Supreme Court of MD: Gun regulation, Double Jeopardy, grand jury materials

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Civil Procedure; mootness

BOTTOM LINE: Where the defendant argued a putative class action was moot because it paid the plaintiffs the challenged fee during the pendency of the lawsuit, this argument failed. The law does not allow a party to render a claim moot by “picking off” the class representative in a putative class action via payment, unless the plaintiff had a reasonable opportunity to seek class certification.

CASE: CareFirst BlueChoice, Inc. v. Skipper, No. 21, Sept. Term, 2025 (filed April 27, 2026) (Justices FADER, Watts, Booth, Eaves, Killough) (Justices Biran, GOULD dissent).

FACTS: After CareFirst BlueChoice, Inc. denied coverage to Matthew and Jamie Skipper for embryo thawing in connection with an in-vitro fertilization, or IVF, procedure, the Skippers filed a complaint with the Maryland Insurance Administration and a putative class action complaint.

On May 20, 2021, 23 days after the Skippers filed their federal complaint, CareFirst “change[d] its position,” issued a new explanation of benefits, and reimbursed the Skippers’ medical provider for the cost of the embryo thawing. Based on that change in position, the Administration closed the Skippers’ claim.

On March 8, 2023, the federal district court dismissed the Skippers’ class action complaint, determining that the court lacked jurisdiction over the lawsuit because it did not meet the threshold under the Class Action Fairness Act of 2005. The Skippers then filed their state court complaint in the circuit court.

CareFirst moved to dismiss on two grounds: (1) that its $900 reimbursement had mooted the Skippers’ claim and (2) that the Skippers failed to state a claim on which relief could be granted because benefits for embryo thawing are excluded under the policy and are not required by Maryland law. The circuit court granted the motion based on mootness. The Appellate Court of Maryland reversed. It held the Skippers’ claim was not moot, and that the complaint stated a claim.

LAW: A threshold question is whether CareFirst’s reversal of its coverage denial for the Skippers’ embryo thawing mooted the Skippers’ putative class action complaint. This court agrees with the Appellate Court that under the rationale of this court’s decision in Frazier v. Castle Ford, LTD., 430 Md. 144 (2013), CareFirst could not render a claim moot by “picking off” the class representative in a putative class action via payment before the plaintiff had a reasonable opportunity to seek class certification.

CareFirst has not alleged that the Skippers had a reasonable opportunity to seek class certification either in federal court or in state court. The record here and the docket in federal court suggest that they did not have that opportunity. Accordingly, based on the record before this court, it concludes that the Skippers’ class action complaint is not moot and that they have standing.

Turning to the coverage issue, the Policy’s coverage for IVF procedures and Exclusion 16.11 exist against the backdrop of Maryland’s applicable statutory and regulatory structure concerning coverage for maternity care generally and IVF treatments specifically.

After reviewing the relevant statutory provisions, this court agrees with the Skippers that insurers must cover the expenses arising from IVF procedures to the same extent as expenses arising from other pregnancy-related procedures—which is to say, subject to the same terms, deductibles, co-pays, and limitations. In other words, insurers may not exclude benefits for “all” outpatient expenses arising out of IVF procedures, but they may exclude benefits for the same portion of those expenses they also do not pay in connection with other pregnancy-related procedures.

Nothing in the statute suggests that insurers can cover only some medically necessary services arising from IVF procedures and exclude all expenses associated with others. The legislative history confirms this interpretation.

The Skippers purchased the policy from CareFirst through the Maryland Health Benefit Exchange marketplace, with Mr. Skipper named as the subscriber and Ms. Skipper as a dependent insured spouse. As relevant here, the regulatory framework applicable to the policy’s IVF coverage is provided by the interplay between a regulation applicable to the small employer market and a bulletin issued by the Administration addressing the individual market.

CareFirst contends that the regulatory framework authorizes it to exclude coverage for IVF-related embryo thawing. This court disagrees. CareFirst’s proposed interpretation is not a reasonable one when read in the context of the regulatory scheme and the coverage mandate in Insurance § 15-810(c).

At bottom, whether CareFirst properly disclaimed coverage for the Skippers’ embryo thawing thus turns on whether that procedure was a medically necessary component of the IVF procedure, not on whether IVF is similar to the other procedures listed in COMAR 31.11.06.06B(11). For these reasons, the circuit court’s dismissal of the Skippers’ complaint cannot be affirmed on the alternative ground that the Skippers failed to state a claim on which relief can be granted.

Judgment of the Appellate Court of Maryland affirmed.

DISSENT: Under the applicable rules, an action cannot be certified as a class action unless it is viable—i.e., not moot—when it is filed in the circuit court. Here, the Skippers’ claims were moot when they were filed in the circuit court and legally, it makes no difference that they were rendered moot during the pendency of a federal class action lawsuit. Thus, because I would not reach the merits, I respectfully dissent.

Constitutional; grand jury materials

BOTTOM LINE: Where the Office of Attorney General moved to publish a report about allegations of child sexual abuse committed by clergy and other individuals, the report relied in part on grand jury materials and certain individuals referenced in the report objected, their names will not be disclosed. To overcome an objection to disclosure of otherwise secret information about an uncharged individual, a requestor must show that disclosure will serve an interest beyond the public’s interest in learning the information.

CASE: In Re: Criminal Investigation No. CID 18-2673 in the Circuit Court for Baltimore City, Nos. 4, 5, & 6, Sept. Term, 2025 (filed April 27, 2026) (Justices Fader, Booth, BIRAN, Gould, Eaves, Killough, McDonald).

FACTS: The Office of the Attorney General, or OAG, served two grand jury subpoenas for records on the Archdiocese of Baltimore, or AOB. The subpoenas compelled AOB to produce records relating to allegations of child sexual abuse committed by clergy and other individuals affiliated with AOB, dating back to 1940.

OAG drafted a document entitled “Attorney General’s Report on Child Sexual Abuse in the Archdiocese of Baltimore,” that includes information that OAG learned from the records that AOB produced in response to the grand jury subpoenas. One of the petitioners in these appeals is an alleged perpetrator of such abuse. The remaining petitioners allegedly concealed acts of abuse, did not do enough to stop the abuse or otherwise engaged in problematic conduct in relation to such abuse.

Because the Report contains grand jury material, OAG moved for a court order to publish the Report. After conducting a hearing, the circuit court granted OAG’s disclosure motion with respect to petitioners. Petitioners appealed to the Appellate Court of Maryland, which affirmed the circuit court’s ruling in part. It held that the circuit court erred by not considering OAG’s disclosure motion with respect to each petitioner individually.

LAW: Petitioners argue that OAG lacked authority to investigate child sexual abuse within AOB. They contend that, in directing OAG broadly to investigate “crimes of exploitation,” Governor Hogan exceeded his authority under Article V, § 3(a)(2) of the Maryland Constitution to direct OAG to investigate and/or prosecute a “category” of criminal cases. In addition, petitioners assert that the Hogan directive encroaches on the state’s attorneys’ constitutional authority to prosecute criminal cases. Finally, petitioners contend that the Hogan directive violates Maryland’s constitutional separation of powers.

In response, OAG argues that the governor has express constitutional authority to direct OAG to investigate categories of crimes, notwithstanding that such directives may effectively provide OAG and state’s attorneys with concurrent prosecutive authority over such crimes. Furthermore, OAG maintains that Governor Hogan properly exercised executive authority by directing OAG to investigate crimes of exploitation, including crimes involving abuse of children. The court agrees with OAG on this issue.

Turning to the merits, the circuit court should have denied OAG’s motion to disclose petitioners’ identities. OAG proffered that the purpose of disclosure was public accountability. Many grand jury investigations obtain damaging information and allegations about uncharged individuals that the public might benefit from learning. One of the primary purposes of grand jury secrecy is to protect uncharged persons from public disgrace in the absence of a criminal charge and a forum in which to seek vindication.

To overcome an objection to disclosure of otherwise secret information about an uncharged individual, a requestor must show that disclosure will serve an interest beyond the public’s interest in learning the information. The OAG did not meet that burden here.

This court does not decide whether the circuit court erred in authorizing OAG to disclose the identities of uncharged individuals who are not among the petitioners. The Report in its redacted form is now a matter of public record. Thus, even if this court was to conclude that no grand jury information should have been made public in the Report, it would not be able to provide a remedy to any uncharged person who was improperly identified.

Judgment of the Appellate Court of Maryland reversed.

Criminal; Double Jeopardy

BOTTOM LINE: Where a man argued his third prosecution was barred by double jeopardy, because the state goaded him into moving for two mistrials, this argument was rejected. Assuming—without deciding—that Maryland embraces a reckless standard under its common law double jeopardy jurisprudence, the circuit court made a finding of fact that the state was not reckless in this case, and that finding is not clearly erroneous.

CASE: Santana v. State, No. 19, Sept. Term, 2025 (filed April 28, 2026) (Justices Fader, Booth, EAVES, Killough) (Justices Watts, BIRAN, Gould dissent).

FACTS: Under the Double Jeopardy Clause, a defendant who requests, or acquiesces to, a mistrial ordinarily consents to a subsequent prosecution for the same charges. An exception to this general rule is where the government engages in conduct with the intent of goading a defendant into moving for the mistrial.

In that instance, where a defendant successfully obtains a termination of the current trial, the Double Jeopardy Clause bars a government from initiating a subsequent prosecution for the same charges. Although Maryland has no independent state constitutional or statutory provision enshrining the protections against double jeopardy, we recognize double jeopardy protections as a matter of common law.

After two separate mistrials for various charges including murder, Miguel Angel Santana moved in the circuit court to bar a third prosecution under Maryland’s common law prohibition against double jeopardy. The circuit court denied that motion, finding that the state had neither intended to cause, nor recklessly caused, Mr. Santana to move for the second mistrial. The Appellate Court of Maryland affirmed.

LAW: Assuming—without deciding—that Maryland embraces a reckless standard under our common law double jeopardy jurisprudence, the circuit court made a finding of fact that the state was not reckless in this case, and that finding is not clearly erroneous. Given that holding, this court declines to explicitly address whether Maryland’s common law prohibition on double jeopardy should bar retrial after a defendant successfully moves for a mistrial where the mistrial was caused by the state’s reckless conduct.

Judgment of the Appellate Court of Maryland affirmed.

DISSENT: This court granted certiorari to decide: (1) whether Maryland’s common law prohibition on double jeopardy should bar retrial after a defendant successfully moves for a mistrial, where the mistrial was caused by the State’s reckless conduct; and (2) if so, whether the state was reckless in this case. The majority assumes without deciding that a recklessness standard applies, and upholds the circuit court’s finding that the state did not act recklessly in eliciting the highly prejudicial evidence that led to Mr. Santana’s second mistrial.

We had an opportunity in this case to decide important questions concerning Maryland’s common law of double jeopardy – questions for which, as the majority notes, this court serves as the final arbiter. Unfortunately, the majority decided not to answer these questions.

As a matter of Maryland common law, I would reject the standard set forth in Oregon v. Kennedy, 456 U.S. 667 (1982), under which a retrial after mistrial is barred under the Fifth Amendment only where the prosecution intentionally goaded the defendant into moving for the mistrial. I would hold that retrial after a mistrial is barred where the prosecution recklessly injects error into a trial that is so unfairly prejudicial that it leaves the defense with no real choice except to move for a mistrial and leaves the trial court with no real choice except to grant a mistrial.

Applying that standard to this case, I would hold that the state acted recklessly in preparing and questioning the witness who testified improperly, and that the state’s reckless conduct necessitated a mistrial. Because a third trial of Mr. Santana should be barred under Maryland’s common law of double jeopardy, I respectfully dissent.

Landlord and tenant; right of redemption

BOTTOM LINE: Where the circuit court held the contractual waiver of the right of redemption in a commercial lease is unenforceable as against Maryland’s public policy, it erred. Under Real Property Article § 1-104, parties may waive the statutory right of redemption in the absence of a specific statutory provision prohibiting the same.

CASE: Kapneck 14-16, LLC v. Bkeezy’s Speakeasy, LLC, No. 33, Sept. Term, 2025 (filed April 29, 2026) (Justices Fader, Booth, Biran, GOULD) (Justices WATTS, Eaves concur and dissent) (Justice KILLOUGH concurs and dissents).

FACTS: After a beer and wine store failed to pay certain lease obligations, the landlord filed a summary ejectment action, seeking repossession. Although the tenant was current with its base rent, the landlord argued that the tenant failed to pay various charges—real estate taxes, water and sewer bills, late fees, HVAC replacement costs and attorney’s fees—that the lease defined as additional rent. Except for one such charge, the District Court agreed with the landlord and relying on the lease’s waiver of the statutory right of redemption, entered judgment in favor of the landlord for possession with no right of redemption.

The circuit court vacated that judgment and remanded for further proceedings. The court held that the District Court erred in including all of the landlord’s claimed attorney’s fees in its tally of due and unpaid rent. The court also determined that the tenant had not received proper notice of some of the charges on which the landlord based its summary ejectment complaint and therefore concluded that the lease’s waiver of the right of redemption was unenforceable.

LAW: The first issue in dispute is whether the contractual waiver of the right of redemption is, as the circuit court held, unenforceable as against Maryland’s public policy. Landlord argues that, under Real Property, or RP, Article § 1-104, parties may waive the statutory right of redemption in the absence of a specific statutory provision prohibiting the same. This court agrees.

The General Assembly did not insulate RP § 8-401(h)(1)’s right of redemption from the operation of RP § 1-104 in nonresidential leases. And because tenant did not establish any other defense to enforcement of that clause, such as fraud, duress, unconscionability or mistake, that waiver clause is enforceable here. Accordingly § 1-104 authorizes the waiver of the right of redemption clause in § 3.5 of the lease.

Turning to the notice issue, the parties agree that the circuit court erred in concluding that landlord violated the notice requirement of RP § 8-401(c)(1). By its plain terms, § 8-401(c)(1) applies only to residential leases, not to commercial leases like the one at issue here. Notwithstanding this conclusion, based on this court’s precedent, the plain language of RP § 8-401 and the relevant provisions of the lease, tenant was entitled to pre-suit notice of all additional rent charges that formed the basis for landlord’s summary ejectment action. Thus, a remand to recalculate the amount of due and unpaid additional rent is necessary.

Judgment of the Circuit Court for Frederick County vacated.

CONCUR/DISSENT: I concur with the majority’s conclusion that, under the plain language of  RP § 8-401, and the relevant provisions of the lease, the tenant “was entitled to pre-suit notice of all Additional Rent charges that formed the basis for Landlord’s summary ejectment action[,]” and a remand of the case to recalculate the amount of due and unpaid additional rent is warranted.

I would hold, however, that the language of § 3.5 of the lease does not constitute a waiver of the right to redemption under RP § 8-401 and that the lease does not contain any provision or wording indicating that the tenant has waived the right to redeem the property after a judgment under RP § 8-401(h)(1). As such, I would hold that it is not necessary to address the issue of whether waiving a nonresidential tenant’s statutory right of redemption violates Maryland’s public policy and is, therefore, unenforceable.

I also agree with the circuit court’s conclusion that tenant has not waived the post-judgment right of redemption under RP § 8-401(h)(1), but for different reasons than those relied upon by the circuit court.

CONCUR/DISSENT: I respectfully concur with the court’s holding that RP § 8-401(c)(1)’s pre-suit notice requirement applies only to residential tenancies, and I agree with the court that many of the charges on which the landlord relied were not “due and unpaid” when the complaint was filed. Though, as the court correctly reasons, the lease here provides additional support to the tenant’s arguments, I would add only that the right to notice before summary ejectment does not depend on the terms of the lease the landlord drafted.

In University Plaza Shopping Center, Inc. v. Garcia, 279 Md. 61 (1977), we held that a charge may constitute rent for purposes of § 8-401 only if it is “definitely ascertained.” That requirement inheres in the statute itself and in the common-law meaning of rent. A charge the tenant has never seen is not definitely ascertained—regardless of what the lease says about when it becomes “due.” On this record, the tenant first encountered the attorney’s-fees affidavit and the late-fee ledger at trial. Same day notice is no notice at all. I would affirm the circuit court on this ground alone.

Municipal; firearm regulation

BOTTOM LINE: Where Montgomery County amended provisions of its County Code that regulate firearms, some of the provisions are preempted by state law.

CASE: Engage Armament LLC v. Montgomery County, Maryland, No. 9, Sept. Term, 2025 (filed April 28, 2026) (Justices FADER, Watts, Booth, Biran, Gould, Eaves, Killough).

FACTS: To ensure that firearm regulations are largely uniform across the State, the Maryland General Assembly has enacted comprehensive laws regulating many aspects of firearm ownership, possession, and use, and has simultaneously prohibited local jurisdictions from enacting additional regulations, subject to limited exceptions. In 2021 and 2022, Montgomery County amended provisions of its County Code that regulate firearms.  The question is whether the County’s enactments exceeded either: (1) the scope of authority the General Assembly has provided for the local regulation of firearms or (2) the County’s authority under the Constitution of Maryland to enact local laws.

The circuit court agreed with the challengers that Chapter 57, as amended, is preempted by state law, is not a local law and effects an unconstitutional taking in violation of the Constitution of Maryland. The court granted the challengers declaratory and injunctive relief. The Appellate Court of Maryland remanded for further explanation and analysis of the preemption and takings claims.

LAW: The County argues that the circuit court erred by ruling on the validity of §§ 57-10 and 57-11(d), neither of which were altered by the amendments or mentioned in the complaint. The court agrees in part.

The operative complaint did not raise any issue or seek any relief concerning § 57-10. Instead, the challengers first raised a challenge to that provision in their cross-motion for summary judgment and in their associated 103-page memorandum in support thereof. When they did so, the County properly objected. Had the challengers wanted to pursue a challenge to § 57-10 at that point, they should have sought leave to amend their complaint. They did not do so. Under those circumstances, the court erred in granting relief concerning that section.

Unlike with § 57-10, however, when the challengers raised § 57-11(d) in their cross-motion for summary judgment, the County did not object. Accordingly, the County did not preserve its appellate argument that the court should not have addressed § 57-11(d) at all.

Turning to the merits, Criminal Law § 4-209(b)(1) has not been abrogated. It authorizes local regulation of firearms, as relevant here, with respect to minors and within 100 yards of or in a park, church, school, public building and other place of public assembly.

Thus the County’s regulation of firearms in or within 100 yards of a place of public assembly is authorized by Criminal Law § 4-209(b)(1)(iii) to the extent it extends to a park, place of worship, school, library, recreational facility, multipurpose exhibition facility, polling place, courthouse and legislative assembly. The County’s regulation is not authorized by § 4-209(b)(1)(iii) — and therefore is preempted by § 4-209(a) — to the extent it includes a hospital, community health center, long-term facility, childcare facility, other government building (as defined) or gathering of individuals without regard to the place they are gathering.

Next, regarding § 57-7 of the County Code, which regulates access to firearms by minors, the County exceeded its authority in adopting § 57-7(d), which prohibits a broad swath of otherwise lawful (and constitutionally protected) conduct by adults merely because it occurs in the presence of a minor, without any apparent connection to whether that activity might result in minors gaining unsupervised access to those firearms. The remainder of § 57-7 is authorized by § 4-209(b)(1)(i) and is severable from § 57-7(d). The court also holds that the provisions of Chapter 57 that are authorized by § 4-209(b)(1) are not preempted by implied field preemption.

The court next holds that the definition of “ghost guns” in § 57-1 conflicts with state law to the extent it includes firearms that have been serialized in compliance with federal and state law. Accordingly, the provisions of §§ 57-7 and 57-11(a) addressing ghost guns are preempted to the extent they purport to apply to firearms that have been serialized by firearms dealers in compliance with federal and State law. Otherwise, §§ 57-7 and 57-11(a), (b), and (d) are not preempted by conflict with state law. The court also hold that § 57-11(a), as amended, is not a local law because of its application to holders of state-issued wear-and-carry permits traveling on public highways who cross within 100 yards of a place of public assembly.

Finally, the amendments to Chapter 57 of the County Code did not effect a taking in violation of the Constitution of Maryland.

Judgment of the Appellate Court of Maryland vacated.

Tort; duty

BOTTOM LINE: Where a woman brought a strict liability design defect claim, seeking damages for mesothelioma and lung cancer caused by exposure to asbestos from dust brought home on her former husband’s work clothes, the court held that, to prove a strict liability design defect claim in an asbestos case, a person in her position need not prove the additional element of duty.

CASE: Quinn v. General Electric Company, Misc. No. 2, Sept. Term, 2025 (filed April 27, 2026) (Justices Fader, WATTS, Booth, Biran, Eaves, Killough, Raker).

FACTS: The wife of a deceased worker brought a products liability action, with a strict liability for design defect claim, against her husband’s former employer and various other defendants, including General Electric Company, seeking damages for mesothelioma and lung cancer caused by exposure to asbestos from dust brought home on her former husband’s work clothes. The trial court granted General Electric’s motion for summary judgment.

The District of Columbia Court of Appeals vacated the trial court’s grant of summary judgment and remanded the case for further proceedings. On remand, the trial court again granted summary judgment in General Electric’s favor as to the strict liability design defect claim, and the plaintiff appealed. After briefing and oral argument, the Court of Appeals certified a question of law to this court.

This court has reformulated the question as follows: “Under Maryland law, in a strict liability design defect claim, must a person in the position of the decedent, Mrs. Allen—a household member of a “consumer” or “user” as the terms are defined in Valk Mfg. Co. v. Rangaswamy, 74 Md. App. 304 (1988), rev’d on other grounds sub nom., Montgomery Cnty. v. Valk Mfg. Co., 317 Md. 185 (1989), who alleges injury based on exposure to asbestos dust brought home on the work clothing of the consumer or user—prove an additional element, the element of duty, beyond the four “essential elements of an action in strict liability [as] set forth in [the Restatement (Second) of Torts §] 402A” to recover, and if so, what factors are used to determine whether a duty is owed?

LAW: In response to the reformulated question, this court concludes that, to prove a strict liability design defect claim in an asbestos case, a person in the position of Mrs. Allen need not prove the additional element of duty, which is an element generally associated with proof of negligence and failure to warn claims, and an element that exceeds those of a claim for strict liability design defect that this court adopted in Phipps v. Gen. Motors Corp., 278 Md. 337 (1976).

This conclusion is derived directly from this court’s holding in Phipps, that demonstrating the existence of a defect in a product at the time it leaves the seller’s control indicates fault on the seller’s part that justifies imposing liability for injuries caused by the product, and the Appellate Court’s holding in Valk that persons who are not users or consumers of products are protected under the doctrine of strict liability. Based on this court’s analysis in Phipps and approval of the Appellate Court’s holding in Valk, in this court’s view, extending the requirement of proof of duty, which is a necessary element of proof for all claimants in negligence and strict liability failure to warn claims, to be a requisite element of proof for a person in Mrs. Allen’s position in a strict liability design defect claim is not warranted.

This court’s holding in Phipps and the Appellate Court’s holding in Valk applied traditional principles of foreseeability to strict liability design defect claims, where a manufacturer introduces an unreasonably dangerous product into the stream of commerce. In the case of a “consumer” or “user,” where it is reasonably foreseeable that they will come into contact with the product, a seller is subject to liability for harm caused to them if the consumer or user satisfies the elements of a strict liability design defect claim as adopted by this court in Phipps.

It is unnecessary to establish duty as a separate element of a strict liability design defect claim because the claim itself is predicated on the understanding that a manufacturer of an unreasonably dangerous product should be responsible for harm caused to those it is reasonably foreseeable will come into contact with its product.

Certified question of law answered.