The Wheels of Justice Turn Slowly, but Grind Exceedingly Fine


Now that everything is done but the deciding, let’s take a look at the nuts and bolts of what the Maryland Court of Appeals has on its plate in the case of Schmalfeldt v. Hoge.

On Friday, Sept. 20, the clerk told me that the Court already has their hands on my motion to reconsider their decision to deny my motion to stay the peace order pending appeal, as well as my supplement to the petition for a writ of certiorari (asking them to consider my case).

It seems likely that we’ll get a quick ruling on that, so let’s review the issues presented in that motion.

In my initial motion to stay the PO, filed Aug. 27, I argued that I am a journalist, although officially retired with advanced Parkinson’s disease. But I still take on the occasional freelance assignment. I argued that up until the peace order, my sole contact with Hoge was via Twitter, and that since the peace order was issued, Hoge continues to write about me, to taunt me, in my opinion, to goad me into violating the very broad terms of the PO that he believes to be in effect. I argued that Hoge had filed 8 new charges against me since the granting of his PO, all of which were eventually dismissed by the Carroll County State’s Attorney’s office. I argued that the PO has a chilling effect on my first amendment rights to write stories about Mr. Hoge’s involvement with a right wing hate group, since the code of journalistic ethics requires that I attempt to make contact with the subject of my story to get his side, his comment, and now I was legally — albeit in my opinion, unconstitutionally — forbidden to contact him.  The peace order ignores the part of the state’s harassment statute that says it does not apply to “peaceable conduct” done with the purpose of “expressing a political view or providing information to others. I brought up the Federal District Court‘s decision in US v. Cassidy which stated that “Tweets and blogs” can not be considered harassing conduct.

In her motion to dismiss my motion, Zoa Barnes of Westminster, Md., a family law attorney Hoge — for some reason — chose to represent him in this case, she makes several material misstatements of fact. Out of the box, she claims that I had filed an appeal with the Carroll County Circuit Court to modify the peace order. She even notes that the appeal was transferred to the Court of Appeals on August 9.  She notes that my motion to the CCCC was filed on July 11, a month before the case was transferred to the Court of Appeals.  Then she says that the CCCC would need to hear my request to modify the PO before the CofA could act on my motion to stay. She said that, instead of filing a motion to stay with the CofA, which she admits the appeal had been transferred to as of Aug. 9, that I would have to ask the CCCC for a motion to stay first. Of course, I did ask the CCCC for a modification of the PO on July 11, so she steps on her own argument.  She outright lies (in an artful, legal fashion) by saying the CCCC was “already considering” my motion — not true since the CCCC isn’t scheduled to even hear the motion until Oct. 16.

The CofA received her motion the same day I got my copy, and denied my motion believing that the case was “already being considered.”

Now, at this point I figure, well, that’s that. Let’s see what the CofA does with my petition for a writ of certiorari. But on Sept. 9, I received a very nice letter from the Clerk of the Court of Appeals saying that if I wanted to ask the court to reconsider their denial of the motion, they would entertain that reconsideration. She also suggested that the court may wish to expedite my petition for a writ of certiorari if I got my supplement to them sooner rather than later.

So, I filed a motion for the CofA to reconsider their denial.  In the motion, the first thing I mentioned is that the CCCC is NOT “already considering” my motion to modify since they don’t even hear the case until Oct. 16.  During that time between now and then, I remain under daily threat of criminal prosecution. Hoge had stopped waiting for actual accidental slipups and had started CREATING reasons why I had violated his precious PO.  I reminded the CofA that 8 charges had been filed and dismissed since the PO, but the threat for more remained, including a note from the Carroll County SA telling me to mind my P’s and Q’s if I didn’t want to end up in the dock!  This “sword of Damocles” would dangle by the merest thread for as long as the PO remained intact.  I explained again how Twitter works, and how Hoge could block me any time he wants to and how he attempted to FOLLOW my Twitter timeline after getting his PO. I explained how Hoge was already threatening more criminal charges once all the dust had settled from the appeals. I explained how this was detrimental to my Parkinson’s disease symptoms, not only the physical having to be dragged to and from Carroll County, but the emotional stress of having a constant threat of prosecution dangling over my head and how stress causes PD to worsen at a more rapid rate. I reminded the CofA that since it had taken charge of the appeal, that it was silly to expect that I would file a similar appeal with the CCCC.

Zoa Barnes’ answer was brief, succinct, and full of misstatments.

1. She denied that Twitter works the way that Twitter says it works.

2. She denied that attempting to contact Hoge via Twitter was “peaceable” and “for a legal purpose.”

3. She ADMITTED that, oh yeah! Hoge is gonna bust my chops any time he feels like it once these matters are settled.

4. SHE DENIED THAT I SUFFER FROM ADVANCED PARKINSON’S DISEASE, which will come as quite a shock to my neurologist, the Social Security Administration, the Office of Personnel Management and my wife.


6. And, again, she said that even though the case had been transferred to the CofA, I needed to file an appeal, which I already had, to the CCCC before the CofA could entertain my appeal.

Again, the Clerk told me that the CofA would receive her answers to my motion and to my petition on Monday.  I expect a very quick turnaround on the motion to stay the PO pending appeal.  No official predictions, but I like my chances. I would expect that by this time next week we’ll know whether or not the Court of Appeals agrees that the Peace Order is an unjust infringement on my rights, or if it’s OK that Hoge is using the courts like his own personal spanking paddle.

But the CofA moves on its own schedule regarding petitions for writs of certiorari, which I will discuss in my next entry.