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Barbera’s final term included First Amendment, lost pet, gangland slaying cases

“I am gratified that the Court of Appeals, for the eighth consecutive year, despite the challenges posed by the pandemic, issued all its opinions in the same term for the cases that were argued,” Court of Appeals Chief Judge Mary Ellen Barbera said in a statement Tuesday. (The Daily Record/File Photo)

Maryland’s top court ended its 2020-2021 session Tuesday having issued rulings upholding Baltimore’s billboard tax against a free-speech challenge, limiting the compensation available for a negligently killed pet over a heartfelt dissent for beloved dogs and rejecting the duress defense for a gangland murder, saying the threat of death goes with the violent lifestyle.

The Court of Appeals session, which history will note as September Term 2020, also marked Mary Ellen Barbera’s final full term as chief judge. Barbera reaches Maryland’s mandatory judicial retirement age of 70 on Sept. 10, ending her eight-year tenure as the state’s top jurist and its first woman to hold that post.

“I am gratified that the Court of Appeals, for the eighth consecutive year, despite the challenges posed by the pandemic, issued all its opinions in the same term for the cases that were argued,” Barbera said in a statement Tuesday.

Gov. Larry Hogan has not yet named Barbera’s successor as chief or who will fill the coming vacancy on the seven-member high court.

In a sign of the times, the Court of Appeals held all but one of its oral argument sessions during the term via video conference in an effort to stanch the spread of the COVID-19 pandemic. The only exception was the final session on June 4, Barbera’s last one as chief, which was held in person.

Barbera offered no closing comments that day. However, during a retirement celebration on June 16, she said that “I am gratified beyond words to do the work of justice” and “it has been a wonderful ride.”

Appellate attorney Michael Wein said Tuesday that videoconferencing is “not a replacement for live oral argument,” which he called an essential in-person experience where lawyers get a keener sense of the judges’ concerns about the case and can see how the jurists are interacting.

These observations “cannot be replicated in the same way in a remote oral argument,” added Wein, a Greenbelt solo practitioner.

The editor in chief of the Maryland Appellate Blog, which keeps statistics on Court of Appeals decisions, said the court this past year rendered only two rulings by a 4-3 vote, compared to seven in the prior term and six in the session before that. By contrast, about a dozen cases were decided by a 6-1 vote this session, essentially equaling the total number of cases decided over lone dissents in the prior two terms combined, Steven M. Klepper added.

“It’s difficult to say what impact virtual arguments had on the court’s voting patterns,” said Klepper, an appellate attorney. “This could be statistical noise or it could reflect a different dynamic when they (the judges) are in conference.”

Billboard tax

During September Term 2020, the Court of Appeals held that Baltimore’s tax on commercial billboard operators comports with the Constitution’s First Amendment because it does not discriminate based on the viewpoint conveyed on the billboards and is rationally related to the city’s legitimate goal of raising revenue. The high court issued its 6-1 decision — by Judge Robert N. McDonald and over Judge Joseph M. Getty’s dissent — in Clear Channel Outdoor Inc. v. Director, Department of Finance of Baltimore City, No. 9 September Term 2020.

Clear Channel Outdoor, the city’s dominant billboard operator, has asked the U.S Supreme Court to review and overturn the decision based on the argument that “taxing the means of speech threatens the exercise of speech.” Baltimore has until Sept. 15 to respond to the company’s request for Supreme Court review.

Clear Channel, which owned more than 95 percent of the city’s billboards as recently as 2017, challenged the constitutionality of the 2013 Baltimore ordinance that imposes an excise tax on billboard owners who charge fees for outdoor advertising displays of at least 10 square feet. Clear Channel has paid its annual assessment of about $1.5 million each year since the ordinance’s enactment but has sought a refund based on its as-yet-unsuccessful First Amendment challenge.

Pet death ruling

The Court of Appeals this past term also ruled 6-1 that pet deaths caused by negligence are covered by the Maryland Pet Damages Statute, which has a current cap of $10,000 for the economic loss and provides no additional compensation for the owner’s emotional pain. Judge Michele D. Hotten, in an impassioned dissent, said a pet’s death is so much more than a compensable loss of property..

The court’s decision, written by Barbera, was a defeat for Michael Reeves, whose Chesapeake Bay retriever, Vern, was shot and killed by Anne Arundel County Police Officer Rodney Price in February 2014. An Anne Arundel County Circuit Court jury had awarded Reeves $1.25 million, but appellate decisions had cut that figure to $200,000 when the case came before the Court of Appeals.

In its decision, the high court reduced Reeves’ award to $7,500, the Pet Damages Statute’s cap in February 2014. The General Assembly raised the limit to $10,000 in 2017, an amount that Hotten indicated provides no justice.

“Marylanders have strong, emotional bonds with their pets, especially their dogs,” Hotten wrote in dissent.

“The designation of dogs as mere property belies common experience, cultural values, and societal expectations,” Hotten added. “Treating dogs as mere property also erases a dog’s intrinsic attributes as a living being and the irreplaceable instinct to love and protect human companions. A dog, unlike an inanimate object, welcomes its human companion after a day at work, protects its human companion when in danger, and exhibits behavior and emotions that (are) consistent with grief and distress when its human companion is ill, injured, or passes away.”

The high court rendered its decision in Anne Arundel County et al. v. Michael H. Reeves, No. 68, September Term 2019.

‘Duress defense’

The Court of Appeals unanimously ruled that members of  violent gangs who kill out of fear they would soon be killed if they disobeyed a deadly order cannot later claim they acted out of duress in order to change a murder charge to voluntary manslaughter.

The court said the “duress defense” to murder applies only when the threat of death is “present, imminent and impending” rather than at some future time and that being in a gang carries the inherent likelihood that you will be killed if you do not carry out an ordered slaying.

“Based on caselaw of this court and the Court of Special Appeals, we determine that the defense of distress is unavailable as a matter of law to a defendant who voluntarily or recklessly placed himself in a situation in which it was reasonably foreseeable that the defendant could be subject to the coercive circumstances that the defendant contends constitute duress,” Judge Shirley M. Watts wrote for the court in Darwin Naum Monroy Madrid v. State of Maryland, No. 50, September Term 2020.

“In this case, Madrid voluntarily associated himself with MS-13 and participated in the activities of MS-13, even though he was aware that he would be subject to ‘punishment’ for the failure to follow orders, i.e., coercion, and that an order could involve the commission of violent crimes,” Watts added. “By participating in MS-13 gang activities, Madrid put himself in a situation in which it was reasonably foreseeable that he might be ordered to commit a crime and face punishment if he did not comply.”

In other cases, the Court of Appeals ruled this past session that:

  • An adult intimately involved in a child’s upbringing cannot be regarded as a “de facto parent” with a claim to visitation or a share of custody unless both of the youngster’s legal parents consented to and fostered the child’s parent-like relationship with the individual (N. v. T.R., No. 44, September Term 2020);
  • The Maryland Consumer Debt Collection Act protects debtors not only against debt collectors who resort to harassment but also those who knowingly or recklessly seek amounts or interest rates beyond that permitted by statute or court decision (Larry S. Chavis et al. v. Blibaum & Associates PA and Bryione K. Moore et al. v. Peak Management LLC, No. 30 September Term 2020);
  • A judge’s concern about the risk to public safety does not outweigh an accused young offender’s amenability to rehabilitation in deciding whether the youngster should be tried in adult or juvenile court for an alleged violent crime Howard Jimmy Davis v. State of Maryland, No. 51, September Term 2020);
  • Maryland prosecutors need not tell defendants about the past dishonesty of the state’s witnesses before a guilty plea is entered (Dale K. Byrd v. State of Maryland, No. 4 September Term 2020); and
  • The hotel and rental car booking website does not owe state sales and use taxes for the years before Maryland’s tax law changed in 2015 to include accommodations intermediaries (com LP n/k/a TVL LP v. Comptroller of Maryland, No. 14, September Term 2020).