Bradley v. Fisher

CATHELL, Judge. Appellants, Donald Bradley, the mayor or former mayor of Hurlock, and apparently a member of the Hurlock “police commission,” and Wendell Travers, the former chief of police ⁶⁰⁵ of Hurlock, 1 filed separate motions for summary judgment with attached memoranda of law. Bradley’s Motion and Memorandum was over forty pages long; Travers’s was over sixty-five pages long. In each motion was a request for summary judgment based on immunity grounds.

Bradley’s immunity assertion and argument began on page thirty-one of his motion, and Travers’s began on page forty-seven. The Circuit Court for Dorchester County denied both motions. In their Notice of Appeal, appellants appealed “from the Court’s Order of April 3, 1996, denying their motions for summary judgment on immunity grounds and all other adverse rulings.” We shall address only the immunity arguments. We are aware that in the recent collateral order doctrine case of Montgomery County v. Stevens, 337 Md. 471 , 654 A.2d 877 (1995), the Court of Appeals opined that because, under the collateral order doctrine, judgments rendered under it were considered final, other adverse rulings could also be resolved pursuant to Maryland Rule 8-131(d), which provides that on an appeal from a final judgment interlocutory orders may be reviewed.

We do not perceive, however, that the language utilized by the Stevens Court was intended by it to require this Court to resolve completely all other interlocutory adverse rulings, in addition to an adverse ruling on an immunity issue, when the immunity issue is believed to authorize an immediate appeal. While an order granting summary judgment in favor of all defendants on immunity grounds would be a final judgment, an order denying such a motion is not a final order. An interlocutory appeal is permitted only because, if complete and absolute immunity exists, it may, under certain circumstances, encompass the right to be immune from the trial process itself, and, thus, if an immunity claim is wrongfully denied, absent an immediate appeal, the right not to be tried, if it exists, is lost. We also point out that a denial of a motion ⁶⁰⁶ based upon immunity grounds is not required to be immediately appealed.

It may be appealed after the conclusion of the entire case, should an appellant so choose. If we reverse the trial court on the immunity issue, the other alleged “adverse rulings” are, so long as our holding is not reversed by higher authority, of no importance. While appellants, in the event we were to affirm the trial court’s action, might like us to act as an advisory body in respect to the trial court’s other interlocutory rulings, we shall decline to do so. In plain terms, this case is in a procedural morass.

Were we to affirm the trial court on the immunity issue and attempt to resolve the other interlocutory issues as well, we would accomplish little. The case, considering the disparate causes of action and the fact that it has not yet been tried, would merely revert to its former posture, be tried, and, more likely than not, then be appealed again. We decline to do that now since we are probably going to have to do it later in any event. Such a procedure as suggested would circumvent the purpose of Maryland Rule 2-602 and would improperly result in piecemeal appeals.

Turning to the case sub judice, the trial court succinctly set forth the general facts underlying this multiparty and multiclaim case in its opinion in respect to a prior motion to dismiss: In legal circles, an action brought by several individuals, against several defendants, on the basis of multiple causes of action, is often referred to as the “shotgun approach.” This is such a case. Here seven seemingly dissociated individuals have brought this action to recover damages from wrongs allegedly visited upon them by the town of Hurlock, Maryland (Mayor and Council of Hurlock, Inc.), its Mayor (Donald Bradley), its police chief (Wendell Travers), and its “Police Commission.” The individual Plaintiffs may be viewed as being three distinct groups: former officers of the Hurlock Police Department (H.P.D.), a present H.P.D. officer, and two individuals who are not, and have never been, Hurlock police ⁶⁰⁷ officers. They have joined forces to fire a “shotgun” blast at the Defendants, through a Complaint and Amended Complaint embodying twelve counts and at least five different causes of action, some of which apply to all Defendants, some to only one of the Defendants, and each of which applies to only one of the Plaintiffs. The matter is presently before the Court on Motions of the respective Defendants to dismiss the action; in effect, to determine whether Plaintiffs have used the wrong ammunition and/or aimed at the wrong targets.

The factual averments of the various counts are tied together by a common thread, or theme, woven into and underscoring each count: that Hurlock’s police chief, Wendell Travers (Chief Travers) regularly and systematically engaged in illegal and wrongfully abusive actions in performance of his duties and powers as police chief, encouraged and even required his officers to do likewise, and established a “code of silence” forbidding his officers to reveal or even discuss such activities to or with others. A secondary theme, running through many of the counts, avers that the town (through its Mayor and Council) and its mayor were aware of the alleged activities and that they not only failed to take corrective action, but also participated with and assisted the police chief in retaliating against those officers who broke the “code of silence” by reporting the unlawful activities to the mayor and/or couneilmen, and to other legal authorities (including the State’s Attorney for Dorchester County and the State Prosecutor). The various individual counts are but minor variations in which the themes are more or less adapted to the particular wrong complained of in the count. Generally, the former officers seek damages for wrongful discharge.

They allege that they were fired from H.P.D. because they refused to obey illegal commands and because they reported the chiefs activities to others. Apparently they were “rookies” still serving as at-will employees in a “probationary status” when their employment was terminated. One officer, Sgt. Thomas Wolf, was a veteran officer ⁶⁰⁸ with vested rights under the Law Enforcement Officers’ Bill of Rights.

His complaint is that, because he could not be cavalierly fired, he was subjected to harassment and the intentional infliction of emotional distress by the Chief (with the complicity of the mayor and Town Council). He also claims to have been slandered by the Chief. The two “private citizens” Plaintiffs allege that they were illegally arrested, unlawfully detained, and otherwise tortiously wronged by the Chief and by officers acting under his direct supervision and orders. [Footnotes omitted.] The trial judge dismissed the action against the Town of Hurlock on the grounds that it did not receive the 180-day notice required by the Local Government Tort Claims Act, Md.Code (1973, 1995 Repl.Vol.), § 5^04 of the Courts & Judicial Proceedings Article, and, accordingly, sovereign immunity barred the action. The trial court also dismissed the Hurlock police commission from the case because it had, and continues to have, no legal existence.

No appeal from those rulings has been taken. As alluded to in the trial court’s opinion, the various counts allege wrongful discharge, failure to supervise, assault, false imprisonment, defamation, and a multitude of other related and unrelated wrongs against police officers, in addition to other unrelated offenses allegedly committed against several private citizens. Questions of misjoinder arise out of what the trial court described as appellees’ “shot gun approach.” The most temperate judicial language we can use to describe the pretrial nature of this case is that it is a mess. 2 Appellants, by raising non-immunity issues on appeal, relating to the underlying claims of wrongful/constructive discharge, slander, intentional infliction of emotional distress, false arrest, and false ⁶⁰⁹ imprisonment, invite us early to the table. We decline the invitation and shall address only the immunity issues, firm in our belief that during any subsequent trial below, counsel and Judge Warren would or will be able to clarify the issues and enable counsel, if necessary, to present clear appellate issues after the final judgments are rendered.

Immunity Appellants present their immunity arguments in three places in their brief. In argument I., argument II.c., and argument V.c. Argument I. alleges that Bradley and Travers are entitled to public official immunity from all of the actions filed against them by all of the appellees because “Appellees did not cite to any specific material facts in dispute ... [and] did not cite to any specific actions taken by Appellants to strip them of the protection of public official immunity.” Argument II.c. is the same but, because it is directed at the “wrongful and/or constructive discharge” claims, would be limited to the present and former employee-appellees. Argument V.c. applies only to the citizen-appellees, McWilliams and Hill, and the claims filed by them against Travers.

Presumably, this argument is based on the same premise, as it is prefaced by “as discussed above.” Standard of Review In reviewing the grant or denial of a summary judgment motion, we are concerned with whether a dispute of material fact exists. Arnold Developer, Inc. v. Collins, 318 Md. 259, 262 , 567 A.2d 949 (1990); Bachmann v. Glazer & Glazer, Inc., 316 Md. 405, 408 , 559 A.2d 365 (1989); King v. Bankerd, 303 Md. 98, 111 , 492 A.2d 608 (1985); Markey v. Wolf, 92 Md.App. 137, 170-71 , 607 A.2d 82 (1992). “A material fact is a fact the resolution of which will somehow affect the outcome of the case.” King, 303 Md. at 111 , 492 A.2d 608 (citing Lynx, Inc. v. Ordnance Prods., Inc., 273 Md. 1, 8 , 327 A.2d 502 (1974)). “A dispute as to a fact ‘relating to grounds upon which the decision is not rested is not a dispute with respect to a material fact and such dispute does not prevent the entry of ⁶¹⁰ summary judgment.’” Seaboard Sur. Co. v. Richard F. Kline, Inc., 91 Md.App. 236, 242-43 , 603 A.2d 1357 (1992) (quoting Salisbury Beauty Schools v. State Bd. of Cosmetologists, 268 Md. 32, 40 , 300 A.2d 367 (1973)) (emphasis in original). We have further opined that in order for there to be disputed facts sufficient to render summary judgment inappropriate “there must be evidence on which the jury could reasonably find for the plaintiff.” Id. at 244, 603 A.2d 1357 .

The Court of Appeals has also stated that “the proper standard for reviewing the granting of a summary judgment motion should be whether the trial court was legally correct.” Heat & Power Corp. v. Air Prods. & Chems., Inc., 320 Md. 584, 592 , 578 A.2d 1202 (1990) (citations omitted). The trial court, in accordance with. Maryland Rule 2-501 (e), shall render summary judgment forthwith if the motion and response show that there is no genuine dispute as to any material fact and that the moving party is entitled to judgment as a matter of law. The purpose of the summary judgment procedure is not to try the case or to decide the factual disputes, but to decide whether there is an issue of fact that is sufficiently material to be tried.

See Coffey v. Derby Steel Co., 291 Md. 241, 247 , 434 A.2d 564 (1981); Berkey v. Delia, 287 Md. 302, 304 , 413 A.2d 170 (1980). Thus, once the moving party has provided the court with sufficient grounds for summary judgment, [i]t is ... incumbent upon the other party to demonstrate that there is indeed a genuine dispute as to a material fact. He does this by producing factual assertions, under oath, based on the personal knowledge of the one swearing out an affidavit, giving a deposition, or answering interrogatories. “Bald, unsupported statements or conclusions of law are insufficient.” Lowman v. Consolidated Rail Corp., 68 Md.App. 64, 70 , 509 A.2d 1239 , cert. denied, 307 Md. 406 , 514 A.2d 24 (1986) (citation omitted; emphasis added). With these considerations in mind, we turn to the case sub judice. ⁶¹¹ Qualified Immunity The appellants, the remaining defendants below, 3 asserted a qualified immunity defense.

We first note that appeals of denials of immunity claims, while technically similar to collateral order doctrine cases, rest on another basis as well. The Court of Appeals, in State v. Hogg, 311 Md. 446, 456-57 , 535 A.2d 923 (1988), noted: From the standpoint of being “effectively unreviewable” the erroneous rejection of sovereign immunity in bar of a claim is similar to the erroneous denial of the protection against standing trial for the second tim,e which is embraced in the privilege against former jeopardy. In that instance, an order denying a double jeopardy defense is immediately appealable. See Abney v. United States, 431 U.S. 651 , 97 S.Ct. 2034 [ 52 L.Ed.2d 651 ] (1977).

Likewise, an order improperly failing to recognize the bar of sovereign immunity to a claim would effectively escape review if the sovereign were forced to stand trial on that claim and await final judgment before obtaining appellate review. Consequently, the collateral order doctrine permits immediate review here to determine whether the denial of the motion to dismiss the counterclaim erroneously deprived the State and its instrumentality ... of the protection of sovereign immunity. [Emphasis added.] In Artis v. Cyphers, 100 Md.App. 633, 642 , 642 A.2d 298 (quoting Bunting v. State, 312 Md. 472, 481-82 , 540 A.2d 805 (1988)), aff'd. mem., 336 Md. 561 , 649 A.2d 838 (1994), we, nevertheless, stated that there were a number of immunity-type rights that, in a broad sense, could be regarded as trial-avoidance rights but which d[o] not permit interlocutory appeals, mentioning, among others, the States’ right under the Eleventh Amend ⁶¹² ment to avoid being haled into Federal court as a defendant. [The Bunting Court] concluded, “In sum, the idea that an issue is not effectively renewable after the termination of the trial because it involves a ‘right’ to avoid the trial itself, should be limited to double jeopardy claims and a very few other extraordinary situations. Otherwise, as previously indicated, there would be a proliferation of appeals under the collateral order doctrine. This would be flatly inconsistent with the long-established and sound public policy against piecemeal appeals.” The Artis Court then restated the concerns we had previously expressed about State v. Hogg, supra, in Board of Trustees v. Fineran, 75 Md.App. 289 , 541 A.2d 170 (1988).

Because of the manner in which the Court of Appeals affirmed Artis , we shall not repeat those concerns here. In Artis , we noted that the plaintiffs had argued in their motion to dismiss the appeal the right to an immediate appeal from the rejection of an immunity defense should be limited to the rejection of a defense based on absolute immunity, which is resolvable as a matter of law, and should not be recognized when the defense is one of qualified immunity — either statutory or common law — which may be fact-based. They point out that the Court of Appeals has never approved (or disapproved) an immediate appeal from an interlocutory order rejecting a defense of qualified immunity, and they ask us to reconsider Fineran and, implicitly, [Town of] Brunswick [v. Hyatt, 91 Md.App. 555 [ 605 A.2d 620 ] (1992) ]. Relying on the reasoning expressed in Justice Brennan’s dissenting Opinion in Mitchell v. Forsyth, 472 U.S. 511 , [ 105 S.Ct. 2806 , 86 L.Ed.2d 411 (1985) ], they urge in their brief that qualified immunity is “inextricably bound with the merits of the action and thus in no sense collateral to the ultimate question on the merits.” This argument implicates the third criterion in the collateral order analysis — whether the decision appealed is com ⁶¹³ pletely separate from the merits of the action — at least as much, if not more, than the fourth criterion expounded upon in Hogg .

There is much to be said for it, and, as we earlier indicated, we made essentially the same point in Fineran. Hogg, however, as confirmed in [State v.] Jett, [ 316 Md. 248 , 558 A.2d 385 (1989) ] seems to preclude the drawing of that kind of distinction. 100 Md.App. at 646 , 642 A.2d 298 (some emphasis added). We then discussed at some length Mitchell v. Forsyth, 472 U.S. 511 , 105 S.Ct. 2806 , 86 L.Ed.2d 411 (1985), which addressed the appealability of rejections of qualified immunity defenses. In Mitchell , the prior Supreme Court case of Harlow