INTHE CIRCUIT COURT FOr ANNE ARUNDEL COUNTY,MARYIAND STATE OF MARYLAND vs. . Case No: KA12415 Memorandum 1. Introduction Pursuant to Rwio 4-328 of the Maryland Rules of Procedure, this constitutes the Court's ‘grounds for ts decision in supprt ofthe verdiels that will be enterad today in the case of State of Maryland v. John R. Leopold which is No, K+ -415 on the criminal docket of the Circuit Court for Anne Arundel County. 1. The indictment On March 2, 2012, the Office of tho Stato Prosecutor fied a five count fndlelment that had been retuned by the Grand Jurors of Anne Arundel County against John R. Leopold (hereinafter ‘Leopokt’ of "Defendant. our of the counts charged the offense ‘of Misconduct Office, a violation ofthe common law. Te fh count charged Fraudulant Misappropriation by Flduclary, a violation of Section 7-143 (1) of the Crininat Law Antiole of the Annotated Code of taryland, ‘On January 28, 2013, one ofthe Misconduct in Office counts, Gaunt Tio, was adjudicated Net Guily by the Court on the Defendant's Motion for Judgment of Acquittal at the concluston of the Slate's case, ‘The remaining caunts are broken down as falows: Count One-Misconduetin Office “This count is baeed on the thoory of misfoasaneo and charges that the Defendant misused "Fxecutive Protes an Oficers for Pollcal and Campaign Activities." This offence Is alleged to have occurred between June 26, 2019 and November 16, 2010, Count Three-blisconcuct in Ofteo Count Three also relies on tha theory of misfeasance and charges that the Defendent misused county employees for personal purposes between the dates of February 17, 2010 ane May 15, 2081 Count Four-Misconduct in Office Count Fours grourdod ona cleim of malfeasance and assert that between February 26, 2010 unt July 18, 2010 the Defendant erisused county monies for is pereoral benefithy causing county munles lo he ullized fo pay executive protection aficers ever $10,000.00 in overtime pay forthe Dafandant’s own use and benefit in an efter to conegal a porsonal relationship. Count Five-Fraudulent Misappropriation by Fiduciary Count Five is based on an alleged stalulory violation of Section 7143 (1) of the Crininal Law Article and charges the Defendant with causing county monies to be ufllzed to pay executive protection officers over $5,000.00 in overtime pay for the Defendant's own Uso and bonofit in an attempt to conasat a parsonal ietationship. Itis alleged that this was done between February 26, 2010 and July 48, 20101 UL Background Foltowing the fig of the indéotment in March,2012, a triat dale was set for September 4, 2012 and in tho spring of 2012,a lengthy jury selection prosess was agreed to by the pariles which included the completion of writen jury questionnaires by prospective Jurors. This process proceeded forward in the summer of 2012 with an agreed upon questionnaire prepared and. several hundred prospective jurors being summonsed fo completed the writen questionnaires in August, 2012, However shorlly prior to the date the prospective jurors were to report, Dofondant requested a postponement of the tial date walch wes granted on August 2, 2012 by the Honorable Paul Hackner after the Defendant waived his right lo a speedy Wal A new tial date of January 46, 2013 was agrocd te by the partios and the same jury selection process that had begun in the summer was repeated with @ new group of 336 prospective jurors who came to the court house in Devember, 2092 and eompleted vrilten questionnaires which wore roviowed by counsol and the Court, On January 16th and 17th, she Court and counsel conducled interviews af prospective Jurors and agreed Con a poo! of qualificd jurors, (On January 17, 2043, just prior to final selection of the jury, the Defendant after extensive voir diro by counsal and the court, waived his zight to a jury trial and clected to be tried by the Court withouta jury, Trlal commenced on January 18, 2018 and testimony conckidad on January 28. WV. Witnesses and Exhlbits “Tha fallowing persons fastified during the course of tha tia Those peisong called by the State: Patricia Redtin Patrick Thomas Shanahan Katherine Goodwin Janet Sunderland Owens Joseph Pazulskt Howard Brown Erik Robey Mark Walker, Michael Slavlas Tracie Reynotds Loretta Drew Karen Marcus Grogory Speed Joanna Contt Timothy Photan Jared Detarinis Stephen Clerk Restle Rodnoy Gottman Andrea Fultan Amie Shreves “Those persons caed by the Defendant Dt, Roy Etwin Bands Le. Timathy 6. Burke Andrea Fulton Both the State and the Defendant submited into evidence numerous exhibits which tha Court has reviewed in reaching its conckisions, V. The Applicable Legal Standards ‘Three of the remaining four counts i the indletment are charges based on the eomman law offense of Misconduct in Offca. In Maryland, misconduct in office is 8 common lave misdemeanor. Itis comupt behavior by a public tines’ in the oxcreise of the duties of his office or while acting under the color of his office. Duncan v. State, 262 Md. 388, 387 (1978). The Maryland cases have recognized that the “corrupt behavior" can be entegari d in voriouss ways such as “(} the doing of an act which is wrongful ia itself (malfeasance), of, (2) he doing of an act otherwise lawful In vurongfal manner {misfeasancey, ar, (3) the omitting to do an act which is required by the duties of the "There isi depute thet by vite of Defenclan helng the County Executlve of Anne Avro! Couniy, ‘anysanl erg tha postode covered Ly Uns inline Uist ha a as sti oF ack ard aw "PUBIC tice office (nonfeasance)." lt Stale v. Carter, 200 Md. 288, 262-267 (1982); Hramefs v. State, 56 A.9d 286 (2012); Chester, State, 32 Md.App. 993, 601-610, cert dantied, 278 Md, 718 (1976), Within each of the misconduct counts, the State acknowledges that it must show that the Dofendant acted "coruptly and in violation and perversion ot his duties’ as County Executive and it also acknowledges that it must shaw that the Defendant cammnitied each count "knowingly, willy andl intentionaliy’ ‘What ‘corrupthy” moans in this contoxt has not beon well dofiacd, Some guidanco is supplied by the commentary tu ths Maryland Patleva Jury Instructions In support of Ils instruction on Misconduct in Office MPJICr 4:23 whieh states: The word ‘corruption,’ as an element of misconduct in office is used in tha sense of depravity, perversion or taint” R. Perkins & R Boyce, Criminal Lav, 542 (2d ed. 1982), Thus, tho conduct must be a wilful abuse of authordy and net merely an ezror in judgment. H. Ginsberg & | Ginsburg, Criminal Law and Procedure in Maryland 152 (1840); see State v. Soba, 71 N.J. 500, 367 A.2d 422,429 (1076) (“corrupt does not nepessarily..anean financial dishonesty [buf] rather connotes thatthe wrongiul act is ddone with ‘evil mofve or in bad faith and not honestly"). Doefeniant has challenged the vary essence ofthe Maryland crime of illscanductin Office claiming that the offense can act survive because under today’s constitutional slandards the offense is too vague and opens up the possiblity of their Day a lack of {air notica to those potentially targeted and that it doss not provide far freedarn from arbitrary and discriminatory prosecutions based an the mere whim of tke prosecuting authority, Defondant citas cases such as Skiling v. United States, 190 8.01. 2898 (2010) and cases frorn other jumisdlations that have dealt with the aws of other atates on ‘oficial misconduct’. S00, o.g., Stato v. Joniins, 469 So.2d 733 (Mla, 1985); State v, Doloo, 356 So.24 306 (Fla, 1979}; Stale v. Adams, 254 Kan, 438, 866 bad 1017 (1994), This court has coviewed thove auhories as well as those ced by the Stete and concludes thatthe common law Mayland crimo of Misconduct in Otfse is not unconstitutional vague as 3 violation of due process. ‘as the Skifing majorly opinion notes a statulo should not he declared unconsitutionally vague ifthere are constructions that can be applied to the faw that wwoukd save i om canatitutanal invalidity. Given its pedignee of helng part of Maryland law for several centuries a nomstalutory common faw offense should inthis courts view be accorded atleast the same deference as a statute 60 itis not unnecessarily elegated to the trash bin of Marylan lgot history. The Sitting majority construed the “honest servioes* statute to pate It back to is core which inched a cefinite group of defined crimos thus viding the constitutional problem. Unie in Skating whore a statute enacted by a legislature was in issue. this court is dealing with a cemman law erime that is shaped and adupted by tne Court over ime fo meet the needs of suciely, Rogers v, Tennessee, 632 U.S. 451, 464 (200), There is thus al the more reaeon why this Court should soarch out a construction of the trecliional common la offense that fits within current constitutional standards, Its not fo this Court, traf court, fo make law, That task is fr the Goust of Appoats shuld they choose lo do so. [tis howover tho duty of this court to see if within established Maryland law or what can fairly be implied from the exse law, there is a construction that meets constitulfonal standards, Misconduct in Office is defined as "corrupt behavior by a public officer in the exeroise of the duties of his office or while acting under color of his offic Duncan v. State, 282 Md, 385, 387 (1978), An act or voncuet unrelated to the public official's duties even ifit is u violation of fhe criminal law wil nat amount to Misconduct in Office. Office of the ‘Attorney General, State of Maryland, Opinion No. 97-014, June 8, 1997, 62 Md, Op. Atty. Gen, 147. The Court of Appeais has recognized that misfeasance is defined as the doing wrengftily and injuriousiy. an act which a person might do in a lawful manor: the doing ofa tawful actin an unlawful manner, or the wrongful and injurious exercise of leget authority, State v. Carter, 200 Md. 255,262-263 (1852). Tho Garfercourt also noted that the offense carries with it ‘some measure of wiffulness and bad intent and may be induced by corrupt motive...” kat 263, See also, Rewelar v State Boar of Education, 284 Md, 837, 584 (1878) (misconduct in oftice Is "falny unlawil behavior by 2 pulblic oficer in relation fo the duties of his office, wilful in character) As the Maryland Pattern Jury Lastuction Committee notes in its commont cited above, the onuet must be a wilful abuse of authority and nota mere error af Judgment. This appears to be how the Court of Spocial Appeals views lhe étanciaid since it quotext favorably irom a treetise which defined the offense as *opprassive and wil abuse of autiorty (ta be distinguished frotn mere ettor of judumenty’. Chester v. State, 32 Mid App. $93, 606 (1976). As notad ahove, the State fas acknowledged thal It must show a to the misconduct counts stil at issue that tho Defendant acted "corruptly’. They fave also accepted that they must show thet the Defendan| acted "knowingly, willfully ‘and Intentlonally’. OF course, as with all criminal offonsos, the State must prove the cima with proof that convinoes the trier of fact ofthe Nofondant’s quit beyond a reesonable doubt. ‘A leading treatise onthe law regarding public officrs neatly caplures what this Court believes the cretion thatthe Maryland Court of Appeats has taken and vil rake on construing the contours of the offenss of Misconduct in Office: lk should be noted that cfiminal intent is an essential element ar the offense of misconduct at common law, Furthermore, the laws providing for the removal af Unfaithful public officers are aut designed,... a8 a pitfall into which an fionest and sincere public official might be plunged if he unintentionally erred in tho discharge of his dufies: {ho law prosuimes that a public official conducts himself in good faite, the burden resting tupon a complainant to show the contrary to be true. Accordingly, the courts have prevented the cornmon law crime of tnisconduet in office fram becomming a means for oppressive prosecutions premised upon vaque moral principles by making wiffulness an element of the crime. Wiltulnass, a texm which may have different meanings in different contexls, means, in the context af malfeasance arising out of the breach of a duly of public concem, an evil purpose or mental culpability, a congapt which ia often labeled! criminal intent, guilty knowledge, mens tea, tad purpose, ar corruption. Accordingly, it sagms that, in order to sustain a charge of wiflil maladministeation in office, the acts ‘elied upon must have bean committed with bad or evil intent or for a bad oF ovit purpose, Mere error. mistake, negligence or ignorance daes nat meet this concept McQuillan, Munlaipal Corporations, Ser, 12.287 (3rd Edilion 2012} foatnates omitted) In this Gour’s view vith these safeguards in mind,the construction anpliag above ta the offense of Misconduct in Office saves i rom any clan that the offense is toa vaguo to be constitutlonally sustained. Defendant has also placed groat omphasis on the characterizetion In the indictment of Counts 1 and 3 as being “misfessance” and the Defendant contonds that the Iheoty has now been switched to "matfoasance” and Ihat such switch is fatal ta both counts being ble fo be austained. The Cowt has considered these argumenls and the eases cited ‘today on this point and concludas that the uso of the terms in the indictment is not citical in the context of this case. It Is cattalhly not fatal to the sustainability of the counts. ‘The fifth and final count charges tho Nefendant with Fraudulant Misappropttation by a Fiduciary a violation of Sec. 7-149 of the Criminal Law Article. Under See. 7-113 (1), 4 fiductary may riot fraudulently and wilfully appropriate money or a thing of value that the ficluctary holds in a fctciary capacity contrary to the requirements of the fiduciary's trust responsibilty VL Factual Findings and Application to Legal Standarde The Defendant, John R. Leopoli, ran for ancl was elected to the office of County Executive of Anne Arundel County, Maryland, He was sworn into ofl and asoumod the Offoe on December 4, 2008, The Nefendant war re-elected to @ second term 38 County Executive on Novernber 2, 2010 and was sworn in on December 8, 2010 ‘Ae County Executive and pursuant to he Anne Arundel Gounty Sharer, the Mofensant isthe chief executive and administrative officer af tha counly and offiiat head of the county goverrrnont Porto his election to the office of County Executive, the Defondant had an oxtonsivo history of holding elective attic s Inboth the State of Maryland and In Hawall, In Maryland) before heing elected County Exacutive he served 18 years in tha Maryland 10