

COMMENTARY: Under SG §10–221, a final decision or order in a contested case must contain separate statements of the findings of fact; the conclusions of law; and the order.

In United Steelworkers of America v. Bethlehem Steel Corp., 298 Md. 665 (1984), the hearing officer narrated the evidence presented at the hearing and, then, without resolving the factual conflicts, concluded that “[t]here was ample evidence offered by [the Maryland Occupational Safety and Health staff] concerning achievable measures that were readily available to [Bethlehem].” Id. at 679. The Court of Appeals found that the hearing officer “did not resolve conflicts of underlying fact,” id. at 674, and that his conclusion “tells us nothing in relation to [the] record and precludes judicial review.” Id. at 679.

Here, the hearing officer’s decision stated only that “[t]he testimony and evidence in this matter indicates that the decision of the Local Housing Authority should be upheld.” This does not come close to the findings required by SG §10–221. The hearing officer’s findings did not make clear whether Walker’s benefits were terminated for alleged violations of Walker’s family obligations or for her failure to enter into a repayment agreement, or both.

Thus, judicial review of the decision could not be conducted on the present record. A remand to the Department for compliance with the dictates of a contested case proceeding was required.

DISSENT: According to the dissent, there were sufficient indicia in the relevant regulatory scheme here that negates, expressly or by implication, the notion that a contested case administrative hearing process is required in Maryland in termination of Section 8 housing benefits situations. Thus, even though a statutory entitlement was at issue, SG §10–202(d)(1) does not trump the clear indication from the relevant statutory and regulatory scheme for the administrative resolution of Section 8 housing assistance disputes that only an “informal hearing” is required, such as was given in the present case.

Labor & Employment

Ministerial exception

BOTTOM LINE: The ministerial exception did not apply to plaintiff’s hostile work environment claim or her gender discrimination claim, and because the “continuing violation doctrine” is applicable to those claims, they were not barred by the statute of limitations.

CASE: Prince of Peace Lutheran Church v. Linklater, No. 66, Sept. Term 2009 (filed Sept. 21, 2011) (Judges Harrell, Green, MURPHY & Barbera) (Judges Adkins, Bell & Battaglia dissenting). RecordFax No. 11-0921-20, 49 pages.

FACTS: Mary Linklater was the former Music Director of Prince of Peace Lutheran Church (the Church). Linklater claimed that she was the victim of sexual harassment and retaliation when she complained of the harassment. A specific incident occurred on March 4, 2001, when Linklater found a defaced picture of herself that had been stabbed numerous times, stuck to a bulletin board on the wall of the church next to the music room where she worked. By March 7, 2001, Linklater concluded that the environment at the Church had become so hostile and hateful and intimidating that, she could no longer bring herself to come in to work.

On October 16, 2002, Linklater sued the Church, Pastor Rufus Lusk, the Metropolitan Washington D.C. Synod of the Evangelical Lutheran Church in America (the Synod), and Bishop Theodore Schneider. The circuit court dismissed several of the counts. The only counts remaining were: Count I (Sexual Harassment and Hostile Work Environment); Count II (Quid Pro Quo Sexual Harassment); Count III (Gender Discrimination); Count V (Intentional Infliction of Emotional Distress); Count VI (Invasion of Privacy and False Light); Count VII (Fraud); Count VIII (Injurious Falsehood against Lusk, Schneider the Synod); and Count XI (Respondeat Superior against all Defendants).

In a subsequent ruling, the circuit court granted summary judgment for Bishop Schneider, and the Synod on all counts. The Church and Pastor Lusk’s motion for summary judgment was granted in part and denied in part. Accordingly, counts I, II, III, VII, and XI, were dismissed. As the motion pertained to counts V, VI, VIII, the motion for summary judgment was denied.

Prior to trial, Lusk and the Church filed a motion in limine to exclude any evidence of Lusk’s net worth, but the circuit court made no pretrial ruling on that issue. At trial, Linklater introduced into evidence a financial statement that listed the income and marital property of both Lusk and his wife. The trial court entered a judgment in favor of all Defendants on Linklater’s injurious falsehood claim, so only count V (the IIED claim) and count VI (the invasion of privacy and false light claim) were submitted to the jury.

The jury found that Linklater suffered intentional infliction of emotional distress by the Church and awarded her $50,000.00 in compensatory damages, but no punitive damages. The jury also found that Linklater suffered intentional infliction of emotional distress by Lusk and awarded her $300,000 in compensatory damages and $1 million in punitive damages. The jury further found that Linklater did not suffer false light, invasion of privacy by the Church or by Lusk.

At the first post-trial motions hearing, the trial court concluded that it had erred by admitting the joint financial statement before the jury had made a finding that would entitle Linklater to argue for an award of punitive damages. Ultimately, the circuit court granted the Church and Lusk a new trial on the IIED count. The circuit court then, citing the ministerial exception, granted the Church’s motion in limine to exclude all evidence of Linklater’s job performance, and thereafter granted renewed motions for summary judgment made by the Church and Lusk.

The Court of Special Appeals held that (1) the IIED claim asserted in Count V failed as a matter of law, (2) that Linklater alleged at least one instance of retaliatory conduct that fell within the statute of limitations, so her claims in Counts I and III were not time-barred, because they are saved by the continuing violation rule, and (3) because Schneider and the Synod are not “employers” under the Montgomery County Code (M.C.C.),  the hostile work environment and gender discrimination counts could not be brought against them. Thus, the Court of Special Appeals ordered a remand for further proceedings on counts I, III and IV against Lusk, counts I, III, IV (Retaliatory Harassment) and XV (Breach of Implied Contract) against the Church, and Counts IV and XIV (Breach of Contract) against Schneider and the Synod.

The Court of Appeals affirmed in part, reversed in part and remanded.

LAW: The “ministerial exception” is rooted in both the “Free exercise” and “Establishment” clauses of the First Amendment. The Free Exercise Clause prohibits governmental action that “encroaches upon the ability of a church to manage its internal affairs.” EEOC v. Catholic Univ. of Am., 83 F.3d 455, 460 (D.C.Cir.1996). The Establishment Clause prohibits “excessive entanglement” between government and religion.

In Lemon v. Kurtzman, 403 U.S. 602 (1971), the Supreme Court established a three part test to determine whether the ministerial exception is applicable to a particular statute: “First, the statute must have a secular legislative purpose, second its principal or primary effect must be one that neither advances or inhibits religion, finally the statute must not foster an excessive government entanglement with religion.” Id. at 612–13.

M.C.C. §27–19, like its federal counterpart, Title VII of the Civil Rights Act of 1964 has an obvious secular purpose, and neither advances nor inhibits religion.

The 9th Circuit stated: “Insofar as race, sex, and national origin are concerned, the text of Title VII treats an employment dispute between a minister and his or her church like any other employment dispute. The statute does provide two exemptions from its non-discrimination mandate for religious groups. But neither of these statutory exceptions removes race, sex, or national origin as an impermissible basis of discrimination against employees of religious institutions. Nor do they single out ministerial employees for lesser protections than those enjoyed by other church employees.” Bollard v. California Province of the Soc’y of Jesus, 196 F.3d 940, 945 (9th Cir.1999).

In Black v. Snyder, 471 N.W.2d 715 (Minn.1991), an associate pastor of a Lutheran church asserted sexual harassment and related claims against her supervising pastor. Id. at 717–718. The court permitted Black’s claim to go forward and held that the first amendment did not bar Black from litigating her sexual harassment claim. “We are unpersuaded that enforcing the Human Rights Act’s harassment prohibitions would actually burden the church’s religious practices, in light of the church’s own policy against such conduct. Even if this regulation would incidentally burden religious activity or belief, Black is entitled to assert this claim because the state’s interest in eradicating sexual harassment in the work place is compelling, and we perceive no adequate, less restrictive alternative to enforcement.” Id. at 720–721. Therefore, the ministerial exception does not operate to bar every claim of sexual harassment asserted against church officials by a former ministerial employee.

Count I (Hostile Work Environment) and count III (Gender Discrimination) could both go forward without running afoul of the ministerial exception because there was no contention that sexual harassment is part of the ministry. The church was not putting forth any religious justification for Lusk’s conduct. However, adjudicating count II (Quid Pro Quo Sexual Harassment) would require the court to assess whether Linklater was otherwise qualified to receive a job benefit, and thus would necessitate an evaluation of Linklater’s job performance which would run afoul of the ministerial exception. Therefore, the ministerial exception prohibited Linklater from proceeding to trial on that count. Counts I–III of Linklater’s suit pertained to the M.C.C and therefore were subject to the two year statute of limitations enunciated in Article 49B §42.

The circuit court dismissed these claims as barred by the statute of limitations. The Court of Special Appeals, however, held that because Linklater alleged at least one instance of retaliatory conduct that fell within the statute of limitations, counts I and III were saved by the continuing violation rule.

Under the course of conduct test, the question is whether the separate acts of discrimination are “closely enough related” to form a continuing violation. See Richards v. CH2M Hill, Inc., 29 P.3d 175 (Cal.2001). This test is most compatible with National Railroad Passenger Corp. v. Morgan, 122 S.Ct. 206 (2002), in which the United States Supreme Court held that “consideration of the entire scope of a hostile work environment claim, including behavior alleged outside the statutory time period, is permissible for the purposes of assessing liability, so long as any act contributing to that hostile environment takes place within the statutory time period.” Id. at 105.

There was no religious justification for stabbing a photograph of Linklater with multiple holes through the head, eyes, and chest, and then posting that photograph in the hallway across from her office. This was clearly an act of retaliation to which the “course of conduct” test was applicable. Furthermore, any act of retaliation that occurred after October 16, 2002 “rescued” the claims asserted in count I and count III. “[H]arassment and complaint followed by retaliatory acts [i]s a continuous manifestation of a sex-based animus.” Birschtein v. New United Motor Manufacturing, Inc., 112 Cal.Rptr.2d 347, 351-53 (Cal.App. 1st Dist.2001).

Thus, the continuing violation doctrine was applicable to Linklater’s allegations of (1) sexual harassment that occurred more than two years before she filed her complaint, and (2) retaliatory actions taken against her that occurred within the period of limitations. Therefore, counts I and III were not barred by limitations and those counts were remanded for further proceedings against Lusk and the Church.

COMMENTARY: In Black v. Snyder, although the plaintiff was entitled to proceed on her sexual harassment claim, she was not entitled to proceed on her breach of contract, reprisal, retaliation, and defamation claims: “These claims are fundamentally connected to issues of church doctrine and governance and would require court review of the church’s motives for discharging Black. Black’s discharge by congregational vote…was conducted according to church procedure established in its constitution. Although deference is traditionally afforded to decisions of a hierarchical church’s highest authority, the prohibition against litigating matters at the core of a church’s religious practice requires dismissal of Black’s discharge-related claims.” 471 N.W.2d at 720.

Likewise, here, a trial on the merits of the claim asserted in count IV for retaliatory harassment and constructive discharge would necessarily involve an inquiry into the various employment actions taken by the Church, and would therefore “encroach on the ability of a church to manage its internal affairs.” EEOC v. Catholic Univ. of Am., 83 F.3d 455, 460 (D.C.Cir.1996). A trial on the merits of the claim asserted in count V for intentional infliction of emotional distress would necessarily involve an inquiry into various employment actions taken by the Church, as well as an inquiry into matters of church governance.

A trial on the merits of the claim asserted in count X for negligent retention and supervision would necessarily involve an inquiry into the Church’s employment decisions, and “[t]he [ministerial] exception precludes any inquiry whatsoever into the reasons behind a church’s ministerial employment decision.” EEOC v. Roman Catholic Diocese, 213 F.3d 795, 801 (4th Cir.2000). Similarly, a trial on the merits of the claims asserted for breach of contract would necessarily involve an inquiry into matters of church governance and discipline.

DISSENT: According to the dissent, the majority adopted an unduly broad interpretation of the “ministerial exception” to state laws against employment discrimination. The majority viewed the ministerial exception as barring judicial inquiry into any matter involving “church governance,” and it defines church governance liberally.

Thus, in the view of the dissent, counts II (Quid Pro Quo Sexual Harassment), IV (Retaliatory Harassment and Constructive Discharge), V (Intentional Infliction of Emotional Distress), X (Negligent Retention and Supervision), XIV (Breach of Contract), and XV (Breach of Implied Contract) survived proper application of the ministerial exception. Nevertheless, the majority was correct that Count V does not survive a motion to dismiss because it failed to meet the standards for claims of intentional infliction of emotional distress generally.

Constitutional Law

Dormant Commerce Clause

BOTTOM LINE: Special Nonresident Tax (SNRT), which was imposed on individuals subject to state income tax but not subject to a county or local income tax, satisfied the compensatory tax doctrine and did not violate the dormant Commerce Clause.

CASE: Frey v. Comptroller of Treasury, No. 62, Sept. Term, 2009 (filed Sept. 29, 2011) (Judges Harrell, Battaglia, Murphy, Adkins & BARBERA) (Judges Bell & Greene, dissenting). RecordFax No. 11-0929-20, 109 pages.

FACTS: This case considered the State’s authority to impose a certain tax known as the “Special Nonresident Tax” (“SNRT”) upon nonresidents who neither lived nor worked in Maryland but had a source of income in the State. David and Judith Antzis, Timothy and Mary Frey, and Rudolph Garcia and Randi Pastor–Garcia resided in Pennsylvania, but paid Maryland State income taxes on the income earned by each husband as a partner in Saul Ewing, LLP, a multi-state law firm with offices in Maryland, Pennsylvania, Delaware, Washington, D.C., New York, and New Jersey.

During 2004, Plaintiffs, though residents of Pennsylvania who worked outside of and owned no property in Maryland, paid State income taxes and local real estate and personal property taxes to the respective State subdivisions. At that time, David Antzis and Rudolph Garcia conducted their legal practice in Pennsylvania, in Chesterbrook and Philadelphia, respectively, and Timothy Frey conducted his legal practice in Wilmington, Delaware. The firm was a partnership formed in Delaware, but, because it earned income in each of the states in which its offices were located, the firm apportioned its income among these states when reporting its income. As a result, during the relevant time period, the firm reported taxable income and paid the applicable State income and other taxes in Maryland for each of the firm’s partners, including Plaintiffs. These taxes were not in dispute.

Plaintiffs did not, however, pay the additional SNRT imposed on their income attributed to the firm’s operations in Maryland. In 2005, the Comptroller issued notices of assessment to Plaintiffs for the unpaid SNRT. Pursuant to Maryland Code (1988, 2004 Repl.Vol.), §10–105 of the Tax General Article (“T.G.”), Plaintiffs asked the Comptroller to revise the assessment, at an informal hearing held on September 19, 2005. On September 26, 2005, the Comptroller issued to each Plaintiff a Notice of Final Determination affirming the assessment.

At the hearing, Plaintiffs argued that the special nonresident tax violated the Interstate Commerce Clause and Due Process Clause of the United States Constitution, as well as the Maryland Constitution. The hearing officer determined as an initial matter that Plaintiffs’ constitutional challenges to the SNRT exceeded the scope of the hearing. The officer then determined that, based on the information presented at the hearing, the assessment was consistent with T.G. §10–106.1, and the officer therefore affirmed the assessment.

On October 24, 2005, Plaintiffs individually appealed to the Maryland Tax Court. On February 15, 2006, that court consolidated Plaintiffs’ cases, and on May 10, 2006, heard the parties’ arguments. On June 22, 2006, the Tax Court affirmed the assessments on Plaintiffs. Because the Tax Court judged the appeal to be in good faith, the court abated the penalties assessed against Plaintiffs, but denied Plaintiffs’ request to abate the accrued interest.

On July 12, 2006, each of the Plaintiffs filed in circuit court a petition for judicial review of the Tax Court’s decision. The circuit court consolidated Plaintiffs’ cases. On July 19, 2007, the court issued a memorandum opinion and order affirming, with respect to the constitutionality of the SNRT, the decision of the Tax Court. Unlike the Tax Court, the circuit court found that, because the State established the county taxes and the corresponding rates, the county tax was simply a variation of the State tax. Accordingly, the Circuit Court found that the local tax and the SNRT were correlative components of the State income tax, and that under this State tax scheme, nonresidents bore a burden no more onerous than that of residents. As such, the circuit court deemed the SNRT constitutional. The circuit court disagreed as to the Tax Court’s determination that it could not abate the interest assessed against Plaintiffs, and remanded the case to the Tax Court to consider the issue.

On August 16, 2007, Plaintiffs appealed to the Court of Special Appeals, seeking review of the same constitutional issues presented to the circuit court and a determination of whether the penalties and interest assessed against them should be waived for reasonable cause. The Comptroller noted a cross-appeal, questioning whether the Tax Court had discretionary authority to reduce or abate interest on the assessments against Plaintiffs when the interest was assessed by statute. The Court of Special Appeals held that the SNRT did not violate the United States Constitution or the Maryland Constitution and Declaration of Rights. The court further held that the Tax Court had the authority to consider and order the abatement of interest.

The Court of Special Appeals ultimately concluded that the SNRT was a valid compensatory tax and that it did not violate the Equal Protection Clause. The Court of Special Appeals similarly rejected Plaintiffs’ contention that the SNRT violated the Privileges and Immunities Clause. Likewise, the Court of Special Appeals held that the SNRT did not violate Article 24 of the Declaration of Rights and the Maryland Constitution. Finally, the Court of Special Appeals held that the Tax Court had statutory authority to consider and order the abatement of interest. The Court of Special Appeals therefore remanded the case to the Tax Court to consider the issue of abatement.

Plaintiffs appealed to the Court of Appeals, which affirmed.

LAW:  Maryland residents and nonresidents alike are taxed under Maryland Code (1988, 2004 Repl.Vol.), §10–105 of the Tax General Article (“T.G.”), which establishes the State income tax rates. Maryland residents are also subject to a county tax, mandated by T.G. §10–103 and §10–106. The rate of a resident’s county tax is determined by where the resident is domiciled on the last day of the taxable year. §10–103(a)(1)(i). The only county income taxes permitted in the State are those prescribed in these sections of the Tax General Article, and the counties have no authority to impose income taxes other than those established by State statute. See T.G. §10–103(b). Residents file a single tax return that reflects both county and State income taxes.

During the time period relevant to this case, §10–106.1 required a nonresident who owed income taxes in Maryland to pay the State income tax of 4.75%, and a tax equal to the lowest county tax rate imposed by any county in the State, which, at the time, was 1.25%. The SNRT, however, was not distributed to any particular county after it is collected by the Comptroller. Instead, under T.G. §2–609, after making the statutorily required distributions, the Comptroller distributed the remaining income tax revenue from individuals to the General Fund of the State. Thus, the Comptroller distributed to the taxpayers’ county of residence the remaining county tax revenue, and then deposits the remaining SNRT revenues into the State’s General Fund.

The General Assembly adopted Maryland’s county income tax in 1967 when the legislature overhauled the State’s entire income tax law, adopting the federal adjusted gross income amount as the base for Maryland’s individual and corporate income tax. Stern v. Comptroller, 271 Md. 310, 311–12 (1974). The General Assembly did not, however, as radically amend the applicable scheme of exemptions, exclusions, and deductions. See id. As a result, residents claimed credits for income taxes paid to another state against State and county income taxes, as they had prior to the revisions. See id. at 312–13. After the Comptroller denied the credits against the county income tax on the ground that the credits were available only to offset the State income tax, the aggrieved parties sought review of that decision. Id. The Court of Appeals held that the credit applied to all taxes, including the county income tax, appearing in the State “Income Tax” subtitle. Id. at 313–14.

Subsequent to Stern, the General Assembly added T.G. §10–703(a), which provides that a taxpayer may “claim a credit only against the State income tax.” In Blanton, the Court of Appeals again considered whether Maryland residents who owed State and county income taxes could claim a credit for income taxes paid in another state against both their State and county income taxes. Comptroller v. Blanton, 390 Md. 528 (2006). The Blanton Court ultimately concluded that the State and county income taxes were treated separately under the Maryland income tax scheme, and that the legislature did not intend the term “only against the State income tax” to include local income tax for purposes of credits under §10–703(a). Id. at 543.

In this case, Plaintiffs’ contention that the State and county income taxes were not part of a single State-imposed income tax scheme rested on the assumption that Blanton overruled the holding in Stern that the county income tax is a part of a State-administered income tax scheme. However, the holding in Blanton was entirely contingent on the revision of the applicable statutory language and was silent as to the significance of the scheme through which the State and county taxes were administered. Thus, it could not be inferred from this silence that the Blanton Court’s intended to overrule the portion of the Stern opinion in which the Court concluded that the county tax was not administered by the local political subdivisions. Accordingly, the determination in Stern that the county income tax was part of a State-administered income tax scheme was neither overruled nor undermined by Blanton. As such, the Court of Special Appeals correctly concluded that the county tax levied under T.G. §10–103 and §10–106 was a State tax.

This conclusion was not determinative, however, of the constitutional issues presented to the Court. The Commerce Clause of the United States Constitution provides Congress with the power to “regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” U.S. Const. art. I, §8, cl. 3. The Commerce Clause has long been understood to have a “negative” aspect that denies the States the power unjustifiably to discriminate against or burden the interstate flow of articles of commerce. Or. Waste Sys., Inc. v. Dep’t of Env’t Quality, 511 U.S. 93, 99 (1994)). The negative commerce clause, often referred to as the “dormant” Commerce Clause, operates as an implied limitation on the power of state and local governments to enact laws affecting foreign or interstate commerce. Bd. of Trs. v. City of Baltimore, 317 Md. 72, 131 (1989). This limit on the authority of state and local governments applies even when Congress has failed to legislate on the subject. Okla. Tax Comm’n v. Jefferson Lines, Inc., 514 U.S. 175 (1995).

The modern law of the dormant Commerce Clause is driven by concern about economic protectionism — that is, regulatory measures designed to benefit in-state economic interests by burdening out-of-state competitors. Dep’t of Revenue v. Davis, 553 U.S. 328 (2008). However, the dormant Commerce Clause does not entirely prohibit the states from regulating aspects of interstate commerce. The Supreme Court has interpreted the dormant Commerce Clause to permit states to tax interstate commerce so long as the levy is not discriminatory and is properly apportioned to local activities within the taxing State forming sufficient nexus to support the tax. Complete Auto Transit, Inc. v. Brady, 430 U.S. 274 (1977). In other words, interstate commerce may be made to “pay its way.” Or. Waste Sys., 511 U.S. at 102. Accordingly, the dormant Commerce Clause has been interpreted to permit the states to impose taxes on “that aspect of interstate commerce to which the states bear a special relation, and that the states bestow powers, privileges, and benefits sufficient to support a tax.” Complete Auto, 430 U.S. at 286.

Likewise, the dormant Commerce Clause does not prohibit states from taxing in-state income earned by out-of-state individuals. See Shaffer v. Carter, 252 U.S. 37, 52–53 (1920). The authority to impose such taxes rests in the proposition that states have general dominion, and, saving as restricted by particular provisions of the Federal Constitution, complete dominion over all persons, property, and business transactions within their borders; they assume and perform the duty of preserving and protecting all such persons, property, and business, and, in consequence, have the power normally pertaining to governments to resort to all reasonable forms of taxation in order to defray the governmental expenses. Id. at 50. From these principles the Supreme Court has concluded that, just as states may tax residents, states may levy a duty of like character, and not more onerous in its effect, upon incomes accruing to non-residents from their property or business within the State, or their occupations carried on therein. Id. at 52.

Regardless of the states’ authority to tax income earned by non-residents incidental to in-state transactions, facially discriminatory state taxes raise a presumption of per se invalidity. Such laws are subject to the strictest scrutiny, and the burden of justification is so heavy that ‘facial discrimination by itself may be a fatal defect. Or. Waste Sys., 511 U.S. at 101. States may overcome this presumption of invalidity, however, by establishing that the facially discriminatory tax advances a legitimate local purpose that cannot be adequately served by reasonable nondiscriminatory alternatives. Id. at 101.

To determine whether the law in question satisfies this standard, the Supreme Court has adopted the compensatory tax doctrine, under which a facially discriminatory tax survives strict scrutiny if it is the rough equivalent of an identifiable and “substantially similar” tax on intrastate commerce. Id. at 103. Thus, a facially discriminatory state law will survive judicial review so long as the law was “designed simply to make interstate commerce bear a burden already borne by intrastate commerce.” Fulton Corp. v. Faulkner, 516 U.S. 325, 331 (1996). In sum, the compensatory tax doctrine consists of three prongs, which to satisfy the state must: (1) identify the intrastate tax burden for which the State is attempting to compensate; (2) show that the tax on interstate commerce roughly approximates but does not exceed-the amount of the tax on intrastate commerce; and (3) demonstrate that the events on which the interstate and intrastate taxes are imposed are substantially equivalent. Fulton, 516 U.S. at 332–33.

Courts applying the compensatory tax doctrine consider the effect of the facially discriminatory tax as related to the state’s general tax scheme. See Or. Waste Sys., 511 U.S. at 103. A “truly compensatory tax scheme” is such that “the stranger from afar is subject to no greater burdens as a consequence of ownership than the dweller within the gates. The one pays upon one activity or incident, and the other upon another, but the sum is the same when the reckoning is closed.” Or. Waste Sys., 511 U.S. at 103. Here, the SNRT undeniably singled out nonresidents and imposes upon them a State income tax not applicable to residents and, thereby, discriminated against nonresidents “on the basis of some interstate element.” Boston Stock Exch. v. State Tax Comm’n, 429 U.S. 318, 332 n. 12 (1977). Thus, the SNRT was indeed a facially discriminatory tax. However, whether the SNRT violated the Commerce Clause hinged on whether the tax merely imposed on interstate commerce a burden already borne by intrastate commerce, and in other words, was a compensatory tax.

The first prong of the compensatory tax doctrine requires the state to “identify the intrastate tax for which it seeks to compensate.” Fulton, 516 U.S. at 334. The corollary to this requirement is that the intrastate tax must serve some purpose for which the State may otherwise impose a burden on interstate commerce. Id. It is well-settled that a state possesses the authority to impose taxes on income generated within the state. Shaffer v. Carter, 252 U.S. 37, 52–53 (1920). As recognized by the Tax Court, any taxpayer, resident or not, earning income in Maryland has availed herself of State services (such as police and fire protection, waste disposal and water services). Thus, the SNRT survived the first prong of the compensatory tax doctrine insofar as it imposed a tax on income earned in Maryland to compensate for services provided to the nonresidents earning that income.

Next, it was necessary to consider whether the Comptroller identified a legitimate intrastate tax burden for which the SNRT compensated. The General Fund of Maryland exists to provide funding for the benefit of all Maryland counties and Baltimore City, selectively, through legislation and through the legislative budgeting process. Through this process, the State may allocate funds to compensate those counties in need of assistance. Thus, the Court of Special Appeals properly found that the county income tax was the intrastate burden for which the State sought to compensate through the SNRT.

The Court next considered the second prong of the compensatory tax doctrine, whether the State has shown that the tax on interstate commerce roughly approximates the amount of the tax on interstate commerce. The SNRT compensated for costs funded through a specific tax, the county income tax. Unlike the State income tax or other taxes allocated to the General Fund and “lost in general revenues,” the county income tax revenues were apportioned to the counties in accordance with the applicable county rate and the total amount paid by county residents. Because the local municipalities retained the authority to set the county tax rates in accordance with local budgetary needs and the discretion to expend locally the revenues collected, it could reasonably be inferred that the county income tax revenues were collected to serve a specific purpose-funding local governmental services.

Finally, the third prong of the doctrine called for the Court to consider whether the State sufficiently showed that the events on which the interstate and intrastate taxes were imposed were substantially equivalent. Fulton, 516 U.S. at 333. In making this determination, the proper focus was not on whether the triggering events are identical, but on whether they are “sufficiently similar in substance” to serve as proxies for each other. Id. Contrary to Plaintiffs’ assertions, taxes that fall upon differently described taxpayers do not necessarily fall upon dissimilarly situated taxpayers. The SNRT and the county income tax necessarily described differently the taxpayers subject to each levy. The SNRT falls upon taxpayers subject to the State income tax but not the county income tax, which effectively imposes a tax on anyone who earns taxable income in Maryland but who is not a resident of a Maryland county. See T.G. §10–102.

The county income tax is imposed “on the Maryland taxable income” of taxpayers domiciled in a Maryland county or Baltimore City. T.G. §10–103(a). The taxable events prescribed under both levies were the same: earning taxable income in Maryland. The taxpayers are necessarily described differently, however, to equalize the burden imposed on the taxable income of taxpayers who reside in a Maryland county or Baltimore City. By imposing a tax on those taxpayers who earn taxable income in Maryland but escape the county income tax, the SNRT ensures that all individuals competing in Maryland’s marketplace compete on equal footing. The compensatory tax doctrine is intended to permit exactly this. Therefore, the SNRT and the county income tax fell upon substantially equivalent events.

As such, the SNRT satisfied the three prongs of the compensatory tax doctrine and, consequently, did not violate the dormant Commerce Clause. Accordingly, the judgment of the Court of Special Appeals was affirmed.

COMMENTARY: It was additionally necessary to consider whether the SNRT violated the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution.

The Equal Protection Clause provides that no State shall make or enforce any law which shall deny to any person within its jurisdiction the equal protection of the laws. U.S. Const. amend. XIV. Yet, in the context of internal taxation schemes, the States have large leeway in making classifications and drawing lines which in their judgment produce reasonable systems of taxation. Williams v. Vermont, 472 U.S. 14, 22 (1985). Unless a classification trammels fundamental personal rights or is drawn upon inherently suspect distinctions such as race, religion, or alienage, Supreme Court decisions presume the constitutionality of the statutory discriminations and require only that the classification challenged be rationally related to a legitimate state interest. City of New Orleans v. Dukes, 427 U.S. 297 (1976).

In this case, the total amount of income tax paid by nonresidents did not exceed the total amount of income tax paid by residents. Moreover, even assuming arguendo that the SNRT imposes a higher State income tax on nonresidents than is imposed on residents, Plaintiffs failed to overcome the presumption of constitutionality that bolsters state tax legislation. See id. The Equal Protection Clause does not mandate that the State create a perfect tax scheme, merely a reasonable one. As such, the SNRT did not violate the Equal Protection Clause.

DISSENT: Although none of the petitioners lived in the State of Maryland or worked out of the firm’s Baltimore City office, each partner, for the 2004 calendar year, was assessed Maryland State income taxes, which he or she was required to pay with respect to his or her allocable share of profit from the law firm. Thus, pursuant to the SNRT imposed by T.G. §10–106.1, non-resident taxpayers were subject to additional Maryland taxes. Under the Court’s ruling in Blanton, the county income tax and State income tax were not one and the same; rather, the State income tax was separate and apart from the county income tax. Blanton, 390 Md. at 541. The SNRT, as a tax separate from the general State income tax, was not a valid compensatory tax and did not survive Commerce Clause scrutiny.

Criminal Law

Confrontation Clause

BOTTOM LINE: Defendant’s constitutional rights of confrontation were violated when, during defendant’s prosecution for rape, state was permitted to introduce the opinion of a serology examiner and the results of DNA testing of biological evidence through the testimony of an expert who did not participate either directly or in a supervisory capacity in the testing.

CASE: Derr v. State, No. 6, Sept. Term, 2010 (filed Sept. 29, 2011) (Judges Bell, Harrell, Battaglia, GREENE, Murphy, Adkins & Eldridge (retired, specially assigned)). RecordFax No. 11-0929-21, 71 pages.

FACTS: On September 27, 2004, Norman Derr was charged with multiple sexual offenses relating to the rape of Alida Berman on December 9, 1984. Berman was examine at Physicians Memorial Hospital by a nurse, and a physical evidence recovery kit (PERK) was used to collect biological evidence. Using the PERK, the nurse collected a genital swab, two vaginal swabs, and an anal swab.

The evidence was taken to the FBI crime lab, where a serological examiner identified sperm and semen on parts of the swabs, and detailed his findings in a report. Despite the testing and other investigation, the case remained unsolved and became inactive.

In 2002, a detective reviewed the case and submitted the PERK to the FBI crime lab for forensic analysis. Dr. Maribeth Donovan, an FBI DNA analyst, performed the DNA analysis of the evidence. A DNA profile of the suspect, consisting of 13 genetic markers, was generated from the DNA on the vaginal swabs. This profile was entered into a national database containing 2.5 million DNA profiles, referred to as the Combined DNA Identification System (CODIS).

In 2004, a match was discovered between Derr’s existing profile in CODIS and the profile generated in 2002 by Dr. Donovan. The State then obtained a search warrant to seize additional DNA from Derr, in order to create a new reference DNA sample and to verify that Derr’s profile in CODIS was accurate. The testing of the new sample was performed by an unnamed team of biologists and supervised by Dr. Jennifer Luttman, a DNA analyst with the FBI, in 2004. Dr. Luttman determined that the reference sample matched Derr’s profile in CODIS. Dr. Luttman was not, however, involved with the 1985 serological testing or the 2002 DNA testing of the PERK that resulted in the DNA profile of the alleged assailant, nor did she did perform the actual DNA testing in 2004.

Based on the match between Derr’s CODIS profile and the DNA profile obtained from the DNA analysis of the evidence, Derr was arrested and charged with the crimes mentioned.

The defense filed preliminary motions in circuit court challenging the admission of Dr. Luttman’s proposed testimony. The circuit court ruled that the serological report was not testimonial and was, therefore, admissible through Dr. Luttman under the business records exception to the hearsay rule and under Maryland Rule 5–703 as the basis of Dr. Luttman’s expert opinion. The court also ruled that, while the opinion of the DNA analyst from 2002 was testimonial, the underlying analysis of the DNA was non-testimonial and was admissible both as a business record and as the basis of Dr. Luttman’s opinion.

At trial, the State relied solely on testimony from Dr. Luttman, who was accepted by the court as an expert in the fields of forensic serology and forensic DNA analysis, and who was permitted to testify regarding the 1985, 2002, and 2004 testing results. The jury found Derr guilty of four counts relating to the sexual assault of Mrs. Berman. Derr appealed to the Court of Special Appeals. Appellate argument in the intermediate appellate court was deferred while the Supreme Court of the United States considered Melendez–Diaz v. Massachusetts, 557 U.S. ––––, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009).

Before the Court of Special Appeals took action, the Court of Appeals granted certiorari on its own motion, and reversed.

LAW: The Supreme Court has set forth a framework for evaluating violations of the Confrontation Clause of the Sixth Amendment: first, the Confrontation Clause applies to “witnesses” against the accused — that is, those who “bear testimony; and second, because the purpose of the Confrontation Clause is to protect against out-of-court statements (specifically formal statements to government officers) being admitted without an opportunity to confront the declarant, testimonial statements are subject to the protections of the Confrontation Clause and cannot be admitted without live testimony, unless the witness is unavailable and the defendant had a prior opportunity to cross-examine the witness. Crawford, 541 U.S. at 51–54. Crawford v. Washington, 541 U.S. 36 (2004).

In defining the term “testimonial statement,” the Crawford Court noted that there exist various formulations of this core class of “testimonial” statements, including ex parte in-court testimony or its functional equivalent (that is, such material as affidavits, custodial examinations, and prior testimony that the defendant was unable to cross-examine). Crawford, 541 U.S. at 51–52. These formulations all share a common nucleus and then define the Clause’s coverage at various levels of abstraction around it. Id. Hence, the Crawford Court referred to the purpose of the use of material in a later trial in two contexts: first, pretrial statements that declarants would reasonably expect to be used prosecutorially; and second, statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial. Id. The Supreme Court later stated that if the primary purpose of an interrogation is to establish or prove past events potentially relevant to later criminal prosecution, the statement is testimonial. Davis v. Washington, 547 U.S. 813 (2006).

Subsequently, in Melendez–Diaz v. Massachusetts, the United States Supreme Court held that certificates of drug analysis were testimonial. Melendez–Diaz v. Massachusetts, 557 U.S. –––– (2009). The Court explained that the certificates were functionally identical to live, in-court testimony, doing “precisely what a witness does on direct examination,” opining that had an analyst been called, he or she would have been expected to testify as to the identity and weight of the substance, which was the precise evidence presented by the certificates. Id. Thus, the Melendez Court made two important conclusions relevant to the analysis in the case at bar: (1) the analysts’ affidavits were testimonial statements; and (2) the analysts were “witnesses” for purposes of the Sixth Amendment. Melendez, 557 U.S. at ––––. The Court therefore held that the certificates were inadmissible absent the analysts’ testimony or a showing that they were unavailable and that the defendant had a prior opportunity to cross-examine. Id.

Recently, the United States Supreme Court held that an analyst’s certification prepared in connection with a criminal investigation is testimonial, and the accused therefore has the right to be confronted with the analyst who performed the testing. Bullcoming v. New Mexico, ––– U.S. at –––– (2011). The United States Supreme Court granted certiorari to answer the question of whether the Confrontation Clause permits the prosecution to introduce a forensic report containing a testimonial certification, made in order to prove a fact at a criminal trial, through the in-court testimony of an analyst who did not sign the certification or personally perform or observe the performance of the test reported in the certification. Bullcoming, ––– U.S. at ––––, 131 S.Ct. at 2713, 180 L.Ed.2d at 619. The Court held that an out-of-court statement that is testimonial in nature may not be introduced against the accused unless the witness who made the statement is unavailable and the accused has had a prior opportunity to confront that witness. Id.

As such, when reviewing a case under the Confrontation Clause, the following principle must be followed: a testimonial statement may not be introduced into evidence, through admission or testimony, without the in-court testimony of the declarant. A court must first identify what statements are being offered as evidence in a criminal trial. Then, a court must determine whether the statements are testimonial in nature. Unless the declarant is unavailable and the defendant had a prior opportunity for cross-examination, when “an out-of-court statement is testimonial in nature, it may not be introduced against the accused at trial,” and its admission invokes the Confrontation Clause. Bullcoming, ––– U.S. at ––––.

In the case of DNA testing, the DNA profile is a statement of the analyst that essentially says: “This is the DNA profile for this person.” If the DNA profile is inputted into CODIS and a match is obtained, then that match is derived from the statement of the analyst. In light of Bullcoming and Melendez, it is inescapable that the testing procedures and method employed, the DNA profile created, and the conclusion that there is a match are testimonial in nature, and therefore the analyst who performed the DNA testing or the supervisor who observed the analyst perform the DNA testing must testify in order to satisfy the Confrontation Clause, unless the witness is unavailable and the defense had a prior opportunity to cross-examine the witness. See Bullcoming, ––– U.S. at ––––.

Here, there were three pieces of evidence and related testimony that implicated the Confrontation Clause: (1) the serological report from 1985 in which the biologist identified sperm and semen on genital and vaginal swabs taken from the victim; (2) a DNA profile generated in 2002 by Dr. Donovan when the sample was submitted to the FBI for DNA testing, which provided a match between the profile generated from the sample taken from the victim at the time of the crime and Derr’s DNA profile stored in CODIS; and (3) a DNA profile created from a new sample of Derr’s DNA in 2004. Similar to the prosecution in Bullcoming, the State in this case employed surrogate testimony, calling another analyst who was familiar with the laboratory’s testing procedures, but had neither participated in nor observed the tests to testify as to the forensic examinations and results, providing evidence to establish Derr’s guilt. This scientific evidence was presented through the testimony of Dr. Jennifer Luttman, an FBI forensic examiner who supervised the laboratory work of biologists on her “team.”

Dr. Luttman took no part in the 1985 serological testing or the 2002 DNA testing. She did not perform the actual bench work with regard to the 2004 test, nor was there any indication that she actually observed the biologists perform the test. Dr. Luttman therefore acted as a surrogate for the analysts who actually performed the tests, thereby creating a Confrontation issue because the testimonial witnesses involved in the process were not available for cross-examination. Dr. Luttman testified regarding the opinion and conclusion of the serologist that semen and sperm were present on the swabs. Dr. Luttman testified that a serology examiner at the FBI in 1985 performed the test by viewing the sample under a microscope and concluding that the cells he viewed were sperm cells, but the actual test and the procedures used were unknown; Dr. Luttman knew only that the serological examiner was an FBI agent named “Babiak.”

Thus, in her testimony Dr. Luttman relied on the serological examiner’s conclusion that sperm cells were present, and conceded that she could not form an independent basis for her conclusions without trusting the report. It was clear that Dr. Luttman did not testify as to her own independent conclusions, but rather, relied on the conclusions of Babiak, which in turn were based on the lab work of an unknown biologist. Furthermore, those conclusions were clearly prepared for possible later use at trial because the serologist was a sworn law enforcement officer engaging in a criminal investigation. Therefore, the findings contained in the serological report indicating the presence of sperm and semen were testimonial because the report contained a solemn declaration of fact, reflecting the functional equivalent of in-court testimony, and the report was prepared for later use at trial. See Melendez, 557 U.S. at ––––, 129 S.Ct. at 2532, 174 L.Ed.2d at 321; see also Bullcoming, ––– U.S. at ––––, 131 S.Ct. at 2712, 180 L.Ed.2d at 619.

Likewise, as to the DNA profile created in 2002, the trial judge erred in concluding that, although Dr. Donovan’s report was testimonial, the underlying data was not. The DNA profile was based on the test performed by Dr. Donovan, an FBI examiner who did not testify at trial, and it provided the basis for the match between the unknown sample and the profile in the CODIS database. Dr. Luttman testified as to the methodology used and the results obtained from the 2002 test, and she also testified that neither she nor her team were involved in the testing. Clearly, Dr. Luttman relied on the report authored by Dr. Donovan as the basis for her testimony. Despite her lack of involvement, Dr. Luttman testified on direct examination that it was her opinion that Derr was the source of the DNA found on the specimens at issue. Similarly, based on the record, it could not be stated that Dr. Luttman observed the 2004 testing being performed. Therefore, the trial court erred in admitting the 1985 serology report, the 2002 DNA profile, and the 2004 DNA profile.

Accordingly, the circuit court judgment was reversed, and the case remanded to the circuit court for a new trial.

COMMENTARY: In evaluating a Confrontation Clause claim involving surrogate testimony and scientific testing, it was additionally necessary to address the continued validity and application of Md. Rule 5–703. Because of the Confrontation Clause, an expert may not render as true the testimonial statements or opinions of others through his or her testimony. Although the Rule allows for an expert to base his or her opinion on inadmissible evidence, to the extent that Md. Rule 5–703 offends the Confrontation Clause, such testimony will not be admissible. Specifically, if the inadmissible evidence sought to be introduced is comprised of the conclusions of other analysts, then the Confrontation Clause prohibits the admission of such testimonial statements through the testimony of an expert who did not observe or participate in the testing.

Thus, the key distinction in this type of case is whether the testifying expert relies on raw data in forming his or her conclusions, as opposed to relying on the conclusions and opinions of others when testifying.

PRACTICE TIPS: Maryland Rule 5–703 provides that the facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence. Thus, the Rule establishes a well-settled, back-door hearsay exception, pursuant to which an expert witness may express an opinion that is based, in part, on hearsay of a kind customarily relied on by experts in a particular field.