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Law Digest — Md. Court of Appeals, Court of Special Appeals — April 11, 2019

Maryland Court of Appeals

Civil Procedure; Taxpayer standing: Trial court properly granted motion to dismiss where plaintiff taxpayers failed to allege facts sufficient to establish taxpayer standing to maintain challenge to comprehensive rezoning and zoning map because they failed to show special interest in subject matter of case distinct from that of general public by failing to show that allegedly illegal or ultra vires acts may reasonably result in pecuniary loss or increase in taxes. Joan Floyd, et al. v. Mayor and City Council of Baltimore, No. 35, Sept Term, 2018.

Maryland Court of Special Appeals

Evidence; Out-of-court identification: Although police flyer showing picture of defendant was impermissibly suggestive, the police did not arrange the victim’s identification of defendant and, therefore, there was no state action and, accordingly, the Due Process Clause and its check on the reliability of witness identifications were not implicated. Anthony Bean v. State of Maryland, No. 601, Sept. Term 2017.

Court of Appeals

Civil Procedure

Taxpayer standing

BOTTOM LINE: Trial court properly granted motion to dismiss where plaintiff taxpayers failed to allege facts sufficient to establish taxpayer standing to maintain challenge to comprehensive rezoning and zoning map because they failed to show special interest in subject matter of case distinct from that of general public by failing to show that allegedly illegal or ultra vires acts may reasonably result in pecuniary loss or increase in taxes.

CASE: Joan Floyd, et al. v. Mayor and City Council of Baltimore, No. 35, Sept Term, 2018 (filed April 1, 2019) (Judges Barbera, Greene, McDonald, WATTS, Hotten, Getty & Adkins (Senior Judge, Specially Assigned)).

FACTS: This case concerned taxpayer standing, and, specifically, whether certain individuals satisfied the requirements of taxpayer standing to maintain a challenge against comprehensive rezoning ordinances and a new zoning map enacted in Baltimore City. Joan Floyd, Paul Robinson, and Deborah Tempera (together, “Petitioners”), Baltimore City taxpayers, filed in the Circuit Court for Baltimore City a complaint for declaratory judgment against the Mayor and City Council of Baltimore (“Respondent”), challenging a new comprehensive rezoning and a new zoning map, as enacted through two ordinances.

Respondent filed a motion to dismiss and/or for summary judgment, alleging that Petitioners lacked the requisite taxpayer standing to maintain their case. Following a hearing, the circuit court granted the motion to dismiss, ruling that Petitioners failed to allege a specific harm unique to them or their property and that Petitioners lacked taxpayer standing.

While Petitioners’ appeal was pending in the Court of Special Appeals, they filed in the Court of Appeals a petition for a writ of certiorari. The Court granted the petition and affirmed the judgment of the circuit court.

LAW: Recently, in Anne Arundel Cty. v. Bell, 442 Md. 539, 576-77 (2015), it was explained that taxpayer standing is a “common law standing doctrine [that] permits taxpayers to seek the aid of courts, exercising equity powers, to enjoin illegal and ultra vires acts of public officials where those acts are reasonably likely to result in pecuniary loss to the taxpayer” or an increase in taxes. Under the taxpayer standing doctrine, among other things, a “complainant must have a special interest in the subject[ ]matter of the suit distinct from that of the general public.” Id. at 576.

The “special interest” requirement is satisfied where a complainant alleges “both 1) an action by a municipal corporation or public official that is illegal or ultra vires, and 2) that the action may injuriously affect the taxpayer’s property, meaning that it reasonably may result in a pecuniary loss to the taxpayer or an increase in taxes.” Id. at 577. Importantly, “there must be a ‘nexus’ between the showing of potential pecuniary damage and the challenged act.” Id. at 579. Indeed, “[t]here must be [] a connection between the alleged[ly] illegal or ultra vires act, the harm caused to the taxpayer, and the potential for the remedy to alleviate the harm incurred.” Id. at 579. And, “the nexus must be true not only for the complainant, but also [for] all similarly situated taxpayers.” Id. at 579.

Here, Petitioners failed to allege facts sufficient to establish taxpayer standing to maintain a challenge to the comprehensive rezoning ordinances and the Zoning Map. Petitioners failed to show a special interest in the subject matter of this case distinct from that of the general public by failing to show that the allegedly illegal or ultra vires acts by Respondent may reasonably result in a pecuniary loss or an increase in taxes. Moreover, Petitioners failed to demonstrate a nexus between any alleged potential pecuniary harm and the challenged act, i.e., a connection between the allegedly illegal or ultra vires act and the harm caused to the taxpayer. Petitioners also failed to seek a remedy that, if granted, would alleviate any alleged tax burden or pecuniary loss that would result if the Zoning Map remains in place.

In the complaint, Petitioners baldly alleged that “[t]he ultra vires or illegal imposition of a new Zoning Map on Baltimore City will cause Baltimore City taxpayers to suffer pecuniary losses or tax increases.” Petitioners did not allege, with any explanation or particularity, the pecuniary losses or tax increases expected or how the new Zoning Map potentially would result in such harm. Petitioners simply stated that pecuniary loss and tax increases would occur. This was a bare allegation that, in and of itself, was insufficient to establish taxpayer standing.

Similarly, Petitioners alleged that adoption of the Zoning Map by ultra vires or illegal means could “overburden the taxpayer-funded resources of City agencies, boards[,] and commissions that review and issue permits and zoning authorizations[,]” and would “place extra burdens on the taxpayer-funded resources of the City Law Department[.]” The meaning of these allegations was difficult to discern. More importantly, the allegations fell far short of alleging any pecuniary loss or increase in taxes potentially caused by the comprehensive rezoning, and instead appear to refer to potential costs caused by defending challenges to the comprehensive rezoning and Zoning Map.

In addition, Petitioners alleged that “[b]onds may be issued to support the development of unlawfully rezoned property.” Again, this allegation lacked any explanation or specificity. Thus, overall, the complaint failed to allege any injury resulting in a pecuniary loss or an increase in taxes due to the comprehensive rezoning. As such, the circuit court was correct in granting the motion to dismiss.

Accordingly, the judgment of the circuit court was affirmed.

COMMENTARY: This case’s circumstances were readily distinguishable from cases in which the Court has concluded or observed that plaintiffs had established taxpayer standing to maintain their actions. Significantly, Petitioners failed to allege with any particularity or specificity the expenditure of public funds or an increase in taxes potentially resulting from the allegedly illegal or ultra vires acts. By contrast, in several cases in which the Court concluded or observed that taxpayer standing had been established, the plaintiffs had specifically alleged pecuniary loss or increased taxes.

For example, in Boitnott v. Mayor & City Council of Balt., 356 Md. 226, 234 (1999), the plaintiffs alleged that Baltimore City had expended $20 million in development costs prior to the litigation, and the Court observed that such an allegation was sufficient to show “potential pecuniary damage by way of [a] tax increase[.]” Similarly, in State Ctr., 438 Md. at 577, 92 A.3d at 475, the plaintiffs alleged that the project at issue was expected to cost $1.5 billion, that a State agency had agreed to contribute up to $28 million in taxpayer funds toward the cost of designing and constructing an underground garage for the project, and that issuance of $33 million in bonds supported by taxpayer revenues to build the garage had been approved. In that case, it was determined that the plaintiffs “pleaded sufficiently a loss of revenue from the public funds as contributed by them as taxpayers.” Id. at 581, 92 A.3d at 478.

This case was similar to Bell, 442 Md. at 584-85, in which the Court determined that the plaintiffs had failed to establish taxpayer standing because they failed to allege with any particularity “that their taxes would be increased or that the illegal action would result in any other form of pecuniary loss.”

PRACTICE TIPS: “Frustration with increased traffic, annoyance with increased noise, and violations of a right (if any) to participate in zoning changes are not the sort of harms with which taxpayer standing is concerned. Even if these harms were within the purview of taxpayer standing, they are not unique to the [plaintiff]s, as opposed to the general public.” Anne Arundel Cty. v. Bell, 442 Md. 539, 585 (2015).

Maryland Court of Special Appeals

Evidence

Out-of-court identification

BOTTOM LINE: Although police flyer showing picture of defendant was impermissibly suggestive, the police did not arrange the victim’s identification of defendant and, therefore, there was no state action and, accordingly, the Due Process Clause and its check on the reliability of witness identifications were not implicated.

CASE: Anthony Bean v. State of Maryland, No. 601, Sept. Term 2017 (filed March 28, 2019) (Judges Wright, LEAHY & Raker (Senior Judge, Specially Assigned)).

FACTS: Anthony Bean moved to suppress the pre-trial identification in this case because, he argued, it resulted from an impermissibly suggestive procedure and was unreliable in violation of his right to due process of law guaranteed by the Fourteenth Amendment to the United States Constitution.

The Supreme Court has declared that the “primary evil” that impermissibly suggestive identifications procedures generate is the “very substantial likelihood of misidentification.” Neil v. Biggers, 409 U.S. 188, 198 (1972). To invoke the protections of the Due Process Clause of the United States Constitution, however, a criminal defendant must first demonstrate that the eyewitness identification was “procured under unnecessarily suggestive circumstances arranged by law enforcement.” Perry v. New Hampshire, 565 U.S. 228, 248 (2012). Failure to show state action—that the police arranged the pre-trial identification— effectively ends the constitutional inquiry. Id. at 232-33.

Following an armed robbery and carjacking, the Baltimore City Police Department created an internal “be on the lookout” flyer (“BOLO”) that showed images of the assailants and the missing vehicle, and stated the particulars of the crime. The BOLO was released on social media and seen by the victim’s brother, who showed it to the victim, who then recognized her assailants on the BOLO. The victim informed the police that she had seen the BOLO and that she recognized her assailants on the flyer. The next morning, at the police station, police showed her the BOLO again to confirm her identification and then showed her a single photo of each assailant, including one of Bean. She confirmed for police that Bean was one of her attackers.

The suppression court denied the motion, finding that the release of the BOLO constituted state action, and that the identification procedures were impermissibly suggestive. Nevertheless, after applying the Biggers reliability analysis, the court found that the victim’s identification was reliable and admissible into evidence.

Bean was subsequently tried and convicted by a jury in the Circuit Court for Baltimore City. He appealed to the Court of Special Appeals, which affirmed.

LAW: The ability of law enforcement to ascertain reliable pre-trial identifications from witnesses is a vital part of the American criminal justice system. A criminal defendant’s ability to defend against the admission of identifications that are unreliable and obtained through impermissibly suggestive means, however, is equally important. To guard against the risk of an incorrect identification, criminal defendants may invoke the Due Process Clause of the Fourteenth Amendment to combat “the introduction of evidence of, or tainted by, unreliable pretrial identifications obtained through unnecessarily suggestive procedures.” Webster v. State, 299 Md. 581, 599-600 (1984) (quoting Moore v. Illinois, 434 U.S. 220, 227 (1977)).

A criminal defendant must first demonstrate, however, that the identification was orchestrated or engineered by the actions of “law enforcement officers[.]” Perry, 565 U.S. at 238-39. Once a defendant successfully demonstrates that the identification procedure involved actions by law enforcement officials, Maryland suppression courts undertake a two-step inquiry to determine whether to suppress an extra-judicial identification. Smiley v. State, 442 Md. 168, 180 (2015). First, the defendant bears the burden of demonstrating “some unnecessary suggestiveness in the procedures employed by police.” Thomas v. State, 213 Md. App. 388, 417 (2013). The inquiry ends here if the procedure is not impermissibly suggestive. Id. If the procedure is impermissibly suggestive, then the inquiry proceeds to the second step wherein the burden shifts to the State to “prove, by clear and convincing evidence, that the independent reliability in the identification outweighs the ‘corrupting effect of the suggestive procedure.’” Gatewood v. State, 158 Md. App. 458, 475 (2004).

To apprise the reliability of an identification, the Supreme Court fashioned a five-factor test in Biggers. 409 U.S. at 199-200. Only if the State cannot prove that the identification is independently reliable will the court suppress a suggestive pretrial extrajudicial identification. Conyers v. State, 115 Md. App. 114, 121 (1997).

Courts will not conclude that “improper police conduct” influenced a witness’s out-of-court identification when police merely release a photograph of the defendant to the media as part of an on-going investigation. That police in this case released Bean’s photograph on social media rather than a legacy media outlet is a distinction without a difference as it relates to the propriety of the state action. The release of the BOLO on social media in this case was not “improper police conduct” that triggered a Biggers analysis because police did not “arrange or encourage” Ms. Perry to view the BOLO; nor was there any evidence that the police directed the BOLO toward Ms. Perry in any sort of targeted manner. Cf. O’Connell v. State, 742 N.E.2d 943, 948 (Ind. 2001) (“One can imagine an orchestrated prompting of a witness by means of the media.”). In fact, Det. Bailey, the lead investigator in this case, testified that he was surprised that Ms. Perry saw the BOLO and volunteered that she had identified the men it depicted. Moreover, to the extent the identification was arranged, it was arranged by Perry’s brother, not the police department. With no evidence that police arranged for Ms. Perry to view the BOLO, which was extremely suggestive, the Due Process Clause was not implicated. See Perry, 565 U.S. at 241.

Det. Bailey’s use of the BOLO to confirm Ms. Perry’s identification at the police station did not alter this result. Once Ms. Perry had already volunteered an out-of-court identification of Bean based on her independent viewing of the BOLO, it was not improper or unreasonable for Det. Bailey to confirm her identification. Com. v. Currier, 455 N.E.2d 158, 158 (Mass. App. Ct. 1983) (“[W]here it has been established ‘that the initial identification is the product of something other than improper action by the State, due process does not require the suppression of it or its repetitions.”

In conclusion, it could not be said that the Baltimore City Police Department arranged Ms. Perry’s identification of Bean. Absent “improper law enforcement activity,” the Due Process Clause and its check on the reliability of witness identifications were not implicated in this case. The circuit court was therefore correct to deny Bean’s motion to suppress Ms. Perry’s identification.

Accordingly, the judgment of the circuit court was affirmed.

COMMENTARY: The Supreme Court of Rhode Island reached a similar result last year in State v. Alves, 183 A.3d 539 (R.I. 2018). In that case, a witness printed out the defendant’s photograph from the internet and brought it to the police station. Police had the witness circle the defendant on the printed image and later showed him a single photo of the defendant to confirm his prior identification. The Court reasoned that this “was not so much an identification procedure as it was a confirmation of the identification that [the witness] had already made[,]” and, therefore, was not unnecessarily suggestive “nor did it implicate defendant’s right to due process.” Id. at 543. See also State v. Darveaux, 318 N.W.2d 44, 47 (Minn. 1982) (holding that a “physical lineup was merely confirmatory” and, therefore, “did not cause a substantial likelihood of misidentification” because the witnesses “had already positively identified defendant in a valid photographic display”); State v. Liverman, 727 S.E.2d 422 (S.C. 2012) (holding that a show-up identification procedure, which would have “normally [been] considered unduly suggestive,” was “merely confirmatory” because the witness had already identified the defendant for the police prior to the show-up).

PRACTICE TIPS: A suppression court’s factual findings and witness credibility determinations are not disturbed absent clear error, and all evidence as well as inferences that can be reasonably drawn therefrom are viewed in a light most favorable to the State. McFarlin v. State, 409 Md. 391, 403 (2009).

 

 

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