Baltimore County Councilman Tom Quirk has proposed a change to county zoning law to allow live musical entertainment in restaurants, bars and other venues located in areas designated as the “commercial cores” of Catonsville and Arbutus. His bill, Bill 44-19, is a good example of how zoning law is best used when it builds upon existing resources in communities to strengthen those communities rather than change them.

In 2002, Catonsville was proclaimed “Music City, Maryland” by the Maryland General Assembly because of its concentration of retail music stores, including the nationally known Appalachian Bluegrass Shoppe, opened in 1960. As it happens, “downtown” Catonsville also is home to many excellent restaurants offering a wide variety of types of food. Ironically, what those restaurants in Music City can’t offer under current law is live musical entertainment.

The commercial core of Catonsville along Frederick Road has managed to retain its vitality while similar areas in Baltimore County have struggled. Many of the small retail stores upon which such neighborhood commercial districts depended were forced out of business, first by big box retailers and then by online retailers such as Amazon. To some extent, Catonsville’s cluster of music stores and quality restaurants formed a bulwark against changes in the retail market that sucked the life out of other neighborhood commercial districts.

Bill 44-19 is intended to exploit the natural synergy between food and music, ensuring the competitiveness of Catonsville’s restaurants with the many other dining options in the Baltimore area. And the more people those restaurants bring to Catonsville, the better it is for other retailers including the music stores like the Appalachian Bluegrass Shoppe, The Piano Man, and Bill’s Music.

The county also wants to make Catonsville part of the county’s first arts and entertainment district under state law, a designation that makes tax incentives available to qualifying private businesses. Kirby Spencer, vice president of the Baltimore County Arts Guild, told WYPR radio that he hopes the tax incentives encourage the owner of the old Plymouth Wallpaper Company building, now vacant, to turn it into a concert venue. It is that type of aspiration that the county should promote.

I agree with the business community that Bill 44-19 can be improved by removing the requirement that a venue wishing to provide live musical entertainment must first obtain a county permit. That is just additional bureaucracy, and regulations adequate to prevent live entertainment from becoming a neighborhood nuisance can be implemented without issuing permits. The requirement for a permit can be revisited in the future if I’m wrong.

As described above, the bill is a good example of how zoning laws can be fine-tuned to enhance a neighborhood without altering its basic character. “Transformative” changes such as attempted in Towson are more difficult, more controversial, and often far less successful. Too often zoning decisions in Baltimore County have been driven by land developers rather than by residents and small business owners. Bill 44-19 is a welcome change.

[Published as guest commentary by Forward Baltimore on September 27, 2019 but not posted to my blog until December 18, 2019. The date of posting that appears above was backdated to place all posts in the order in which they were written.]

If passed, Baltimore City Council Bill 19-0409 will ban the practice of requiring people alleging police misconduct or unlawful discrimination to sign a confidentiality agreement preventing them from publicly criticizing the city or members of Baltimore Police Department (BPD) as a condition of receiving money to settle their claims. City Solicitor Andre Davis advised the City Council in a letter that members lack the legal authority to enact the bill. He is wrong.

Let’s make the following clear right up front: The decision to prohibit a claimant from speaking ill of the city or its police officers as a condition of a settlement is not a legal decision. It has nothing to do with the legal sufficiency of a settlement agreement. The use of such “non-disparagement clauses” is purely a matter of public policy.

Given the importance that this issue has assumed in Baltimore, who better to establish the city’s policy on non-disparagement clauses: an appointed city solicitor or a legislative body elected by the citizens?

Mr. Davis contends that the bill violates provisions of the city charter giving the city solicitor the “sole charge and direction of the preparation and trial of” suits and other legal actions to which the city is a party and the “authority to institute, defend or discontinue” such actions. He argues, in effect, that the council cannot stop him from including any provision in a settlement agreement that he deems appropriate, as long as the provision is consistent with state and federal law.

To begin with, the city solicitor will remain solely responsible for preparing and trying lawsuits and other legal actions and will retain the authority to discontinue them. Nothing in the bill changes that. The bill simply renders it unlawful to make settlement of a claim contingent on the waiver by a claimant of his or her right to disparage the city or its employees.

Then, when Mr. Davis’ argument is taken to its logical conclusion, we see just how preposterous it is. The city charter provides that the council “shall have power to pass all ordinances, not inconsistent with the Charter, necessary to give effect and operation to all powers vested in the City.”

The charter allocates implementation of the powers vested in the city among various city officials, including the city solicitor. Does Mr. Davis really believe that the manner in which those powers are implemented is not subject to regulation by the City Council, and that all officials to which the city’s powers are assigned perform their duties free from legislative control?

Mr. Davis goes so far astray in his letter because he overstates his role in the governance of the city while failing to acknowledge the status and scope of the legislative powers conferred on the City Council by the Maryland Constitution. The council has the “full power” under the constitution to enact laws governing the exercise of the powers delegated to the city by the General Assembly.

The scope of the council’s authority also extends to passing laws for the “general welfare,” meaning the council may enact any ordinance it deems proper “in maintaining the peace, good government, health and welfare of Baltimore City.” The Maryland Court of Appeals describes general welfare clauses as “granting extremely broad power to a municipal corporation,” stating they must be “liberally construed to accord a municipality wide discretion in the exercise of the police power.”

There is no need to resort to a “liberal construction” of the council’s powers to conclude that the council has the power to decide that the interests of good government are best served by banning non-disparagement clauses. That conclusion is compelled by even the most restrictive interpretation.

Although the condition is stated as a prohibition, Bill 19-0409 simply places a condition on the expenditure of city money. That is a fundamental part of what the City Council does. It passes laws regulating and placing conditions on the expenditure of city funds for purchasing goods and services, making grants, etc. If it wishes, it may place conditions on the use of city money for the payment of claims.

The fact that city money is involved disposes of Mr. Davis’ last argument. He states that Bill 19-0409 is an impermissible attempt by the council to assert control over the BPD, a state agency. The bill is not about controlling the police department. It is about ensuring that city money is not used to buy the silence of victims of police misconduct or unlawful discrimination.

[Published as an op ed by the Baltimore Sun on Sept 23, 2019 but not posted to my blog until December 18, 2019. The date of posting that appears above was backdated to place all posts in the order in which they were written.]

Maybe the decision by the Maryland Court of Special Appeals in Delvonta Morten v. State of Maryland filed on Sept. 4 will do what nothing else has done: persuade the Maryland judiciary to adopt a formal system for evaluating judicial performance. At issue in the appeal were evidentiary rulings by Judge Melissa Phinn of the Circuit Court for Baltimore City during the 2017 trial in which a jury found Mr. Morten guilty of the first-degree murder of Kevin Cannady.

Judge Charles E. Moylan, Jr., wrote the reported decision reversing the conviction on behalf of a unanimous court. He minced no words in his critique of Phinn’s rulings.

The most important evidence at trial ostensibly linking Mr. Morten to the murder was an anonymous telephone call to police 35 minutes after Cannady was shot. The caller gave a detailed description of two assailants. Moylan described the call as “absolutely critical” to the state’s case.

Phinn admitted the call into evidence under the excited utterance exception to the rule against hearsay. Moylan stated that the hearing on its admissibility “was essentially a quasi-adversarial exchange between defense counsel, arguing against the admissibility of the hearsay, and the trial judge, making the best case for admissibility. For the most part, the State sat quietly by.”

Moylan pointed out that the call was the antithesis of an excited utterance. “It was a cool and controlled narrative. If a fellow police officer had been in the declarant’s observation post, he or she could not have done a better reporting job than the declarant did. This report was an admirably unexcited utterance.”

Phinn made three other evidentiary rulings damaging to the defense that the appellate court held were wrong. She admitted into evidence two subsequent calls from the same anonymous caller as present sense impression exceptions to the hearsay rule, and she curtailed the right of the defense’s expert to challenge the reliability of the controversial TrueAllele method of DNA testing used to tie the defendant to the murder weapon.

According to Moylan, Morten would have “walked” had Phinn ruled correctly. Except for the challenged evidence, and wearing a hoodie, “there was no linkage between the appellant and the shooting.”

Bagshaw case

Phinn was the target of criticism last year for the lenient sentence she handed down to former Baltimore Police Department Lt. Steven Bagshaw, who was found guilty by a jury of theft and misconduct in office for defrauding the city of more than $8,600 in pay. Rejecting the state’s request that he be imprisoned for 18 months, she struck the convictions and sentenced him to one day of probation before judgment.

But it was her comments at the sentencing hearing that raised eyebrows even more. Phinn blamed the BPD for Bagshaw’s crimes because it did not watch him carefully enough. She accused the BPD of not having “clean hands” and putting him in a “bad situation,” faulting the department for not “paying attention” to Mr. Bagshaw during his assignment as the head of the unit assigned to patrol near the Horseshoe Casino.

Bagshaw was a 45-year-old veteran policeman who supervised other officers, not a rookie. Even in the surreal world that the criminal justice system in Baltimore has become, it was jarring to hear a judge use the failure of a police department to keep a closer eye on a police lieutenant as an excuse for his crimes.

Will there be any formal review of Phinn’s actions? No. The Maryland judiciary has refused repeated calls to adopt a system for evaluating judicial performance.

The idea of a formal system for reviewing and remedying deficiencies in the performance of Maryland judges reached its high-water mark in 1998, when it was recommended by a select committee of judges and lawyers. The idea has languished ever since. Judicial misconduct is subject to investigation by the Judicial Disabilities Commission but there is no process for addressing a pattern of substandard performance.

In fairness to Phinn, other judges have had bad days, and maybe it was just coincidence that hers attracted public attention. But there must be some system in place to ensure that a judge’s bad days are the exception, not the rule. Right now, there is no such system.

[Published as guest commentary by the Daily Record on September 19, 2019 but not posted to my blog until December 18, 2019. The date of posting that appears above was backdated to place all posts in the order in which they were written.]