City of District Heights v. Denny

KENNEY, Judge. On November 25,1996, appellee, Deborah Denny, a commissioner of the City of District Heights, 1 filed a complaint in the Circuit Court for Prince George’s County against Mary A. Pumphrey, the Mayor of the City of District Heights, Cheyenne Watson, Vice-Mayor and Commissioner of the City of District Heights, Americo Sesso, Commissioner of the City of District Heights, and the City of District Heights (collectively, “appellants”). The four-count complaint alleged defamation, violation of 42 U.S.C. § 1983 , intentional infliction of emotional ⁵¹² distress, and malfeasance in office. Appellants removed the action to federal court, which dismissed, with prejudice, the § 1983 claim and remanded the remaining state law claims to the circuit court.

On September 9, 1997, appellants filed a motion to dismiss, asserting, inter alia, that they were protected from suit by various doctrines of immunity. On October 20, 1997, the trial court filed an order that denied appellants’ motion to dismiss. Appellants filed this appeal, asking three questions, which we have rephrased: I. Were appellee’s claims against Pumphrey, Watson, and Sesso barred by the doctrine of absolute immunity or the doctrine of public official immunity?

II

Was the action against the City of District Heights barred by the doctrine of governmental immunity?

III

Did the trial court err by denying appellants’ motions to dismiss? As to appellants’ first question, to the extent that liability was based on the Commission’s decision not to investigate Sesso, we hold that appellee’s claims against Pumphrey, Watson, and Sesso are barred by the doctrine of absolute immunity. To the extent that his liability was based on the comments he allegedly uttered, we hold that Sesso is not entitled to absolute immunity and that the applicability of public official immunity must be resolved by the trial court. As to appellants’ second question, we hold that appellee’s claims against the City of District Heights are barred by the doctrine of governmental immunity.

We decline to address appellants’ third question as it relates to appellant Sesso because it involves matters not presently ripe for appellate review. FACTS In affidavits attached to the complaint and incorporated therein, three employees of the Department of Public Works for the City of District Heights testified that appellant Americo Sesso made disparaging and racist remarks about appellee. Brian Edwards testified that, on August 2, 1996, he had a ⁵¹³ conversation with Sesso in the Public Works’ garage and that, during this conversation, Commissioner Sesso made defamatory comments about Commissioner Denny’s race and professional abilities. Robert Vasquez testified that, on August 2, 1996, he was in the Public Works’ garage and he heard Sesso make defamatory comments about Commissioner Denny’s race and professional abilities.

George Benton testified that he had heard Sesso make derogatory remarks about Commissioner Denny. According to her complaint, appellee asked Sesso for a public apology but none was forthcoming. Thereafter, during an open meeting of the Commission, appellee raised the issue of Sesso’s comments and demanded that the matter be investigated. According to appellee, however, “defendant Mayor Mary Pumphrey, as head of the Commission, and the other defendant commissioners, brushed off these highly publicized slurs, refused to allow [her] to raise this matter again, and refused to launch an investigation into the incident.” Appellee responded by filing the underlying complaint, alleging defamation, violation of 42 U.S.C. § 1983 , intentional infliction of emotional distress, and malfeasance in office.

The case was removed to the United States District Court for the District of Maryland, which dismissed appellee’s federal claim, with prejudice. The court stated: Proceeding directly to the merits, this is an unfortunate case of name-calling and insults. While the racial epithets alleged may well give rise to causes of action under state law [See Gaiters v. Lynn, 831 F.2d 51 (4th Cir.1987); see generally, Rodney A. Smolla, Rethinking First Amendment Assumptions About Racist and Sexist Speech, 47 Wash. & Lee L. Rev. 171 (1990),] federal law is clear. Federal civil rights statutes, including 42 U.S.C. § 1983 , are not transgressed.

Paul v. Davis, 424 U.S. 693, 712 [ 96 S.Ct. 1155 , 47 L.Ed.2d 405 ] (1976). Denny’s claim of violation of 42 U.S.C. § 1983 is therefore DISMISSED WITH PREJUDICE. The case was remanded to the circuit court for a determination on the remaining state law claims. Upon remand, appel ⁵¹⁴ lants filed a motion to dismiss, asserting that the remaining claims against Pumphrey, Watson, and Sesso were barred by the doctrine of absolute immunity and/or the doctrine of public official immunity, and that the claims against the City of District Heights were barred by the doctrine of governmental immunity.

On October 20, 1997, appellants’ motion to dismiss was denied by the trial court without comment. DISCUSSION L Motion to Dismiss We are currently presented with an appeal of the denial of a motion to dismiss filed pursuant to Maryland Rule 2-322(b). In reviewing the grant or denial of a motion to dismiss filed pursuant to this rule, ‘we must assume the truth of all relevant and material facts that are well pleaded and all inferences which can reasonably be drawn from those pleadings. The complaint should not be dismissed unless it appears that no set of facts can be proven in support of the claim set forth therein.’ Simms v. Constantine, 113 Md.App. 291, 294 , 688 A.2d 1 (1997)(quoting Bennett Heating & Air Conditioning, Inc. v. NationsBank of Maryland, 103 Md.App. 749, 757 , 654 A.2d 949 (1995), rev’d in part on other grounds, 342 Md. 169 , 674 A.2d 534 (1996) (citations omitted)).

Because the denial of a motion to dismiss is not a final judgment, it is ordinarily not subject to interlocutory review. Appellants contend, however, that, because they asserted various immunity defenses in their motion to dismiss, the denial of that motion is immediately appealable under the collateral order doctrine. Before discussing the elements of that doctrine, we consider first the nature of the immunities asserted by appellants. ⁵¹⁵ II. Immunity Pumphrey, Watson, and Sesso contend that the claims against them are barred by the doctrine of absolute immunity and/or the doctrine of public official immunity.

In Montgomery County v. Schooley, 97 Md.App. 107, 115 , 627 A.2d 69 (1993), this Court held that it is “beyond dispute that municipal legislators enjoy the protection of immunity when acting in the sphere of legitimate legislative activity.” See also Manders v. Brown, 101 Md.App. 191, 205 , 643 A.2d 931 , cert. denied, 336 Md. 592 , 650 A.2d 238 (1994). We explained that [t]he purpose of this immunity is to insure that the legislative function may be performed independently without fear of outside interference.... To preserve legislative independence, we have concluded that ‘legislators engaged “in the sphere of legitimate legislative activity” ... should be protected not only from the consequences of litigation’s results but also from the burden of defending themselves.’ Schooley, 97 Md.App. at 116 , 627 A.2d 69 (quoting Supreme Court of Virginia v. Consumers Union, 446 U.S. 719, 731-32 , 100 S.Ct. 1967 , 64 L.Ed.2d 641 (1980)). We have recognized previously, however, that not everything a municipal official does in his or her official capacity is legislative.

Manders, 101 Md.App. at 210 , 643 A.2d 931 . In fact, municipal officials often act as “executives and administrators who enforce and administer the law, especially in county or commission forms of government where there is no separate executive official.” Id. For instance, “when municipal officials do more than adopt prospective, legislative type rules and take the next step into the area of enforcement,” that activity is most appropriately characterized as executive. Id.

In lieu of designing a specific test for determining what is and what is not legislative activity, Maryland has adopted a “functional approach” to legislative immunity, where the scope of immunity is determined in light of the functions and duties ⁵¹⁶ of municipal officials. See Manders, supra; Mandel v. O’Hara, 320 Md. 103 , 576 A.2d 766 (1990). Under this approach, if the conduct engaged in by a municipal official can be characterized as “legislative,” the actor is absolutely immune from any liability or suit emanating from that action. Id.

Pumphrey, Watson, and Sesso also contend that, even if they are not entitled to absolute immunity, appellee’s claims against them are barred by the doctrine of public official immunity. In Maryland, public official immunity is recognized both at common law and by statute. For common law public official immunity to apply: (1) the actor must be a public official, rather than a mere government employee or agent; (2) the conduct must have occurred while the actor was performing discretionary, as opposed to ministerial, acts; and (3) the actor must have performed the relevant acts within the scope of his official duties. If those three conditions are met, the public official enjoys a qualified immunity in the absence of ‘malice.’ Thomas v. City of Annapolis, 113 Md.App. 440, 452 , 688 A.2d 448 (1997).

In addition, the General Assembly has enacted a statutory public official immunity, which provides that “[a]n official of a municipal corporation, while acting in a discretionary capacity, without malice, and within the scope of the official’s employment or authority shall be immune as an official or individual from any civil liability for the performance of the action.” Md.Code (1974, 1995 Repl.Vol., 1997 Cum.Supp.), § 5-507(b)(l) of the Courts and Judicial Proceedings Article (“C.J.”). In either form, common law or statutory, “[p]ublic official immunity is qualified, not absolute.” Nelson v. Kenny, 121 Md.App. 482, 487 , 710 A.2d 345 (1998). “It may be defeated by proof of malice, i.e. affirmative evidence that the official ‘intentionally performed an act without legal justification or excuse, but with an evil or rancorous motive influenced by hate, the purpose being to deliberately and wilfully injure the plaintiff.’ ” Id. (quoting Davis v. DiPino, 99 Md.App. 282, 290 , 637 A.2d 475 (1994), rev’d on other ⁵¹⁷ grounds, 337 Md. 642 , 655 A.2d 401 (1995)); Ashton v. Brown, 339 Md. 70, 117 , 660 A.2d 447 (1995)(“Public official immunity is not a defense to intentional torts.”). Moreover, Maryland does not ordinarily provide public official immunity to public officials sued for violating an individual’s state constitutional rights.

Ashton, 339 Md. at 102 , 660 A.2d 447 . The City of District Heights contends that appellee’s claims against it are barred by the doctrine of governmental immunity. The scope of governmental immunity was recently summarized by this Court in Town of Port Deposit v. Petetit, 113 Md.App. 401 , 688 A.2d 54 , cert. denied, 346 Md. 27 , 694 A.2d 950 (1997): ‘State agencies have normally been treated as if they were the State of Maryland for purposes of immunity, so that they enjoy the same immunity from ordinary tort and contracts suit which the State enjoys. “The reason for this is that State agencies exist merely as the State’s hands or instruments to execute [the State’s] will____” Indeed, “to hold [state agencies] responsible for negligence would be the same as holding the sovereign power answerable to its action.” Counties and municipalities, on the other hand, have not been accorded this broad general immunity from suit. It is true that they are instrumentalities of the State, created by the State to carry out some of the State’s governmental functions.

Nevertheless, under Maryland law, they have consistently been treated differently from State agencies and the State itself for purposes of immunity from suit. Thus, counties and municipalities have never been granted immunity in contract actions. Their immunity “is limited to tortious conduct.” And, as to tort actions, the immunity is limited. As previously noted, it is inapplicable to nuisance actions.

It is also inapplicable to actions based on violations of constitutional rights. With regard to ordinary tort actions, counties and municipalities can rely on the defense of governmental immunity only when they exercise a function categorized as “governmental” rather than “proprietary” or “corporate.” ⁵¹⁸ While the governmental immunity of counties and municipalities is much narrower than the immunity of the State, nevertheless the immunity of counties and municipalities is derived from the State’s sovereign immunity.’ Id. at 418-19 , 688 A.2d 54 (quoting Board of Education v. Town of Riverdale, 320 Md. 384, 388-89 , 578 A.2d 207 (1990) (citations omitted)). The distinction between a “governmental” function and a “proprietary” function was explained in Town of Brunswick v. Hyatt, 91 Md.App. 555 , 605 A.2d 620 (1992). In that case, this Court stated: [Municipal immunity is not automatic, but when the municipality or county is engaged in a governmental function, immunity attaches....

The Court of Appeals ... outlined the test for determining whether a municipality is engaged in a governmental function as follows: Where the act in question is sanctioned by legislative authority, is solely for the public benefit, with no profit or emolument inuring to the municipality, and tends to benefit the public health and promote the welfare of the whole public, and has in it no element of private interest, it is governmental in nature.’ Id. at 559 , 605 A.2d 620 (citations omitted; emphasis omitted). “The governmental-proprietary distinction has not been applied, however, when local governments have been sued for violations of constitutional rights.” Town of Port Deposit, 113 Md.App. at 422 , 688 A.2d 54 . In that scenario, “there is ordinarily no governmental immunity.” Id. at 421 , 688 A.2d 54 (quoting Clea v. City of Baltimore, 312 Md. 662 , 667 n. 3, 541 A.2d 1303 (1988)).

III

The Collateral Order Doctrine Generally, a party may only appeal from a final judgment, that is, a judgment that settles the rights of the parties or concludes the cause.” Town of Port Deposit, 113 Md.App. 401, 409 , 688 A.2d 54 (1997); C.J. § 12-301. Obvi ⁵¹⁹ ously, the denial of appellants’ motion to dismiss did not constitute a final judgment on the merits. The Court of Appeals, however, “has ‘long recognized ... a narrow class of orders, referred to as collateral orders, which are offshoots of the principal litigation in which they are issued and are immediately appealable as “final judgments” without regard to the posture of the case.’