Opinions, Advice and Legislation Quarterly News
January-March 1997

Opinions

  1. Courts and Judges
  2. Criminal Law
  3. Family Law
  4. Firearms
  5. Municipalities
  6. Public Information Act
  7. Workers' Compensation Commission

Advice Letters

  1. Alcoholic Beverages
  2. Bi-County Agencies
  3. Constitutional Law
  4. Consumer Credit
  5. Criminal Procedure
  6. Double Jeopardy
  7. Medical Records
  8. Mental Health
  9. Open Meetings Act
  10. Public Benefits
  11. Public Schools
  12. Statutes

Courts and Judges

Attorneys

Question: May the Court of Appeals by rule, and without legislative authority, (1) allow for the issuance of subpoenas by Bar Counsel and the Chair of the Inquiry Panel; and (2) grant absolute immunity to the members of the Attorney Grievance Commission, the Inquiry Committee, the Review Board, Bar Counsel, and their employees and designees?
Answer: Yes, the Court of Appeals may do so.

Opinion No. 97-001
January 6, 1997

Criminal Law

Question: 1. May a court require a defendant to make a contribution to a "substance abuse fund" as a condition of probation or probation before judgment?
2. Does a juvenile master have comparable authority in delinquency matters?
3. If such a plan is legally permissible, may collection and enforcement be administered under the auspices of the Division of Parole and Probation?
Answer: 1. A trial court may require payment to a substance abuse fund as a condition of probation or as a condition of probation before judgment.
2. A juvenile court may, but need not, accept a master's recommendation that payment to the fund be made a condition of probation.
3. With the approval of the Secretary of Public Safety and Correctional Services, collection and enforcement of the monies may be administered under the auspices of the Division of Parole and Probation.

Opinion No. 97-002
January 10, 1997

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Criminal Law

Question: What is the effect on Maryland law of the proposed Victims' Rights Amendment to the United States Constitution, in light of a provision on this subject in the Maryland Constitution?
Answer: The federal amendment, if ratified in its present form, would largely supplant the Maryland provision, Article 47 of the Declaration of Rights. Substantive provisions of Article 47 are largely contained in the federal amendment, which covers many other matters as well. In addition, several provisions in Maryland's statutes affecting victims' rights would require change to bring them into conformity with the federal amendment.

Opinion No. 97-003
January 15, 1997

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Family Law

Question: May a parole and probation agent have access to records of a supervisee's arrest on child abuse charges and the associated reports of the investigation of the alleged abuse that are in the custody of the Baltimore Police Department?
Answer: The Police Department may inform parole and probation agents of a supervisee's arrest on a charge related to child abuse and may disclose information contained in a charging document filed in court. Unless a court orders otherwise, however, the Police Department may not give the agent information from the department's investigatory file.

Opinion 97-008
March 28, 1997

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Firearms

Question: Do Prince George's and Montgomery Counties have authority to enact a law that would (1) prohibit gun dealers from selling, leasing, or otherwise transferring a handgun without also selling or otherwise providing with each handgun a trigger lock or similar device that is designed to prevent the unintentional discharge of the handgun; and (2) require gun dealers to post a conspicuous notice describing the trigger lock sale requirement and the requirement in State law that gun owners keep their guns out of the reach of children?
Answer: This local regulation is authorized under State law and therefore is not preempted.

Opinion No. 97-04
February 13, 1997

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Municipalities

Question: May a municipal corporation enlarge its boundaries by annexing a parcel of land a few miles away, connected to the existing corporate area only by the width of a road?
Answer: If annexation would result in a unified sense of community identity between the municipality and the annexed land, the annexation would likely be approved by the courts. If, however, the land and the existing municipality lack commonality, the annexation would likely be disapproved.

Opinion No. 97-05
February 13, 1997

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Public Information Act

Question: Does the Public Information Act entitle a driver to certain information related to the driver's continued fitness for licensing? Is a driver entitled to obtain records reflecting the source of a referral to the Motor Vehicle Administration that results in the MVA's review of a driver's fitness to hold a license and a report by the MVA's Medical Advisory Board concerning the driver's fitness?
Answer: A driver is generally entitled under the PIA to obtain MVA records related to a review of the driver's fitness, including any report of the Medical Advisory Board. The driver would not be entitled, however, to records reflecting the identity of a referral source under circumstances in which the source is properly deemed confidential.

Opinion No. 97-007
March 14, 1997

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Workers' Compensation Commission

Question: Was the Maryland Association of Boards of Education Workers' Compensation Group Self-Insurance Fund required to pay the 1995 annual assessment charged by the Workers' Compensation Commission? Specifically, was the Fund subject to the assessment under the law in effect in 1995, and if not, may a 1996 amendment be applied retroactively to permit collection of the assessment?
Answer: 1. The Fund was subject to the 1995 annual assessment under the law then in effect.
2. Even if the law then in effect were construed to have excluded the Fund from the obligation to pay the assessment, the 1996 amendment may be applied retroactively to impose the 1995 assessment obligation on the Fund.

Opinion No. 97-006
March 3, 1997

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Alcoholic Beverages

Question: May the Board of Liquor License Commissioners for Talbot County rescind a restriction that limits supermarket licensees to selling alcoholic Beverages at not more than two check-out lanes?
Answer: The Board does not have the authority to impose the two check-out lane restriction, unless the licensee subject to the restriction has given uncoerced consent to it.

Robert M. Valliant
January 28, 1997

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Bi-County Agencies

Question: Does §817C of the Prince George's County Charter apply to taxes and fees levied and collected in Prince George's County for the Maryland-National Capital Park and Planning Commission?
Answer: Section 817C does not apply to these taxes and fees.

Isaac Marks
January 24, 1997

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Constitutional Law

Contract Clause

Question: Would legislation outlawing cigarette vending machines violate the federal constitutional ban on the State's impairing contracts?
Answer: No, this legislation would not likely violate the Contract Clause.

Del. Barbara Frush
January 17, 1997

Establishment Clause

Question: Does a bill to revise the State law protecting consumers of kosher food avoid the constitutional problems that led the Fourth Circuit to strike down Baltimore City's ordinance on kosher food?
Answer: The bill is constitutional. The approach embodied in the bill avoids the Establishment Clause difficulties identified by the Fourth Circuit.

Del. Samuel I. Rosenberg
February 5, 1997

Question: Would a State law violate the Establishment Clause if it required the party seeking a divorce to file an affidavit attesting that the party has taken all steps within his or her power to remove any barrier to the other party's remarriage?
Answer: Although the legislation is intended to resolve a problem that arises when an Orthodox Jewish spouse refuses to permit a religious divorce, the legislation does not violate the Establishment Clause, because it avoids State endorsement of or entanglement with religious doctrine.

Del. Samuel I. Rosenberg
February 18, 1997

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Consumer Credit

Question: 1. What is the meaning of "consumer" in a bill to regulate the sale of information about credit cardholders by credit car issuers?
2. To whom would the new law apply?
3. Does it raise interstate commerce problems?
Answer: 1. Use of the term "consumer" in the bill excludes corporate and business cardholders.
2. The bill would apply to all cardholders whose billing address is in Maryland.
3. No Commerce Clause problems arise by so applying it.

Del. James M. Kelly
January 27, 1997

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Criminal Procedure

Bail

Question: Are remote video bail review hearings constitutional?
Answer: Yes, if the video-conferencing technology is fully interactive.

Eileen M. Rehrmann
January 22, 1997

Charging Documents

Question: May an arresting officer complete and sign the original of charging documents at a police district and then electronically transmit the document to the District Court at the Baltimore Central Booking and Intake Center.
Answer: Yes, if the document, either received by facsimile or printed out at Central Booking, is filed with the court in accordance with Rule 1-322(b).

Major Jeffrey Rosen
March 18, 1997

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Double Jeopardy Clause

Question: Would the imposition of civil penalties against a person operating illegally as a home improvement contractor prevent the State from bringing criminal charges for unlicensed activity against that contractor?
Answer: If the amount of civil penalties bears any "rational relationship" to the costs borne by the government as a consequence of the illegal conduct, no double jeopardy violation occurs. If, however, the amount of the civil penalties does not even remotely approximate the government's costs, the State would be prohibited from bringing a subsequent criminal charge for the same unlicensed activity.

Del. Michael E. Busch
March 7, 1997

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Medical Records

Question: Is a prescription for contact lenses a "medical record" covered by the medical Records Act?
Answer: Yes, when the prescription is in the patient files of a physician or optometrist.

Sen. Clarence W. Blount
March 17, 1997

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Mental Health

Question: Does the contract between the State and Maryland Health Partners for the provision of mental health services include the services of professional counselors and marriage and family therapists?
Answer: Yes, the contract contemplates the use of these professionals as providers under the contract.

Del. James W. Hubbard
February 20, 1997

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Open Meetings Act

Question: Does the Open Meetings Act apply when a quorum of a school board attends a meeting of a committee that is not itself subject to the Act?
Answer: If a quorum of the board has gathered in a manner that permits simultaneous interaction on a matter of public business, then a "meeting" of the board takes place. The result would be different if the members of the board who are not members of the committee maintained the status of observers only.

Dr. Anthony G. Marchione
January 22, 1997

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Public Benefits

Drug Testing

Question: What are the constitutional and legal implications of a program that would require the testing of new applicants for Temporary Cash Assistance for use of controlled dangerous substances and reduce the benefits of those who test positive and fail to participate in available treatment?
Answer: Though the answers depend on the structure and details of the implementation of such a program, it appears possible to establish a program that would have a reasonable chance of being upheld.

Sen. Martin G. Madden
Del. Samuel I. Rosenberg
January 9, 1997

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Public Schools

Activities Fees

Question: What are the constitutional or statutory authority of a school board to impose fees for participation in certain activities?
Answer: The letter reviews the authority of a county, school board, and the General Assembly to impose fees.

Sen. Ida G. Ruben
February 20, 1997

Residency

Question: Does current law, which requires public school attendance for each child who resides in the State, speak to the issue of local residency?
2. Does a bill that requires public school children to attend school in the county where the child is domiciled raise constitutional or other objections?
Answer: Current law does not expressly require residency in a county in order to attend school in that county.
2. The bill could be given constitutional implementation.

Del. James W. Campbell
February 12, 1997

Retirement

Question: Does the Department of Budget and Management have authority to deny Executive Pay Plan increments to employees who are retiring under Senate Bill 1 of 1996?
Answer: Yes. The Governor, and through him the Secretary of Budget and Management, was permitted to adopt a plan under which prospective SB 1 retirees would be excluded from receiving a step increase.

Del. Samuel I. Rosenberg
January 22, 1997

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Statutes

"Compelling Reason"

Question: How do State statutes define "compelling reason"?
Answer: While the term is not defined in the State's statutes, its use in three statutes suggests an intent to allow departure from a general practice or expectation only for a very good reason.

Del. Shane Pendergrass
February 7, 1997

Single Subject

Question: Does combining slot machine legalization and income tax reduction together in a single bill violate the "one subject" requirement of the Maryland Constitution?
Answer: The Court of Appeals could well find that the elements of the potential bill are sufficiently related for one-subject purposes. Nevertheless, there is a risk that the Court might deem the act of decriminalization to be a separate and distinct subject that cannot be combined in the same bill with the tax cut. Further, on policy grounds the two matters should be considered separately.

Sen. Thomas V. Miller
Del. Casper R. Taylor, Jr.
January 30, 1997

Tobacco Regulation

Question: 1. Does the Howard County Indoor Clear Air Act apply in circumstances where the Act is more restrictive of smoking than State law?
2. Does the Act allow a restaurant to have an enclosed, separately ventilated bar area in which smoking would be permitted and which would include an immediately adjacent seating area with tables, including dining tables, as part of this enclosed smoking area?
3. Does the Howard County Act authorize a restaurant to permit smoking "in an enclosed, separately ventilated area, with only tables in that area, if the area is adjacent to a bar" that is itself smoke-free?
Answer: 1. The Howard County Act would apply.
2. Under the Labor and Employment Article, this area cannot exceed 40 percent of the total area of the restaurant. Under the Howard County Act, within the entire bar area the serving of food is to be "only incidental" to the consumption of alcohol.
3. If the enclosed and separately ventilated area in question is genuinely a "cocktail lounge," because the serving of food there is only incidental to the consumption of alcohol. the Howard County Act allows a restaurant to permit smoking in that area.

Del. Shane Pendergrass
January 6, 1997

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To obtain a copy of any item in this newsletter, call Deborah Spence at 410-576-6327
Or e-mail dspence@oag.state.md.us
Maryland Attorney General's Office
January-March 1997.