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.


                                              4
       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

                                              5
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



                                             6
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.




                                                 7
       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

                                             8
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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