Higginbotham v. Public Service Commission

KENNEY, Judge. Robert M. Higginbotham, II, appeals the decision of the Circuit Court for Baltimore City dismissing his complaint against the Public Service Commission of Maryland and Chairman Kenneth D. Schisler. He presents three questions, 1 which we have recast as five: ²⁶¹ 1. Does the circuit court’s grant of the Chairman’s motion to dismiss constitute an appealable final judgment? 2.

Did the circuit court err in dismissing Higginbotham’s claim that his termination violated his due process rights? 3. Did the circuit court err in dismissing Higginbotham’s claim that he was illegally terminated? 4. Did the circuit court abuse its discretion in refusing to grant Higginbotham leave to amend his complaint? 5. Did the circuit court err in dismissing Higginbotham’s claims for compensatory damages?

For the following reasons, we shall reverse the circuit court’s judgment. FACTUAL AND PROCEDURAL HISTORY Higginbotham was employed by the Public Service Commission (“the Commission”) as a Public Information Officer from January 1999 until April 16, 2004, when Chairman Kenneth D. Schisler (“the Chairman”) informed Higginbotham that his employment was terminated. Higginbotham appealed his termination to the Chairman on April 30, 2004. The appeal was denied on May 12, 2004.

On June 10, 2004, Higginbotham brought suit in the Circuit Court for Baltimore City against the Commission and the Chairman, individually and in his official capacity. He raised two counts in the complaint. In the first, entitled “Maryland Declaration of Rights,” he asserted that his termination “deprived [him] of rights secured by the Maryland Constitution, including but not limited to the right to procedural and substantive due process.” In the second count, entitled “Petition for Judicial Review,” Higginbotham argued that the Commission “acted illegally, unconstitutionally, arbitrarily, capriciously, and unreasonably, in that [it] terminated plaintiffs employment unilaterally, without legal authority, and without notice, hearing, impartiality, or recourse or process for plaintiff.” Claiming “lost wages, damage to his reputation, emotional distress, and loss of enjoyment of life,” he sought ²⁶² reinstatement with back pay, or, in the alternative, damages in the amount of $500,000. The Chairman filed an answer and a motion to dismiss on July 28, 2004. 2 In his motion to dismiss, the Chairman argued that Higginbotham was subject to removal at will, that he did not have a constitutionally protected liberty or property interest in continued employment, and that there was no statutory right to judicial review of the Chairman’s denial of his appeal.

With respect to Higginbotham’s claim for compensatory damages, the Chairman asserted that he had failed to properly follow the procedural requirements of the Maryland Tort Claims Act and that the Chairman enjoys governmental immunity from liability. The Chairman further argued that Higginbotham’s “vague assertions that the Defendant violated state and federal law are insufficient to support a claim,” and that Higginbotham had “failed to allege any facts supporting a claim that Chairman Schisler acted with malice or was grossly negligent.” After having been granted an extension of time by the court, Higginbotham responded to the Chairman’s motion to dismiss on September 13, 2004. He asserted that he was “[ujnarguably ... entitled to certain legal protections prior to discharge” and “protection against unconstitutional or illegal conduct in the termination of his employment.” In a footnote on the first page of his opposition to the motion, Higginbotham noted that there was a similar case pending before the court, Wilson v. Public Service Commission, Case No. 24-C-04-004553. 3 Wilson, whose employment was termi ²⁶³ nated by the Chairman the day before Higginbotham’s, had brought similar claims against the Commission. The Commission moved to dismiss Wilson’s claims on June 30, 2004.

After a hearing, the court denied the motion to dismiss on October 25, 2004. By the same order, it granted Wilson’s motion for summary judgment, and ordered “that the Plaintiff shall be immediately reinstated as Manager of Public Relations with all the duties and responsibilities of the office of Manager of Public Relations as well as full back pay and back benefits from the date of termination to the date of reinstatement.” In his opposition to the motion to dismiss, Higginbotham conceded that he had not previously satisfied the requirements of the Tort Claims Act, but stated that he was not at that time raising tort claims. He argued that the issues of the Chairman’s immunity and malice or gross negligence by the Chairman should be considered only after the completion of discovery. Higginbotham stated that he “d[id] not oppose the motion as to the Petition for Judicial Review,” but noted that he would “move to amend [his complaint] to include [a] claim for a writ of mandamus.” In his memorandum in support of his opposition to the motion to dismiss, Higginbotham stated that he “does not oppose the motion as to the Petition for Judicial Review, and instead, moves to amend to include his claim for a writ of mandamus.” In a reply memorandum in support of his motion to dismiss, the Chairman argued that it was inappropriate for Higginbotham to move to amend his complaint in a memorandum in opposition to a motion to dismiss.

The Chairman ²⁶⁴ urged the court not to consider the motion to amend. Neither party requested a hearing on the Chairman’s motion. 4 The court granted the motion to dismiss in an order dated October 19, 2004. The court’s order merely states: “UPON CONSIDERATION OF the Motion to Dismiss, Memorandum in Support Thereof and Reply Memorandum of the Public Service Commission and Chairman Kenneth D. Schisler and the Plaintiffs Opposition thereto ... the Motion to Dismiss is GRANTED.” The court did not provide reasons for dismissal, or address the Commission’s failure to respond to Higginbotham’s complaint, the Wilson case, or Higginbotham’s request to amend his complaint. On October 22, 2004, Higginbotham filed his amended complaint.

On October 29, 2004, he moved for reconsideration, or to alter or amend judgment. The court denied Higginbotham’s motion on November 23,2004. Higginbotham noted this appeal on December 20, 2004. STANDARD OF REVIEW The following standard of review applies on appeal from the grant of a motion to dismiss: “The proper standard for reviewing the grant of a motion to dismiss is whether the trial court was legally correct.

In reviewing the grant of a motion to dismiss, we must determine whether the complaint, on its face, discloses a legally sufficient cause of action.” In reviewing the complaint, we must “presume the truth of all well-pleaded facts in the complaint, along with any reasonable inferences derived therefrom.” “Dismissal is proper only if the facts and allegations, so viewed, would nevertheless fail to afford plaintiff relief if proven.” ²⁶⁵ Britton v. Meier, 148 Md.App. 419, 425 , 812 A.2d 1082 (2002) (citations omitted) (quoting Fioretti v. Md. State Bd. of Dental Exam’rs, 351 Md. 66, 71-72 , 716 A.2d 258 (1998); Faya v. Almaraz, 329 Md. 435, 443 , 620 A.2d 327 (1993)). DISCUSSION I. Final Judgment At oral argument on March 8, 2006, Higginbotham asserted that the circuit court’s grant of the motion to dismiss is not a final judgment because it pertains only to the Chairman, the Commission having failed to file an answer or pretrial motion. The Chairman responded that the Commission was never properly served, and that, even if it was properly served, it had joined in the Chairman’s motion to dismiss, which pertained to the complaint as a whole. A named defendant becomes a party to the action only when the defendant is properly served.

State Highway Admin, v. Kee, 309 Md. 523, 529-30 , 525 A.2d 637 (1987). If the circuit court’s judgment resolved all claims against the parties over whom it has acquired jurisdiction, i.e., all parties who were properly served, the judgment is final and appeal-able. Id. In his complaint, Higginbotham named the Commission and the Chairman.

The docket indicates that summonses were issued on June 16, 2004, for the Commission, the State, and the Chairman. 5 The docket does not show that the summonses were served or returned, and there is no proof of service in the record. Assuming that the parties were not served (because there was nothing in the record at the time to indicate that they were), the Chairman waived service by responding to the complaint, and therefore became a party to the action. See Prof'l Staff Nurses Ass’n v. Dimensions ²⁶⁶ Health Corp., 110 Md.App. 270 , 276 n. 1 677 A.2d 87 (1996), aff'd, 346 Md. 132 , 695 A.2d 158 (1997); LVI Envtl. Servs. v. Academy of IRM, 106 Md.App. 699, 707 , 666 A.2d 899 (1995).

The court’s order granting the Chairman’s motion to dismiss Higginbotham’s claims is clearly a final judgment. 6 Moreover, “unless fettered by a Rule or statute, a court ordinarily may take any action sua sponte that it can take in response to a motion, including dismissal of an action.” Fischer v. Longest, 99 Md.App. 368, 381 , 637 A.2d 517 (1994). A circuit court can dismiss a complaint as to all named defendants, even based on a motion to dismiss submitted by only one of the defendants if the grounds for the dismissal applied to all named defendants. If the Commission was properly served, the lack of evidence in the record notwithstanding, it was a party to the action irrespective of its failure to respond to the complaint. In its order, the court referred to the motion to dismiss as having been submitted by both the Commission and the Chairman.

We are persuaded that the court effectively dismissed the complaint as to both defendants, even if the motion was offered by the Chairman only.

II

Due Process Higginbotham argues that he pleaded properly a claim of violation of his procedural and substantive due process rights under Article 24 of the Maryland Declaration of Rights, 7 and that he is entitled to compensatory damages for those constitutional violations. The Chairman responds that the court properly dismissed Higginbotham’s claim because he does not ²⁶⁷ have a property interest in continued employment, and therefore may be terminated at will. Article 24 “protects] an individual’s interests in substantive and procedural due process.” Samuels v. Tschechtelin, 135 Md.App. 483, 523 , 763 A.2d 209 (2000). “To be successful in an action alleging denial of procedural due process in violation of a property interest, a plaintiff must demonstrate that he had a protected property interest, that he was deprived of that interest, and that he was afforded less process than was due.” Id. at 523 , 763 A.2d 209 . A colorable property interest in a position of employment requires “ ‘a legitimate claim of entitlement’ ” to continued employment.

Id. at 524 , 763 A.2d 209 (quoting Bd. of Regents v. Roth, 408 U.S. 564, 577 , 92 S.Ct. 2701 , 33 L.Ed.2d 548 (1972)). That claim must be grounded on a source of law apart from Article 24 itself, i.e., “existing rules or understandings that stem from an independent source such as state law—rules or understandings that secure certain benefits and that support claims of entitlement to those benefits.” Samuels, 135 Md.App. at 524 , 763 A.2d 209 . According to the January 1999 letter from the then Chairman offering the position to Higginbotham, a Public Information Officer is “a Special Appointment position.” Maryland Code (1993, 2004 Repl. Vol.), § ll-305(a)-(b) of the State Personnel & Pensions Art. (“SPP”), which “applies to an employee who is in a position ... under a special appointment,” states that the employee “(1) serves at the pleasure of the employee’s appointing authority; and (2) may be terminated from employment for any reason, solely in the discretion of the appointing authority.” Generally, “a non-tenured State or local government employee who serves ‘at will’ is not regarded as having a property right in continued public employment.” Elliott v. Kupferman, 58 Md.App. 510, 520 , 473 A.2d 960 (1984).

Higginbotham therefore does not have a property interest in continued employment. “In the context of dismissals from employment, one’s liberty interest may be implicated where the employee ²⁶⁸ has no cognizable right to the continued employment, but the dismissal serves to fetter some other Constitutional right that he does have.” Elliott, 58 Md.App. at 519 , 473 A.2d 960 . An employee’s liberty interest may have been violated if his termination, is the result of unlawful discrimination, or when it is in retribution for the exercise of First Amendment or other Constitutional rights, or when it is accompanied by charges that might damage the employee’s reputation in the community and he is given no opportunity to respond, or where it imposes upon him some stigma or disability that forecloses other employment opportunities (such as barring him from other public employment). Id. (citations omitted).

In his complaint, Higginbotham alleged “damage” and “serious harm to his reputation.” Nevertheless, his factual averments established only that he “was employed by the Public Service Commission,” and that he was “abruptly” informed “that his employment was terminated.” Assuming the truth of his averments, they do not establish that his termination violated a protected liberty interest. Accordingly, we are not persuaded that the circuit court erred in dismissing Higginbotham’s claim of deprivation of procedural due process. Higginbotham also states generally that his termination was a violation of his substantive due process rights. Because he made no factual averments and fails to cite any legal authority in support of that proposition, we are not obliged to consider his argument.

It “is not our function to seek out the law in support of a party’s appellate contentions.” Anderson v. Litzenberg, 115 Md.App. 549, 578 , 694 A.2d 150 (1997). But, were we to consider Higginbotham’s substantive due process claim, we would conclude that the circuit court did not err in dismissing it. “Substantive due process is a far narrower concept than procedural; it is an absolute check on certain governmental actions notwithstanding ‘the ²⁶⁹ fairness of the procedures used to implement them.’ ” Love v. Pepersack, 47 F.3d 120, 122 (4th Cir.1995) (quoting Weller v. Dep’t of Social Servs., 901 F.2d 387 , 391 (4th Cir.1990)). 8 In general terms, “substantive due process places a restraint on the use of government power beyond that imposed by procedural due process; public officials must grant an individual certain procedural formalities and, in addition, cannot arbitrarily deprive an individual of a constitutionally protected interest even if they follow the proper procedure.” Samuels, 135 Md.App. at 533 , 763 A.2d 209 (quoting David H. Armistead, Note, Substantive Due Process Limits on Public Officials’ Power to Terminate State-Created Property Rights, 29 Ga. L. Rev. 769 , 774 (1995)). In Maryland Classified Employees Ass’n, Inc. v. State, 346 Md. 1 , 694 A.2d 937 (1997), state employees challenged the constitutionality of a statute that altered certain employee benefits.

The Court of Appeals surmised that one of the employees’ arguments “seems to be based on some notion of substantive due process.” Id. at 21 , 694 A.2d 937 . The Court rejected the argument, stating that no “Supreme Court case of which we are aware gives a State employee a lifetime Constitutional right to continued State employment, protected by a theory of substantive due process.[ 9 ] Nor have we ever found ²⁷⁰ such a right under Article 24 of the Maryland Declaration of Rights.” Id. at 22 , 694 A.2d 937 (citation omitted). In Samuels , we rejected a former public employee’s contract-based claim that his termination violated his right to substantive due process. We noted- that his claim “concern[ed] purported property and liberty interests.” Id. at 533 , 763 A.2d 209 .

We concluded that “an alleged state-law contract right” to continued employment is not “so fundamental as to require substantive due process.” Id. at 534 , 763 A.2d 209 . We also held that “the ‘liberty’ interest that appellant contends is implicated here is not of such a character as to warrant substantive due process protections under State law.” Id. at 537 , 763 A.2d 209 . Thus, the circuit court did not err in dismissing Higginbotham’s substantive due process claim. Higginbotham also contends that he “had properly brought a claim for compensatory damages under the Maryland Declaration of Rights.” In Samuels , we stated the law with respect to damages for a violation of an individual’s rights under Article 24: Absent legislative waiver, the doctrine of sovereign immunity precludes a damages action against the State for alleged violations of Article 24.

But, a public official who violates a plaintiffs Maryland constitutional rights may be personally hable for compensatory damages. Thus, an individual who has been deprived of his liberty or property interests in violation of Article 24 “may enforce those rights by bringing a common law action for damages.” ²⁷¹ Samuels, 135 Md.App. at 522 , 763 A.2d 209 (citations omitted) (quoting Widgeon v. Eastern Shore Hosp. Ctr., 300 Md. 520, 538 , 479 A.2d 921 (1984)). Assuming the circuit court concluded that Higginbotham’s complaint does not present valid claims of deprivation of his rights to procedural and substantive due process, we agree.

We turn, then, to whether the complaint presented a valid claim that his termination constituted a statutory violation.

III

Statutory Violation Although he does not address it as a separate question, Higginbotham argues that he was subject to removal only by the “appointing authority” within the agency. He contends that the full Commission is the appointing authority and therefore the Chairman did not have the legal authority to unilaterally terminate his employment. The Chairman responds that Higginbotham did not raise this as a separate claim before the circuit court. He argues that, because the only substantive count in Higginbotham’s complaint was a cause of action based on Article 24, the court’s dismissal was not erroneous.

With respect to the proper form of pleadings, Maryland Rule 2-303 states: (a) Paragraphs, counts, and defenses. All averments of claim or defense shall be made in numbered paragraphs, the contents of each of which shall be limited as far as practicable to a statement of a single set of circumstances.... Each cause of action shall be set forth in a separately numbered count.... (b) Contents.

Each averment of a pleading shall be simple, concise, and direct. No technical forms of pleadings are required. A pleading shall contain only such statements of fact as may be