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Md. high court opens term with race-related cases on docket

Steve Lash//September 8, 2022

Md. high court opens term with race-related cases on docket

By Steve Lash

//September 8, 2022

The seven-member Court of Appeals’ “September Term 2022” will mark its first full session with Chief Judge Matthew J. Fader. (The Daily Record/File Photo)

Maryland’s top court opened its 2022-2023 session this month, a term in which it will consider whether alleged racially charged comments so permeated a recently reported appeals court opinion that a convicted killer, who is Black, deserves a new hearing before an impartial appellate body.

The Court of Appeals will also weigh if a Black man’s speedy departure upon seeing Baltimore police in a high-crime area gives officers reasonable suspicion of criminal activity to stop him or if they must view his hasty exit as a validly fearful – and suspicion-free – reaction amid local and national instances of police brutality against Black men.

In addition, the high court will consider if the state’s environmental agency validly rejected a request from environmentalists that it impose ammonia emissions standards for all poultry feeding operations to protect the Chesapeake Bay.

The three cases are among dozens the Court of Appeals is expected to hear before the term’s oral argument schedule ends in June.

The seven-member court’s “September Term 2022” will mark its first full session with Chief Judge Matthew J. Fader and Judge Angela M. Eaves.

Gov. Larry Hogan appointed Fader – then chief judge of the intermediate Court of Special Appeals – to succeed Joseph M. Getty upon his reaching the state’s mandatory judicial retirement age of 70 in April. On that same day, Hogan named Eaves – then a Harford County Circuit Court judge – to succeed Judge Robert N. McDonald, who had also reached 70.

Fader, 49, will likely recuse himself from the many appeals the high court will hear this term from the Court of Special Appeals, due to his service on the intermediate court when those cases were decided, said attorney Steven M. Klepper, editor in chief of the Maryland Appellate Blog website.

“I would largely expect him to be spending a fair bit of time on the administrative side of the job,” said Klepper, of Kramon & Graham PA in Baltimore. “We’re probably not going to see what the Fader Court looks like until the next term.”

In the reported opinion case, the high court will hear Terrance Belton’s claim that racial tropes drawn in the Court of Special Appeals’ opinion and comparisons made to a genteel white society revealed a bias that draws into question that court’s impartiality in upholding his voluntary manslaughter conviction.

In its controversial opinion, the Court of Special Appeals stated that the Black southwest Baltimore neighborhood where Belton killed Edward Calloway “was not the Hallmark Hall of Fame.” The court also likened Belton and his mother to monsters from the epic poem “Beowulf” and said their relationship was far removed from the idyllic scene depicted in James Whistler’s painting of his mother.

In papers filed with the high court, Assistant Maryland Public Defender Katherine P. Rasin said the fairness of the intermediate court’s decision is at issue because the opinion “contains derogatory contrasts of Baltimore city to other locales and comparisons with distinctive racial overtones of characters from works of literature and fine art to the participants in this case.”

Assistant Maryland Attorney General Daniel J. Jawor responded by calling the allegedly biased “literary and artistic references” in the Court of Special Appeals opinion irrelevant to its legitimate conclusion that any errors by the trial judge were harmless.

The Court of Appeals will hear arguments Oct. 4 in Terrance Belton v. State of Maryland, No. 8 September Term 2022.

Is flight from police understandable?

In the flight-from-police case, the high court will hear Tyrie Washington’s argument that his gun possession conviction must be overturned because the only reason officers suspected him of a crime was that he ran after seeing their patrol car – a reasonable response for a Black man in Baltimore, he added.

An officer who frisked Washington after he was caught found a handgun in his waistband.

Washington’s attorney, Claire R. Caplan cited the 2015 death of Freddie Gray while in Baltimore police custody; a 2016 U.S. Justice Department report that the Baltimore Police Department used enforcement tactics that had an “unjustified” impact on Blacks; and the BPD’s disgraced and disbanded Gun Trace Task Force’s planting of evidence on primarily Black men.

Caplan also mentioned the murder of George Floyd, an unarmed Black man, by former Minneapolis police officer Derek Chauvin in May 2020.

“This case presents an opportunity for this court to consider the factual and practical aspects of daily life today and how reasonable and prudent people act around the police in the post-Freddie Gray, post-George Floyd era,” Caplan, an assistant Maryland public defender, wrote in papers filed with the high court. “Today, it is not necessarily a commonsense conclusion that flight from the police is suggestive of involvement in criminal activity.”

Assistant Maryland Attorney General Andrew J. DiMiceli disagreed with that assessment.

“Although one can think of a multitude of innocent (and even justifiable) reasons why an individual might flee from the police, those reasons do not negate the equally reasonable inference in cases such as this that the individual’s flight from the police without provocation was an act of evasion prompted by the person’s desire to avoid responsibility for criminal wrongdoing,” DiMiceli wrote in response. “It is still reasonable to infer that unprovoked, headlong flight from the police in a high-crime area may be indicative of criminal wrongdoing.”

The Court of Appeals will hear arguments Nov. 3 in Tyrie Washington v. State of Maryland, No. 15, September Term 2022.

Ammonia emission limits

In the environmental case, the high court will hear the Maryland Department of the Environment’s challenge to a circuit court judge’s decision that the agency was obligated to set an ammonia emission limit in its general discharge permit for poultry feeding operations in the state.

MDE argues that courts owe deference to its considered conclusion that a blanket ammonia emissions standard in a general discharge permit was unnecessary and that its denial of the environmentalists’ request was neither arbitrary nor capricious regarding concentrated animal feeding operations, or CAFOs.

“In MDE’s expert view, the science does not yet support the conclusion that ammonia emissions from CAFOs result in discharges to waterways with sufficient frequency to justify an across-the-board effluent limitation applicable to the entire CAFO industry,” Assistant Maryland Attorney General Matthew Standeven wrote. “(B)ased on current state of the science, MDE reasonably concluded that an across-the-board limitation on ammonia emissions from CAFOs – regardless of their specific circumstances – was not justified by the science.”

But the Chesapeake Legal Alliance stated that MDE is owed no deference and entitled to no discretion because Maryland environmental law and regulations classify ammonia as a water “pollutant” and “waste” that cannot be discharged “regardless of volume” without a standard-setting permit.

“Simply put: Given that the discharge of ‘any wastes or waste waters regardless of volume’ is illegal unless authorized by a discharge permit, the permit must acknowledge ammonia as a water pollutant,” Chesapeake Legal Alliance attorneys David L. Reed and Evan Isaacson wrote. “It cannot be disputed, and has not been disputed by agency experts reviewing the record, that ammonia expelled by CAFOs is a significant source of nutrient pollution to the Chesapeake Bay and other waters of the state or a significant contributor to the impairments of these waters.”

The Court of Appeals will hear arguments Nov. 3 in Maryland Department of the Environment v. Assateague Coastal Trust, No.11, September Term 2022.

The high court is expected to render decisions in all cases it hears this session by Aug. 31, the last day of the term.


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