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Law Digest: 11/21/11

MARYLAND COURT OF APPEALS

Administrative Law, Real estate license revocation: The Maryland Real Estate Commission had sufficient basis for finding that a real estate broker engaged in sexually abusive behavior toward minors throughout a 15-year period, demonstrating a lack of responsibility, maturity and trustworthiness; therefore, its sanction of license revocation was neither arbitrary or capricious, despite the fact-finding ALJ’s recommendation of a six-month license suspension.  Pautsh v. Maryland Real Estate Commission, No. 9, Sept. Term, 2011. RecordFax No. 11-1028-21, 41 pages.

Corporations and Partnerships, Derivative claim: The circuit court erred in granting summary judgment to defendants in a derivative claim, where the circuit court made an inadequate inquiry into the special litigation committee’s independence and the reasonableness of its procedures, as required under the business judgment rule. Boland v. Boland, Nos. 123, 129, Sept. Term 2010. RecordFax No. 11-1031-22, 95 pages.

Criminal Law, Robbery: The state failed to prove an essential element of robbery: that defendant conducted himself in a manner that could cause apprehension, in a reasonable person, that he was about to apply force. Spencer v. State, No. 87, Sept. Term, 2009. RecordFax No. 11-1025-23, 23 pages.

Criminal Procedure, Offensive collateral estoppel: The offensive use of collateral estoppel foreclosed the jury from finding for itself all of the ultimate facts that made out the charged crime, and was, therefore, in violation of the Sixth Amendment’s guarantee of a jury trial “[i]n all criminal prosecutions.”  State v. Allen, No. 76, Sept. Term, 2010. RecordFax No. 11-1028-20, 23 pages.

Evidence, Cross-Examination: The trial court properly refused to allow defendant to cross-examine an investigating officer regarding the contents of a search warrant return that was prepared by another police officer and of which the testifying officer had no personal knowledge.  Sweetney v. State, No. 103, Sept. Term, 2010. RecordFax No. 11-1025-25, 22 pages.

Professional Responsibility, Disbarment: Disbarment was the appropriate sanction, where attorney made false or misleading statements about residency in his applications for admission pro hac vice filed in California state and federal courts, in violation of several Maryland Rules of Professional Conduct. Attorney Grievance Commission of Maryland v. Joseph, Misc. Docket AG No. 11, Sept. Term, 2010. RecordFax No. 11-1027-20, 39 pages.

Professional Responsibility, Disbarment: Attorney’s conduct in engaging in the unauthorized practice of law following suspension of his license to practice law warranted disbarment, where attorney had been indefinitely suspended from the practice of law, and it had been previously determined that attorney had previously engaged in the unauthorized practice of law following suspension of his license. Attorney Grievance Commission of Maryland v. Maignan, No. 23, Sept. Term, 2010. RecordFax No. 11-1028-22, 14 pages.

COURT OF SPECIAL APPEALS

Administrative Law, Administrative mandamus: Former employee of the county health department did not have a protected property interest in promotion, the department’s alleged mistake in finding her unqualified was not unconstitutional or illegal under the statute governing grievance procedures in state personnel management system, and the department’s decision to promote another applicant was entirely discretionary. Perry v. Department of Health and Mental Hygiene, No. 00763, Sept. Term, 2010. RecordFax No. 11-1027-03, 9 pages.

Civil Procedure, Private cause of action: No private cause of action existed for plaintiffs to seek redress for defendants’ alleged violation of the speed monitoring systems statute, TA §21–809. Baker v. Montgomery County, No. 1038, Sept. Term, 2010. RecordFax No. 11-1027-04, 41 pages.

Criminal Procedure, Merger of sentences: Defendant could collaterally attack the trial court’s failure to merge his convictions pursuant to a motion to correct illegal sentence; however, because the offenses were not the same under the required evidence, defendant’s conviction for assault on law enforcement officers did not merge, for sentencing purposes, into his conviction for resisting arrest. Britton v. State, No. 2645, Sept. Term, 2009. RecordFax No. 11-1027- 00, 16 pages.

Election Law, Referendum petition: Section of election law providing requirements for referendum petition signatures did not violate state constitution provision governing the referendum procedure and did not impose unreasonable burden on right of referendum. Howard County Citizens for Open Government v. Howard County Board of Elections, No. 503, Sept. Term 2010. RecordFax No. 11-1027-02, 30 pages.

Evidence, Hearsay exception: The testimony of a police officer as to the contents of defendant’s statement to the police was not hearsay because the testimony was used to assess the credibility of a witness’s testimony that he had not killed the victim. Handy v. State, No. 3043, Sept. Term 2007. RecordFax No. 11-1026-00, 44 pages.

Professional Responsibility, Disqualification of counsel: Defendant, an attorney formerly employed by County, was not prohibited under the rules of professional conduct from representing an employee who retired from County employment in an administrative appeal challenging the employee’s calculation of his pension benefits. Baltimore County v. Barnhart, No. 1196, Sept. Term 2010. RecordFax No. 11-1027-05, 43 pages.

Torts, Uniform Contribution Among Joint Tort-Feasors Act: Where medical malpractice plaintiffs settled their claim against a hospital, with a release stating the hospital was not to be deemed a joint tortfeasor and that physician was not entitled to a reduction in damages unless the hospital was adjudicated a joint tortfeasor, there was no automatic reduction of verdict against physician under the UCATA, and doctor’s failure to assert a cross-claim against hospital therefore did not bar his independent claim of contribution. Spence v. Julian, No. 2764, Sept. Term, 2009; and Julian v. Mercy Medical Center Inc., No. 1511, Sept. Term, 2010. RecordFax No. 11-1026-01, 30 pages.