Opinions, Advice and Legislation Quarterly News
July-September 1997

Opinions

  1. Criminal Law
  2. Courts and Judges
  3. Education
  4. Financial Institutions
  5. Racing
  6. Sheriffs
  7. State's Attorneys
  8. Vehicle Laws

Advice

  1. Administrative Law
  2. Copyright
  3. Criminal Law
  4. Family Law
  5. First Amendment
  6. Gaming
  7. Health Occupations
  8. Taxation

Criminal Law

Question: Can a teacher who has sexual contact with a student after school hours and off the school premises be considered a person with "permanent or temporary custody or responsibility for supervision" of the student and be charged with child abuse under Article 27, §35C?
Answer: Article 27, §35C applies, even after school hours or off the school premises, to a teacher who is with the student in connection with an activity related to the school's academic program, extra-curricular activities, or otherwise as a result of permission from the child's parents for the child to accompany the teacher. Article 27, §35C does not apply, however, if the teacher is with the student under circumstances unrelated to school programs or parental permission.

Opinion No. 97-017
August 19, 1997

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Courts and Judges

Question: May a court waive publication of a name change on request of an adult seeking a personal name change, on request of one or both parents seeking a change of name of a minor child, or on the court's own initiative?
Answer: The court may waive publication on motion of any petitioner, whether an adult seeking a personal name change or a parent seeking to have the name of a minor child changed; the court may not waive publication on its own initiative. Waiver of publication even on motion should be viewed cautiously, however, in light of the disfavored status of waivers in this type of case.

Opinion No. 97-020
August 21, 1997

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Education

Question: Is a public school obligated to notify the parents of a student when it learns of a potential romantic relationship between a teacher and a student, and must it do so with a particular time frame? Is the legal obligation of the school system affected if the student is 18 years of age or older?
Answer: If the situation involves an investigation of alleged child abuse by a teacher, the parents should be told of the situation with 24 hours. The responsibility for notification lies with the local department of social services or the police department, not the school system. If there is no issue of child abuse, a school system may notify parents of the observed circumstances concerning the student's behavior or other student-oriented information, without disclosing information from the teacher's personnel records. These conclusions apply whether or not the student has reached the age of 18.

Opinion No. 97-023
September 19, 1997

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Financial Institutions

Question: Does federal law on adjustable rate and similar mortgages preempt the provisions of Maryland law that prohibit or limit charging and collecting prepayment fees from Maryland consumer borrowers?
Answer: State law provisions that prohibit or limit these prepayment fees are preempted and may not be enforced when a licensed mortgage lender engages in an "alternative mortgage transaction," as defined by federal law; meets the federal definition of a "housing creditor"; and extends credit in compliance with applicable federal regulations.

Opinion No. 97-018
August 19, 1997

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Racing

Question: Is interstate "cross-breed" simulcasting legal? In particular, may a harness licensee import the signals of out-of-state thoroughbred races?
Answer: The relevant statutory text, §11-804(b) of the Business Regulation Article, authorizes interstate cross-breed simulcasting, if the Racing Commission approves it. Despite the permissive statutory language, no harness licensee had ever sought the Commission's approval for cross-breed simulcasting. A departure from past practice would likely have a significantly harmful impact on thoroughbred racing in Maryland, a result that the General Assembly never intended.
Under these circumstances, the Commission should not allow a harness licensee the unfettered privilege to simulcast directly out-of-state thoroughbred racing, at least until the issue is presented and addressed by the General Assembly. The General Assembly, not the Commission, is the right forum for these economic and policy issues to be debated and resolved.

Opinion No. 97-022
September 8, 1997

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Sheriffs

Question: May members of the Sheriff's Office enter private property in "gated communities" in order to serve legal process in a civil proceeding?
Answer: An officer may not use force, threat of force, or threat of arrest to gain entry. Alternative methods of service may be used under some circumstances.

Opinion No. 97-019
August 21, 1997

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State's Attorneys

Question: May a system of electronic submission of juvenile petitions be used, under which the State's Attorney's signature is affixed electronically in the clerk's office by use of a computer font?
Answer: The Maryland Rules do not authorize direct electronic filing with the clerk's office. Generally accepted principles of law allow a State's Attorney to use a facsimile signature, and this concept is broad enough to include the affixing of the signature electronically, so long as this is done only under the authority and control of the State's Attorney.

Opinion No. 97-024
September 30, 1997

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Vehicle Laws

Questions: 1. May "good cause" for referring a driver to the MVA's Medical Advisory Board be on a police officer's hearsay information and, after interviewing the driver, the officer's conclusion that the driver has the physical defects of "memory and awareness" and "depth perception and reflexes"?
2. Is this information sufficient to trigger a Medical Board inquiry that instructs the driver, on pain of possible license revocation or suspension, to answer a detailed questionnaire, obtain a physician's report, and broadly authorize release of medical information to the Board?
3. Is the questionnaire's delving into various personal matters an overly broad invasion of privacy"?
Answer: 1. Information reported to a police officer, together with first-hand observations made by the officer about lapses in "memory and awareness" and "depth perception and reflexes," provide sufficiently good cause for the Administrator to request an advisory opinion from the Board about an individual's fitness to drive.
2. This information is sufficient to trigger a Board inquiry that looks at the individual's medical situation. As part of its inquiry, the Board has authority to request a wide range of information related to the medical conditions that pose a risk to safe driving. A driver who declines to return a completed health questionnaire or a medical report, however, is not subject to a loss of driving privileges for that reason alone.
3. The Board's health questionnaire is a legally authorized component of the Board's inquiry, so long as the information elicited bears a reasonable relation to the individual's medical fitness to drive and is used for no other purpose. Because some of the questions posed in the current questionnaire are highly sensitive and bear no obvious direct relationship with medical fitness to drive, the Board should reconsider whether every item in it current questionnaire satisfies this "reasonable relationship" test.

Opinion No. 97-021
August 29, 1997

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Advice Letters

Administrative Law

Question: May the State Ethics Commission delegate to a member the responsibility of conducting a hearing on its behalf?
Answer: Under current law, this delegation may be made only to the Office of Administrative Hearings or to someone outside OAH with the approval of the Chief Administrative Law Judge.

Nancy L. Speck, Esquire
September 2, 1997

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Copyright

Question: Would copyright or other law protect the private vendor selected to establish and operate the proposed Statewide contract information system against another person's distribution of the information?
Answer: Since federal copyright laws would most likely not protect contract information, an end user agreement fashioned by the private vendor may be the most appropriate vehicle to prevent subscribers to the system from engaging in unauthorized republication and distribution of information.

Robert J. Colborn, Jr.
August 5, 1997

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Criminal Law

Question: Is "theft of identity" a crime in Maryland?
Answer: While theft of identity itself appears not to be a crime under either federal or State laws, use of someone else's identifying information to obtain money, goods, or services is certainly a crime in this State.

Del. Raymond Beck
August 28, 1997

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Family Law

Question: What is the legal effect of emancipation by marriage on the responsibility of parents for actions of a minor?
Answer: While emancipation by marriage frees the child from the control of the parents and frees the parents from the duty to support the child, it does not free the child from legal disabilities imposed on minors, unless otherwise provided by statute. Also, under common law, parents are not liable for torts committed by their child and, while they can be required to pay restitution, this requirement does not apply when the child is not under their control.

Del. Wheeler R. Baker
July 3, 1997

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First Amendment

Question: 1. What First Amendment standard of review governs State action that restricts expression on the Internet?
2. Would a State law restricting certain use of electronic mail violate the First Amendment or the Commerce Clause?
Answer: 1. The applicable standard of review for restrictions on speech on the Internet is the same as for any State restriction of non-commercial expression in a medium that does not provide a basis for qualifying that standard that is, the restriction must be necessary, and narrowly drawn, to serve a compelling interest.
2. Such restrictions are constitutional as applied to traditional e-mail communications between two or more persons, but would raise significant constitutional issues if applied in settings such as listservs and usenet.

Del. Samuel I. Rosenberg
July 25, 1997

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Gaming

Question: May a vessel that is intended to be used as a casino in Gary, Indiana lawfully travel through Maryland?
Answer: Yes, if key components of slot machines are removed.

Geoffrey T. Pavlic, Esquire
September 2, 1997

Question: Does Maryland law bar machines that dispense phone cards which double as sweepstakes entries?
Answer: The manner in which prizes are awarded may amount to gambling under Maryland law. Depending on its actual operation, the machine may also be a slot machine.

Emanuel Demidis, Esquire
Robert B. Riddle, Esquire
September 2, 1997

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Health Occupations

Question: Are certified professional counselors presently entitled by law to reimbursement for their services under the insurance laws?
Answer: No, the certification system under Title 17 of the Health Occupations Article does not give rise to the reimbursement requirement of the Insurance Code, Article 48A, §477AA. A legislative change would be required to bring certified professional counselors within the scope of §477AA.

Senator David R. Craig
July 28, 1997

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Taxation

Question: Can the phrase "business redevelopment" in §9-305 of the Tax-Property Article of the Maryland Code be interpreted as encompassing improvements to multi-family rental dwellings?
Answer: Yes.

Virginia Barnhart, Esquire
July 16, 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
Issue Date 1997.