We have, I believe, the first opinion authored by Judge Douglas R. M. Nazarian, who was appointed to the Court of Special Appeals in January.  And it is worthy of mention not only because it is his first reported opinion, but also because it makes reference to “backsies,” and to one of Russell Hoban’s Frances books.

The opinion is Barson v. Maryland Board of Physicians, No. 2673 (Md. App. May 3, 2013).  The case has to do with a consent order entered in the Maryland Board of Physicians, the body charged with the licensing and discipline of physicians.  A consent order is akin to a plea agreement in criminal court, although it is important to note that the Board is an administrative agency and its determinations are not criminal in nature.  In any event, a physician sought to renegotiate the order when she had second thoughts about it and the Board denied her request.  The Court of Special Appeals agreed and held that the Board was under no obligation to revise the order.

Here’s where we get to “backsies:”

A deal is always a deal, but this appeal brings to mind the long-standing playground rule of “no backsies.” By calling “no backsies” before finalizing an agreement, the parties reiterate and reinforce their intention to be bound and stay bound.

And then, in a footnote:

See, e.g., Russell Hoban, A Bargain for Frances (1970). The Consent Order in this case is, as the discussion below reveals, distinguishable from the bargain in the story, which Frances entered in reliance on her friend Thelma’s misrepresentations about the value and virtues and availability of plastic versus china tea sets. Even still, and putting aside whether Frances might have been able to seek rescission from a higher authority, the “no backsies” rule held until Thelma’s seller’s remorse (fueled in part by a clever if borderline omission on Frances’s part) led her to seek, and Frances to agree to, backsies after all. Another variant applies in the game of tag: if a player who is “it” calls “no backsies” before tagging another, the taggee cannot tag him/her back immediately.

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Any friend of Frances is a friend of mine, for the record.

 



 



You’ve probably heard the old (clichéd) saying, “those who cannot do, teach.”

A recent case in the Maryland Court of Appeals disposes of that sentiment rather neatly in favor of those who (allegedly) cannot do, and therefore teach.  Essentially when it comes to youthful academic achievement versus hard-earned experience, an employer can decide which job candidate is the better “fit” without significant concern about age discrimination liability.

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The plaintiff in Dobkin v. University of  Baltimore School of Law is a lawyer who practiced immigration law for many years before he decided to seek an academic position.  The School of Law at UB advertised a search for tenure-track professors for the 2009-2010 school year in several fields, one of which was immigration law.  The plaintiff, Dobkin, applied.

But Dobkin was not interviewed or hired.  Instead, a significantly younger woman with much less practical immigration law work experience was hired.  When Dobkin was informed of the decision, he emailed the school to complain:

It’s simply amazing how law schools choose newbies like [the successful applicant] and don’t even bother to interview candidates with a world of experience.  Something is seriously wrong here.

An EEOC complaint and then a private lawsuit followed.  The trial court entered summary judgment in favor of the university.

The Court of Appeals found both that Dobkin presented a prima facie case of age-based employment discrimination and that the university presented evidence of valid, non-discriminatory reasons for its refusal to hire him: that he had no clinical teaching experience, had not graduated from a top-tier law school, and had never worked as a judicial clerk.

At that point, under the McDonnell Douglas classic burden shifting analysis, the burden shifted to Dobkin to prove that the reasons offered by the university for its decision not to hire him were merely pretextual.  No previous Maryland cases concerned similar “failure to hire” scenarios, so the Court reviewed federal and other states’ cases.

The difficulty, the Court noted, is that otherwise qualified candidates may not be hired for a position based on purely subjective determinations about what characteristics make for the “best” candidate.  In one case discussed by the Court, for example, an applicant for a staff attorney job had more experience (and was older) than the candidate who was hired, but came across as arrogant and hadn’t previously worked at a private law firm.  The court in that case refused to substitute its own judgment about which person would be the better hire for the employer’s.  The Maryland Court of Appeals agreed:

We cannot thereby demand or require U.B. to hire applicants with practical experience as opposed to academic training, as it has a right to choose what qualifications address their needs.  [Dobkin] must understand that his and the successful applicant’s qualifications were not equivalent like the applicants in
[another case].   Instead, they were different types of skills and
training.  Accordingly, because qualifications are relative, as it depends on the preference of the employer, we cannot deem appellant’s qualifications as superior than the successful
applicant’s in this case.
The Court’s analysis of pretext in Dobkin will probably weigh heavily in cases alleging other kinds of employment discrimination going forward.  Where an employer’s hiring criteria are facially reasonable, the plaintiff who fails to meet the criteria will face a significant obstacle to proving discrimination.  On the other hand, though, the Court did not consider whether criteria not reasonably related to a position to be filled would justify an adverse employment decision and did not determine what a “reasonably related” analysis – assuming that there should be such an analysis – would entail.  These are important questions, but they will have to await a future decision.

While the local media is focusing on legislative efforts to overturn the Maryland death penalty and reconcile competing pit bull liability statutes, an important decision on housing discrimination has recently been issued by the Court of Appeals.

Under Maryland law (and, in many circumstances, under federal law), it is unlawful “[t]o refuse to make reasonable accommodations in rules, policies, practices, or services when the accommodations may be necessary to afford a handicapped individual equal opportunity to use and enjoy a dwelling[.]”  Md. Code Ann., Art. 49B § 22(a)(9).  The language in the state statute correlates closely with language in the federal Fair Housing Act.  See 42 U.S.C. § 3604(f)(3)(B) (stating that “a refusal to make reasonable accommodations in rules, policies, practices or services, when such accommodations may be necessary to afford such person equal opportunity to use and enjoy a dwelling” is housing discrimination).

Under either statute, housing discrimination will only be found if the particular accommodation requested is “reasonable.”  Reasonableness in this context means that a support can be provided at reasonable cost without excessively burdening other people.  Among many questions that typically arise in proving housing discrimination is which party – the plaintiff or the defendant – bears the burden of proving reasonableness.  Reasonable_Accommodation_206X155

In Board of Directors of Cameron Grove Condominium, II, et al. v. State Comm’n on Human Relations, issued on March 28, 2013, the Court of Appeals decided the question in favor of plaintiffs.  The Court held that in order to prove a housing discrimination case under the state statute, a plaintiff must make a prima facie showing of reasonableness;  once that showing has been made, the burden of proof then shifts to the defendant to prove that the requested accommodation is not reasonable.

This is a win for the disabled, since a prima facie showing is a pretty low bar to meet.  Cameron Grove is interesting for another reason, also.  The Fourth Circuit Court of Appeals, which is the federal appeals court responsible for Maryland among other states, has taken the opposite position in adjudicating housing discrimination cases under the federal statute.  See Bryant Woods Inn, Inc. v. Howard County, 124 F.3d 597 (4th Cir. 1997) (stating that “[b]ecause the [Fair Housing Act]’s text evidences no intent to alter normal burdens the plaintiff bears the burden of proving each of these three elements by a preponderance of the evidence”).

The Maryland Court of Appeals is, in almost every case, the final arbiter of the meaning of state statutes, while the federal court system is responsible for interpreting federal statutes.  While it’s not unheard of for courts to reach different conclusions on similar statutory language, it’s quite striking when the language in the state statute so closely mirrors the federal statute.  It’s worth pointing this out, too, because concepts like “the burden of proof” are rarely dealt with on television or in movies, yet the allocation of the burden can be determinative of the outcome of a case.  The plaintiff in Bryant Woods Inn, for example, lost its case, while the plaintiffs in Cameron Grove won theirs.  I’m not accounting for differences in facts here, so the comparison isn’t necessarily fair, but it is interesting.

What was at issue in Cameron Grove?  Two individuals in a condominium complex who suffered from unnamed medical conditions filed suit to require that the condominium association provide them with keys to back and side doors to their respective buildings.  Apparently these doors were closer to a retail area within the complex and the plaintiffs wanted to be able to use those doors when they brought in their groceries.  The condominium argued that it shouldn’t have to give copies of the keys for security reasons and that installing a security code pad at each door would be prohibitively expensive at $19,000.  The association was ordered to pay both plaintiffs a combined total of $35,000, in addition to a civil penalty of $5,000.

Most hardware stores sell keys for something like $4.00.  images

Maryland Senate Bill 263 (which was cross-filed with House Bill 130) would have permitted courts to award attorney’s fees to individuals who filed suit to enforce constitutional rights in Maryland courts but was reported unfavorably in committee and withdrawn.  Attorney’s fees may be awarded under many federal civil rights statutes, but Maryland has no similar general scheme.  (Certain specific Maryland statutes do permit attorney’s fee awards, and fees may be awarded in certain civil actions such as suits to enforce rights under an insurance policy.)
The language that follows is from Senate Bill 263:
WHEREAS, There are now more than half a million Marylanders living at or
near the federal poverty level; and
WHEREAS, The legal problems faced by low–income Marylanders are more
likely to involve low monetary claims, which make it difficult or impossible for them to attract counsel because the means are not available to compensate
an attorney from the proceeds; and
WHEREAS, There is no provision in Maryland law that permits
an award of attorney’s fees to individuals asserting a State constitutional claim, which means that many Marylanders are unable to assert their rights under the State constitution for lack of counsel, because these claims are often for injunctive or nonmonetary relief and, without a monetary award, there are no funds with which to pay an attorney; and
WHEREAS, A law that provides for an award of attorney’s fees to a prevailing party would permit litigants in cases involving low or nonmonetary relief to find attorneys to represent them, provided their cases have merit; and
WHEREAS, Such provisions can be a powerful tool for promoting access to justice, and they do so in a way that does not require any additional expenditure of public funds, by creating incentives for private attorneys to accept clients with meritorious claims; and
WHEREAS, Such provisions permit aggrieved parties to be “made whole” by ensuring that they do not have to pay for their legal representation from the compensation they were awarded; and
WHEREAS, Such provisions permit individual citizens to enforce rights protected by law in a manner that has a larger social benefit, reducing the need for State action and expenditure to enforce the law; and
WHEREAS, The purpose of such provisions is not to benefit private attorneys, but to promote access to legal representation for individuals who are unable to retain counsel, despite having meritorious claims, in case types that legal aid organizations are not able to accept because of statutory or funding restrictions; and
WHEREAS, When large segments of Maryland’s population are denied effective access to the justice system and are unable to assert and defend effectively important civil legal rights and prerogatives, public trust and confidence in the justice system is placed in jeopardy[.]
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Allow me to confess: I post snarky reviews on Yelp.  All the time.  Well, maybe not all the time.  A couple of times.  I try to keep things reasonable.  But if I have a really bad experience at your place of business, expect me to say something about it and to make it funny.  In a not-good-for-your-online-reputation way.  (People who follow me on Twitter seem to think I’m funny, so people are paying attention, I guess.)

I am not the only person doing this, you may have noticed.  There are whole online ecosystems these days.  Gawker, Above the Law, the new Dish.  Right-wing pages I avoid like the plague but nevertheless must grudgingly admit exist.  I’m not much for Reddit but if there’s anything you wish to discuss you’ll find it there.

Violentacrez and similar trolls aside, though, most people post or comment about something because they have an opinion and they want to share it.  The First Amendment is supposed to protect that sort of speech and generally it does.

What folks don’t always understand, though, is that the First Amendment can’t stop someone from suing you.

This seems counter-intuitive.  People assume that if a lawsuit ultimately will not have merit – meaning it’s a loser – that it won’t get filed.  Unfortunately that’s not true.

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Businesses targeted for negative reviews on sites like Yelp are more and more frequently filing SLAPP suits against posters.  They do this because they know that the costs of defending a lawsuit are prohibitive.  Retaining a lawyer to defend you against a defamation suit is expensive.  In the United States, parties to litigation pay their own attorneys; so even if you ultimately win, you could end up bankrupting yourself.  The businesses filing these suits want you to be afraid of this so that you’ll end up not commenting at all.

Witness the Casey Movers saga.  Basically, a woman complained about a moving company on Yelp.  In what has to be one of the most spectacularly tone-deaf, idiotic responses to a customer complaint of all time, Matthew Overstreet, sales manager extraordinaire, sent her a letter peppered with poorly-used legalese, the gist of which was a threat to sue her if she didn’t remove the comment.  And not just to sue her, but to make her travel to a distant court to defend the case.

Turns out, of course, that the original poster had a husband who was 1) intelligent; 2) a blogger; and 3) not easily intimidated.  He took to the web with the story, and the big guns at Popehat not only took notice, but offered to locate an attorney to defend the poster, pro bono, if any suit was filed.

The law on these issues – SLAPP suits, defamation, First Amendment defenses in commercial contexts – is evolving on an almost daily basis.  Many of the published decisions, however, deal with complex First Amendment issues like prior restraint, not the nuts-and-bolts of liability and damages.  Which in practical terms means we as lawyers don’t always know how particular courts will deal with these cases.  So there certainly is risk in posting negative reviews online.

It’s easy enough for me to say I’ll continue posting, because I’m probably not going to get sued.  It’s not like “Joe’s Auto Shop” is hiring the best, most experienced counsel to prosecute its lawsuits, so the ambulance chaser it likely does hire is probably going to decide that suing me would be more trouble than it would be worth.  That calculus isn’t necessarily true of you, though.

One response is to blog, like the Casey Movers guy.  Sunlight is the most effective disinfectant, meaning that bringing these kinds of threats, and the suits themselves, before the public can make them go away.  It’s the Streisand effect at its best.

Another, and I hope this will come to pass, is for lawyers to step up to defend these cases pro bono.  Businesses file these cases because they’re counting on them being expensive to defend, not because they really expect to win.  If they’re not going to be expensive to the defendant (but potentially will be for the businesses, who do have to pay their lawyers), they won’t get filed.

But probably my best piece of advice to you is to keep your reviews as factual and true as possible.  Provide concrete examples of what you’re trying to communicate.  Don’t say “the food was crappy;” say, “the omelet was overcooked.”  The line between justifiable statement and slander gets murkier when you’re dealing with statements of opinion.  That doesn’t mean you’re not entitled to your opinion, but it does mean that it’s a lot harder to argue about simple factual statements.  Just my two cents, for whatever it’s worth.

There are statutes in some states designed to curb SLAPP suit abuses.  Maryland has an anti-SLAPP statute, but like many others it’s weak.  A bill that would have reformed the statute to make it more effective at shutting down meritless cases failed to pass the Maryland Senate last year but will likely be reintroduced during this session.

Even if it scares you.

These statutes also deprive the Lovings of liberty without due process of law in violation of the Due Process Clause of the Fourteenth Amendment. The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.

Marriage is one of the “basic civil rights of man,” fundamental to our very existence and survival. Skinner v. Oklahoma, 316 U.S. 535, 541 (1942). See also Maynard v. Hill, 125 U.S. 190 (1888). To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State’s citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual, and cannot be infringed by the State.

Loving v. Virginia, 388 U.S. 1 (1967).

Vote yes on Question 6 tomorrow.

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Maryland is one of the relatively few states that do not impose liability on those who serve alcohol to people who cause accidents while under the influence.  This kind of liability is known as “dram shop liability,” named for the unit of measure by which spirits were once served.  According to my colleague Sean T. Morris, however, this may change, or at the very least, come up for review again by the appellate courts.  

There are strong arguments to be made on both sides of the debate.   Owners of taverns and related establishments will argue that imposing this sort of liability on them will raise their insurance premiums and drive some of them out of business.  I will track down the briefs, assuming an appeal is taken, and keep on eye on this as it develops.