Bourexis v. Carroll County Narcotics Task Force

WILNER, Chief Judge. Appellant is an attorney who practices in Carroll County. In June, 1992, he filed a 14-count complaint in the Circuit Court for that county against “The Carroll County Narcotics Task Force, a.k.a. Drug Enforcement Bureau,” Andrew McKendrick, and Robert Heisler.

Messrs. McKendrick and Heisler were sued individually and in their capacities as members of the Carroll County Narcotics Task Force. The predicate for all 14 counts was stated in several introductory paragraphs of the complaint. Appellant averred that the Task Force “is composed of law enforcement officers from various law enforcement agencies who purport to operate under the laws of the State of Maryland” and that McKendrick and Heisler acted individually as members of that Task Force.

He asserted that “[i]t is the policy and practice of the Defendants Task Force, McKendrick and Heisler” (1) “to refuse to work with persons suspected of, or arrested in connection with, drug offenses who are represented by the Plaintiff and not by other lawyers,” (2) “to inform persons who have been arrested on drug-related charges that if such persons are represented by the Plaintiff that the Defendants ⁴⁶³ will discriminate against them but will not discriminate against them if they use any other attorney,” and (3) “to inform the Plaintiffs existing clients that they will be discriminated against as long as they are represented by the Plaintiff.” Finally, appellant alleged that “The Defendants have adopted this policy and practice in order to damage the Plaintiffs practice by retaliating against him for his representation of certain persons who have been charged with drug-related offenses and in order to prevent him from continuing to represent persons who have been charged with drug-related offenses.” This conduct, appellant complained, deprived him of three basic rights under the Federal and State Constitutions — a property interest in his livelihood (Counts 1-4), equal protection of the laws (Counts 5-8), and freedom of speech (Counts 9-12) — and constituted as well an intentional interference with his business in violation of State common law (Counts 13 and 14). In each of these counts, appellant asked for substantial compensatory damages and an injunction to restrain the defendants from “continuing to deprive the Plaintiff of business by informing persons that they will be discriminated against if they are represented by the Plaintiff and from in fact discriminating against such persons because they are represented by the Plaintiff.” In several of the counts (2, 4, 6, 8, 10, 12, and 14), appellant alleged that the conduct complained of was malicious, and in those counts he also asked for punitive damages. The defendants answered appellant’s request for an interlocutory injunction and moved to dismiss the complaint or, in the alternative, for summary judgment. The thrust of their response, and their position throughout these proceedings in both the Circuit Court and this Court, is that appellant’s complaint really is that the Task Force will not negotiate plea bargains with anyone represented by him.

Appellant agrees that that is essentially what he is complaining about — the refusal to “work with” his clients and the discrimination threatened or practiced is in the context of excluding them from the opportunity to obtain the benefits derived from a ⁴⁶⁴ plea agreement. The defense to the complaint, read in that light, is that, as appellant’s clients have no legally protected right to a plea bargain or to receive favors from the Task Force, appellant can have no derivative claim when bargains or favors are denied to his clients. Apart from that, the defendants also assert that, as they are engaged in what is essentially a prosecutorial function, they are protected by the immunity applicable to prosecutors. At a hearing on both the request for interlocutory injunction and the motions to dismiss, appellant presented evidence regarding two of his clients — Doyle Barnes and Gordon Cart-nail.

In an affidavit, Mr. Barnes said that after his arrest in December, 1989, he had worked out an agreement with McKendrick and the Task Force under which the Task Force would forgo seizing his car if he paid McKendrick $800 by February 1, 1990. He paid $500 but could not come up with the other $300 by February l. 1 On February 6, he took the other $300 to McKendrick, who told him, in effect, that the deal was off and that he had already filed papers against Barnes. When he asked McKendrick if he could get the car back, McKendrick said that “as long as Bourexis is your lawyer, you can guarantee you’ll never get your car back. He said that “we will not work with you.’ ” When asked why, McKendrick said, “ “We do not like Bourexis.’ ” The affidavit did not indicate what happened thereafter to Mr. Barnes— whether he worked out a plea bargain or was required to stand trial.

Appellant acknowledged that he continued to represent Barnes “in the disposition of his case.” The evidence regarding Cartnail was in the form of excerpts from testimony given by Detectives McKendrick and Heisler at a proceeding to revoke Cartnail’s bond. Under cross-examination by appellant, McKendrick admitted cancelling a deal with Cartnail. He initially said “I told him that if he ⁴⁶⁵ continued to have you as re — as his counsel, that I would not be working with him” but continued that “after the statements that were said at the end of the process, I have no intention of working with him, no matter who he has for counsel.” When Cartnail asked why McKendriek would not work with him while represented by appellant, McKendriek replied that “nothing ever seems to work out when we have you as defendant’s counsel,” that “I told him in no uncertain terms that if you represented [him] for counsel, we would not be working with him,” and that “if he had other attorneys, it would be no problem.” Heisler also said, under cross-examination, that it was “probably common knowledge with everybody in the Task Force” that “we’re not gonna work with anybody that’s represented by you, Mr. Bourexis.” Heisler said that it was a matter of policy and was nothing personal against appellant, although Cartnail gave testimony to the effect that the Task Force’s policy was based on its perception that appellant was an “asshole.” Appellant himself testified at the hearing in this case. He described the process of “working with” the Task Force as essentially providing information, either directly to members of the Task Force or to other law enforcement officers who would then relay the information to the Task Force.

He later added that making drug buys was also part of it. At one point he said that “[t]here are basically no promises or no commitments made” for such cooperation beyond bringing it to the attention of the prosecutor, but he later said that it might result in the prosecutor agreeing “not to allocute at sentencing” or to reduce charges. He acknowledged that some of his clients have chosen as a matter of strategy not to cooperate with the Task Force, and that that has not prevented him from working out plea bargains with the State’s Attorney. He offered some conclusory evidence, devoid of detail, that his practice had suffered because of the Task Force policy of not “working with” his clients.

He did not assert that any particular client had terminated his services because of the Task Force’s policy or that any particular prospective client failed to retain him on account of the policy. ⁴⁶⁶ Upon the evidence presented and the memoranda filed by the parties, the court entered an order on September 30,1992, treating the motions to dismiss as motions' for summary judgment under Md.Rule 2-322(c), granting those motions, and denying injunctive relief. In various “Whereas” clauses, the court concluded that (1) the Task Force was “not a legal entity” and had no “entity status upon which it can be sued,” (2) the prosecutor member of the Task Force, with the advice of the police members, had “full discretion ... to deem a particular criminal defendant untrustworthy-by-association and to choose not to enter plea negotiations,” (3) no one had a “legal right or property interest in negotiating plea agreements,” (4) Counts 1 through 4 of the complaint failed to allege sufficiently a deprivation of a property interest, (5) Counts 5 through 8 failed to allege sufficiently a violation of equal protection of the laws,' (6) Counts 9 through 12 failed to allege sufficiently a violation of appellant’s freedom of speech, (7) Counts 13 and 14 failed to allege a cause of action “in that those counts only allege a willful or malicious conduct in communicating to persons in order to cause damage,” and (8) “some government immunity applies.” In this appeal, appellant attacks each of those conclusions. He argues that the Task Force is an entity that may be sued, that the police members do not have the immunity available to a prosecutor and are not immune from suit, that his complaint did state causes of action, and that he was entitled to an injunction. The defendants, of course, believe that the trial court was right on target.

McKendrick continues to view the Task Force’s role as part of the prosecutorial plea bargaining process, thereby cloaking all of its members with a prosecutorial immunity. Heisler does not repudiate that approach but asserts further immunity under the Tort Claims Act. More fundamentally, they look at appellant’s complaint as alleging merely a refusal by the Task Force to engage in plea bargaining and, seizing upon the pronouncement of the Supreme Court in Weatherford v. Bursey, 429 U.S. 545 , 97 S.Ct. 837 , 51 L.Ed.2d 30 (1977), that there is no constitutional right to a plea bargain, urge that, as appellant’s clients have no protect ⁴⁶⁷ ed right to a plea bargain, appellant has no cognizable claim when the Task Force refuses to enter into such bargains with his clients. Status Of The Task Force Before considering the heart of this case, we shall briefly address the status of the Task Force.

As noted, it was a named defendant in the complaint. The only allegation as to its nature and status, however, is that it is located in Carroll County and “is composed of law enforcement officers from various law enforcement agencies who purport to operate under the laws of the State of Maryland.” No evidence regarding its organization, governance, powers, financing, or property was offered. It was described by defense counsel as “a cooperative effort” between the Westminster City Police and the Maryland State Police or a “duty assignment.” There is nothing in the record to indicate whether it even has an office, employees, stationery, or a telephone number. In short, there is nothing to show it is an entity that may be sued.

Appellant points to Md.Code Cts. & Jud.Proe. art., § 6-406(a), which provides that “[a]n unincorporated association, joint stock company, or other group which has a recognized name may sue or be sued in the group name on any cause of action affecting the common property, rights, and liabilities of the group.” (Emphasis added.) This statute, he says, allows a group with a recognized name to be sued in an action affecting the rights and liabilities of the group, and that, he claims, is what his action involves. Section 6-406 was derived from former Md.Code art. 23, § 138, which provided that “[e]very unincorporated association or joint stock company having a recognized group name may sue or be sued in such group name in any action affecting the common property, rights and liabilities of such association or joint stock company.” Article 23 was the article dealing with corporations, and § 138 was part of the subtitle of that article governing non-stock corporations. When, as part of the gen ⁴⁶⁸ eral code revision process, the General Assembly enacted the Corporations and Associations article in 1975 (1975 Md.Laws, ch. 311), most of article 23, including the balance of the subtitle on non-stock companies, was transferred to that new article. Section 138, however, was rewritten in the standard code-revision language and, by separate bill (1975 Md.Laws, ch. 378), was transferred to the Courts and Judicial Proceedings article, probably because it dealt more with judicial proceedings than with the substantive law of corporations and associations.

In rewriting the section, the General Assembly added the phrase “or other group” to the two