Tag Archives: Maryland Court of Appeals

Marvin the Magician

By Barry Rascovar

(First of two parts)

Sept. 8, 2015 — Simply put, Marvin Mandel — who was laid to rest last week at age 95 — ranks as the greatest and most effective Maryland governor of the 20th century.

Only Gov. Albert C. Ritchie comes close to matching Mandel as a government reformer. But Mandel was far more ambitious in his efforts to improve society, expand the reach of government and anticipate future trends.

Marvin the Magician Mandel

Gov. Marvin Mandel, official State House portrait.

Our lives first intersected in 1972 as Mandel pulled off a stunning coup. In a tumultuous General Assembly session, the governor.

  • He defeated the potent National Rifle Association by enacting the nation’s toughest handgun-control law.
  • He defeated the powerful insurance industry to win passage of the nation’s first state-run insurance company for high-risk drivers.
  • He defeated the influential petroleum lobby to gain approval of a nearly 30 percent gas-tax increase that financed Baltimore’s first subway line, portions of the Washington-area Metro and local highway construction.

He slugged it out with tavern owners and the potent beer barons to win a tripling of the state beer tax — the first increase in that alcohol levy in 33 years.

He gained approval to buy Friendship Airport from Baltimore City for $36 million, beginning a modernization program that turned the re-named BWI Airport into one of the nation’s premier low-cost flight destination.

No Maryland governor took on so many entrenched and muscular special interests at one time.

Legislative Magician

It was a stupendous achievement, following on the heels of three previous legislative sessions marked by sweeping government reforms that turned Maryland into a national model for streamlined efficiency and modernization.

Mandel totally overhauled Maryland’s antiquated judicial system, junking the politically inspired magistrate system for a professional District Court with experienced and respected lawyers nominated by a judicial selection commission serving as judges.

He created an intermediate appellate court that dramatically improved the quality of judicial decisions and anticipated the enormous jump in appeals cases.

He removed politics from District Court and appellate court reappointments.

He named cracker-jack deputy attorneys general to implement these judicial reforms — Robert F. Sweeney to run the new, statewide District Court system and Robert C. Murphy Jr. to lead first the new Court of Special Appeals and then the state judiciary as Chief Judge of the Court of Appeals.

Cabinet Government

Mandel used his immense influence with the General Assembly (he served there as a key player for 17 years)  to win approval of a massive government reorganization, shoe-horning 248 formerly independent agencies into 12 cabinet-level departments.

It was a long and bitter reorganization with fierce resistance coming from deeply entrenched bureaucrats and interest groups.

Cutting the powerful tentacles of the Maryland Port Authority and State Roads Commission proved especially difficult for the new transportation secretary, Harry R. Hughes.

The new secretary of licensing and regulation, John R. Jewel, encountered enormous obstacles from dozens of special interest groups that no longer could dictate policy to various licensing boards.

The new Department of Natural Resources ran into such intractable opposition from watermen and rural constituencies that Mandel persuaded former Gov. J. Millard Tawes to come out of retirement in Crisfield to smooth hurt feelings and pave the way for a successful transition.

Mandel rarely lost battles with the legislature. He understood the psyche of lawmakers and how to play to each one’s weaknesses and vanity. He knew what strings to pull and when. He became known as Marvin the Magician, pulling a legislative rabbit out of his hat time after time when defeat seemed imminent.

Sweeping Reforms

He battled hospitals to create the nation’s only state regulatory body setting hospital rates to bring down costs. It worked.

He took on the hospitals again in establishing the nation’s first Shock Trauma network, prompting a nationwide revolution in emergency medicine.

He set up the nation’s second statewide school construction program (Hawaii has the other) to relieve local governments of burdensome construction debt that was delaying urgently needed school buildings to handle a huge surge in school-age children.

He fought for state land-use controls decades before “smart growth” came into vogue.

He supported the Lee-Maurer education aid formula that steered a larger percentage of state funds to poor subdivisions, especially Baltimore City.

It is an astounding record for the state’s second longest-serving governor (Ritchie beat him by a considerable margin, serving four terms in the 1920s and early 1930s).

Pollack, then Kovens

Yet Marvin Mandel is the last person you’d expect to earn the label of reformer and good government crusader.

He was a product of the old-time political machines of Baltimore City. Soon, though, he broke from the grasp of corrupt boss James H. (Jack) Pollack and joined forces with a more modest political operative, Irvin Kovens, forming an anti-Pollack ticket in northwest Baltimore.

He rose to political prominence by cunning and sheer luck.  When the House speaker was indicted in Maryland’s first savings and loan scandal, Mandel took his place.

When Spiro Agnew ran for vice president with Richard Nixon in 1968 — and won — House Speaker Mandel had the votes to succeed Agnew as governor.

Through it all, Marvin Mandel remained an enigma. His prestidigitation was so flawless you never knew what was really going on. Three-dimensional chess was Mandel’s game and no one in Annapolis was capable of taking on the grand master.

He could be amiable, jocular and easy-going, yet he turned into a tiger in formulating and carrying out political strategies.

Clouded by Smoke

He seemed to fool everyone with the smokescreen he created when smoking his ever-present meerschaum pipe.

Marvin the Magician

Maryland Gov. Marvin Mandel and his ever-present pipe.

Puff, puff, puff. A few nods of the head. Visitors thought they were getting agreement from the amiable governor — only to discover later they had misread the situation.

In political mid-stream, though, Mandel’s fortunes and his demeanor changed.

His luck started to run out.

His secret private life blasted into the headlines. His expensive new lifestyle came at a cost he could not personally afford.

His backstage maneuvering to make close friends and allies rich through passage of favorable legislation in Annapolis became a long-running national scandal.

The magician who so brilliantly reformed Maryland government would pay a steep price for this terrible lapse in judgment.

Tomorrow:  Marvin the Manipulator

Legislating From the Bench in MD — Not This Time

Court of Appeals Sustains Contributory Negligence Doctrine 

BY BARRY RASCOVAR / JULY 16, 2013

IT WAS SUPPOSED to be a grand finale for Maryland’s top jurist, Robert Bell — a sweeping re-ordering of this state’s ancient negligence standards by wiping out the common law doctrine known as contributory negligence.

Retired Chief Judge Bob Bell

Retired Chief Judge Robert M. Bell

But a funny thing happened on the way to Bell’s retirement as Chief Judge of Maryland’s Court of Appeals: He couldn’t get his colleagues to go along with him. Instead, as often was the case during Bell’s tenure on the state’s highest court, he found himself in a distinct minority.

By a 5-2 vote, the court upheld Maryland’s contributory negligence doctrine employing the same logic as did Bell’s predecessor, Chief Judge Robert C. Murphy, 30 years ago.

In Maryland, and a handful of other states, if you contribute to your own injury, don’t bother suing others for negligence. It’s a common law standard that dates to 1848 in Maryland, 1809 in England and possibly all the way back to 1606.

Under this doctrine, personal responsibility is deemed paramount. It’s a quaint libertarian view in a 21st century world that increasingly tries to insulate individuals from any and all harm while blaming others — especially those with deep pockets — for our own stupidity or irresponsibility.

Bell dearly wanted to discard contributory negligence. He even formed a special judicial panel to study the matter and report back to him. Those findings didn’t go Bell’s way. The group’s conclusion: This is a complicated matter best left to the General Assembly.

But the chief judge wasn’t deterred. When a test case came along, he made sure the high court grabbed it.

IF ONLY . . .

In an ideal world, a comparative negligence standard would make total sense. Juries would impartially analyze legal arguments and decide how much the plaintiff was at fault for an injury and how much the defendant was at fault.

But juries often render emotional decisions based on the tragic plight of the defendant, heartbreaking tales of loved ones and fire-and-brimstone arguments from plaintiff lawyers urging jurors to hold Big Bad Business to account.

Opening up Maryland to comparative-fault standards would create a huge financial bonanza for litigators and a veritable tsunami of lawsuits swamping Maryland courts.

It also would present an enormous danger to the financial viability of many Maryland businesses, including the state’s medical industry. The number and size of malpractice lawsuits could go through the roof. If you think finding an obstetrician in Baltimore City — a jurisdiction notorious for outsized jury verdicts against doctors — is difficult today, imagine what it would be like if litigators started suing every doctor in sight for the most minor of medical problems patients encounter. If doctors think their malpractice insurance is high now, just wait.

Contributory negligence was embraced in this country in the early 1800s in part to guard against such predatory practices by litigators. Legislators feared that juries, egged on by plaintiff lawyers demanding huge damage awards, would award sums that could kill the nation’s newly developing industries.

That same fear, in a slightly different form, still haunts state lawmakers in Annapolis — and a majority of the state’s highest court.

SEPARATION OF POWERS

The larger issue facing the high court was whether to legislate from the bench.

The panel agreed it had the power to revise a common law rule like contributory negligence. That the jurists refused to do so is a tribute to the majority’s determination not to extend its authority beyond the traditional dividing line separating judicial and legislative branches.

Five of the seven judges concluded: This is a complex, deeply intertwined legal doctrine that can only be altered after considering a kaleidoscope of ramifications affecting the entire gamut of tort liability and insurance law. That’s the role of the legislature, not the courts.

Judge John C. Eldridge, who wrote the majority opinion, even used Bob Bell’s own words against him. He quoted from a 2008 ruling in which the Chief Judge had written, “It is well settled” that when the General Assembly makes clear its wishes on public issues, “the Court will decline to enter the public policy debate” — even if the issues involve a common law doctrine.

It is doubtful these jurists would have wasted so much time and energy debating this matter had not Bell insisted.

In the end, a substantial majority merely re-stated Bob Murphy’s 30-year-old logic for maintaining the legislature’s right to determine the fate of contributory negligence. Any other conclusion, Eldridge noted, “would be totally inconsistent with the Court’s long-standing jurisprudence.”

In Dissent

 ‘A dinosaur roams yet the landscape of Maryland’

Three cheers for Court of Appeals Judge Glenn Harrell for adding some levity to the dry and often ponderous writings of the state’s highest court.

Harrell passionately believes the state’s doctrine of contributory negligence needs to be deep-sixed. It is unfair and out of date, he says. He prefers a pure comparative negligence standard.

The problem is that he was virtually alone in making this argument. Only retiring Chief Judge Bob Bell sided with him.

Appeals Court Judge Glenn Harrell

Appeal Court Judge Glenn Harrell

Harrell, though, didn’t go quietly. He stated his arguments at great length — nearly three times longer than Eldridge’s majority opinion and nine times the length of a supplemental majority opinion by Judge Clayton Greene (with three co-signers).

What’s eye-catching about Harrell’s rant — he’s not a happy camper — is the judge’s opening salvo, which is dripping with mockery, humor and irony.

Here it is:

     “Paleontologists and geologists inform us that Earth’s Cretaceous period (including in what is present day Maryland) ended approximately 65 million years ago with an asteroid striking Earth (the Cretaceous-Paleogene Extinction Event), wiping-out, in a relatively short period of geologic time, most plant and animal species, including dinosaurs. As to the last premise, they are wrong. A dinosaur roams yet the landscape of Maryland (and Virginia, Alabama, North Carolina and the District of Columbia), feeding on the claims of persons injured by the negligence of another, but who contributed proximately in some way to the occasion of his or her injuries, however slight their culpability. The name of that dinosaur is the doctrine of contributory negligence. With the force of a modern asteroid strike, this Court should render, in the present case, this dinosaur extinct. It chooses not to do so. Accordingly, I dissent.

     “My dissent does not take the form of a tit-for-tat trading of thrusts and parries with the Majority opinion. Rather, I write for a future majority of this Court, which, I have no doubt, will relegate the fossilized doctrine of contributory negligence to a judicial tar pit at some point.”

 Yes, Harrell was outvoted on the state’s highest court. But at least for two paragraphs he was entertaining.

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New Day for Maryland’s High Court

By Barry Rascovar / July 9, 2013 

FORGET THE WOMEN’S ANGLE. What’s most important about Mary Ellen Barbera’s elevation to chief of the Maryland Court of Appeals isn’t her gender but her pragmatic, consensus-building tendencies that contrast with the liberal interpretations and easy-going nature of her retired predecessor, Robert M. Bell.

Yes, it’s good to have a female at the top of Maryland’s court system for the first time, especially with the addition of Baltimore Circuit Court Judge Shirley Watts to the high court. This gives women a historic majority on the state’s court of last resort.

New Maryland Chief Judge Mary Ellen Barbera

Mary Ellen Barbera

But the four female votes on Cotap, as it is commonly known, will not be in lock step. Indeed, there’s a gulf separating written opinions of the decidedly progressive Howard County jurist Lynn Battaglia and the more cautious Eastern Shore jurist, Sally Adkins.

Of course, this doesn’t easily break down along a liberal-conservative spectrum. Legal disputes usually involve differing interpretations of the law that have little to do with political leanings.

But on a number of heated issues, the state’s high court seems to have wandered far astray — with the chief judge having neither the desire nor clever dexterity to act as a unifier.

Indeed, Bell may have been too nice a fellow to take on the daunting task of “herding cats,” which is what it takes to keep six stubbornly independent, free-thinking judges in agreement and in the middle of the judicial road.

Effective In Dissent

Barbera is described as forthright, diplomatic and an accomplished bridge-builder. She can be remarkably frank, too.

When a court majority overturned the state’s DNA testing law for people jailed and accused of a crime, Barbera’s dissent stripped away the legal nonsense and hyperbole.

That ruling, she said, inflated privacy rights of people in jail and deflated the public’s right to be kept safe through minimally intrusive DNA sampling of inmates. The majority had taken an unrealistic and alarmist view, she wrote.

Last month, the Supreme Court agreed.

This state’s high court needs to start using common sense and rely less on legal abstractions and hypotheticals.

No Residency Rules for Politcos

Take the recent case of Daryl Jones, who sat on the Anne Arundel County Council until he served time in federal prison for intentionally not filing his income taxes. Members of the council eventually removed him, since he’d been living in a South Carolina prison for months.

Now a majority of the high court, 4-3, wants Jones returned to his council seat because of its tortured interpretation of the words “residence,” “abode” and “domicile.” It’s the legal equivalent of arguing over how many angels can dance on the head of a pin.

Atkins, Barbera and Glenn Harrell said this ruling “defies logic” and “makes no sense.” Even worse, the majority didn’t bother studying the historical record that makes clear what writers of the county charter meant.

The ruling is an extension of the high court’s continuing misadventures in defining political residence and political redistricting lines.

It’s gotten so bad one Baltimore City councilwoman hasn’t lived in her district for a decade (she prefers an Inner Harbor condo view) and communities that expanded beyond city and county boundaries are forbidden from voting in a unified district.

The Jones decision, the dissenters noted, will make matters worse because now there is essentially no legal barrier for politicians to live outside the districts they represent.

Pit Bull Chaos

Similarly, on the pit bull issue, the Bell court created a chaotic mess that the state legislature won’t or can’t figure out how to correct.

Bell & Co. traveled down a dangerous path by declaring pit bulls “inherently dangerous” without finding any empirical evidence to back them up.

It’s a terrible decision lacking in solid scientific data. It amounts to genetic racism among breeds of dog.

The dissenters, who railed against the illogic of this 4-3 ruling, again included Barbera.

Judicial Trailblazer

Nearly all of Bob Bell’s splendid career was served on the bench. He was a trailblazer for African-American jurists. He has a brilliant legal mind.

Yet he lacked the political instincts and negotiating skills of his predecessor, Chief Judge Robert C. Murphy, a jovial but tough-minded Irishman who could deal effectively with state legislators, governors and colleagues.

Barbera promises to bring her own style of leadership to the chief judgeship. It could shape the high court in quite different ways.

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