Campbell v. State , 235 Md. App. 335 ( 2017 )

Campbell v. State, No. 1285 of the 2016 Term, Opinion by Moylan J.
HEADNOTE:
MOTION FOR SUMMARY JUDGMENT – TAKING THE PROCEDURAL
CONTEXT FOR GRANTED – THE TIE GOES TO THE STATUS QUO – THE
ELEPHANT IN THE ROOM: DECLARATORY JUDGMENT LAW – BEGINNING
THE GAME IN THE FIFTH INNING
Circuit Court for Baltimore City
Case No. 24C15006785
REPORTED
IN THE COURT OF SPECIAL APPEALS
OF MARYLAND
No. 1285
September Term, 2016
______________________________________
MARK CAMPBELL
v.
STATE OF MARYLAND
______________________________________
Beachley,
Shaw Geter,
Moylan, Charles E., Jr.
(Senior Judge, Specially Assigned),
JJ.
______________________________________
Opinion by Moylan, J.
______________________________________
Filed: December 5, 2017
The appellant, Mark Campbell, asks us to resolve the merits of a purely hypothetical
question sitting for the moment in a procedural vacuum chamber. He would like us to
decide whether the military offenses to which he pled guilty in a Court Martial proceeding
would, had they been committed in Maryland, require him to register as a Tier II sex
offender in Maryland. This we not only will not decide; this we may not decide. The issue
the appellant would like to have resolved would assume materiality only if he had
successfully reached Procedural Step Four or Procedural Step Five of this convoluted
litigation. How does the appellant suggest that he has done so? By simply opting to start at
Step Four, arriving there by magic carpet and blithely finessing antecedent Steps One, Two,
and Three. Those antecedent procedural steps, however, must be doggedly traversed before
the appellant’s proposed issue can acquire necessary materiality. There is no procedural
magic carpet.
Taking The Procedural Context For Granted
It is only in his Statement of the Case that the appellant so much as mentions the
broad procedural expanses over which he has magically floated but otherwise disdained to
notice. He takes the procedural context of the case for granted, at his peril. As a Senior
Airman in the United States Air Force, the appellant, on August 4, 2014, entered guilty
pleas to two counts of child sexual abuse pursuant to Article 120b of the Uniform Code of
Military Justice. It is at that point in his travails that the Statement of the Case picks up the
procedural sequelae.
Upon his release from confinement, Mr. Campbell, a Maryland resident, was
ordered to register as a Tier II registrant for a period of 25 years. A Complaint
for Declaratory Judgment and Request for Hearing was filed in the Circuit
Court for Baltimore City on December 10, 2015. Appellee filed an Answer
to Complaint for Declaratory Judgment on January 21, 2016. Mr. Campbell
filed a First Amended Complaint for Declaratory Judgment on April 15,
2016, and Appellee filed its Response on May 20, 2016. On July 5, 2016,
Appellee filed a Motion for Summary Judgment which was granted by the
Honorable Alfred Nance on July 26, 2016. A timely appeal was noted.
(Emphasis supplied).
Of necessity, the appellate process is tightly constrained. Appellate judges are not
knights errant, scanning the horizon for issues in distress that call out for rescue or remedy.
The appellate process reviews legal proceedings for reversible trial error when such error
is identified by counsel. Ultimate trial error, moreover, cannot be committed by the
attorneys or by the parties or by the witnesses or by the jurors. Fate itself cannot commit
trial error. Ultimate error can only be committed by the judge who makes an erroneous
ruling or who erroneously fails to rule when properly and timely called upon to do so. As
Judge Powers pointed out for the Court in Braun v. Ford Motor Company, 32 Md. App.
545, 548, 363 A.2d 562 (1976):
We know of no principle or practice under which a judgment of a trial
court may be reversed or modified on appeal except for
prejudicial error committed by the trial judge. It is a misuse of language to
label as error any act or failure to act by a party, an attorney, a witness, a
juror, or by anyone else other than the judge. In other words, error in a trial
court may be committed only by a judge, and only when he rules, or, in rare
instances, fails to rule, on a question raised before him in the course of a trial,
or in pre-trial or post-trial proceedings.
(Emphasis supplied). See also Medley v. State, 52 Md. App. 225, 448 A.2d 363 (1982);
Howell v. State, 56 Md. App. 675, 685, 468 A.2d 688 (1983) (“The judicial machinery
cannot, by definition, possibly malfunction when it has never been called upon to
function.”).
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The critical ruling in the present case was that made by Judge Alfred Nance in the
Circuit Court for Baltimore City when he granted Summary Judgment in favor of the State.
We must decide de novo whether that ruling, as a matter of law, was or was not correct. To
assist the appellate court in making such a determination, Maryland Rule 8–501(c)
prescribes what material must be included by the appellant in the appellate extract. In
pertinent part, the rule provides:
(c) Contents. The record extract shall contain all parts of the record that are
reasonably necessary for the determination of the questions presented by the
appeal and any cross-appeal. It shall include the circuit court docket entries,
the judgment appealed from, and such other parts of the record as are
designated by the parties pursuant to section (d) of this Rule.
(Emphasis supplied).
The Tie Goes To The Status Quo
At this point in the procedural process, we hit our first, if not indeed an
insurmountable, speed bump. We have no idea whether Judge Nance, in granting Summary
Judgment, was right or wrong. We do not know what basis the State had for requesting
Summary Judgment. We do not know what basis Judge Nance had for granting Summary
Judgment. The appellant has not provided a copy of the State’s motion, as he should have.
If the appellant opposed the motion, we are told nothing in that regard. If there was
argument on the motion, we are told nothing in that regard. The record on this issue is a
total blank. In short, the appellant has not provided us with any information on which we
could base a reasoned decision.
The result, therefore, is easy. If we do not know the State’s basis for asking for
Summary Judgment and do not know why Judge Nance decided as he did, we will simply
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presume that he did the right thing for the right reason. It is not the State’s burden to
persuade us that Judge Nance did the right thing. It is the appellant’s burden to persuade
us that Judge Nance did the wrong thing. This the appellant has not done. The nothing-to-
nothing tie goes to the status quo.
The appellant will, no doubt, protest that, from his brief Statement of the Case alone,
the only logical inference is that the subject matter of the Summary Judgment motion was
no such issue as limitations or subject matter jurisdiction or standing, but was necessarily
the adequacy of the appellant’s underlying request for Declaratory Judgment. Even if we
indulge the appellant in such an inference, we immediately confront an even more
imposing procedural barrier.
The Elephant In The Room:
Declaratory Judgment Law
The undergirding pleading on which this appeal is predicated was the appellant’s
Complaint requesting that the Circuit Court for Baltimore City issue a Declaratory
Judgment, declaring the dispositive similarity or dissimilarity between the federal sexual
abuse crimes and the Maryland sexual abuse crimes. This case took on life when the
appellant, on December 10, 2015, filed in the Circuit Court for Baltimore City a Complaint
for Declaratory Judgment. Every stage of the litigation that followed gravitated around that
central pleading. The State filed an answer to the Complaint; the appellant amended the
Complaint; the State answered the amended complaint. The State’s motion for Summary
Judgment and Judge Nance’s granting of Summary Judgment were with exclusive
reference to that Complaint.
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From start to finish, this is a Declaratory Judgment case. It is not a case about the
respective State and federal definitions of child sexual abuse. That is, at best, secondary.
The case is about what Maryland’s Declaratory Judgment law can or should do with respect
to those definitions. Bizarrely, Maryland’s Declaratory Judgment law is the unmentioned
elephant in the room. It is like Daphne du Maurier’s “Rebecca,” who does not even appear
in the novel that bears her name. After a single mention in the Statement of the Case, the
words “Declaratory Judgment” never appear in the entire appellate brief. Nor are they even
indirectly alluded to. In this case, one cannot arrive at child sexual abuse without going
through Declaratory Judgment law. The passage through Declaratory Judgment law,
moreover, may not be blithely assumed. If we declare nothing else, let it be that we
acknowledge the elephant to be in the room.
Maryland Code, Courts and Judicial Proceedings Article, includes Title 3, Subtitle
4. Declaratory Judgment. It embraces 15 subsections, Sect. 3-401 thru Sect. 3-415. Not
once is this core statute referred to. Not once are any of the dozens and dozens of cases
interpreting this law, spelling out its procedural requirements and its binding limitations,
cited or relied upon. We are not here asked to infer some trivial fact or implicit procedural
step. Without so much as being asked, we are left to infer the central procedural engine of
this litigation, to wit, the proper application of the Declaratory Judgment law. We are left
to grope with evanescence.
Although we cannot be sure as to why the State asked for Summary Judgment and
cannot be sure as to why Judge Nance granted Summary Judgment, it seems likely that it
was because of some flaw in the appellant’s Complaint for Declaratory Judgment. Griffin
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v. Anne Arundel County, 25 Md. App. 115, 137, 333 A.2d 612 (1975) (“[I]t was proper
for the chancellor to dispose of the petition for declaratory judgment as on a motion for
summary judgment.”). It is inconceivable, therefore, that we have not been furnished with
a copy of that critical Complaint. A month after the Complaint was filed, the State filed its
Answer. Just as we have never seen the original Complaint, we have never seen the State’s
Answer. We have no idea whether the State’s opposition was based upon its assessment
that the Complaint was substantively flawed, procedurally flawed, or both.
It is clear, however, that there may have been some flaw in the Complaint because,
in response to the State’s Answer, the Appellant filed a First Amended Complaint for
Declaratory Judgment. We have never seen that First Amended Complaint. The State
subsequently filed a response to that amended Complaint. We have never seen that
response. In this fourfold thrust-and-parry between December 2015 and May 2016, there
was obviously serious contention that may have had decisive bearing upon the Summary
Judgment decision of July 2016. We have no glimmer, however, as to what that contention
was all about.
The obscurity in which we are left is even deeper. Declaratory Judgment law is an
intricately complicated subject. Above and beyond the failure to provide any insight into
what was going on by way of the record extract, the appellant does not even mention the
subject of Declaratory Judgment in the argument section of his brief. The entire subject is
an utter and absolute blank. Perhaps the pleading itself was procedurally flawed. Master v.
Master, 223 Md. 618, 626, 166 A.2d 251 (1960) (“It has been held that more than a mere
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prayer for declaratory relief is required in a pleading if the jurisdiction of the court to
declare rights and status is to be invoked.”).
Does Declaratory Judgment law, moreover, even apply to a case such as this,
originating in a criminal prosecution, albeit involving a serious collateral consequence of
that prosecution? Sinclair v. State, 199 Md. App. 130, 139, 20 A.3d 192 (2011) (“It is
sufficient for the present to hold, as we do, that a petition for a declaratory judgment may
not be filed in a criminal cause.”). In Sinclair, as here, the appellant was not challenging
the original criminal conviction but was challenging a collateral consequence of that
conviction. Judge Rodowsky wrote for this Court:
Here, in Sinclair’s criminal cause, the judgment of conviction has
been final for many years, and Sinclair does not challenge that conviction in
this proceeding. Under these circumstances, Maryland law does not
recognize the filing of a declaratory judgment action in a criminal cause, even
if the object of the declaratory judgment action is to obtain a ruling
concerning a collateral consequence of the conviction.
199 Md. App. at 140 (emphasis supplied). See also Edmund v. State, 398 Md. 562, 570,
921 A.2d 264 (2007). The appellant does not even address this issue.
The appellant casually assumes the only question to be whether the federal military
offense is so dissimilar from the Maryland offense as to preclude the imposition of the
obligation to register as a sex offender. The more mundane but pertinent question, however,
is whether the appellant satisfied the jurisdictional qualifier for invoking Declaratory
Judgment law as his modality for challenging the required registration. This latter question
the appellant has not even considered, but he ignores it at his peril.
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Seemingly, the appellant would have us assume that Judge Nance actually
considered the various and numerous arcana of Declaratory Judgment law, concluded that
there was no procedural inadequacy with the appellant’s Complaint, and necessarily based
his decision on the ultimate merits comparing the federal and State crimes. That is wild
and runaway speculation. How could we possibly say that the grant of Summary Judgment
was not based on a procedural flaw in the Complaint for Declaratory Judgment if we have
never been shown that Complaint? If he actually made a substantive comparison of the two
sets of crimes, moreover, the question would inevitably arise as to why he did not issue a
Declaratory Judgment to that effect rather than grant Summary Judgment. Case v.
Comptroller of Maryland, 219 Md. 282, 288, 149 A.2d 6 (1959) (“Ordinarily, whether a
declaratory judgment action is decided for or against the plaintiff, there should be a
declaration in the judgment or decree defining the rights of the parties under the issues
made.”). Of a dozen possible reasons for the granting of Summary Judgment, the appellant
airily assumes the catalytic one to have been the one he would like to argue. Navigationally,
the magic carpet may carry the contention-framing appellant anywhere he wishes to go.
Our earthbound reviewing function, however, will not fly with him.
Beginning The Game In The Fifth Inning
In the last analysis and switching our primary metaphor, the appellant would like to
start the game in the fifth inning. That would present, however, numerous and vexing
problems. Notwithstanding the appellant’s obsession with the nuances of federal and State
child sexual abuse laws and to the appellant’s undoubted chagrin, we are utterly
unconcerned with that issue. In some other case on some other day, it may be a fascinating
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subject to explore. In this case, however, it does not make any difference. If, by some
procedural default, one forfeits the game in the first three or four innings, then what might
have happened in the fifth inning, had the fifth inning ever taken place, simply does not
matter.
JUDGMENT OF THE CIRCUIT COURT
FOR BALTIMORE CITY AFFIRMED;
COSTS TO BE PAID BY APPELLANT.
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