Addison v. State
| Decision Date | 08 March 2007 |
| Docket Number | No. 144, Sept. Term, 2005.,144, Sept. Term, 2005. |
| Parties | Elton ADDISON v. STATE of Maryland. |
| Court | Court of Special Appeals of Maryland |
Kevin M. Murphy, Washington, DC, for appellant.
Edward J. Kelley (J. Joseph Curran, Jr., Atty. Gen., on brief), for appellee.
Panel KRAUSER, MEREDITH, MOYLAN, CHARLES E., JR. (Retired, specially assigned), JJ.
Elton Addison appeals the pretrial order of the Circuit Court for Montgomery County that denied his motion for an ex parte hearing regarding his proposed pretrial use and disclosure of confidential records that he had previously subpoenaed and reviewed in the court's chambers. The State has moved to dismiss the appeal, arguing that the ruling denying the ex parte hearing is not immediately appealable. For the reasons set forth below, we conclude that the ruling is not immediately reviewable under the collateral order doctrine, and we grant the motion to dismiss this interlocutory appeal. We do not reach the merits of Addison's question as to whether the motion court had the authority to grant Addison's request for an ex parte hearing regarding his proposed pretrial use of the confidential records.
A Montgomery County grand jury indicted Elton Addison on one count of sexual abuse of a minor and six counts of sexual offense in the third degree. Addison filed two separate motions for subpoenas for documents to be produced before trial, requesting that the Montgomery County Public Schools ("MCPS") and the Montgomery County Department of Health and Human Services ("DHHS") be compelled to provide the alleged victim's educational records and health records. The MCPS and the DHHS both opposed the defendant's motions for subpoenas. Both argued that these governmental agencies should not be required to disclose their respective records, citing the alleged victim's privacy rights and the confidentiality of the documents.
On June 29, 2005, attorneys for the defendant, the State, and MCPS appeared for a hearing in the Circuit Court for Montgomery County. At that hearing Addison's counsel clarified the limited access she was seeking at that juncture, stating:
[Counsel for MCPS]: Yes, Your Honor. Since [defense counsel] and I have argued this issue many times, there is an order that [defense counsel] has seen before, . . . which does recite what [defense counsel] represented to the Court, that the inspection would be permitted by counsel. They then could tab something that they believe is important, and it would all be subject to further hearing before the Court as to whether they can make copies, whether they could use any of that information at trial. So this is . . . kind of a standard order that has been used in the past when the Court has deemed it appropriate for there to be a review.
The order that was then entered by the circuit court with respect to the records of MCPS following the June 29, 2005, hearing, provided, in accordance with Zaal v. State, 326 Md. 54, 84-88, 602 A.2d 1247 (1992):
ORDERED, that the use of the records in question is subject to further hearing and decision of this Court, which shall also address the scope of the use and disclosure of the records or information contained therein, restrictions on copying and disclosure, and the imposition of any further orders as may be appropriate.
Subsequently, the circuit court also entered an order permitting inspection of the records of DHHS but prohibiting disclosure pending further order of court. Cf. Baltimore City Police Department v. State, 158 Md.App. 274, 288-91, 857 A.2d 148 (2004)(describing process for in camera inspection of confidential records, followed by opportunity to proffer need for disclosure). The records of both MCPS and DHHS were delivered to the court's chambers, and counsel for both Addison and the State reviewed the records in chambers.
After reviewing the records in chambers, Addison's counsel moved to be heard ex parte with respect to her proffers of justification for making use of certain of the records to prepare for trial. Counsel argued that such proffers would require the disclosure of her defense strategy and her work product, and, therefore, should not be shared with the prosecution. Counsel further argued that requiring her to disclose her proposed uses of the records and argue in the presence of the prosecutors why she should be permitted to make further pretrial use and/or disclosure of the MCPS and DHHS records would violate Addison's right to due process, his right against self-incrimination, and his right to effective assistance of counsel.
At the hearing on the motion to present the proffers ex parte, counsel for Addison clarified that the requested "ex parte" hearing would not exclude attorneys who represent the custodians of the records, but would exclude the prosecutors, and would be a closed proceeding. Counsel stated:
[Defense counsel]: ... The hearing would be ex parte, but those two entities [i.e., MCPS and DHHS,] are still charged with maintaining the confidentiality of their records. So I think that they would be able to argue to the Court, if the Court accepted that[ ] I would be able to use certain of the records, perhaps the scope or what I could do with the records. I think that at the end of the ex parte hearing, the Court could, of course, and I would ask this, that the Court seal the record so that those attorneys would ... be prevented from discussing with anyone what we talked about at the ex parte hearing.
The prosecutor objected to the proposed procedure, and asserted that the State was entitled to be present at any such hearing.
The circuit court denied the request for an ex parte hearing regarding Addison's proposed use of the MCPS and DHHS records, stating:
THE COURT: I have reviewed the memorandum and I've listened to the arguments of counsel. It is a novel and interesting argument.... But as [defense counsel] concedes, there's no Maryland case law on it.... So it would be most unusual to exclude the State from a hearing of this nature, and I don't feel that authority exists to do so.... I'm going to deny the motion to conduct a hearing as an ex parte hearing.
Addison then filed this interlocutory appeal to challenge that denial, and the circuit court stayed the criminal action pending resolution of this appeal.
The motion court was understandably skeptical about Addison's proposed procedure for conducting an ex parte hearing on a pretrial issue. In our adversarial system of justice, ex parte communications between the court and one party to a dispute are generally disfavored and, in most instances, prohibited. Limited exceptions to the general rule that "a judge shall n[ot] initiate, permit, or consider ex parte communications" are set forth in The Maryland Code of Judicial Conduct in Maryland Rule 16-813, Canon 3B(6), which provides:
(a) A judge shall accord to every person who has a legal interest in a proceeding pending before the judge, or that person's lawyer, the right to be heard according to law.
(b) While presiding over a proceeding, a judge shall neither initiate, permit, or consider ex parte communications nor consider other communications made to the judge outside the presence of the parties concerning a pending or impending proceeding, except as otherwise provided in Canon 3B (6).
(c) Ex parte communications that relate to scheduling or other administrative purposes or emergencies and not to substantive matters or issues on the merits are authorized, if: (i) circumstances require; (ii) the judge reasonably believes that no party will gain a procedural or tactical advantage as a result of the communication; (iii) the judge makes provision promptly to notify all other parties as to the substance of the ex parte communication; and (iv) the judge affords the parties reasonable opportunity to respond.
(d) With the consent of the parties, a judge may confer separately with the parties and their lawyers in an effort to mediate or settle matters pending before the judge.
(e) A judge may obtain the advice of a disinterested expert on the law applicable to a proceeding if the judge: (i) makes provision promptly to notify all of the parties as to the expert consulted and the substance of the advice; and (ii) affords the parties reasonable opportunity to respond.
(f) A judge may consult with court personnel whose function is to aid the judge in carrying out the judge's adjudicative responsibilities and with other judges.
(g) A judge may initiate or consider an ex parte communication when expressly authorized by law to do so.
The proposed draft of the American Bar Association's Revised Model Code of Judicial Conduct retains a similar prohibition against substantive ex...
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