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Opinions – 10/9/12: Maryland Court of Special Appeals

Criminal Law

Sexual solicitation

BOTTOM LINE: Where defendant did not “command, authorize, urge, entice, request, or advise” his 15-year-old victim before assaulting her, the evidence was insufficient to support his conviction for sexual solicitation of a minor; however, his challenge to a related conviction for a third-degree sexual offense was not preserved for appeal.

CASE: Poole v. State, No. 2126, Sept. Term, 2010 (filed Sept. 26, 2012) (Judges Zarnoch, GRAEFF and Salmon (retired, specially assigned)). RecordFax No. 12-0926-03, 24 pages.

FACTS: The victim, K.G., testified that, in June 2009, she was visiting Ocean City with her 4–H group. She was 15 at the time. At approximately 11:00 a.m., she was at a lemonade stand on the boardwalk when Leroy Poole approached her, introduced himself, and asked for her name. She gave him her name, and he gave her his business card, which indicated that he was a personal trainer. Ms. G. returned to the beach.

After a few hours, Ms. G. returned to the lemonade stand. A posted sign indicated that the stand was temporarily closed, but the stand worker would return in five minutes. Ms. G. decided to go into the store next door. Poole walked in the store and told Ms. G. that he had wanted to show her something earlier. She testified that Poole then “led me to the back with his arm behind me, guiding me to the back, and I just kind of went with it, because I didn’t know what to do.” He took her to a closet, shutting the door behind him and locking it. He then “pushed me into the bathroom with him,” and shut that door and locked it. There was no one else around. Poole’s body blocked the door to the bathroom, which was the only exit.

Once they were inside the bathroom, Ms. G. testified that Poole had her up against the wall. Poole told her that she was really beautiful. He tried to lift up her dress and Ms. G. kept telling him no. Ms. G. testified that Poole lifted her dress up and inserted his finger in her vagina.

Detective Nicholas Simpson, a member of the Ocean City Police Department, testified that he initiated an investigation of the incident after a sexual assault complaint had been brought to his attention by the police department in Ms. G’s home state. He obtained Poole’s business card and then attempted to contact Poole, who declined to be interviewed. After conducting several interviews and running Poole’s name through a police database, Detective Simpson was able to identify Poole.

After the State rested, Counsel for Poole moved for a judgment of acquittal as to all counts, which the court denied.

Poole testified that he had no recollection of anything that happened on the day that Ms. G. said she met him. During cross-examination, he stated that he would be 46 in a couple of weeks and he was 6’5″ tall, weighing 260 pounds. Defense counsel renewed the motion for judgment of acquittal, which was denied.

The jury convicted Poole of third degree sexual offense, fourth degree sexual offense, false imprisonment, second degree assault, and sexual solicitation of a minor. The court imposed a sentence totaling twenty years imprisonment: ten years for the third degree sexual offense; ten years for false imprisonment, to be served consecutively; and ten years for the conviction of sexual solicitation of a minor, to be served concurrently. It also ordered Poole to register as a sex offender.

Poole appealed to the Court of Special Appeals, which affirmed in part and reversed in part.

LAW: CL §3–324 prohibits a person from “knowingly solicit[ing] a minor, or a law enforcement officer posing as a minor, to engage in activities that would be unlawful for the person to engage in under § 3–304, § 3–306, or § 3–307 of this subtitle or § 11–304, § 11–305, or § 11–306 of this article.” CL §3–324(b). The statue defines “solicit” as “to command, authorize, urge, entice, request, or advise a person by any means.” CL §3–324(a).

A challenge to the sufficiency of the evidence is reviewed by determining “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979).

Even with this deferential standard of review, there was insufficient evidence that Poole solicited Ms. G. Prior to the assault in the locked room, Poole’s contact with Ms. G. consisted of telling her that he wanted to show her something, putting his arm behind her back, and guiding her to the room he locked. He then told her that she was beautiful, and he touched her hair. Poole did not “command, authorize, urge, entice, request, or advise” Ms. G. to engage in any sexual activity with him. Instead, he just acted, cornering Ms. G. and inserting his fingers in her vagina.

After the incident, Poole obtained her phone number and told her that he hoped to see her again. He later sent her a text message, which said “good afternoon.” She did not reply to it. Nothing in this conduct qualifies as solicitation to engage in sexual activity.

Accordingly, the evidence was insufficient to support the conviction for sexual solicitation of a minor.

CL §3–307(a)(1) prohibits sexual contact with another without the consent of the other and sets forth certain aggravating factors. Furthermore, pursuant to CL §3–307(a)(4), a person is guilty of a sexual offense in the third degree if he “engages in a sexual act with another if the victim is 14 or 15 years old, and the person performing the sexual act is at least 21 years old.”

“It is well settled that appellate review of the sufficiency of the evidence in a criminal case tried by a jury is predicated on the refusal of the trial court to grant a motion for judgment of acquittal.” State v. Rich, 415 Md. 567, 574 (2010). A defendant must “state with particularity all the reasons why the motion [for judgment of acquittal] should be granted.” Rule 4–324(a). “The issue of sufficiency of evidence is not preserved when appellant’s motion for judgment of acquittal is on a ground different than that set forth on appeal.” Anthony v. State, 117 Md.App. 119, 126 (1997).

Poole moved for judgment of acquittal at the close of the State’s case. Poole argued: (1) that the State had not proved any of the aggravating factors in §3–307(a)(1); and (2) there was no evidence proving Poole’s age, an element of §3–307(a)(4). Poole did not argue, as he did on appeal, that the State did not prove that he committed a “sexual act,” as statutorily defined. At the close of all the evidence, after Poole testified regarding his age, defense counsel renewed his motion for judgment of acquittal, stating that he was raising “the same argument.”

Thus, the argument that Poole made on appeal, that there was insufficient evidence to show that his actions constituted a “sexual act,” was unpreserved for review.

COMMENTARY: Before trial began, defense counsel asked the court to sequester the two witnesses who would be testifying for the State, the victim and Detective Simpson. The court denied the motion.

Under Rule 5–615(a), “upon the request of a party made before testimony begins, the court shall order witnesses excluded so that they cannot hear the testimony of other witnesses.”

Rule 5–615(b) & (c) set forth the exceptions to the rule of mandatory exclusion. Rule 5-615(b)(2) states a court shall not exclude “(2) an officer or employee of a party that is not a natural person designated as its representative by its attorney.” The State of Maryland qualifies as “a party that is not a natural person.” See BLACK’S LAW DICTIONARY 1257 (9th ed.2009).

Prior to the adoption of Rule 5–615 in 1993, the sequestration rule included an exception only for an expert witness, and there was no exception for a police officer. Johnson v. State, 283 Md. 196 (1978). The Court of Appeals noted that the Maryland rule was “in sharp contrast” to Rule 615 of the Federal Rules of Evidence, which had been construed to permit investigative agents to sit at counsel table throughout the trial, even if the agent was a witness. Id. at 199 n. 2.

In adopting Rule 5–615, years later, the Court of Appeals used language very similar to that used in Federal Rule 615. Based on the legislative history of FRE 615, federal courts have held that the “officer or employee” exception includes a law enforcement officer, and therefore, the trial court “has a right to make an exception from a general rule of sequestration in favor of the chief investigating agent of the government involved in a trial.” United States v. Parodi, 703 F.2d 768, 773 (4th Cir.1983). Accord United States v. Riddle, 193 F.3d 995, 997 (8th Cir.1999).

In addition, the procedural history leading to the adoption of Rule 5–615 confirms the intent that Rule 5–615(b)(2) encompass a law enforcement officer designated as the State’s representative. See also MCLAIN, MARYLAND RULES OF EVIDENCE 146 (3d ed. 2007); MURPHY, JR., MARYLAND EVIDENCE HANDBOOK 99 (4th ed. 2010).

Accordingly, a law enforcement officer involved in a criminal prosecution falls within the “officer or employee” exception to the mandatory sequestration requirement of Rule 5–615(a), and pursuant to Rule 5–615(b), the officer may remain in the courtroom if designated as the State’s representative. The circuit court did not err in denying defense counsel’s motion to sequester Detective Simpson.


Comparative Bullet-Lead Analysis

BOTTOM LINE: Appellant was not entitled to post-conviction relief because the prosecution’s introduction of and reliance on Comparative Bullet–Lead Analysis evidence at his murder trial did not render the trial so fundamentally unfair that it violated his right to due process.

CASE: Kulbicki v. State, No. 2940, Sept. Term, 2007 (filed Sept. 26, 2012) (Judges Matricciani & Watts). RecordFax No. 12-0926-01, 46 pages.

FACTS: The body of Gina Neuslein was found in January 1993 near the archery range at Gunpowder State Park. At the scene, Detective William Ramsey, of the Baltimore County Police Department’s Homicide and Missing Persons units, observed blood on the victim’s forehead, around her nose, and on the right side of her shoulder. Det. Ramsey also noted that the victim’s jewelry had not been removed. Det. Ramsey saw a wound near the back of the victim’s head, but no blood on the ground underneath.

Based on the leaves and debris under the victim’s jacket, the position of her clothes and arms, the disturbance of the leaves and debris in an area leading toward the body, as well as the absence of bullets and shell casings on the surrounding ground, Det. Ramsey concluded that the victim had been killed somewhere else.

James Kulbicki, a sergeant in the Baltimore City Police Department, was identified as a suspect in the case. Det. Ramsey visited Kulbicki at his home to ask questions about Gina. Kulbicki said that he has been friends with her for about four years.

Kulbicki’s pickup truck was parked outside the house. The following day, the police returned with a warrant. They seized Kulbicki’s truck, a denim jacket taken from a closet and a loaded .38 revolver.

Kulbicki was arrested and charged with the murder. At trial, several witnesses testified concerning the evidence.

The State also presented the testimony of Ernest Peele, an agent with the FBI who was admitted as an expert in bullet and lead pellet composition analysis, also known as Comparative Bullet–Lead Analysis (CBLA). Peele explained that, by performing trace element analysis, CBLA allowed comparison of the bullet fragment recovered during the autopsy and the bullet fragment found in Kulbicki’s truck, as well as six unfired cartridges seized from Kulbicki’s handgun. Peele testified that the bullet fragments from Gina’s brain and Kulbicki’s truck were “analytically indistinguishable.”

After comparing one of the bullets from Kulbicki’s handgun, labeled Q–6, to the bullet fragments, labeled Q–1 and Q–2, Peele concluded that the Q–6 bullet was “measurably different,” but “unusually close in that that’s not what you’d expect, unless there’s some association between the two groups,” such as “being made by the same manufacturer on or about the same time.” Nonetheless, Peele opined that the Q–6 was “close enough that I have seen those differences.” Peele further stated that although the composition of the six unfired cartridges, labeled Q–4 through Q–9, differed, the differences were not very large and could be expected.

On cross-examination, defense counsel concentrated on differentiating the unfired cartridges from the bullet fragments.

Joseph Kopera, an examiner with the Maryland State Police Firearms Unit, was presented as an expert in the field of firearms identification. Kopera testified that he held engineering degrees from Rochester Institute of Technology and the University of Maryland. After being accepted by the court as an expert, Kopera testified that the bullet fragment found in Kulbicki’s truck had cannelures, or markings, consistent with “a large caliber” such as .38 or larger. Kopera also stated that damage to the rubber stripping inside Kulbicki’s truck was caused by a bullet fragment.

The defense presented evidence that Kulbicki was running errands in his truck on the afternoon of the murder. Numerous witnesses testified to seeing Kulbicki at their respective businesses at about 4 p.m. that day. In addition, Kulbicki’s wife testified that Kulbicki was with her from 4:30 p.m. until he left for work at about 10:45 p.m.

The jury convicted Kulbicki of first-degree murder. In 2006, Kulbicki filed an amended petition for post-conviction relief.

At the post-conviction hearing, Kulbicki presented the testimony and affidavits of experts in the fields of metallurgy, chemistry, firearms and ballistics, visual science, and molecular biology.

Kulbicki also presented evidence, and the State stipulated, that Kopera had lied about his credentials at the trial. The evidence demonstrated that Kopera did not earn degrees in engineering, as he alleged, and had never been accepted to the University of Maryland or Rochester Institute of Technology.

The circuit court denied Kulbicki’s petition for post-conviction relief. Kulbicki appealed to the Court of Special Appeals, which affirmed.

LAW: Kulbicki alleged that CBLA is unreliable evidence and that the use of unreliable evidence is a violation of due process cognizable under the Uniform Post-conviction Procedure Act (UPPA).

The UPPA “applies to a person convicted in any court in the State who is…confined under sentence of…imprisonment.” CP §7–101. A convicted person may begin a proceeding under this title if he or she claims: “(1) the sentence or judgment was imposed in violation of the Constitution of the United States or the Constitution or laws of the State; (2) the court lacked jurisdiction to impose the sentence; (3) the sentence exceeds the maximum allowed by law; or (4) the sentence is otherwise subject to collateral attack on a ground of alleged error that would otherwise be available under a writ of habeas corpus, writ of coram nobis, or other common law or statutory remedy.” CP §7–102(a).

In addition, CP §7–102(b) requires that “the alleged error has not been previously and finally litigated or waived in the proceeding resulting in the conviction or in any other proceeding that the person has taken to secure relief from the person’s conviction.”

The question here was whether “the sentence or judgment was imposed in violation of the Constitution of the United States or the Constitution or laws of the State,” pursuant to CP §7–102(a).

“[A] part of the due process guarantee is that an individual not suffer punitive action as a result of an inaccurate scientific procedure.” Armstead v. State, 342 Md. 38, 84 (1996). Although scientific test results “need not be infallible” to meet this standard, the evidence must not be “so extremely unfair that its admission violates fundamental conceptions of justice.” Id. (citing Dowling v. United States, 493 U.S. 342, 352–53 (1990)).

In Clemons v. State, 392 Md. 339, 372 (2006), the Court of Appeals recognized that “a genuine controversy exists within the relevant scientific community about the reliability and validity of CBLA.” Therefore, it concluded that “CBLA does not satisfy the requirement under the Frye–Reed test for the admissibility of scientific expert testimony.” Id. at 372. The Clemons Court, however, did not determine whether admission of CBLA evidence in cases prior to 2006 constituted a violation of due process.

The issue here was whether the Court could retroactively rule that the use of CBLA evidence violated a defendant’s constitutional right where the defendant was convicted on the basis of such “unreliable” scientific evidence.

The FBI commissioned the National Research Council (NRC) to evaluate its use of CBLA and, following the Council’s 2004 report, discontinued its use of CBLA at trials. The NRC report demonstrates that the problem with CBLA is not that the method used to compare the contents of two bullets is unreliable in some abstract sense, but that it is unreliable to conclude that a CBLA “match” supports further specific factual assertions put forth at trial. Most often, these assertions are that matching bullets came from the same box, the same manufacturer, were related in time or geography, or generally linked the defendant to the crime in some unspecified manner.

Crucially, these conclusions rested on assumptions unsupported by scientific and statistical testing of the general bullet manufacturing process. Thus, it remained in many cases a distinct possibility that while bullets from the same “source” match each other, they also match bullets from any number of “sources.”

Second, there was no general knowledge of the probability that manufacturing variations would result in two different lead sources randomly producing matching bullets, producing what is known as a “false positive.”

In United States v. Berry, 624 F.3d 1031, 1039–43 (9th Cir.2010), the defendant was accused of perpetrating a series of robberies and terroristic attacks that employed, among other weapons, pipe bombs filled with “buckshot,” which are lead pellets traditionally used in shotgun shells. When Berry and his accomplices were apprehended, federal agents found in their vehicle a number of firearms, grenades, and ammunition, as well as incriminating letters. Id. at 1034–35.

The suspects were indicted and tried together and the government used CBLA tests to compare buckshot used in one of the pipe bombs with buckshot found in Berry’s auto shop.

On appeal from post-conviction proceedings, Berry argued that the CBLA evidence used at his trial was so arbitrary as to render his trial fundamentally unfair. The Berry Court explained that due process is violated only when the evidence is so arbitrary that the factfinder and the adversary system were not competent to uncover, recognize, and take due account of its shortcomings.

The 9th Circuit held: “While the [CBLA] evidence introduced against Berry may have been flawed, we do not find it so arbitrary as to render Berry’s trial ‘fundamentally unfair.’ The criticisms of [CBLA] evidence that Berry relies on indicate that it is precisely the kind of evidence that the adversary system is designed to test. Vigorous cross-examination would have exposed its flaws to the jury.”

The holding in Berry applied here. The criticisms that Kulbicki leveled against the CBLA evidence in his trial were the same as those in Berry. And as in Berry, discrediting the CBLA evidence in this case did not require positive scientific proof of assertions contrary to those presented at trial. The flawed assumptions in Kulbicki’s case rested on nothing; Peele’s testimony would have been fully discredited had those assumptions been recognized and their foundations tested. Kulbicki’s criticisms of CBLA analysis “concern the proper weight of the evidence, not its admissibility. It can hardly be said, therefore, that the adversary system was not ‘competent to uncover, recognize, and take due account of its shortcomings.’” Id. at 1042. Thus, Kulbicki’s due process rights were not violated.

Accordingly, the judgment of the circuit court was affirmed.

COMMENTARY: Kulbicki argued that the State’s use of Kopera’s perjured testimony violated his right to a fair trial. At the outset, Kulbicki waived any claims regarding Kopera’s perjury. Kulbicki could have raised his contentions on direct appeal. Thus, the post-conviction court was not required to address this issue.

Even if not waived, Kulbicki’s argument still failed.

It is well-established that “the Fourteenth Amendment cannot tolerate a state criminal conviction obtained by the knowing use of false evidence.” Miller v. Pate, 386 U.S. 1, 7 (1967). Indeed, “a conviction obtained through use of false evidence, known to be such by representatives of the State, must fall under the Fourteenth Amendment.” Napue v. Illinois, 360 U.S. 264, 269 (1959).

In Curran v. Delaware, 259 F.2d 707 (3rd Cir.1958), the 3rd Circuit upheld the lower court’s grant of habeas corpus relief. The Court held that “the knowingly false testimony of [a detective assigned to the case] was sufficient to cause the defendants’ trial to pass the line of tolerable imperfection and fall into the field of fundamental unfairness,” despite the fact that “the prosecuting officer was in no way a party to or cognizant of the perjured testimony given by certain witnesses…or of the fact that the law enforcement officers had taken steps to procure false testimony favorable to the prosecution.” Id. at 713. See also Schneider v. Estelle, 552 F.2d 593, 595 (5th Cir.1977).

Here, it was undisputed that Kopera, an examiner with the Maryland State Police Firearms Unit, lied about his credentials at Kulbicki’s trial. Because Kopera was a state official, Kulbicki has a valid constitutional claim recognizable under UPPA. Nonetheless, Kulbicki’s claim failed on the merits because “there must then be a showing [of] materiality of the falsity in order to warrant relief.”

“[T]he proper rule…requires that an initial inquiry be made to determine if the testimony is material to the outcome of the case; if it is not, the due process clause does not automatically require a new trial.” Stevenson v. State, 299 Md. 297, 305 (1984). Stevenson was charged with the first degree murder of her husband and related offenses, including setting fire while perpetrating a crime. Id. at 299. Dennis Michaelson, one of the rebuttal witnesses called by the state to counter defense expert testimony as to the origin of the fire, testified that he had graduated cum laude from the Illinois School of Technology, a fact which was untrue. Id. at 300. The Court of Appeals affirmed the denial of Stevenson’s motion for a new trial, concluding that Michaelson’s false testimony “was not material to the outcome of the case.” Id. at 308.

Kulbicki proved that Kopera presented false testimony as to his credentials. However, there was no likelihood that the jury’s determination would have been influenced by the fact that Kopera did not have the academic credentials he claimed.

As to Kulbicki’s claims regarding the falsity of Peele’s CBLA testimony, Peele was not a state official and Kulbicki provided no evidence to show that any prosecutors knew about the unreliable nature of CBLA at the time of trial. Thus, Kulbicki’s contention “c[a]me[] down to the claim that his conviction was the result of false testimony,” which “goes to credibility and so to the sufficiency of the evidence, a matter not available for post conviction relief.” Husk v. Warden, Md. Penitentiary, 240 Md. 353, 356 (1965).

Real Property

Justiciable controversy

BOTTOM LINE: A justiciable controversy existed over whether the implementation of conditions necessary for plaintiff to obtain approval of the subject project by the Planning Board violated defendant’s easement over the property.

CASE: Michael, LLC v. 8204 Associates LLC, No. 0601, Sept. Term, 2011 (filed Sept. 26, 2012) (Judges Eyler, D., Woodward & RODOWSKY (retired, specially assigned)). RecordFax No. 12-0926-06, 14 pages.

FACTS: The properties involved adjoin one another along the west side of Fenton Street in Silver Spring. The dominant estate, 8204 Fenton Street, was owned by 8204 Associates Limited Liability Company and was improved by a two-story office building. The servient estate, known as Lot 3, was a Montgomery County-owned, surface parking lot, lying immediately north of 8204 Fenton Street.

On the north side of 8204 Fenton Street, at the second floor level, was a door leading to a pedestrian bridge on Lot 3 over a drainage swale. By an easement and maintenance agreement dated April 25, 1990, the County granted 8204 Associates, its successors and assigns, “an easement and right-of-way for the pedestrian bridge located on” Lot 3.

A publications business was conducted on the dominant premises. Trucks delivering supplies were able to drive on the surface parking area of Lot 3 to the pedestrian bridge. The trucks were unloaded by moving the supplies across the bridge directly to their intended destination on the second floor of the building at 8204 Fenton Street.

Public policy of the County, as reflected in the Sector Plan for the Silver Spring Central Business District, included creating low cost housing incentives by converting publicly owned surface parking lots into housing. In December 2005, the Montgomery County Department of Public Works and Transportation issued a request for proposals for mixed use development of Lot 3. Michael, LLC responded. Michael and the County entered into a General Development Agreement (“Agreement”) under which the County would convey Lot 3 to Michael.

The total project contemplated for Lot 3 and additional land consists of Phase 1 and subsequent phases. Phase 1, at a minimum, will be an underground, public parking garage on Lot 3, containing at least 152 parking spaces. The County will convey Lot 3 to Michael in consideration of Michael’s constructing the underground garage and conveying the garage back to the County as a unit in a condominium. Construction of Phase 1 will prevent enjoyment of the easement as it is currently used.

In July 2006, Michael began the process of seeking County Planning Board approval for the project plan. That approval, subject to fourteen pages of conditions, was obtained on September 15, 2009. The conditions with respect to 8204 Fenton Street include that Michael shall: “i. install a commercial elevator inside the building convenient to the Fenton Street entrance; “vii. if the owners of the Applicant and the owners of [8204 Fenton Street] cannot agree to changes inside their building, the Applicant must provide one of two exterior options: “1. an exterior elevator…or “2. an exterior stair connecting the pedestrian bridge to the Fenton Street right-of-way, referred to in the Project Plan staff report as ‘Exterior Stair Option.’”

Michael filed a declaratory judgment action which asked the circuit court to answer whether the implementation of the Exterior Stair Option as part of the Plan directed by the Planning Board comports with the terms of the Easement. 8204 Associates moved to dismiss the complaint for want of a justiciable controversy. The circuit court granted the motion to dismiss.

Michael appealed to the Court of Special Appeals, which reversed.

LAW: “A controversy is justiciable when there are interested parties asserting adverse claims upon a state of facts which must have accrued wherein a legal decision is sought or demanded.” 1 Anderson, Actions for Declaratory Judgments §17 (2d ed. 1951) (Anderson). See Hickory Point Partnership v. Anne Arundel County, 316 Md. 118, 129 (1989).

Actions for a declaratory judgment are commonly used in resolving controversies over easements. See Clickner v. Magothy River Ass’n, 424 Md. 253 (2012). “With respect to the right to maintain an action for declaratory relief ‘interested’ parties must…mean parties having a legal, protectible interest. If the plaintiff can show that his rights are in direct issue or jeopardy, and at the same time show that the facts are complete and that this interest is not merely academic, hypothetical, or colorable, but actual, a ‘legal interest’ as related to a justiciable controversy may be shown, and he has a right to maintain his action.” Anderson §159, at 300

In Woodward v. Fox W. Coast Theaters, 36 Ariz. 251, 284 P. 350 (1930), the theater company had entered into a lease with the City of Phoenix under which it would construct a building at a cost of not less than $300,000. Rent commenced upon signing of the lease. A taxpayer of Phoenix served notice on the municipal authorities that he considered the lease to be invalid for multiple reasons. The theater company thereupon brought a declaratory judgment action, naming the taxpayer and the municipal authorities as defendants, to obtain a determination as to the validity of the lease.

In affirming a declaration that the lease was valid, the Arizona Supreme Court said: “It would seem, in view of the improvements contemplated, their extent and the cost thereof, that plaintiff should, if possible, be assured that the lease is valid before making improvements. When the validity of the lease is challenged on the ground of lack of power in the city to make it, or the incapacity of the plaintiff to make the contract, or any of the other grounds urged, safe and sound business demands that such questions be settled before the expenditure of so large a sum…and such questions should be settled as early as convenient.” Id. at 255.

8204 Associates cited Gardner v. Board of County Comm’rs, 320 Md. 63 (1990), for the proposition that a financial interest is not a legally protected interest. In Gardner, property owners in a subdivision sought a judgment declaring void an ordinance that had been enacted based on the petition by other residents of the subdivision to have public roads built. An earlier case, Board of County Comm’rs v. Gardner, 79 Md.App. 417 (1989), had held that the joinder, as defendants, of all of the property owners in the subdivision was mandatory because all had an interest in obtaining the benefit of roads. The Court of Appeals held that all of the property owners were not indispensable parties. That there might be some potential increase in value of property because it was adjacent to a public improvement was not sufficient.

Here, however, we are dealing with the contract rights of the party who is undertaking to create the improvement for the benefit of the public and for its own benefit as developer. Thus, if 8204 Associates brought a declaratory judgment action against the County, as servient owner, seeking to have the Easement construed to prevent any interference with the current use of Lot 3 for deliveries via the pedestrian bridge, Michael, as holder of the development rights under the Agreement, would be a necessary party to any such declaratory judgment action.

Accordingly, Michael had standing.

COMMENTARY: 8204 Associates asserted that the controversy was not ripe for adjudication because there are many contingencies in the Agreement that must be satisfied or waived before Michael acquires title to Lot 3.

8204 Associates relied on Anne Arundel County v. Ebersberger, 62 Md.App. 360 (1985). The Indians Hills community in Anne Arundel County had been created as a special tax district in 1976 for the purpose of “‘the construction, operation, maintenance and repair of certain community property and improvements[.]’” Id. at 364. When the community swimming pool was forced to close for want of badly needed repairs, a majority of the property owners in the district petitioned to amend its tax ordinance to add, as an express purpose and power of the district, borrowing money and renovating the pool. The amendment was enacted in 1983.

The bylaws of the community association, in combination with an Anne Arundel County ordinance dealing generally with special tax districts, established a number of steps before the County Council could levy a rate for Indian Hills. Certain taxpayers in Indian Hills sued, seeking a declaration that the 1983 amendment to the ordinance was unconstitutional or ultra vires because the necessary steps were not followed.

The Court of Special Appeals held that the action was not ripe. “There is certainly no assurance…that a budget containing an appropriation for the pool will ever be approved or that a special benefit tax to support such an appropriation will ever be levied. At least until the prospect of such an appropriation or such a tax becomes substantially more certain, the plaintiffs will have suffered no injury from the challenged ordinance, and its validity or invalidity is therefore of no practical consequence.” Id. at 371.

Ebersberger was not analogous to this case. Here, the project moved from mere authorization in the Silver Spring Central Business District Sector Plan to the first step of implementation when the County issued its request for proposals. Implementation progressed when Michael responded. After nearly four years of work on the venture, Michael obtained the Agreement and the conditional approval of the Planning Board. Extensive, but unsuccessful, negotiations consumed another year. Michael now is seeking a construction of the Easement. The terms of the Easement are a known constant. 8204 Associates’ position, that the Exterior Stair Option violates the Easement, is a known constant. At some point in the process of refining the drawings to the stage of construction drawings, a condition precedent to the County’s obligation to close on the title, Michael will have to show the Exterior Stair as part of Phase 1.

Under all of these circumstances, the circuit court abused its discretion in holding that the controversy was not justiciable. Michael need not wait until it is sued in order for Michael to obtain a judicial determination of whether the Exterior Stair Option violates the Easement.