Davis v. Magee

DEBORAH S. EYLER, Judge. The Circuit Court for Montgomery County granted summary judgment in favor of Carol B. Magee (“Magee”), the appellee, in an action in tort and for violation of state constitutional rights brought against her by Daryl D. Davis (“Davis”), the appellant. On appeal, the appellant presents three questions for review, which he has subdivided into six questions. We have combined, reworded, and restated the first question, including its subpart, as follows: ⁶³⁹ I. Did the circuit court err in granting summary judgment on the ground that Davis’s claims were barred by release?

We also shall address the appellant’s second question, which we have restated as follows: II. Did the circuit court err in granting summary judgment on the ground of release because the expungement statute is unconstitutional? For the following reasons, we answer both questions “No,” and therefore we shall affirm the judgment of the circuit court. We do not reach the third question, and its subparts. 1 FACTS AND BACKGROUND At the time of the pertinent events, Magee was a police officer assigned to the Youth Services Investigation Division of the Montgomery County Police Department (“MCPD”).

On March 11, 1997, a fifteen-year-old girl reported to MCPD that the appellant had engaged in sexual intercourse with her on January 10, 1997. Magee investigated the accusation. One ⁶⁴⁰ week later, on March 18,1997, Magee applied for and obtained a statement of charges against the appellant for a third degree sexual offense and a warrant for his arrest. The arrest warrant was executed on March 26, 1997.

The appellant was held in custody for 30 hours before being released on bail. On June 27, 1997, the appellant appeared in the District Court for Montgomery County for a preliminary hearing. A plea agreement was negotiated at that time, in which the State entered a nolle prosequi on the third degree sexual offense charge and the appellant executed a “General Waiver and Release.” The language of the General Waiver and Release tracks that set forth in Md. Rules Form 4-503.2, as the form read in 1997. It states: I, Daryl Dwight Davis, hereby release and forever discharge Det.

Carol Magee, and the Montgomery County Police Department, all of its officers, agents and employees and any and all other persons from any and all claims which I may have for wrongful conduct by reason of my arrest, detention or confinement on or about March 26, 1997. This General Waiver and Release is conditioned on the expungement of the record of my arrest, detention, or confinement and compliance with Section 736(c) of Article 27 of the Annotated Code of Maryland, and shall be void if these conditions are not met.. WITNESS my hand and seal this 27th day of June, 1997. (Italicized entries hand-written in original; remainder in type.) At the same time that he signed the General Waiver and Release, the appellant filled out a “Petition For Expungement of Records (Acquittal, Dismissal, Or Nolle Prosequi),” tracking the language of Md. Rules Form 4-504.1.

The petition states that the appellant was arrested on a charge of third degree sexual offense, on March 26,1997, that “[o]n or about June 27, 1997,” he was “tried and acquitted, or the said charge was dismissed, or a Nolle Prosequi was entered,” and that “[i]f less than three years ha[d] passed since the disposition of the charges ... a General Waiver and Release” was attached. ⁶⁴¹ (Italicized entries hand written; remainder in type.) The petition and General Waiver and Release were filed in the district court criminal case. There is no expungement order in the record before us. It is undisputed, however, that the district court granted the appellant’s petition and issued an expungement order. As an appendix to her brief, the appellee has attached an October 15, 1997 letter from Lieutenant George C. Heinrich of the MCPD to the Honorable Cornelius J. Vaughey, of the District Court for Montgomery County, that refers to the appellant’s name, his “MCP ID # ,” his “court case #,” his date of arrest, and the charge against him, and states, “We have expunged the above referenced from our files according to your order, and notified the Maryland State Police and FBI of this action.” By letter of October 29, 1997, the Montgomery County Department of Health and Human Services (DHHS) notified the appellant that it had investigated allegations of child abuse against him and had determined that he would remain “indicated” as a child abuser in its files.

The letter further states that the appellant’s identification as a child abuser would not be expunged. Later, the appellant learned that the Montgomery County Department of Social Services (DSS) was maintaining his name on its Central Registry of Child Sexual Abusers as an “indicated” child abuser. On March 9, 1998, in the Circuit Court for Montgomery County, the appellant filed a complaint and request for jury trial against Magee, the MCPD, Police Chief Carol Mehrling, and Montgomery County. On May 6, 1998, he amended his complaint so as to eliminate all the defendants except Magee.

The amended complaint set forth claims against Magee for false arrest, false imprisonment, and malicious prosecution. In a second amended complaint, filed on October 26, 1998, the appellant added a claim alleging state constitutional torts. All of the appellant’s claims stemmed from Magee’s handling of the investigation of the child sexual abuse allegations against the appellant and her conduct in applying for a statement of ⁶⁴² charges and an arrest warrant, executing the warrant, and taking the appellant into custody. In her answers to each of Davis’s complaints, Magee raised, inter alia, the defense of release.

In the meantime, in March 1998, the Montgomery County Council scheduled a public hearing to address citizen complaints of racism against certain members of the MCPD. The appellant appeared at that hearing to speak about his contention that in having him charged with a third degree sexual offense Magee had acted out of racial animus. Lieutenant Frank W. Young, of the Youth Services Investigation Division of the MCPD, also appeared at that hearing, to speak in defense of Magee. Before Lt.

Young spoke, he submitted a document entitled “OIA [Office of Internal Affairs] Case Update,” which was dated March 9, 1998. In the “OIA Case Update,” Lt. Young identified the appellant as a person who had filed a letter of complaint alleging that he had been improperly investigated by an officer of the MCPD. Lt.

Young explained that the OIA had looked into the complaint and had determined that the officer had had sufficient basis on which to take action against the appellant. The “OIA Case Update” was made available to members of the public who attended the Montgomery County Council hearing. Lt. Young also made an oral statement at the hearing.

The text of the statement was prepared in advance and disseminated to members of the public in attendance. Lt. Young did not identify the appellant or Magee by name. He elaborated on the details and disposition of the charges against the appellant, however, saying, among other things, that his complaint had been reviewed by OIA and that it was determined that [Magee] had more than sufficient probable cause to apply for, and obtain, a warrant charging this individual with a felony sexual offense.

The charges were nol-prossed by the State’s Attorney’s Office, because it was felt the victim would be unable to stand the rigors of a trial. ⁶⁴³ On February 25,1999, Magee filed a motion to dismiss, or in the alternative for summary judgment, on several grounds, one of which was that, as a matter of law, the appellant’s claims were barred by the General Waiver and Release. The appellant filed an opposition and supporting affidavit. He argued that the General Waiver and Release was void because not all of the records that were required to have been expunged under its terms had been expunged. The appellant did not dispute that the MCPD had expunged the records it had of his arrest, detention, and charges.

He also did not dispute that the district court had expunged its records. He argued, however, that the police had not expunged the OIA documents prepared by Lt. Young and that the DHHS and DSS had not expunged their records pertaining to his “indicated” status as a child abuser. He also argued that Md.Code, Art. 27, § 736(c) and Md. Rule Crim.

Proc. 4-504, both pertaining to expungement of criminal records, are unconstitutional. In her reply memorandum, Magee argued that all of the records required to be expunged pursuant to the General Waiver and Release had been expunged and, therefore, the General Waiver and Release was not void. Magee’s motion was heard by the circuit court on April 5, 1999. At the conclusion of the hearing, the court granted summary judgment in favor of Magee on the defense of release, explaining: I am going to decide the case on the basis of the release ....

I find that there is no material dispute of fact as to whether or not there was a release in the case signed by [the appellant], and that the release bars his claim under his second amended complaint. [The appellant] argues that that should not be so because it is a conditional release, and the conditions have not been met, or at least there is a dispute of fact as to whether the conditions have been met. The [c]ourt finds that the conditions have been met, that the argument that DSS and Internal Affairs and a memo from Detective Young are still not expunged, in my view, is ⁶⁴⁴ not a valid argument because of the statute’s definition of what records are contemplated being expunged, and that the release is related to that statute, and that that is how the release should be interpreted. The appellant then noted a timely appeal to this Court. STANDARD OF REVIEW When deciding whether to grant a motion for summary judgment, the trial court must determine whether there is a genuine dispute of material fact and, if not, whether one party is entitled to judgment as a matter of law.

Md. Rule 2-501; Beatty v. Trailmaster Products, Inc., 330 Md. 726, 737-38 , 625 A.2d 1005 (1993); Pettit v. Erie Ins. Exchange, 117 Md.App. 212, 218 , 699 A.2d 550 (1997). A material fact is one that will somehow affect the outcome of the case. Goodwich v. Sinai Hosp. of Baltimore, Inc., 343 Md. 185, 206 , 680 A.2d 1067 (1996).

In order to defeat a motion for summary judgment by showing that there is a genuine dispute of material fact, the party opposing the motion must submit admissible evidence of the disputed fact. Tennant v. Shoppers Food Warehouse, 115 Md.App. 381, 386 , 693 A.2d 370 (1997). If there is no genuine dispute of material fact, the circuit court resolves the case as a matter of law. Fearnow v. Chesapeake & Potomac Tel.

Co., 104 Md.App. 1, 48 , 655 A.2d 1 (1995), aff'd in part, rev’d in part, 342 Md. 363 , 676 A.2d 65 (1996). On review of the grant of summary judgement, we determine whether the circuit court correctly decided that there was no genuine dispute of material fact and whether the trial court reached the correct legal result. Beatty, supra, at 737 , 625 A.2d 1005 . Ordinarily, we review a grant of summary judgment based “only on the grounds relied upon by the trial court.” Blades v. Woods, 338 Md. 475, 478 , 659 A.2d 872 (1995).

DISCUSSION I. Md.Code (1957, 1996 Repl.Vol.), Art. 27, sections 735 through 741, and Maryland Rules 4-501 through 4-512, govern ⁶⁴⁵ expungement of criminal records. In Mora v. State, 355 Md. 639, 641 , 735 A.2d 1122 (1999), the Court of Appeals explained that under the expungement statutes, “[t]wo situations are provided for — when a person is arrested or otherwise detained but not formally charged, and when a person is formally charged but, for any of the reasons enumerated ... is not convicted or, if convicted, is pardoned.” Under section 736(a), which applies to the first situation, a person who has been arrested, detained, or confined by a law enforcement agency for certain crimes, and has been released without being charged with the commission of a crime, may give notice to “any law enforcement agency which he believes may have police records concerning that arrest, detention, or confinement, and request expungement of those police records.” The notice may not be given before the expiration of the statute of limitations for tort actions arising from the incident unless the person files a General Waiver and Release of any claims he might have against any person for tortious conduct arising from the incident. The General Waiver and Release is to be in the form as set forth in Md. Rules Form 4-503.2. Md. Rule 4-503(a).

If the law enforcement agency denies the request, the person may file an application for expungement of police records in the district court for the county in which the applicant was first arrested, detained, or confined. The district court then may issue an order requiring the agency to expunge the records. § 736(e) and (f). By contrast, § 737 allows, among other things, a person who has been charged criminally on a charge that is later nolle prossed to petition the court in which the proceeding was commenced for expungement of “the police records, court records, and other records maintained by the State of Maryland and its subdivisions, pertaining to the charge.” The petition must be filed in the original action. Md. Rule 4-504(a).

It may not be filed within three years after the charges have been nolle prossed, however, unless the petitioner attaches an executed General Waiver and Release of all claims he may have against any person for tortious conduct arising from the charge. § 737(d)(2)(i); Md. Rule 4-504(b). ⁶⁴⁶ The General Waiver and Release must be “in the form set forth ... as [Maryland Rules] Form 4.503.2.” Md. Rule 4-504(b). If the State’s Attorney does not object to the petition within 30 days after service, he is deemed to have consented, and the court must enter an order requiring the expungement of police records and court records pertaining to the charge. § 737(i); Md. Rule 4-505(d). Art. 27, § 735 defines, among other terms, “court records,” “police records,” and “expungement.” “Court records” and “police records” are defined inclusively and exclusively: the statute explains what they are and specifies records that do not qualify. “Expungement” is defined only “with respect to court records or police records” and means the effective removal of these records from public inspection: (1) By obliteration; (2) By removal to a separate secure area to which the public and other persons having no legitimate reason for being there are denied access; or (3) If effective access to a record can be obtained only by reference to other records, by the expungement of the other records, or the part of them providing the access. Against that background, the appellant contends that the circuit court erred in concluding that the General Waiver and Release he signed was effective, and operated to bar his claims against Magee.

The appellant does not argue that there was a genuine dispute of material fact precluding entry of summary judgment. Rather, he argues that on the undisputed facts the court erred as a matter of law in its interpretation of the word “record” in the General Waiver and Release. Specifically, the appellant argues that because he had been charged with a crime, his case was governed by § 737, not § 736; therefore, the word “record” as used in the General Waiver and Release included “other records maintained by the State and its subdivisions pertaining to the charge[,]” among which were records of DHHS, DSS, and OIA. Because those “other records” were not expunged, he argues, the condition necessary to make the General Waiver and Release operative was not satisfied, and it was void.

Accordingly, the General Waiver and Release did not bar his claims against Magee. ⁶⁴⁷ Magee counters that the circuit court correctly ruled that because the General Waiver and Release clearly and unambiguously referenced Article 27, § 736, which covers only “police and court records,” only police and court records were required to be expunged, and the undisputed facts established that those records indeed were expunged. Therefore, the condition required by the General Waiver and Release was fulfilled, and the circuit court properly ruled that it was effective to bar the claims against her. As we have explained, the “General Waiver and Release” signed by the appellant was as set forth in Md. Rules Form 4.503.2, as it appeared in the Maryland Rules in 1997. That “General Waiver and Release” first was adopted and made effective by the Court of Appeals on April 1, 1976, one year after the expungement statutes, including sections 736 and 737, were enacted.

At that time, it was labeled “Expungement Form 2.” In 1984, “Expungement Form 2” was recodified as Md. Rules Form 4-503.2, as part of the revisions of the Maryland Rules adopted that year. From 1976 until 1998, the language of the General Waiver and release form was unchanged, and was as it appears in the document signed by the appellant in this case. Of significance to the issue before us, during that 22-year period, the language of the form referred only to § 736 and not to § 737— even though § 737 always contained a reference to a General Waiver and Release having to be filed in certain situations in which a petition for expungement was permitted to be filed earlier than three years after the judgment or order of the court. Thus, for that length of time, the language of the form General Waiver and Release that was to be filed with a § 737 petition for expungement, in some situations, was not in sync with the language of § 737 itself, and made no reference to it.

On October 1, 1998, the Court of Appeals amended Md. Rules Form 4-503.2 to include a reference to § 737. Specifically, the following italicized words were added: This General Waiver and Release is conditioned on the expungement of the record of my arrest, detention, or ⁶⁴⁸ confinement and compliance with Section 736(c) or 737 of Article 27 ..., as applicable, and shall be void if these conditions are not met. The Minutes of the meeting of the Court of Appeals Standing Committee on Rules of Practice and Procedure in which this change was endorsed reflect that there was no discussion of the changes and that the changes were made to conform the “General Waiver and Release” form to the statute. See Minutes of September 6,1996 meeting, agenda item 7.

Also of relevance to this case, in 1996, the General Assembly amended § 737 to permit a person against whom charges had been brought and then nolle prossed to petition for expungement earlier than three years after the nolle prosequi was entered only if the person filed a written “General Waiver and Release.” 1996 Md. Laws, Chap. 613. Before then, and beginning on July 1, 1988, a person in that situation could file a petition for expungement immediately upon entry of the nolle prosequi, without any time limitation and without signing a release. 1988 Md. Laws, Chap. 723. 2 Thus, when the appellant signed the General Waiver and Release in this case, he was permitted, under § 737, to file a petition for expungement of the nolle prossed charge earlier than three years after the date of entry of the nolle prosequi, but only if he signed a “General Waiver and Release” as set forth in Md. Rules Form 4-503.2; that form had not yet been amended, however, to refer to § 737. Instead, it still contained its original language, referring only to § 736, which did not apply to the appellant’s situation. With this legislative history in mind, we turn to the first sub-issue in this case, which is whether the circuit court erred in ruling that the parties intended the General Waiver and Release to apply only to records covered by § 736 — and not to records covered by § 737. ⁶⁴⁹ Releases are contracts and therefore are construed according to the principles of contract interpretation. “[A] release is to be construed according to the intent of the parties and the object and purpose of the instrument, and that intent will control and limit its operation.” Pantazes v. Pantazes, 77 Md.App. 712, 719-20 , 551 A.2d 916 (1989). “ ‘The primary source for determining the intention of the parties is the language of the contract itself.’ ” Chicago Title v. Lumbermen’s Mut.

Cas. Co., 120 Md.App. 538, 548 , 707 A.2d 913 (1998) (quoting Hartford Accident and Indem. Co. v. Scarlett Harbor Assocs. Ltd. Partnership, 109 Md.App. 217, 291 , 674 A.2d 106 (1996), aff'd, 346 Md. 122 , 695 A.2d 153 (1997)). “ ‘The written language embodying the terms of an agreement will govern the rights and liabilities of the parties, irrespective of the intent of the parties at the time they entered into the contract.’ ” Pantazes, supra, 77 Md.App. at 720 , 551 A.2d 916 (quoting Goldberg v. Goldberg, 290 Md. 204, 212 , 428 A.2d 469 (1981)); see also Auction & Estate Representatives, Inc. v. Ashton, 354 Md. 333, 340 , 731 A.2d 441 (1999); Calomiris v. Woods, 353 Md. 425, 435-36 , 727 A.2d 358 (1999); Adloo v. H.T. Brown Real Estate, Inc., 344 Md. 254, 266 , 686 A.2d 298 (1996); Nicholson Air Servs., Inc. v. Board of