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Md. high court begins new term Thursday with new judge

Among the cases the Court of Appeals will consider in its new term, which begins Thursday: whether the Maryland Motor Vehicle Administration violated a car owner’s constitutional right to free speech in recalling his vanity license plate ‘MIERDA,’ the Spanish word for ‘s–t.’ (Maximilian Franz/The Daily Record)

Among the cases the Court of Appeals will consider in its new term, which begins Thursday: whether the Maryland Motor Vehicle Administration violated a car owner’s constitutional right to free speech in recalling his vanity license plate ‘MIERDA,’ the Spanish word for ‘s–t.’
(Maximilian Franz/The Daily Record)

Maryland’s top court begins its 2016-2017 term Thursday with a new judge and cases addressing the constitutionality of state restrictions on vanity license plates, the deference appellate courts owe to trial judges in suppressing evidence and whether a decade-old, criminal-law precedent should be overturned.

These issues addressing constitutional and case law might appear new to first-year Court of Appeals Judge Joseph M. Getty, who has focused primarily on Maryland statutory law as a lobbyist and legislative policy adviser for the last two Republican governors and as a state legislator for 12 years. But Getty, who has been immersed in legal briefs and lower-court decisions, said Wednesday that he is ready for his first opening day.

“I don’t have the jitters,” Getty said. “I think my background has prepared me for the types of things that will come before the court. I feel very confident.”

Among the issues this term is whether the Maryland Motor Vehicle Administration violated a car owner’s constitutional right to free speech in recalling his vanity license plate “MIERDA,” the Spanish word for “s–t.”

The intermediate Court of Special Appeals ruled the MVA did not violate John T. Mitchell’s First Amendment right because its recall was “reasonable” and did not discriminate against the “viewpoint” being expressed.

The agency’s rejection of the license plate with the Spanish vulgarity was reasonable, in significant part because children could see it, and was viewpoint-neutral, as the word profanely mentions an object but conveys no opinion, the intermediate court said.

In his written appeal to the high court, Mitchell, a Washington, D.C., attorney, said messages conveyed on license plates belong to the vehicle owner, not the state, and thus cannot be censored by the government without a compelling reason of narrow scope.

The high court will hear arguments Sept. 7 in that case, John T. Mitchell v. Maryland Motor Vehicle Administration, No. 10, September Term 2016.

Brown v. State

Getty and his six fellow high-court judges will publicly begin the new session – officially called September Term 2016 – with the 10 a.m. start of oral arguments Thursday. Getty, who spent four years in the Senate and eight in the House, said he expects his time listening to and questioning witnesses at committee hearings has provided “excellent preparation” for the give-and-take of the argument sessions, of which the court holds about 125 per term.

In a coming case involving an accused double-murderer, the high court will consider how much deference appellate courts owe to a judge’s finding that evidence was collected in violation of a defendant’s constitutional rights.

The Court of Special Appeals had overturned a trial judge’s decision that police were obligated to inform Terrance J. Brown of his right to remain silent before questioning him because he was in custody at the time. If upheld, the intermediate court’s decision that Brown was not in custody would permit his incriminating statement that he was at the scene of the two Cambridge slayings to be introduced at his trial.

Judge Joseph M. Getty, the newest member of the Court of Appeals, during his investiture in June in Annapolis. Getty has been a lobbyist and legislative policy advisors for the last two Republican governors and a state legislator but says he has no jitters starting his new role. ‘I think my background has prepared me for the types of things that will come before the court,’ he says. ‘I feel very confident.’ (Maximilian Franz/The Daily Record)

Judge Joseph M. Getty, the newest member of the Court of Appeals, during his investiture in June in Annapolis. Getty has been a lobbyist and legislative policy advisors for the last two Republican governors and a state legislator but says he has no jitters starting his new role. ‘I think my background has prepared me for the types of things that will come before the court,’ he says. ‘I feel very confident.’ (Maximilian Franz/The Daily Record)

Brown, through counsel, argues on appeal that the Court of Special Appeals should have deferred to the trial judge’s ruling that he was in police custody and – because the officers did not advise him of his rights – the statement cannot be introduced at trial. Brown is urging the high court to adopt the “supplemental rule of interpretation,” which holds that deference should be given to a judge’s decision on suppressing evidence even when the facts supporting that ruling are ambiguous or not explicitly explained by the judge.

But Maryland Attorney General Brian E. Frosh said the Court of Special Appeals correctly reviewed the judge’s decision on the statement’s admissibility “in the light most favorable to the prevailing party below” – Brown – and came to a different conclusion.

The Court of Appeals will hear arguments Oct. 13 in the case, Terrance J. Brown v. State of Maryland, No. 64, September Term 2015.

Rethinking Roary?

Getty succeeded Judge Lynne A. Battaglia, who stepped down from the bench in April upon reaching the state’s mandatory judicial retirement age of 70. Getty’s continuance on the bench is subject to a confirmation vote by the Senate, which reconvenes in January.

Getty, whom Gov. Larry Hogan named to the bench June 1, said he attended a seminar for new appellate judges in July at New York University. Seminar leaders addressed issues such as dealing with a lack of collegiality on the bench and poorly written opinions, problems Getty said he has not encountered since his swearing in June 27.

“I was very pleased that in the things I heard at this seminar, Maryland is well-positioned nationally in issuing strong, well-written opinions of high quality,” Getty said.

One of those opinions, however, may be in jeopardy this term.

The high court might reconsider its controversial 2005 decision permitting a first-degree assault to be a predicate offense for second-degree felony murder if the victim dies.

On its own motion, the Court of Appeals ordered attorneys for the state and an accused killer to reargue a case heard in January but this time address whether the court should review its 11-year-old ruling in Roary v. State.

That first argument specifically addressed whether Tyshon Leteek Jones’ constitutional right against being placed on trial twice for the same crime would be violated if he is tried for second-degree felony murder after the jury failed to reach a verdict on the predicate offense of first-degree assault.

A Montgomery County Circuit Court judge answered “no,” but the intermediate Court of Special Appeals said the defendant’s right against double jeopardy would be violated, prompting the state to seek review by the high court.

In Roary, the Court of Appeals held 4-3 that a felonious, first-degree assault – one “dangerous to human life” – can lead to a charge of second-degree felony murder if the victim dies regardless of whether the defendant delivered the deadly blow. The dissenting judges voiced concern that “an accomplice who may not have inflicted the harm personally, had no knowledge that the ultimate perpetrator had a deadly weapon, and had no intent to commit murder” could nevertheless be convicted of murder.

Clayton Greene Jr., who wrote the majority opinion in Roary, is the only member of the Court of Appeals from that time who is still an active judge on the high court.

State v. Jones

The circuit court jury in Jones’ case was unable to reach a verdict on the handgun charge, a first-degree assault, but acquitted Jones on all other charges. The state moved for a retrial on the handgun charge, as well as moving forward with a charge of second-degree felony murder, which Judge David A. Boynton granted.

But the Court of Special Appeals reversed, saying Jones’ acquittal of second-degree murder prevents him from being tried for second-degree felony murder under the Double Jeopardy Clause – a conclusion the state has challenged and which has led the high court to perhaps reconsider its Roary decision.

The high court will hear arguments Sept. 9 in State of Maryland v. Tyshon Leteek Jones, No. 52 September Term 2015.

In addition to Getty and Greene, the high court consists of Chief Judge Mary Ellen Barbera and Judges Sally D. Adkins, Robert N. McDonald, Shirley M. Watts and Michele D. Hotten. The court so far has scheduled oral arguments only through October.

Other cases of note before the Court of Appeals

Kevon Spencer v. State of Maryland, No. 94 September Term 2015 (to be argued Sept. 8).

Did the trial court commit reversible error by reseating three jurors who had been struck by the defense where there was no evidence to support a finding of racial discrimination and where counsel’s explanations advanced the defense’s strategy and have previously been accepted by the courts as valid, race-neutral explanations for striking a juror?

Maryland Board of Physicians, et al. v. Mark R. Geier, Personal Representative of the Estate of Anne Geier, et al., No. 11 September Term 2016 (to be argued Sept. 9).

Did the trial court err in granting the Respondents’ motion for sanctions based on the Petitioners’ refusal to produce materials protected by the deliberative process, executive, attorney-client, and attorney-work-product privileges and the mandatory nondisclosure requirement of Health Occupations § 14-410?

Katherine Seley-Radtke v. Ramachandra S. Hosmane, No. 19 September Term 2016 (to be argued Oct. 11).

In a defamation case brought by a private individual, does the heightened standard for overcoming a conditional privilege impose a burden of proof by clear and convincing evidence?


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