THE ADVOCATE Newsletter of The Baltimore County Bar Association VOLUME XXV, NO. 11
May 2016
PRESIDENT’S MESSAGE by Hon. Vicki Ballou-Watts
Lo ok i ng Ba c k a nd Th i nk i ng A h ead ... As I approach the end of my term as President of the Baltimore County Bar Association (BCBA), I can honestly say that it has been an honor and a privilege to serve this great organization. Hindsight brings clarity and there may have been more goals we could have pursued. However, we have accomplished much and I believe the BCBA 2015-16 bar year has been a success because of the talent and commitment of our committee chairs and members, Executive Council leadership, bar staff, volunteers and partners in the community. During my installation last June, I said the BCBA was “large enough to accomplish great things for our members and the community, small enough to foster meaningful relationships and wise enough to evolve.”
So, what has the BCBA accomplished through its members and the community? We launched a new and improved website in December 2015, our total membership now exceeds 2,000 and our 25 standing committees have sponsored nearly 70 continuing legal education programs. The BCBA Lawyer Referral Information Service (LRIS) has continued to grow in participation and revenue. It serves as a resource for those seeking legal representation or assistance in various practice areas. The growth has benefitted our members, the BCBA and the community at large. Through the LRIS Committee and our LRIS Director Rachel Ruocco, we’ve also raised awareness about the program by investing in LRISthemed marketing products/
Inside This Edition Program Registrations Pg Calendar of Events Pg Civil Law Update Pg Classified Ads Pg Committee Programs Pg Criminal Law Update Pg District Court Vacancies Pg Family Law Annual Forum Family Law Mock Trial Pg Garten Honored Pg Hinkel Portrait Unveiling Pg Historical Perspectives Pg Itineris, Inc. Pg Judicial Portraits Pg Law Day Pg Lawyers Assistance Pg Leadership in Law Awards Supreme Court Admission Pg UBLaw Meet & Greet Pg
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DTI Global THE ADVOCATE
Signature Sponsor
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PRESIDENT’S MESSAGE Continued from page 1 services, promotion at community-based events and a new, user-friendly website. This year, we’ve expanded the “Lawyer in the Lobby” program in order to provide a brief but free consultation in divorce, custody and child support matters. The program continues to offer assistance for other civil, non-family law concerns on the second Tuesday of each month from 4:30 PM -6:30 PM. The practice of law is demanding, but our members have demonstrated their appreciation of the importance for pro bono service. Through the work of the BCBA Pro Bono Committee, in collaboration with our pro bono partners, members have received training and provided legal assistance at Pro Bono Clinics in Towson and Randallstown. During the Towson Pro Bono clinic last October, seventeen (17) BCBA members provided legal consultation in practice areas such as Family Law, Social Security, Collections, Bankruptcy and Landlord-Tenant matters. The Civics & Law Academy continues to be a meaningful partnership between the BCBA, the Community College of Baltimore County and Baltimore County public schools. This year, the Public Awareness Committee organized three ½ day academies at the CCBC locations in Owings Mills, Essex and Catonsville. Lawyers and judges taught high school students the importance of civic involvement. However, our faculty also learned from the students as they discussed topics such as Due Process, the First Amendment, law in the cyber age, voting rights and other responsibilities. Our annual Law Day activities featured two distinguished speakers –Judge Andre M. Davis and Judge Robert M. Bell during the noon and breakfast programs, respectively. Students were recognized for their accomplishments in the Mock Trial competition. Awards were given for essays and posters based upon the theme of Miranda, More Than Words, too. During the Noon Ceremony, the money raised from “Wines Around the World” and THE ADVOCATE
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the Young Lawyers Bull and Oyster Roast was formally donated to Itineris, Inc., the BCBAdesignated charity for 2015-16. The selection of Itineris also helped raise awareness about the challenges faced by those within the Autism Spectrum once they reach age 21. BCBA’s evolution in social media, The Advocate, transparency and outreach continues. Promoting our social media platforms has been a priority this bar year because the world has changed the way we access information. Like other bar associations, our membership consists of three different age groups – the Baby Boomers, Generation X’rs and Millenials. Gone are the days when most gather news through network television and print media. Now, information is available in 24-hour cycles. Today, many rely on their “timelines” for the latest news and information. In order to be where our members (and nonmembers) are, the BCBA raised its profile on Facebook with more photographs and more frequent posts of bar activities, member accomplishments and news of interest. We also reactivated our Twitter account and added Instagram. For 2015-16, we were able to offer a print version of the September and March issues of The Advocate, thanks to our generous sponsors. We streamlined the delivery of the monthly digital version and added a re-occurring column on technology and software for the practicing attorney. We regularly published the Bench/Bar Committee’s monthly report to keep members informed. And, Jeff Scholnick contributed an informative column about the early years of the BCBA.
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May 2016
C ALENDAR
2015-16 Officers President Pres-Elect Secretary Treasurer
Hon. Vicki Ballou-Watts Robert J. Thompson Adam T. Sampson Rebecca A. Fleming
OF
E VENTS
Program/Event Registration Form can be found on page 41 Individual flyers can be found with the online registration for each program on the website calendar.
Executive Council Hon. Keith R. Truffer Michael W. Siri Jay D. Miller Stanford G. Gann Jr. John G. Turnbull III Lisa Y. Settles T. Wray McCurdy, Immediate Past President Alexander C. Steeves, YL
Chair
The Advocate Laurie Wasserman, Committee Chair Doris D. Barnes Thomas S. Basham Associate Editors
Contributing Writers C. Theresa Beck Thomas H. Bostwick Catherine A. Dickinson Sondra M. Douglas Bruce E. Friedman Robert C. Lidston Gary Miles Margaret M. McKee Cecilia B. Paizs Jeffrey R. Scholnick Lisa Y. Settles Keith R. Truffer Laurie Wasserman Catherine F. Woods Matthew I. Wyman
May 2016 2 2 3 4 5 7 10 11 12 19 25 26 30
Law Day Breakfast, 7:30 a.m., The Raddison North, Timonium Law Day Noon Ceremonies, 12 p.m., Ceremonial Courtroom No. 5 Family Law Town Hall Meeting, 8 a.m., Circuit Court Courtroom 12 CLE Magical Mystery Tour, 12 p.m., Mezzanine 08 Family Law Forum, 5 p.m., Circuit Court Courtroom TBD Pro Bono Day, 9 a.m.-12 p.m., Randallstown Public Library Executive Council Meeting, 8 a.m., Judicial Conference Room 363 Lawyer in the Lobby, Free Walk-in Clinic, 4:30-6:30 p.m. Bench/Bar Committee Meeting, 8 a.m., 4th Floor Judicial Conference Room Technology: Is this thing on? Ethical problems & technology, 5 p.m., GJR Committee Chair “Best Practices” Workshop, 5 p.m., Mezzanine 08 SLLZ: A View from The Hill w/Congressman Dutch Ruppersberger, 5:30 p.m., Country Club of Maryland COURTS and BAR OFFICE CLOSED, in observance of Memorial Day
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Annual Golf Outing, 12 p.m. Lunch, 1 p.m. Shotgun Start, Rocky Point Golf Course. Beginners’ Clinic will start at 2 p.m. & finish w/dinner 6 E&T: Legislative Update, 5 p.m., County Courts Building 8 Criminal Law Program, 5 p.m., County Courts Building 15 MSBA Annual Conference, Ocean City, Maryland, Clarion Resort - 18 Joint Meeting with members of the Maryland Judiciary 23 BCBA Annual Stated Meeting & Reception, 4:30 p.m., Ceremonial Courtroom No. 5, Reception immediately following at Towson Tavern
The Advocate is a monthly publication of the Baltimore County Bar Association informing its members about current events relating to law. Articles do not necessarily reflect the official position of the BCBA and publication does not constitute an endorsement of views expressed.
Do you need A/V equipment for a trial? The Bar Office can help you! We have a 70 inch TV available with a DVD player, or you can hook up your laptop for a presentation. BCBA members get the first day of rental free. Contact us at 410-0337-9103 to make a reservation.
The contents of advertisements are the responsibility of the advertisers and are not recommendations or endorsements by The Advocate. Publication deadline: 5th of the month preceding publication.
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May 2016
ANNOUNCEMENT Trial Courts Judicial Nominating Commission for Commission District 3 District Court for Baltimore County
Gerard J. Gaeng Rosenberg Martin Greenberg LLP Jill Green University of Baltimore School of Law Lawrence Greenberg Greenberg Law Office Matthew G. Hjortsberg Bowie & Jensen LLC Kelly Hughes Iverson Goodell DeVries Jay D. Miller Law Offices of Peter G. Angelos PC Hon. Doug Nazarian Court of Special Appeals of Maryland Lawrence E. Schmidt Smith, Gildea & Schmidt LLC Jane Frankel Sims Law Office of Jane Frankel Sims LLC Adam M. Spence Spence | Brierley P.C. Ferrier R. Stillman Tydings & Rosenberg LLP
Due to the retirement of the Honorable Barbara R. Jung on May 1, 2016, and the upcoming retirement of the Honorable Alexandra N. Williams on August 1, 2016, two vacancies will exist on the District Court for Baltimore County. These vacancies are to be filled by appointment of Governor Hogan. Any lawyer interested in appointment to these vacancies should complete the personal data questionnaire which is available as a downloadable document on the Judiciary’s website at www.mdcourts.gov. Any applicant who reapplies to a commission with whom they have filed a personal data questionnaire within the past twenty-four months need not file a new questionnaire. The candidate may submit a letter stating that he or she is reapplying and submit any changes that have occurred since the submission of the earlier questionnaire. Any questions about the application process should be directed to Debra L. Kaminski or Connie Winkel at the Administrative Office of the Courts at (410) 260-1271, (410) 260-1275 or Maryland Relay Service (TTY/Voice) 1-800-735-2258.
Generation J.D. Award Michelle Daugherty Siri The Women’s Law Center of Maryland
The completed personal data questionnaire and two writing samples (at least 17 copies— see questionnaire as to additional copies) must be received by Debra L. Kaminski or Connie Winkel in the Administrative Office of the Courts, Human Resources Department, Maryland Judicial Center, 580 Taylor Avenue, Building A, First Floor, Annapolis, Maryland, 21401, by the close of business at 4:30 p.m. on Thursday, June 9, 2016. Late applications will not be accepted. Please note our new address. THE ADVOCATE
Congratulations to BCBA Executive Council Member Jay D. Miller and all BCBA Leadership in Law Award recipients.
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PRESIDENT’S MESSAGE Continued from page 2 Strategic inclusion of the entire spectrum of lawyers, judges, bar leadership and community through The Advocate, social media and our CLE programs has been another goal this year – a goal which helps the BCBA in its outreach efforts. Through work and play, members had the opportunity to develop valuable professional and social relationships. In addition to the activities I’ve already mentioned, the BCBA has provided many opportunities for networking and/or fun. Just consider some of the events we’ve sponsored this year: BCBA Night @ Camden Yards, Bar Year Kick-Off @ The Greene Turtle, Judicial Law Clerks’ Crab Feast, Ravens Tailgate, Pro Bono Reception, Memorial & Recognition Service, Young Lawyers Holiday Luncheon, BCBA Holiday Party at Towson Tavern, Paint Night, Wines Around the World, Young Lawyers Bull & Oyster Roast, Supreme Court Admission and the upcoming BCBA Golf Tournament on June 2, 2016, along with the many activities sponsored by the Young Lawyers and Membership Committees in Towson and at area law schools.
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Of course, who can forget the Annual Bar Banquet at the Wyndham Grand in Hunt Valley? The “prom” as it is called, was “sold out,” Drake Zaharris received the J. Earl Plumhoff Professionalism Award and the Honorable Kurt L. Schmoke served as our keynote speaker. The bar presidency has been a labor of love. I want to thank the members of the Executive Council for their advice and support throughout the year. I also appreciate the great work of the BCBA bar staff – Rachel Ruocco, Maxine Morrow and especially, our multi-talented Executive Director Doris Barnes. On Thursday, June 23, 2016, the BCBA will hold its annual Stated Meeting and Robert J. Thompson will be installed as President. He will be a great president and I look forward to his leadership. Thank you for the opportunity to serve. Hon. Vicki Ballou-Watts, President, Baltimore County Bar Association May 2016
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May 2016
PORTRAIT UNVEILING OF THE HONORABLE J. WILLIAM HINKEL by Vanessa Vescio On April 14, 2016, it was a beautiful Spring day when many members of the BCBA, judges, both retired and sitting, attorneys, both public and private, court personnel, both past and present, gathered with family and friends of Judge J. William Hinkel to witness the unveiling of his judicial portrait. Commissioned and funded by the generous contributions of individual donors listed in the ceremony's program, his portrait will be added to the growing collection of judicial portraits already hanging in the Circuit Court.* The Honorable Kathleen G. Cox, presided over the order of the ceremony. She warmly welcomed everyone to this special event and acknowledged the artist of the portrait, Katherine Meredith. Private practitioner and BCBA Past President, Dominick Garcia, gave a moving invocation and in it described Judge Hinkel as God's "good and faithful servant."
The Honorable John F. Fader II, was the first of three speakers who reminded everyone of the man and the judge that the Honorable J. William Hinkel was in life. He began by introducing Judge Hinkel's family members who (with few exceptions) were able to be in attendance - his wife, Carole Hinkel; his children, Stephen and Tricia Hinkel, Laura and Thomas Bender, and Jean and Hugh Gleaves; his grandchildren, Colleen Teufel, Nadia Benbernou, Brian and Chastity Teufel; and his greatgrandchildren, Nathan Teufel and Jake Teufel. THE ADVOCATE
Judge Fader fondly remembered his "friend and ticket mate" through personal stories and observations. Judge Hinkel, born and raised in East Baltimore, a product of the City school system, notably City College and the University of Baltimore, received his law degree, summa cum laude, also from the University of Baltimore. In 1959, he started practicing law while also working as a claims adjuster. He had a political career in the House of Delegates and was appointed People’s Council to the Public Service Commission. In 1971, when the District Court of Maryland was created, Judge Hinkel was appointed to the bench and became the first Administrative Judge for Baltimore County. Then, when the legislature created two new judgeships in 1981, he and Judge Fader were both appointed to the Circuit Court for Baltimore County by Governor Harry Hughes. Upon his death in July of 2009, Judge Fader noted that many people were quoted in the Sun Paper giving Judge Hinkel "the great tribute he so deserved." He was "a man of deep religious convictions and integrity," Judge Fader
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PORTRAIT UNVEILING OF THE HONORABLE J. WILLIAM HINKEL Continued from page 6
said pointedly. He concluded his remarks by describing Judge Hinkel as devoted to the law and the system of justice, stating, "his professionalism, competence and great integrity was a constant inspiration to all who knew him." The Honorable Steven D. Wyman next spoke about being a practicing lawyer before Judge Hinkel and becoming his friend with a shared interest in golf. Judge Wyman recounted that he had a death penalty case before Judge Hinkel with a fellow practitioner and the night before the sentencing phase of the case, they agonized over whether to choose a judge or jury to decide their client's fate. They knew of Judge Hinkel's reputation of being fair but also very firm in sentencing. They chose Judge Hinkel instead of a jury, and in doing so, made the right decision as Judge Hinkel spared the man's life which proved fortuitous years later when further evidence was revealed in the case. Judge Wyman also told some personal stories related to his relationship with Judge Hinkel, and Judge Hinkel's passion for golf. They often played together and travelled with others in a small group which included Judge Bollinger. Judge Wyman, remembered that it was on the last one of those trips, while driving home together, that Judge Hinkel told him he would not be joining their golfing party next year as he was diagnosed with cancer and did not expect to survive the year. Judge Wyman related he was both shocked and greatly saddened by the news and became very emotional in the car at the time. Judge Wyman concluded his tribute by describing Judge Hinkel as "just an incredible, incredible man." The Honorable Thomas J. Bollinger was the final speaker who reflected on "Bill," his friend and colleague. Judge Bollinger was emphatic when he said that Judge Hinkel was "the most noted person to go to for advice" and "what Bill said everyone respected." He recalled meeting Judge Hinkel in 1990 at his own investiture. He had not met Judge Hinkel prior to that and was very appreciative when Judge Hinkel told him about making his own cassette tape recording of the investiture to have as a keepsake. Judge Bollinger noted that he enjoyed
being able to listen to it later and that he still has it to this day. Although, he said it is now difficult to play as tape recorders are hard to find! It may have been a little known fact to most of us that Judge Hinkel was a boxer in his youth. And according to Judge Bollinger, a pretty good one at that. He remembered hearing the story that once when Judge Hinkel was
in a boxing match he became well-known for throwing a punch that missed his opponent but knocked out the referee. What was laudable was the fact that this particular referee was famous for never having been knocked out during his career. Thus, Judge Hinkel became famous for "knocking down the referee that never got knocked down." Judge Bollinger concluded his remarks by saying, "We sure enjoyed Bill Hinkel for a long time." The ceremony ended with the Honorable Nancy M. Purpura responding on behalf of the Circuit Court for Baltimore County. Judge Purpura, as a public defender and private practitioner tried many cases before Judge Hinkel. She found him to be very Continued on page 8
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PORTRAIT UNVEILING OF THE HONORABLE J. WILLIAM HINKEL Continued from page 7 intelligent, "knew the law," and was extremely ethical. She then recounted her favorite memory of Judge Hinkel. She had stopped by his courtroom to lend moral support to a colleague who was representing a particularly difficult client in a jury trial. The client had been warned and then removed from the courtroom because of his disruptive behavior. Shortly thereafter, there was a loud bang coming from the lock -up and then the sound of running footsteps. Before
And a most striking and stunning likeness of Judge Hinkel was revealed! After court adjourned, I had the pleasure of speaking with Judge Hinkel’s former court clerk of eight years, Mr. Bill Hill, who was also in attendance. Mr. Hill said, "Judge Hinkel gave meaning to the word honorable and I am honored to have had the pleasure of serving as his clerk because of his fairness and demeanor on the bench."
and while this escape and ensuing apprehension was occurring, there was a witness on the stand. Judge Hinkel calmly instructed everyone to continue and the trial proceeded. The defendant was quickly apprehended, (not even making it to the public area of the floor) and thanks to Judge Hinkel, without disruption or delay to his trial. Judge Purpura said she came to fully appreciate Judge Hinkel's skills as a judge after becoming a judge herself and called him a "master at maintaining his composure." She ended her remarks with, "I am so happy to see him honored in this way because he so richly deserves it.� The portrait was then unveiled by his family members. Continued on page 9
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PORTRAIT UNVEILING OF THE HONORABLE J. WILLIAM HINKEL Continued from page 8
*The Baltimore County Bar Foundation continues to collect funds for this, and other judicial portraits, currently including Judges Brannan, Jacobson and Jenifer. All judicial portraits are privately funded through individual donations. Please contact the Bar Office if you would like to contribute. Your support is needed and appreciated. THE ADVOCATE
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May 2016
LAW DAY: MIRANDA, MORE THAN WORDS by Adam Konstas
The Baltimore County Bar Association was honored to have the Honorable Robert M. Bell, Retired Chief Judge of the Maryland Court of Appeals, as its guest speaker for the Law Day Breakfast Program on Monday, May 2, 2016 at the Radisson North Baltimore Hotel. Judge Bell was introduced by the Honorable Vicki Ballou-Watts, President of the Baltimore County Bar Association, who highlighted Judge Bell’s efforts to modernize the Maryland Court System and increase public awareness of the judicial system. Judge Bell spoke to the crowd of nearly 100 attorneys who attended the Breakfast Program about the history of the judicial system and the importance of public perception and reality regarding the judicial system’s role in protecting civil rights and freedoms.
that lawyers are on the front lines of protecting the rule of law, and should engage in educational outreach to the citizens to instill public trust and to inform the citizens about our judicial system. Judge Bell also called upon the audience to help the public so that our most “quiet” branch of government is understood by the citizens that rely upon it to seek justice and equality. The Baltimore County Bar Association’s Law Day festivities continued at the Ceremonial Courtroom for the Noon Day Ceremony, where a string quartet from Towson High School greeted guests with a warm melody as they entered the courtroom on an unseasonably cool May afternoon. The Ceremony featured the Honorable Andre M. Davis, United States Court of Appeals for the Fourth Circuit, as the keynote speaker. In the educational spirit of law day and with a crowd of attorneys, students, parents, and guests on hand, Judge Davis offered his insights and commentary about his three favorite Miranda cases: Oregon v. Elstad, 470 U.S. 298 (1985), Dickerson v. United States, 530 U.S. 428 (2000), and United States v. Jamison, 509 F.3d 623
Judge Bell opined that a strong and independent judiciary, which is integral to our orderly system of government, relies on the trust and confidence of the citizens – the public perception that the judicial system preserves our democracy by promoting justice. To make that perception a reality, Judge Bell called upon attorneys to not only diligently advocate for their clients and frame the relevant legal issues of their cases for the judges, but to engage and inform the citizens about our legal system. Judge Bell stated THE ADVOCATE
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LAW DAY: MIRANDA, MORE THAN WORDS Continued from page 10
(4th Cir. 2007). Judge Davis pointed out to the many future lawyers in the room from area elementary, middle and high schools that when the U.S. Supreme Court makes a decision, it often results in more questions than it answers, and that “reasonable people can disagree,” even in cases involving Miranda.
The Franklin High School Mock Trial (see photo on page 40 of this issue) team and coaches Patricia Lambert, Esq., Christopher Lambert, and Ian Reid were recognized for their achievement of first place for the Third Judicial Circuit in this year’s competition. The first, second and third place winners of the Law Day Essay Contest were also recognized and the first place winner, Felicia Zvagersky of Towson High School, presented her winning essay, which highlighted the importance of Miranda to protect liberty and guarantee that citizens are aware of their rights. The railings of the gallery in the Ceremonial Courtroom were adorned with the winning pieces in the Law Day Art Contest, which featured works of art from several area elementary and middle schools. Finally, BCBA President Hon. Vicki Ballou-Watts, along with Julie E. Landau and Alexander C. Steeves presented a charitable donation to Carrie Hubbard, Director of Clinical Services for Itineris, Inc., this year’s BCBA sponsored charitable organization.
The Noon Day Ceremony also featured the presentation of the Judith P. Ritchey Award to Myles F. Friedman, Esq., and the Law Day Award to Debra G. Schubert, Esq.
The BCBA and the Law Day Committee thanks all those who contributed to making this year’s Law Day a success!
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LAW DAY: MIRANDA, MORE THAN WORDS Continued from page 11
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May 2016
MSBA SENIOR LAWYERS HONOR HERBERT S. GARTEN, ESQUIRE by Hon. Barbara K. Howe
On May 1, 2016, the Senior Lawyers Section of the Maryland State Bar Association presented the “2016 Senior Lawyer of the Year” to Herbert S. Garten at Liberatore’s Restaurant in Timonium. A lively group (given the age of most of the attendees!) was present.
Rob Ross Hendrickson presented a most unusual kind of award. Instead of the usual plaque, Mr. Garten was given a framed print of Marilyn Monroe holding a tennis racquet. Herb has a collection of memorabilia of Marilyn Monroe so the gift was most appropriate.
Barbara Kerr Howe introduced Herb by pointing out some of the accomplishments of Mr. Garten’s illustrious career. He has been married to his wife, Sue, for 66 years and they have raised five children. Herb was admitted to the Bar in 1952. His practice involves estates, trusts, tax, real estate and business law as well as other areas. He has been active and held leadership positions in the American Bar Association, is a past president of the Maryland State Bar Association and formed the People’s Pro Bono Action Center, now known as the Pro Bono Resource Center of Maryland, Inc. He was the founding editor the Maryland Lawyers Manual, a volume that many of us use on a daily basis. Herb has had an intense interest in assuring that legal services are available to everyone and to that end he served on the Board of Directors of the Legal Services Corporation, having been appointed to that position by President George Bush. He has been chair of the public education committee of the MD Access to Justice Commission and is recognized in the nation as a leader in encouraging lawyers to perform voluntary work on a pro bono basis in providing civil legal services for the poor. Anyone who can call Herbert S. Garten a friend is indeed a very fortunate person. His boundless energy, his intelligence, his passion and intense desire to help others, his love of his family, his modesty and above all else, his love of the law and his profession makes him extremely well qualified to have received this Award. On behalf of President Hon. Vicki Ballou-Watts, Members of the BCBA Executive Council, and Members of the BCBA, a heartfelt congratulations to a well-deserving recipient on an award that is long overdue and truly honors Mr. Garten’s lifetime accomplishments.
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SUPREME COURT GROUP ADMISSION
C
ongratulations to the BCBA Supreme Court Group Admission Class of 2016. And, thank you to Congressman C.A. "Dutch" Ruppersberger who moved for the admission of our group. The new Supreme Court admitees are: Hon. Sherrie R. Bailey, Nicole M. Deford, Maria DeLacy, Hon. Judith C. Ensor, J.R. Francomano, III, April Hitzelberger, Jerome Lamdin, Donna Mandl, Mary Roby Sanders, Ralph Sapia and Magistrate Wendy Zerwitz Schenker. The breakfast with Congressman Ruppersberger, admission ceremony, opportunity to observe two oral arguments before the Supreme Court and tour of the U.S. Capitol took place on Tuesday, April 26, 2016. Mathis v. United States, 15-6092 Must a predicate prior conviction under the Armed Career Criminal Act, 18 U.S.C. § 924(e)(1), qualify as such under the elements of the offense simpliciter, without extending the modified categorical approach to separate statutory definitional provisions that merely establish the means by which referenced elements may be satisfied rather than stating alternative elements or versions of the offense? Dietz v. Bouldin , 15-458 After a judge has discharged a jury from service in a case and the jurors have left the judge’s presence, may the judge recall the jurors for further service in the same case?
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SUPREME COURT GROUP ADMISSION
And, because we all love dogs … Baron, of the K9 Capitol Police.
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FAMILY LAW 101: A MOCK TRIAL by Ari J. Kodeck
“ALL RISE, THE CIRCUIT COURT FOR BALTIMORE COUNTY IS NOW IN SESSION, THE HONORABLE COLLEEN CAVANAUGH PRESIDING.”
witness within the uncontested divorce. In this scenario, Ms. Thomas and Ms. Douglas walked through testimony in which the witness did not know the plaintiff for a long period of time and did not attend the wedding. Ms. Thomas suggested
Notwithstanding this was a continuing education mock trial on the nuts and bolts of trying a divorce case, hearing those words had the audience sitting to attention. The audience comprised of lawyers from the Alliance of Black Women Attorneys and the Baltimore County Bar Association. President Hon. Ballou-Watts’ opening comments noted that this is the first time the two organizations collaborated on a program. The moderators, consisting of Debra Thomas, Esquire, Sondra Douglas, Esquire and Hasson Barnes, Esquire undertook a ‘mini mock trial’ in an effort to touch on several important aspects of trying a divorce case. It began with Ms. Thomas “representing” Ms. Douglas for an uncontested divorce. Both attorneys walked through the questions, answers, and, sometimes, unexpected answers of witnesses. Although the majority of uncontested divorces proceed without incident, Ms. Thomas and Ms. Douglas highlighted a common pitfall when questioning the party witness and the corroborating witness. After Ms. Douglas asked the ‘plaintiff’ about sexual relations with the husband during the separation, she received a surprising response from the plaintiff. At this point, the ‘trial’ was paused to allow for a teaching point. Ms. Thomas and Ms. Douglas stressed the fact that an attorney must come to trial prepared, and know their client’s background and potential pitfalls.
that to be prepared for an answer like this, the attorney should have a copy of the marriage license which is conclusive proof of marriage. Judge Cavanaugh graciously added additional tips from her view from the bench throughout this presentation. The final scenario involved a represented party in a custody action with the other party acting pro se. Mr. Barnes played a very convincing pro se father seeking joint custody. Together, Mr. Barnes, Ms. Thomas and Ms. Douglas walked through the pitfalls of difficulties of eliciting testimony from the pro se party with regards to income, child care, and living arrangements. An important point brought out in the testimony, if the attorney did not subpoena W-2 or 1099 records, it becomes necessary to elicit the testimony from the pro se party. If the attorney neglects to do this, the court will not be able to evaluate support guidelines utilizing the pro se party’s income. They suggested
Ms. Thomas and Ms. Douglas switched rolls and worked through examining the corroborating Continued on page 17
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FAMILY LAW 101: A MOCK TRIAL Continued from page 16
utilizing subpoenas to obtain information for aiding in support guidelines. The underlying theme the presenters hammered home: the attorney must be prepared for all necessary contingencies, even with uncontested divorces and pro se parties. The court recessed for the day and the presenters fielded questions and comments. This presentation and the documents provided to the attendees are made available online at the Baltimore County Bar Association’s website at http://www.bcba.org/ family-law-committee/. This was a terrific collaboration and this attendee is excited for future collaborations!
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HISTORICAL PERSPECTIVES: WHO WAS THE FIRST ELECTED JUDGE IN BALTIMORE COUNTY? by Jeffrey R. Scholnick MEET THE JUDGE WHO WAS ALSO A CONSTABLE. In 1851, the Maryland Constitutional Reform Convention passed a new Constitution that provided for significant changes in the State Judiciary. (See “The Maryland Constitutional of 1851," by James Warner Harry, The Johns Hopkins Press, 1902. Also available on Google Books). For the first time, Judges were to be elected for a specific period of time and not merely appointed for life. (Sun, “The New Constitution,” May 15, 1851). Furthermore, the State was divided into eight judicial districts. The Sixth District at the time included Harford, Cecil and Baltimore counties. The first election based on the New Constitution was held in November, 1851. According to the Baltimore Sun article on November 8, 1851, entitled “Judges Elected,” one Judge was elected at that time for the new Sixth District, including Baltimore County. His name was Albert Constable. So, who was Albert Constable? He was a respected trial lawyer. The Sun reported on a number of criminal cases in which he represented defendants charged with murder and kidnapping (Sun, 4/20/1850, 12/21/50). Judge Constable was also a force in the Maryland Democratic Party. He served with distinction in the United States House as a Congressman from 1845- 1847. (Sun, “TwentyNinth Congress,” December 2, 1845). Prior to that, he had served in the Maryland Legislature (Sun, “Death of Honorable Judge Constable,” August 24, 1855). In March, 1847, he was considered for THE ADVOCATE
Governor by the Democratic Party (Sun, “Gubernatorial Candidates,” March 27, 1847). He later declined the nomination (Sun, August 9, 1847). Judge Constable was chosen to represent Cecil County at the 1851 Constitutional Reform Convention, where his legislative and legal experience was instrumental (Sun, “Maryland Reform Convention,” February 14, 1851). John Thomas Scharf, author of the seminal book, “The History of Baltimore City and County,” J.B. Lippincott & Co (1881), described Judge Constable this way: He was “one of the men who have made the deepest sort of impression upon the Baltimore County bar. [He ]… was a man of remarkable brilliancy, and of almost meteoric success. He studied his profession with intense ardor and application, and when he came to the bar of Cecil County leaped at once to success as one who mounts a galloping steed. In Congress his career was that of a man of mark and distinction from the very first, and on the bench he proved himself at once to be one of the ablest and most conscientious of judges.” Judge Constable also had the distinct honor of laying the corner stone at the ceremony in 1854 to begin construction of the Old Courthouse that still stands today. The Sun reported that, before Judge Constable laid that first stone, he told the crowd: “It
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HISTORICAL PERSPECTIVES: WHO WAS THE FIRST ELECTED JUDGE IN BALTIMORE COUNTY? Continued from page 18 might be appropriate, before announcing that this stone has been laid, to express a single wish, that when this building shall have been completed and occupied for the administration of justice, whoever may preside in the courts, shall administer just with an impartiality and firmness, so as to illustrate and confirm the beautiful sentiment as to the law—‘that its seat is the bosom of G-d, and its voice the harmony of the world’ ” (Sun, “Inauguration of the County Seat of Baltimore County, at Towsontown,” October 20, 1854). Regrettably, Judge Constable only served for four years, dying in 1855 at the age of 50 (Sun, “Death of Honorable Judge Constable,” August 24, 1855.) Judge Constable also was the forebear of a long line of distinguished lawyers and judges. His son was a Judge on the Eastern Shore and his grandson, Albert III, served on the Court of Appeals of Maryland. (see Wright, Constable & Skeen, L.L.P. website- http://www.wcslaw.com/ about/the-constables/
Thank you to both the Cecil County Historical Society, www.cecilhistory.org and James W. Constable for their input into this article.
I spoke to Judge Constable’s descendant, James W. Constable, a partner at Wright, Constable. He spoke with great pride of his family’s contribution to the legal community, especially the first Judge Constable. James informed me that portraits of Judge Albert Constable adorn the Cecil County Circuit House. So, I contacted the Cecil County Historical Society and asked them to send me a photo of Judge Constable for this article. They kindly emailed me the copy of the portrait that accompanies this article. It is a portrait of the Judge in his younger years. Although the portrait is quite old, I believe that it captures the intensity and vitality described in the Sun article above. While I was on the telephone with James Constable, he read the back of a portrait of the first Judge Constable that sits in his office. I am sure that Judge Constable would be elated to know that, more than 165 years after his death, his picture and memory are within arms’ reach of a descendant who has continued his legal legacy.
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May 2016
COURT REPORTER SERVICES: MORE THAN DEPOSITIONS by Kristine K. Howanski
On Tuesday, March 8, 2016, members of the Small and Solo Firm Committee were treated to a delicious lunch and informative presentation in the Grand Jury room of the County Courts Building, courtesy of Monica Sienkiewicz, depo@irwinreporting.com, new owner of, as well as a court reporter for, Irwin Reporting & Video, 301 West Pennsylvania Avenue, Towson, MD 21204 (410) 494-1880. The meeting was well-attended and worth the while. After getting us into office space in our first lunch, and covering potential means of bringing money in the door in our second lunch, this meeting provided members with information on the myriad of services offered by this court reporting service, beyond even the traditional taking of depositions. After Monica presented an overview of her firm and what it offers, attendees were treated to a demonstration by her videographer, Lisa Bauer, who opened people’s eyes to the expanded potential of videos as well as the new links that can be provided to make the information contained therein both more accessible as well as more synchronized with other data. Ms. Bauer brought a wealth of knowledge and experience and it was clear that she enjoys what she does and is interested in understanding your needs so she can truly supply you with the best product fit. She explained the importance of knowing what attorneys want to do with the video to help identify the appropriate format, i.e., DVD or online upload, Apple or PC, etc. Both women offer the ability to hyperlink deposition exhibits with the transcript and/or video. Lisa Bauer also indicated that she is willing to meet with attorneys at their offices to show them how to use the videos, how to present them in court, how to tag and isolate portions and so forth. They also indicated that they offer payment by pay pal, and are in the process of accepting credit cards.
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May 2016
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May 2016
MEET, GREET & SCOTCH! by Maxine M. Morrow
On March 23, 2016 the Membership Committee hosted the first ever Scotch Tasting at University of Baltimore School of Law. It was held in the outside patio of the Angelos Law Center between the day and evening classes and the weather was beautiful. The food was catered by Mission BBQ; Scotch included a Bunnahabhain Single Malt 12 Year, a Tobermory Single Malt 10 Year, and a Deanston Single Unfiltered 12 year. The relaxed atmosphere of scotch and barbeque attracted approximately 70 students and allowed them to get acquainted with members as well as learn about the Bar Association. Students that are currently active in the BCBA used it as an opportunity to present our Executive Director, Doris Barnes, with a “Friend of Law Students Award.” Presented by Kush Patel, the award recognizes “appreciation of her support, mentorship, and tireless efforts to bridge the gap between students and legal professionals.” The Membership Committee has continued to increase Law Student Memberships through different avenues of outreach. Thank you to Membership Chair, Alaina Storie, Vice-Chair, Kevin McKay, and Dean Jill Green for their efforts in making this event a memorable one!
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May 2016
MEET, GREET & SCOTCH!
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May 2016
FAMILY LAW ANNUAL FORUM: CASE LAW & GENERAL ASSEMBLY UPDATE by Toni S. Boettcher The Family Law Committee gathered on May 4th for the Annual Forum: Case Law & General Assembly Update, presented by Richard B. Jacobs, Esquire and Magistrate Richard J. Gilbert. This event is always well attended, and this year was no exception. Included in the audience were Magistrate’s Theresa Beck and Wendy Schenker. As we have come to expect, Mr. Jacobs and Magistrate Gilbert provided an informative and entertaining review of Maryland’s case law and legislative updates from the previous year. Mr. Jacobs explained that it was not a particularly active year for family law cases in the appellate court, and the majority of the cases that were heard were child related. A summary of some of the cases about which Mr. Jacobs spoke follows. Two custody cases have been granted certiorari in the Court of Special Appeals. In Sieglein v. Schmidt, 224 Md. App. 222 (2015), the Court found that a child conceived via artificial insemination with the consent of both parties is a child of the marriage and both spouses have legal parentage. Conover v. Conover, 224 Md. App. 366 (2015) involved a same-sex couple custody issue of a child born during the marriage. The Court held that a non-biological, nonadoptive spouse is a third party for child access purposes. Mr. Jacobs opined that these two cases illustrate the courts catching up with societal changes. In Friedetsky v. HSIA, 223 Md. App. 723 (2015), a paternity matter, the Court held that Appellee, the nonresident putative father, in responding to a custody proceeding under the UCCJEA and affirmatively requesting genetic testing and initiating discovery relating to matters of paternity and child support and attorney’s fees, waived the limited immunity otherwise afforded in a custody proceeding. In Davis v. Wicomico County Bureau of Child Support Enforcement, No. 46, September Term, 2015, the Court denied Father, who had executed an Affidavit of Parentage, his request to have a paternity test. Kelly v. Montgomery County Office of Child Support Enforcement, 227 Md. App. 106 (2016), dealt with the issue of asset attachment to satisfy a child support THE ADVOCATE
judgment. The Court held that the Md. Code Ann., Cts. & Jud. Proc. § 11-604(b)(5) exemption does not apply to unpaid child support. Wilson v. Wilson, 223 Md. App. 599 (2015) illustrates the need to be specific when drafting agreements. In that case, the Court held that, under contract law, a provision in an agreement dividing retirement benefits includes disability benefits unless they are expressly excluded. Magistrate Gilbert explained that there were approximately 2,800 bills submitted during the 90 day session, which he found amazing in a small state. Despite the number of bills submitted, relatively few related to family law passed, but several tort-related bills passed. The General Assembly did pass House Bill 117, the only bill related to judges that passed, which provides for 2 additional judges in Baltimore County. With respect to family law, one bill passed that will make our lives a bit easier. Senate Bill 359, which takes effect October 1, 2016, does away with the corroborating witness requirement. Magistrate Gilbert pondered the question of whether a spouse’s admission of adultery will be enough. Also effective October 1, 2016, Senate Bill 346 adds telephone missus, electronic communication abuse, visual surveillance, and revenge pornography to the list of offenses for which a person may seek a Peace Order. The bills that failed included House Bill 191, which would have provided a multi-family child support adjustment, and Senate Bill 1100, which would have provided for child support beyond the age of majority for secondary education. Senate Bill 962, which would have created a rebuttable presumption of joint custody and Senate Bill 1019, related to grandparent visitation, both failed. House Bill 1164, which would have prohibited a person who campaigned for a judge or contributed to a judge’s campaign from appearing before that judge for 5 years thankfully failed. Bills to modify the State song, name the State duck, and create Waterman’s Day, Farmer’s Day, and Canine Veteran’s Day all failed. There is always next year!
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May 2016
FAMILY LAW ANNUAL FORUM: CASE LAW & GENERAL ASSEMBLY UPDATE Continued from page 24 Magistrate Schenker provided us with information regarding family recovery (drug) court, which is already in place for CINA cases, and is scheduled to begin in July for custody cases. Enrollment in the program is voluntary and there are no costs related to participation. It takes about 6 months to complete the program, which includes random, witnessed urinalysis and twice monthly court appearances. Reports are generated and are sealed in the court file. One of the many benefits of the program is that it brings to litigants a level of credibility that outside programs do not have.
Sondra Douglas, chair of the family law committee, closed the last family law program for the year. Ms. Douglas enjoyed serving as chair and had a wonderful year. Thank you Ms. Douglas for a great year!
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May 2016
The BCBA-designated charity for 2015-2016
These items, and more, are available for sale by clients of Itineris, the BCBA-designated Charity for 2015-16. For more information, please contact Vincent Valerio at Itineris, vvalerio@itinerisbaltimore.org or 443-2751100. Your support is greatly appreciated.
Anniegrams are an assortment of greeting cards created by Annie Taubenfeld. Annie is a young woman with autism who enjoys brightening up other people’s days with these sweet, original Anniegrams. A pack of eight cards (and envelopes) will be available for purchase in the Bar Office.
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May 2016
BAR FOUNDATION REPORT JUDICIAL PORTRAITS by John B. Gontrum
Your help is still needed in assisting the Foundation in funding the portraits of several deceased Circuit Court Judges. The Baltimore County Bar Foundation exists as an independent charitable organization with missions to foster and maintain the honor and integrity of the profession of the law; to improve and to facilitate the administration of justice; to enhance and improve the image of lawyers; and to promote the study of the law and research therein, and the diffusion of knowledge thereof.
Protect your personal and organization’s photographs forever. Guarantee they will be in a retrievable format 10, 20, 50+ years from today. The “free” services are a gamble not worth taking, since they own your photographs, and can remove them at any time. What would you do if you logged on, only to find them all gone?! Email forever100plus@gmail.com for more information on how to protect your legacy. THE ADVOCATE
A few years ago a request was made to the Foundation to act to provide for those wishing to donate funds in order to honor deceased members of the circuit court judiciary by having their portraits made and placed in the court house. The Foundation board believed that this was an appropriate task under its charter. To date, funds have been donated in varying amounts for portraits of Judges Jenifer, Brannan, Hinkle, and Jacobson. Judge Buchanan’s portrait was fully funded by his family. Other portraits have been funded privately. Unfortunately, although each portrait costs a very reasonable $4,100, the funding has not gone as hoped, possibly because the pool of attorneys familiar with the deceased jurists has grown smaller with the passing of time. Judges Jenifer and Brannan, for example, both passed away decades ago. Consequently, the Foundation is in need of funds in order to cover the cost of completion of the portraits. A gift of any size would be appreciated, and would be tax deductible. At this point the Foundation owes $16,400 for the portraits commissioned, and less than a third of that has been received. We believe that the traditions initiated in Courtroom Five are important in establishing the continuity of the bar and the role of these individuals in the history of the county. We appreciate any consideration you might give to this appeal.
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May 2016
FAMILY LAW: CHILD SUPPORT GUIDELINES by Jennifer Mercer
On April 20, 2016, the Family Law Committee hosted an event regarding deviation from the Child Support Guidelines in the Bar Lounge of the Circuit Courthouse. Magistrate Phyllis Brown and Bonnie Butler, Esq. addressed the gathered members of the family law bar. The speakers shared several reasons why a magistrate or judge might authorize deviation from the statutory guidelines for child support. They cautioned that a separation or divorce will necessarily result in at least a slight reduction of standard of living, as the parents must support two households. That being so, magistrates and judges prefer to maintain the standard of living of the children as much as is possible. The implications of frequently-encountered scenarios such as one parent residing with the children’s grandparents and one parent’s move to a distant location were discussed as well. The evening quickly took on the character of a ques-
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tion-and-answer session, with practitioners eagerly posing questions to Magistrate Brown and Ms. Butler. Of particular interest were shared custody situations. Both presenters emphasized that Family Law Article § 12- 201(m) defines “shared custody” as each parent having physical custody of the child for at least 35% of overnights AND each parent contributing to child-related expenses in addition to the payment of support. This may include payment for clothing, extracurricular activities, and other expenses. It was emphasized to those in attendance that “shared custody” contemplates a scenario in which each parent maintains a wholly stocked household for the children. Neither parent should be sending the children to the other parent’s home with a suitcase full of clothing, for example. Should this occur, child support may be modified in order to compensate the “sending” parent. In some circumstances, a reversion to sole custody guidelines may be appropriate. Magistrate Brown and Ms. Butler also led a discussion about practical solutions when parents cannot agree on where children should attend school (whether the disagreement is over whether the children should attend public or private school, or over which private school the children should attend). The practitioners in attendance chimed in with several helpful ideas. One suggestion was that the parents should share ultimate responsibility for tuition expenses, even if tuition expenses are not split 50/50. This disincentivizes one parent from choosing private school or choosing the most expensive school merely to spite the other parent. Another option is to allow the parent with the lesser financial obligation to select several private schools but give the parent with the greater financial obligation the final decision. Depending on the circumstances, it may also be advisable to set up a trust for the purpose of paying tuition expenses. In summation, the evening was filled with helpful tips for members of the family law bar. Please join the Family Law Committee on May 18 at 5:00 at the Circuit Court for the next installment of the Family Law Evening Series.
May 2016
COMMITTEE REPORTS
Paul E. Alpert, Retired Judge Available for Mediation and Arbitration
All Committee Reports, Chair and ViceChair contact information, upcoming programs, and handouts from those programs already held this year, can be found the website at www.bcba.org.
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June 2
Golf Tournament
June 23
Stated Meeting & Reception at Towson Tavern
May 2016
The following items are needed by Itineris, this year’s BCBA-designated charity. Please feel free to drop your donations off at the Bar Office and they will be delivered. In advance, thank you for your generosity. White paper 20 sets of noise cancelling Head phones (for music and for noise control) Fitness items (Balls, medicine Balls, light weights, bands, et.) Calculators Cleaning supplies Art Supplies Batteries (All sizes) Cooking supplies (Measuring cups, Pans, pots, Baking sheets) Flour, sugar, salt, sprinkles (basic cooking supplies) Board games Extra Lap tops (2) Ipads (2) vacuum Video camera Karaoke machine Bikes/Adult tricycles Padding for resource room
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Fake register and scanner Fake food (fruit, cans , etc.) Stress balls Laminator (Industrial sized) Laminate Sheets Board Maker Velcro Index Cards Yellow Hi-liters Papermate Color Pens Large PECS Communication books Extra Sentence Strips Extra Insert Pages Small PECS Communication books Extra Insert Pages ASL computer program? Single hole puncher Index cards Magic markers Colored pencils A large paper shredder
May 2016
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May 2016
CRIMINAL LAW UPDATE by Robert C. Lidston The May Amicus features a Court of Appeals decision and two Court of Special Appeals decisions which may interest practitioners. Maryland v. Graves, No. 57, September Term 2015, filed April 22, 2016 (opinion by Hotten, J.). Graves was charged with CDS violations and just before a motions hearing, he told the trial court, through his assigned public defender, that he wanted a continuance to discharge his public defender and hire a private attorney with whom he had been pleased in the past. Maryland Rule 4-215(e) requires that when a defendant asks permission to discharge an attorney, the court "shall permit the defendant to explain the reasons for the request." In Graves’ case, when his public defender told the court about his wish for a continuance to obtain private counsel, the judge asked Graves personally whether he understood the charges against him, informed him of his potential sentences, and asked him about the steps he had taken to hire the private
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attorney. Graves answered that he had not yet hired his chosen private counsel and the judge denied his continuance motion. He was then asked if he would like to discharge his public defender and he replied that he would "keep him on." Graves was convicted of intent to distribute CDS and related charges. He appealed to the Court of Special Appeals, contending that the trial court had not complied with Maryland Rule 4-215(e) by not permitting him to explain the reasons for his request to discharge his counsel. COSA agreed with his contention and reversed the trial court’s decision. The Court of Appeals affirmed COSA’s decision. It held that the trial court’s discussion with Graves did not provide him with an opportunity to explain the reasons for his request because the judge never explored why he wanted to discharge his attorney.
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CRIMINAL LAW UPDATE Continued from page 32 The Court opined that, under Maryland Rule 4-215 (e), the trial court must either obtain the explanation for the request to discharge counsel directly from the defendant or ask the defendant if reasons proffered by his counsel were accurate. Bowling v. State, No. 1121, September Term 2015, filed March 31, 2016 (opinion by Graeff, J.). A patrol officer pulled Bowling’s vehicle over after he saw it make two illegal turns. The officer called for a K-9 unit. While the officer was going back to his car to complete the traffic stop, Bowling got out of his vehicle and closed the door, locking the keys inside. For safety reasons, the officer waited with Bowling until back-up arrived. The K-9 unit arrived and the dog sniffed Bowling’s vehicle. The dog alerted when passing the rear driver’s side door. The original officer eventually arrested Bowling for driving with a suspended license. A tow truck arrived and its driver opened Bowling’s vehicle. A search revealed just under 200 grams of marijuana and paraphernalia. Bowling moved to suppress the evidence, arguing an illegal search. The circuit court judge denied his motion and Bowling appealed to the Court of Special Appeals. COSA affirmed the trial court’s decision. Maryland appellate courts have consistently held that a trained dog’s detection of the odor of marijuana establishes probable cause to conduct a warrantless Carroll search of a vehicle. Criminal Law Article subsection 5-601 makes it clear that, although the legislation enacted in 2014 decriminalized the possession of less than 10 grams of marijuana, possession is still a civil offense, and, therefore, still illegal. Thus, the decriminalization does not change the probable cause justification of a warrantless search. Neither the Supreme Court nor the Maryland appellate courts had limited the automobile exception to situations where there is probable cause to believe there is evidence of crime in the vehicle. A search is permissible when there is probable cause to believe that a vehicle contains evidence of a crime or contraband. The legislative history of Criminal Law subsection 5-601(c)(2)(ii) makes it clear that the Maryland legislature intended that, although
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possession of a small amount of marijuana would no longer be a criminal offense, marijuana would continue to be considered contraband, without regard to the quantity. Legislation did not change the established precedent that a drug dog’s alert to marijuana provides the police with probable cause for a search. Maryland v. Andrews, No. 1496, September Term 2015, filed March 30, 2016 (opinion by Leahy, J.). A warrant was issued for Andrews as the gunman in a drug-related shooting. When police couldn’t find him, they submitted an application to the circuit court for a pen register/trap & trace order for his cell phone. Once the order was obtained, police deployed a cell site simulator (brand name Hailstorm) to find Andrews. This device forced Andrews’s cell phone to transmit identifying signals that allowed police to track it to particular address. At that address, officers found Andrews with the cell phone in his pocket. Police then obtained a search warrant for the address and found a gun in the cushions of a couch where Andrews had been seated. At a motions hearing, Andrews argued that the warrantless use of the Hailstorm device was an unreasonable search. The circuit court suppressed all evidence obtained by the police from the address as fruit of the poisonous tree. The Court of Special Appeals affirmed. People have a reasonable expectation that their cell phones will not be used as real-time tracking devices. The Fourth Amendment protects people and not just locations. Cell phone users do not actively submit their realtime location information to their service provider and the location information provided by a Hailstorm device is obtained directly by law enforcement officers. Thus, the use of a cell site simulator requires a valid search warrant, or an order satisfying the constitutional requirements of a warrant, unless an established warrant requirement exception applies. The pen/trap order obtained by the police under Courts and Judicial Proceedings subsection 10-4B-
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May 2016
CRIMINAL LAW UPDATE Continued from page 33 01 did not, on its face, apply to the use of a cell site simulator. Nothing in the plain language of that statute suggests that it was ever intended to authorize the use of surveillance technology that can exploit the manner in which a cell phone transmits data to convert it into a mobile tracking device. The limited showing required by the statute falls short of the particularity required for a search warrant. An order issued under CJP subsection 104B-04 cannot authorize the use of a Hailstorm device. The only alternative to a warrant for such use would be a specialized order that requires a particularized showing of probable cause, based on sufficient information about the technology involved to allow the court to form reasonable limitations on the scope and manner of the search and that provides adequate protections in case any unrelated cell phone information might be unintentionally intercepted. As to the search warrant obtained after Andrews was arrested, the only information linking him to the particular location was the fruit of the Fourth Amendment violation. No credible evidence was presented that any independent lawful means had shown Andrews was present at the location. Once the constitutional taint was removed from the search warrant application, what remained was insufficient to establish probable cause for a search at the location. Thus, the evidence found was fruit of a poisonous tree. When a Fourth Amendment violation was the only basis for a search warrant, the fruit of the poisonous tree doctrine trumps police good faith reliance on a search warrant. The fact that the police in this case had entered into a non-disclosure agreement by which they were prohibited from disclosing cell site simulator technology to any court under any circumstances and, in accord with that agreement, failed to sufficiently tell the court of the intended purpose for the pen/trap order was troubling to COSA. COSA could not reasonably conclude that the officers in this case relied in good faith on the search warrant obtained through the pen/trap application and subsequent unconstitutionally intrusive warrantless search.
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May 2016
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May 2016
CIVIL LAW UPDATE by Cecilia B. Paizs Review of the May 2016 Amicus Curiarum reveals the following civil cases of interest:
The City of Salisbury (“City”) hired O’Brien & Gere Engineers, Inc. (“OBG”) to design an upgrade to a wastewater sewage treatment plan, and hired Construction Dynamics Group (“CDG”) as construction manager. The project failed. City filed suit against both OBG and CDG. City entered into a Settlement Agreement with OBG, a portion of which contained a non-disparagement clause, which prohibited, in part, the making of any statements by City that would adversely reflect on OBG. In the suit against CDG, City was relying on a clause in their contract with CDG under which CDG was required to advise City of any deficiencies involving the design of the project. As part of that case, City provided evidence that OBH had defectively designed the project, that CDG was obligated to advise City of the defective design and that CDG filed to do so. OBG suited City a breach of contract for violation of the non-disparagement clause, seeking both injunctive relief and monetary damages. The trial court held that since the behavior sought to be stopped had already stopped as a result of the end of the case against CDG and therefore denied the request for injunctive relief. The trial court also held that the litigation privilege protected City’s statements in the case against CDG and denied the relief sought by OBG. The Court of Special Appeals affirmed
THE COURT OF APPEALS: Justin Davis v. Wicomico County Bureau, No. 46, September Term 2015, filed April 25th, 2016. Opinion by Battaglia, Lynne A., Judge Dissents by Barbara, Mary Ellen, Chief Judge, McDonald, Robert N., Judge and Watts, Shirley M., Judge In 2009, when twin boys were born, Justin executed an affidavit of parentage in which he acknowledged being the father of the children. In 2011, the Wicomico County Bureau of Child Support Enforcement filed a child support case against Justin. At that time, Justin requested a paternity test, claiming that the affidavit was obtained through fraud or misrepresentation. The Circuit Court denied his request for the paternity test and ordered him to pay child support. In 2013, Justin filed a Complaint for Blood Test to Challenge Finding of Paternity and to Set Aside Child Support Order. The Circuit Court denied the Complaint, holding that there is not absolute right to a paternity test and that res judicata attached as a result of Justin’s failure to appeal the 2011 court order. The Court of Special Appeals affirmed.
The Court of Appeals affirmed, finding that the litigation privilege is designed to protect attorneys and witnesses from civil liability for statements made in judicial proceedings, citing Norman v. Borison, 418 Md. 630 (2011). Further, the privilege rests on the vital public policy of the “free and unfettered administration of justice” Adams v. Beck, 288 Md. 1, 5 (1980) The Court went on to acknowledge that they were being asked to decide novel question for Maryland of whether City may raise the litigation privilege as a defense to a claim, not in tort, but in breach of
The Court of Appeals affirmed, finding that Justin’s failure to appeal the 2011 decision of paternity, a final judgment on that issue, resulted in res judicata barring his attempt to litigate the same issue now. In addition, the Court held that Family Law Article Sections 5-1028 and 5-1038 do not entitle Justin to a blood or genetics test. O’Brien & Gere Engineers Inc. v. City of Salisbury, No. 53, September Term 2015, filed April 26, 2016. Opinion by Adkins, Sally D., Judge. Concur and Dissent by Harrell, Glenn, Judge
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May 2016
CIVIL LAW UPDATE Continued from page 36 contract. The Court concluded that the litigation privilege can apply as a defense to claims sounding in breach of contract. At the time of the execution of the Settlement Agreement, OBG was aware of the pending litigation against CDG. The Court held that the fundamental importance of the fact finding process which the litigation privilege fosters warrants the Court to decide that nondisparagement clauses in contracts should be construed with a rebuttable presumption against waiver of the litigation privilege. In the present case, the Court considered the fact that OBG knew of the pending litigation against CDG and that the City would be required to rely on the design defects to prosecute its action. Further, the nondisparagement clause in the Settlement Agreement did not expressly reach the lawsuit by City against CDG, but instead focused on statements “made or issued to media, or other entities or persons.” Therefore, the non-disparagement clause does not prohibit the statements OBG challenges.
exception requires examination of the corporate entitled involved, including a factual comparison of the selling entity and the purchasing entity. The Court cited the findings in Academy of IRM v. LVI Environmental Services, Inc., 344 Md. 434 (1997), Nissan Corporation v. Miller, 323 Md. 613 (1991) and Baltimore Luggage Co. v. Holtzman, 80 Md. App 282 (1980). The Court noted that even where a court finds ownership and management of corporations continues, the court may also examine whether policy reasons underlying the “mere continuation” exception are served by a finding of successor liability. The exception is intended to prevent the corporation from purchasing assets solely for the purpose of placing assets out of reach of the predecessor’s creditors. Here, that was not the purpose of the purchase and therefore the “mere continuation” exception does not apply.
THE COURT OF SPECIAL APPEALS: Phillip Martin v. TWP Enterprise, Inc., No. 1855, September Term 2014, filed February 24, 2016. Opinion by Leahy, Andrea M., Judge Best & Brady LLC opened for business in March 2010. The company hired Phillip Martin under a two year employment contract. By May 2011, the company had run out of cash and sold the company to TWP Enterprises shortly thereafter. In October 2013, Martin sued Best & Brady and TWP seeking unpaid wages and compensation under his employment contract. He obtained a default judgment against Best & Brady and sought to enforce the judgment against TWP, contending that the “mere continuation” exception to the rule that successor entitled did not assume the liabilities of their predecessors. The trial court found on behalf of TWP and Martin appealed. The Court of Special Appeals affirmed, finding that the application of the “mere continuation”
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The BCBA Mezzanine Office and Meeting space (only) is being relocated, effective immediately. The Court will be utilizing the Mezzanine 08 space for other purposes, which you will hear about soon. Therefore, all CLE and other Committee meetings will be held in either the Grand Jury Room, 4th Floor Judicial Conference Room, or available courtroom. In July/August, new offices for our Executive Director Doris Barnes, and Executive Assistant Maxine Morrow, will be open across the (former) 91-1 Bridge. We will let you know when it is safe to come visit the new space. LRIS will continue to be located in Room 100 on the first floor lobby. Page 37
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Committee Programs Memorial & Recognition Committee
CLE Committee Mezzanine 08 September 7, 2016 District Court Personal Injury Cases: Proving Damages
Please notify Doris Barnes at the Bar Office of the passing of any BCBA member. If this information is received in a timely manner, it will be emailed to the members. Thank you.
Criminal Law Committee
Those members who will be honored at next year’s service on November 17, 2016, at 3:30 p.m., include:
Mezzanine 08, 5 - 6 p.m. June 8, 2016
Robert William Cannon Robert Edward “Boz” Joy Hon. I. Marshall Seidler Charles E. “Chuck” Brooks Charles E. Norton, Jr. Roland R. Bounds, BCBA Past President 1980
Entertainment Committee
June 2, 2016, Golf Tournament
Estates & Trusts Committee Mezzanine 08, 5 p.m. April 6, 2016, Committee Dinner August 23, 2016, Happy Hour Kick-Off, Towson Tavern November 9, 2016, Income Tax Considerations in Estate Administration
State, Local Laws & Zoning Committee Dinner Programs, 5:30 p.m., Country Club of Maryland May 26, 2016, A View From The Hill with Congressman Ruppersberger
Lawyers Referral & Information Service Please note that the 2016-2017 Lawyer Referral & Information Service (LRIS) renewal information is now available. Click here to open and print out the application. If you are a current member, you must renew each year. If you are not a member of LRIS and wish to join, now is a great time! Contact Rachel Ruocco at 410-337-9100 or rachel@bcba.org if you have any questions about LRIS.
Alaina Storie and her husband, Rob Redwinski, welcomed their son, Samuel, on April 11, 2016.
Not sure what benefits are available to you as a BCBA Member? Click the picture to the left to learn more, or call or email Doris Barnes or Maxine Morrow for more information.
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Signature Sponsors
Custom order your string-art plaque from Itineris, and know that you are helping an adult with autism remain relevant and confident that they, too, have something to contribute! Contact the Bar Office for more information.
LAWYER IN THE LOBBY CLINIC The attorneys listed below have volunteered to staff the LAWYER IN THE LOBBY CLINIC, which is held the second Wednesday of each month, 4:30 to 6:30 p.m. This is an opportunity for citizens of Baltimore County to meet, free of charge, with an attorney for advice and/or referral or both (including self-referral) in the areas of collections, bankruptcy, landlord/tenant matters, contract, warranties and other consumer matters, wills, probate, advance directives, or small claims actions. If you are interested in staffing the Clinic, please call Rachel M. Ruocco at 410-337-9100 or email rachel@bcba.org. Jerry Blake Jessica Corace Keith Franz Bruce Friedman Valerie Ibe Michael Jeffers Fu-Mei Jiang Brady Locher
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Lisa Magil Mala Malhotro-Ortiz Paul Mayhew James Nolan Larry Polen Michelle Valenti Jordan Watts
The Baltimore County Bar Association continues its Signature Sponsor program, which enhances the opportunities for our sponsors, as well as our members. This singletier program provides more engagement between our sponsors and our members. Each Signature Sponsor will host one of teb signature events held throughout the year, thereby reducing the cost of the event for members, and many other added benefits. Sponsorships help the Bar Association maintain its current dues level, despite the increasing costs of providing top-shelf legal education programs, social events, networking opportunities and Bar Office services available in the County Courts Building. If you know of a business that would be interested in one of these limited sponsorship opportunities, please contact Doris Barnes (doris@bcba.org or 410 -337-9103).
Please join us in welcoming these sponsors and consider their services when you need them. Their ads are throughout each issue of The Advocate, and can be located quickly using the index at the end of the issue, and by the gold ribbon that accompanies their ad. Please let them know you appreciate their support. Thank you!
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P R O G R A M & E V E N T R E G I S T R AT I O N F O R M Please return this form to the Baltimore County Bar Association, 100 County Courts Building, 401 Bosley Avenue, Towson, MD 21204 with a check or credit card info; fax to 410-823-3418, or REGISTER ONLINE at www.bcba.org. PLEASE register me for the following programs/events:
Registration Fee: Member Non-Member May 19, 5 p.m. Technology: Is this thing on? Ethical Problems & Tech May 22, 5:30 p.m. SLLZ: A View from “The Hill” with Congressman C. A. “Dutch” Ruppersberger, CCMd June 2, 12 noon Annual Golf Tournament, Rocky Point Golf Course June 6, 5 p.m. E&T: Legislative Developments, County Cts Building
Name(s) Telephone City Email
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Address State Zip Amount Enclosed
Menu Choice (if applicable) Name on C/C Today’s Date Billing Address City State Zip Email Amount authorized MC/Visa/Discover/American Express Card No. Expiration SEC# (on back of card) Signature____________________________________________________________________________
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The Baltimore County Bar Association 100 County Courts Building 401 Bosley Avenue Towson, MD 21204-4491 410-337-9103-Telephone 410-823-3418-Facsimile www.bcba.org
Winning Baltimore County Mock Trial Team - Franklin High School, with Judge Andre Davis at the Law Day Noon Ceremonies.
MEMBER ADVERTISEMENTS Office Furniture. Desk, with return, small credenza, 2 sets of two-drawer horizontal filing cabinets (which can be stacked), 2 large bookcases. All with great karma. Retiring attorney re-locating to Florida, so items must be picked up (in Timonium) by June 10th. No reasonable offer refused! Middle River. Professional space, share office. Use of conference and waiting rooms, copy and fax machine, and internet. Free parking. Available immediately. Contact Jerry at zimlinlaw@comcast.net or call 410-686-1911. Towson. Window office space (and interior office space) available for subtenant with boutique litigation firm loctated in top floor of the PNC Bank building, 409 Washington Avenue, Towson MD. Panoramic views of Towson overlooking Courthouse Gardens. Use of newly furnished large glass conference room and other support available depending on individual needs. Contact Adam at 410-823-5003 or adam@spencefirm.com. Owings Mills. Office space available in a small law firm, perfect for a solo practitioner. Includes use of conference rooms, waiting area, photocopier/fax/scanner, utilities, plentiful free parking, and congenial atmosphere. Located just off Red Run Blvd., near I-795. Contact Andy Hermann at ahermann@LMCPLAW.com or 410-998-1198. Towson. Office space available in a small law firm, perfect for a solo practitioner. Approximate size is 20x15. Furnished office, and comes with desk, credenza and book cases. Use of conference room, waiting room and utilities. Free parking. Rent $650/month. Call 410-321-8368 or email Stephen Dunn at sdunn@sdunnlaw.com.
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