Mandel v. O'HARA

RODOWSKY, Judge. This case involves public official immunity from liability for common law, nonconstitutional torts. At issue is the extent of the immunity of Governors of Maryland when an alleged tort is based upon their vetoing or approving legisla ¹⁰⁵ tion. For the reasons set forth below we hold, as a matter of Maryland common law, that the immunity applicable to the gubernatorial veto/approval function is, civilly, as complete an immunity as that which protects members of the General Assembly when voting for or against legislative bills.

Under that type of immunity damages in tort may not be awarded against either a Governor or a member of the legislature based upon what a court or jury believes were the motives underlying the public official’s exercise of these functions. Appellees, James F. O’Hara, III and Michael P. O’Hara (the O’Haras), are the remaining plaintiffs in this suit which was instituted in 1978. They were stockholders in the corporation which owned the Marlboro racetrack. Their complaint now consists of one count alleging that common law deceit was practiced upon them in the December 31, 1971, sale of their Marlboro stock.

In a previous appeal in this case, we reversed a summary judgment in favor of the defendants based on limitations. O’Hara v. Kovens, 305 Md. 280 , 503 A.2d 1313 (1986). 1 Defendants in this action (collectively, the Kovens Group) include former Governor Marvin Mandel, the instant appellant. Certain undisputed background facts are set forth in O’Hara . “Prior to, or during, the 1971 session of the Maryland General Assembly, Marlboro and an entity (Hagerstown) which also conducted horse racing with parimutuel betting had agreed that Hagerstown would sell to Marlboro eighteen racing days theretofore utilized for the Hagerstown meeting. Those eighteen days, together with eighteen days previously allocated to Marlboro, would allow thirty-six days of racing by Marlboro.

Transfer of the Hagerstown days was subject to legislative approval. ¹⁰⁶ Approval at either the 1971 or 1972 session of the Maryland General Assembly would have satisfied the approval condition in the contract. H.B. 1128, enacted at the 1971 legislative session, conferred the necessary approval. On May 28,1971, then Governor Mandel, expressing concerns about the wisdom and constitutionality of the legislation, vetoed H.B. 1128. Following the sale by the plaintiffs of their stock in Marlboro the General Assembly on January 12, 1972, overrode the veto____ In December 1972 Marlboro merged with another corporation (Bowie) which conducted horse racing with parimutuel betting at the Bowie racetrack.

On November 24, 1975, the federal government filed indictments against Governor Mandel and others ... of the Kovens Group.” 305 Md. at 283-85 , 503 A.2d at 1314-16 (footnote omitted). 2 Our opinion in the earlier appeal explained the theory of the plaintiffs’ case to be “that there was a conspiracy between Governor Mandel and others of the Kovens Group which antedated May 28, 1971. Plaintiffs in essence contend that the alleged conspirators planned (1) to have the Mandel veto depress the value of Marlboro stock below the price it would have commanded had H.B. 1128 been signed into law, (2) to acquire the stock at a depressed price, and then (3) to restore its value by having Governor Mandel ‘himself and ¹⁰⁷ through his agents’ induce the General Assembly to override the veto.” Id. at 286 , 503 A.2d at 1316 . On that previous appeal the only issue related exclusively to the limitations defense. We were not presented any issues concerned “with the sufficiency of any undisputed facts to prove any element of plaintiffs’ deceit theory, or whether any alleged facts, if proved, would establish a cause of action.” Id.

After our remand Governor Mandel moved for summary judgment on the ground of absolute immunity. The trial court denied that motion. Governor Mandel noted an appeal to the Court of Special Appeals and sought a stay which that court granted. He also petitioned this Court for certiorari.

We issued the writ prior to any determination on the merits by the Court of Special Appeals in order to decide this question of public importance. The parties agree that a Governor of Maryland, if performing gubernatorial duties involving the exercise of discretion, enjoys a degree of public official immunity. They disagree over whether an absolute or qualified immunity applies here. An absolute immunity from tort liability “stands even if the official acts in bad faith, or with malice or corrupt motives.” Prosser & Keeton on Torts, § 132, at 1057 (5th ed. 1984) (footnote omitted) (Prosser). “[Qualified immunity is usually destroyed by ‘malice,’ bad faith or improper purpose[.]” Id. at 1059-60 (footnotes omitted).

Absolute “immunity protects both judges and legislators, so long as their acts are ‘judicial’ or legislative in nature and within the very general scope of their jurisdiction.” Prosser at 1056-57 (footnotes omitted). And see Restatement (Second) of Torts § 895D, comment c, at 412 (1977) (a judge or a legislator “is not liable for [that official’s] discretionary acts or omissions even though [the official] is found to have acted with malicious or other improper motives”). “The policy is to free the officer from the necessity of submitting [the officer’s] purposes, motives and beliefs to the uncertain appraisal of juries or even judges.” Id. ¹⁰⁸ Determining immunity defenses at any given point across the wide range of various duties performed by the vast numbers of officials and employees in the executive branch of federal, state and local governments is by no means as relatively clear-cut as determining legislative and judicial immunities. The Restatement's attempt at generalization is that “[a] high-level executive officer is usually accorded the same type of immunity as that given the judge and for the same reasons.” § 895D, comment d, at 413. The high-level executive must feel free to make discretionary decisions “without being subject to influence by the threat of a harassing suit.” Id.

Immunity “is not confined to the executive officials who are at the highest level.” Id. There are many situations, some giving rise to absolute immunity, others qualified immunity and still others only a defense based on reasonableness of the decision. Id. at 413-15. Prosser’s attempt at generalization is that, in most states, officials and employees of the executive department, with respect to state law claims against them, “enjoy no immunity at all for ministerial acts and only a qualified immunity on matters calling for the officer’s discretion.” Prosser, at 1059 (footnote omitted).

In the case before us Governor Mandel attempts to avoid the thicket which is the law of immunities resting solely on executive department duties. One of his arguments is that the veto/approval function is a legislative function, so that a Maryland Governor is protected civilly in that function by an absolute immunity, as are legislators. We also granted certiorari on whether the order denying the motion for summary judgment is appealable. It is.

We shall first explain our resolution of the immunity questions and then appealability. I A The decisions of this Court neither compel nor foreclose the conclusion that a Governor of Maryland has an absolute ¹⁰⁹ civil immunity when vetoing or approving legislation. The occasion to consider that issue simply has not arisen. But some discussion of absolute versus qualified immunity for executive department officials of lesser rank than Governor does appear in our cases.

When a mayor of Baltimore City ordered a painting removed from a municipal museum, the artist sued the mayor alleging, inter alia, interference with contractual relations, libel and slander. The mayor argued absolute immunity or privilege, and the trial court sustained a demurrer. In Walker v. D’Alesandro, 212 Md. 163 , 129 A.2d 148 (1957), this Court, speaking through Chief Judge Brune, said: “The basis for immunity from liability by reason of privilege is that a public or social interest is to be served by according the privilege; and as Professor Prosser observes ([Prosser, Torts (2d ed. 1955)], § 16), ‘The sliding scale by which the law balances the interests of the parties to accomplish a social purpose is nowhere better illustrated than in the field of privilege.’ An absolute privilege is accorded to judicial proceedings and to legislative proceedings and to the activities of high executive officers____ As to executive officers, see Spalding v. Vilas, 161 U.S. 483 [ 16 S.Ct. 631 , 40 L.Ed. 780 ] (U.S. Postmaster General) and Matson v. Margiotti, 371 Pa. 188 , 88 A.2d 892 (State Attorney General).” Id. at 169-70, 129 A.2d at 151 . The Court assumed, without holding, that an absolute privilege would be accorded to the holder of the office of Mayor of Baltimore City, but concluded “that none of the acts complained of ... are within the actual field of the defendant’s powers or duties as Mayor or so closely related thereto as to be entitled to an absolute privilege____” Id. at 173 , 129 A.2d at 153 .

A contrast between federal law at the time and Maryland law was presented in Carr v. Watkins, 227 Md. 578 , 177 A.2d 841 (1962). The plaintiff had been discharged from his job as a security guard at a shopping center allegedly because of untrue, derogatory information communicated to ¹¹⁰ the employer by the defendants. One defendant was a security officer at the Naval Ordinance Laboratory where the plaintiff had previously worked, and the two remaining-defendants were Montgomery County police officers. The suit alleged, inter alia, slander, invasion of privacy and malicious interference with contract.

The action was dismissed on demurrer, and this Court reversed. Federal law controlled the claim against the federal security officer, and that law “predicated immunity on whether the act complained of was within the scope of the official’s duties rather than [on] the official’s rank in the governmental hierarchy.” 227 Md. at 584 , 177 A.2d. at 844 (footnote omitted).. Determining the federal officer’s duties required evidence. As to the Montgomery County police officers, the Court said: “[T]his Court has shown reluctance to extend absolute privilege or immunity from liability for torts to government officers of a higher rank than these defendants.

Walker v. D’Alesandro, 212 Md. 163 [ 129 A.2d 148 ]; Maurice v. Worden, 54 Md, 233[.]” Id. at. 585, 177 A.2d at 844-45 . 3 The defendants in Eliason v. Funk, 233 Md. 351 , 196 A.2d. 887 (1964), were the Chairman of the State Roads Commission and the Commissioner of State Personnel. They had allegedly conspired to cause the plaintiff’s discharge from state classified service, with one defendant placing charges against the plaintiff and the other accepting perjured testimony at an administrative hearing. This Court noted holdings “that judges have an absolute privilege from suits arising out of their judicial acts,” and that “[pjrosecutors in judicial hearings aré afforded the sarnie privilege.” Id. at 356 , 196 A.2d at 889-90 . ' The Court recognized that “[t]he Maryland cases seem to indicate that discretionary action will be protected only in the absence of malice.” Touching upon a functional approach to immunity, ¹¹¹ the Court said: “But the instant case is much closer factually to the cases dealing with judicial actions, where there is a right to review, than to the discretionary acts of law enforcement officers.” Id. at 356-57 , 196 A.2d at 890 . It was unnecessary, however, to hold that the privilege was absolute in Eliason because the complaint failed to allege facts sufficient to permit even an inference of bad faith or malice.

Robinson v. Board of County Comm’rs for Prince George’s County, 262 Md. 342 , 278 A.2d 71 (1971), was an action for false arrest and battery against two police officers and the county which employed them. The police officers had prevailed with an immunity defense but this Court reversed, holding that the defense had not been raised by the proper procedure. Anticipating that the proper procedure would be used on remand, this Court gave guidance to the trial court. After referring to the refusal in Carr v. Watkins, supra, to move toward absolute privilege as then applied by the Supreme Court, this Court concluded: “We think our own rule is sound.

Indeed we can not think of any reason why a public official should not be held responsible for his malicious actions even though he claims they were done within the scope of his discretionary authority. Other jurisdictions have so held, Prosser, supra at 1016, and we do so here.” 262 Md. at 348 , 278 A.2d at 74 . None of the executive official, civil immunity cases to come before this Court, however, has dealt with the Governor, and, thus, none has dealt with that official’s relations with the General Assembly. Public official immunity invoked by a legislator in defense of criminal charges was considered in Blondes v. State, 16 Md.App. 165 , 294 A.2d 661 (1972), an opinion authored for the court by Chief Judge Murphy.

Blondes, a member of the House of Delegates, had been convicted of bribery. The conviction was reversed because of violations of Maryland Declaration of Rights, art. 10 (“That freedom of speech ¹¹² and debate, or proceedings in the Legislature, ought not to be impeached in any Court of Judicature.”) and of Maryland Constitution, art. Ill, § 18 (“No Senator or Delegate shall be liable in any civil action, or criminal prosecution, whatever, for words spoken in debate.”). Under interpretations of the speech and debate clause of the federal constitution in United States v. Johnson, 383 U.S. 169 , 86 S.Ct. 749 , 15 L.Ed.2d 681 (1966) and in United States v. Brewster, 408 U.S. 501 , 92 S.Ct. 2531 , 33 L.Ed.2d 507 (1972), the trial court should have precluded the prosecution from proving certain parliamentary motions and votes by Blondes in a county delegation caucus even though they were on an issue as to which Blondes had accepted a fee to represent private interests.

One of the decisions arising out of the criminal prosecution of Governor Mandel points out that legislative immunity is a common law doctrine which is broader than the literal wording of provisions in the federal or state constitutions guaranteeing freedom of speech and debate. See United States v. Mandel, 415 F.Supp. 1025, 1027 (D.Md. 1976). “[I]n cases where particular speech or debate provisions were not applicable to protect conduct arising in the legislative context, courts have applied the common law doctrine of legislative immunity as a part of the judicially-created doctrine of official immunity.” Id. at 1028 . Indeed, “[ajbsolute legislative privilege dates back to at least 1399.” Barr v. Matteo, 360 U.S. 564, 579 , 79 S.Ct. 1335, 1343 , 3 L.Ed.2d 1434, 1446 (1959) (Warren, C.J., dissenting) (footnote omitted). B For at least the past two decades in the United States the principal vehicles for developing law concerning public official immunity have been actions under 42 U.S.C. § 1983 (1982). 4 The Supreme Court has said that “§ 1983 is to be ¹¹³ read in harmony with general principles of tort immunities and defenses rather than in derogation of them.” Imbler v. Pachtman, 424 U.S. 409, 418 , 96 S.Ct. 984, 989 , 47 L.Ed.2d 128, 136 (1976).

Thus, § 1983 cases and their first cousins, tort actions based directly on certain alleged violations of the United States Constitution by officials of the federal government, see Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 , 91 S.Ct. 1999 , 29 L.Ed.2d 619 (1971), may be persuasive authority as to the Maryland common law of public official immunity in a state law, nonconstitutional tort action against a state official, as presented here. With respect to federal law claims against state or federal officials, public official immunity has undergone some change when viewed from an historical perspective. Judges, when performing judicial functions, and legislators, when performing legislative functions, enjoyed and continue to enjoy an absolute immunity. Previously, high officials in the executive department enjoyed an absolute immunity.

Currently, however, there is a “federal retreat from absolute immunity in its most stringent form[.]” Prosser § 132, at 1062. Whether an official of the executive department enjoys a § 1983 immunity, and whether that immunity is absolute or qualified, is determined in relation to the function which gives rise to the federal law claim. An absolute immunity under § 1983 for state legislators “acting in the sphere of legitimate legislative activity” was recognized in Tenney v. Brandhove, 341 U.S. 367, 376 , 71 S.Ct. 783, 788 , 95 L.Ed. 1019, 1027 (1951). It was an action for damages against the members of the California Senate Fact-Finding Committee on Un-American Activities.

The ¹¹⁴ plaintiff alleged that he had been summoned to testify before that committee in order to be used as a tool to “smear” as a “Red” a candidate for mayor of San Francisco. In explaining the absolute nature of the immunity, Justice Frankfurter said for the Court: “The claim of an unworthy purpose does not destroy the privilege. Legislators are immune from deterrents to the uninhibited discharge of their legislative duty, not for their private indulgence but for the public good. One must not expect uncommon courage even in legislators.

The privilege would be of little value if they could be subjected to the cost and inconvenience and distractions of a trial upon a conclusion of the pleader, or to the hazard of a judgment against them based upon a jury’s speculation as to motives. The holding of this Court in Fletcher v. Peck, 6 Cranch 87, 130 , that it was not consonant with our scheme of government for a court to inquire into the motives of legislators, has remained unquestioned.” 341 U.S. at 377 , 71 S.Ct. at 788 . Absolute immunity of state judges in § 1983 actions was recognized in Pierson v. Ray, 386 U.S. 547 , 87 S.Ct. 1213 , 18 L.Ed.2d 288 (1967). And see Bradley v. Fisher, 13 Wall. 335 , 20 L.Ed. 646 (1872).

Immunity for executive department officials was considered in Spalding v. Vilas, 161 U.S. 483 , 16 S.Ct. 631 , 40 L.Ed. 780 (1896). That case recognized an absolute immunity for the Post Master General in a libel action resulting from a notice sent by that official to certain local postmasters describing the operation of a federal statute. The Court said that the postmaster “cannot be held liable to a civil suit for damages on account of official communications made by him pursuant to an act of Congress, and in respect of matters within his authority, by reason of any personal motive that might be alleged to have prompted his action; for, personal mo ¹¹⁵ tives cannot be imputed to duly authorized official conduct.” 161 U.S. at 498 , 16 S.Ct. at 637 . Barr v. Matteo, 360 U.S. 564 , 79 S.Ct. 1335 , reaffirmed Spalding v. Vilas, supra.

Barr was a defamation action against the acting Director of the Office of Rent Stabilization. The plurality opinion in Barr quoted and applied the frequently repeated reasoning by Judge Learned Hand from Gregoire v. Biddle, 177 F.2d 579, 581 (2d Cir.1949), cert, denied, 339 U.S. 949 , 70 S.Ct. 803 , 94 L.Ed. 1363 (1950). “ ‘It does indeed go without saying that an official, who is in fact guilty of using his powers to vent his spleen upon others, or for any other personal motive not connected with the public good, should not escape liability for the injuries he may so cause; and, if it were possible in practice to confine such complaints to the guilty, it would be monstrous to deny recovery. The justification for doing so is that it is impossible to know whether the claim is well founded until the case has been tried, and that to submit all officials, the innocent as well as the guilty, to the burden of a trial and to the inevitable danger of its outcome, would dampen the ardor of all but the most resolute, or the most irresponsible, in the unflinching discharge of their duties. Again and again the public interest calls for action which may turn out to be founded on a mistake, in the face of which an official may later find himself hard put to it to satisfy a jury of his good faith.

There must indeed be means of punishing public officers who have been truant to their duties; but that is quite another matter from exposing such as have been honestly mistaken to suit by anyone who has suffered from their errors. As is so often the case, the answer must be found in a balance between the evils inevitable in either alternative. In this instance it has been thought in the end better to leave unredressed the wrongs done by dishonest officers than to subject those who try to do their duty to the constant dread of retaliation____ ¹¹⁶ “ ‘The decisions have, indeed, always imposed as a limitation upon the immunity that the official’s act must have been within the scope of his powers; and it can be argued that official powers, since they exist only for the public good, never cover occasions where the public good is not their aim, and hence that to exercise a power dishonestly is necessarily to overstep its bounds. A moment’s reflection shows, however, that that cannot be the meaning of the limitation without defeating the whole doctrine.

What is meant by saying that the officer must be acting within his power cannot be more than that the occasion must be such as would have justified the act, if he had been using his power for any of the purposes on whose account it was vested in him____’ ” Barr v. Matteo, 360 U.S. at 571-72 , 79 S.Ct. at 1339-40 . The Supreme Court case marking the beginning of “the retreat,” Prosser § 132, from absolute immunity in § 1983 cases is Scheuer v. Rhodes, 416 U.S. 232 , 94 S.Ct. 1683 , 40 L.Ed.2d 90 (1974), involving a state governor. Based upon the deployment of the Ohio National Guard at Kent State University in May 1970, and upon events which followed that deployment, § 1983 suits were brought against the Governor, the Adjutant General, his assistant, various officers and enlisted members of the Ohio National Guard and the president of Kent State University. The complaints in essence alleged “that each of the named defendants, in undertaking [their] actions, acted either outside the scope of his respective office or, if within the scope, acted in an arbitrary manner, grossly abusing the lawful powers of office.” 416 U.S. at 235 , 94 S.Ct. at 1686 .

The District Court dismissed the complaints before answer. The Supreme Court noted that official immunity apparently rests on two rationales, (1) the injustice of subjecting to liability an officer who is legally required to exercise discretion, particularly absent bad faith, and (2) the danger of deterring willingness to exercise judgment with decisive ¹¹⁷ ness posed by the threat of liability. Id. at 240 , 94 S.Ct. at 1688 . The Court reaffirmed its prior holdings concerning judicial and legislative absolute immunity.

The Court then analogized the Governor’s exercise of discretion in dealing with civil disorder to possible arrest situations confronted by police officers. The “ ‘common law has never granted police officers an absolute and unqualified immunity[.]’ ” Id. at 245 , 94 S.Ct. at 1691 (quoting Pierson v. Ray, 386 U.S. at 555 , 87 S.Ct. at 1218 ). Although good faith and probable cause are the guidelines for evaluating police conduct relating to an arrest, “[i]n the case of higher officers of the executive branch, however, the inquiry is far more complex since the range of decisions and choices — whether the formulation of policy, of legislation, of budgets, or of day-to-day decisions — is virtually infinite.” 416 U.S. at 246 , 94 S.Ct. at 1691 . “ ‘It is not the title of his office but the duties with which the particular officer sought to be made to respond in damages is entrusted’ ” which provide the guide for the scope of immunity. Id. at 247 , 94 S.Ct. at 1692 (quoting Barr v. Matteo, 360 U.S. at 573 , 79 S.Ct. at 1340 ).

In remanding for further proceedings the Court concluded: “These considerations suggest that, in varying scope, a qualified immunity is available to officers of the executive branch of government, the variation being dependent upon the scope of discretion and responsibilities of the office and all the circumstances as they reasonably appeared at the time of the action on which liability is sought to be based. It is the existence of reasonable grounds for the belief formed at the time and in light of all the circumstances, coupled with good-faith belief, that affords a basis for qualified immunity of executive officers for acts performed in the course of official conduct.” 416 U.S. at 247-48 , 94 S.Ct. at 1692 . Two years later the Supreme Court rejected the argument that a state prosecuting attorney, “as a member of the executive branch, cannot claim the immunity reserved ¹¹⁸ for the judiciary, but only a qualified immunity akin to that accorded other executive officials in this Court’s previous cases.” Imbler v. Pachtman, 424 U.S. at 420-21 , 96 S.Ct. at 990 . The Court concluded that prosecutors enjoyed an absolute immunity at common law “based upon the same considerations that underlie the common-law immunities of judges and grand jurors acting within the scope of their duties,” id. at 422-23 , 96 S.Ct. at 991 , and that those same considerations of public policy countenanced absolute immunity in § 1983 actions for initiating a prosecution and presenting the case.

The meaning of Scheuer v. Rhodes, supra, was considerably clarified, or, at least, the apparent sweep of the opinion was considerably narrowed, in Butz v. Economou, 438 U.S. 478 , 98 S.Ct. 2894 , 57 L.Ed.2d 895 (1978). There the plaintiff, a commodity futures commission merchant, had been found in administrative proceedings within the Department of Agriculture to have violated certain requirements and faced a loss of registration. The administrative determination was reversed on judicial review. The plaintiff then brought a Bivens action against all of the officials in the Department of Agriculture who had had anything to do with the administrative proceeding.

The District Court dismissed, holding that there was absolute immunity under Barr v. Matteo, supra. The Court of Appeals reversed, concluding that Scheuer v. Rhodes, supra, and other opinions “established] that officials of the Executive Branch exercising discretionary functions did not need the protection of an absolute immunity from suit____” Butz, 438 U.S. at 484 , 98 S.Ct. at 2899 . In answering the Government’s argument that absolute immunity protected federal officials, even if high state officials did not enjoy the same immunity, the Court, speaking through Justice White, undertook to harmonize the precedents. The Court said that “the general rule, which long prevailed, [is] that a federal official may not with impunity ignore the limitations which the controlling law has placed on his powers.” Id. at 489 , ¹¹⁹ 98 S.Ct. at 2902 . 5 The Court recognized that the plurality opinion in Barr appeared to have extended absolute immunity, but distinguished both Barr and Spalding on the basis that neither involved the liability of officials who had exceeded constitutional limits. 438 U.S. at 495 , 98 S.Ct. at 2905 . 6 Absolute immunity for federal officials based on their status was rejected.

Immunity in a Bivens case would not be greater than that accorded state officials sued for identical violations under § 1983. Id. at 500, 98 S.Ct. at 2907 . The Butz Court then used Scheuer to supply the governing principles for resolving the immunity defenses. That Scheuer analysis produced the following holding: “[I]n a suit for damages arising from unconstitutional action, federal executive officials exercising discretion are entitled only to the qualified immunity specified in Scheuer , subject to those exceptional situations where it is demonstrated that absolute immunity is essential for the conduct of the public business.” 438 U.S. at 507 , 98 S.Ct. at 2911 (footnote omitted).

Thus, “[ajlthough a qualified immunity from damages liability should be the general rule for executive officials charged ¹²⁰ with constitutional violations ... there are some officials whose special functions require a full exemption from liability." Id. at 508, 98 S.Ct. at 2912 (emphasis added). The Supreme Court concluded that the Court of Appeals had erred by placing “undue emphasis on the fact that the officials sued here are — from an administrative perspective — employees of the Executive Branch. Judges have absolute immunity not because of their particular location within the Government but because of the special nature of their responsibilities.” Id. at 511 , 98 S.Ct. at 2913 . Consequently, Butz held that all of the Department of Agriculture officials who had participated in the decision to initiate the administrative prosecution, and the attorney who had presented the case, had absolute immunity because their functions were analogous to that of a prosecutor, so that Imbler v. Pachtman, supra, controlled.

The administrative law judges and hearing officers enjoyed the same absolute exemption as do judges in a court of law. This approach to immunity law is a “ ‘functional’ ” one. Harlow v. Fitzgerald, 457 U.S. 800, 810 , 102 S.Ct. 2727, 2734 , 73 L.Ed.2d 396, 406 (1982). “The scope of immunity is determined by function, not office.” Nixon v. Fitzgerald, 457 U.S. 731, 785 , 102 S.Ct. 2690, 2719 , 73 L.Ed.2d 349, 386 (1982) (White, J., dissenting). Under this approach members of an interstate planning agency have been held to have absolute immunity from § 1983 liability for damages for harm allegedly caused by adopting a land use ordinance and general plan because these were actions taken by those officials in their legislative capacities.

See Lake Country Estates, Inc. v. Tahoe Regional Planning Agency, 440 U.S. 391 , 99 S.Ct. 1171 , 59 L.Ed.2d 401 (1979). That case confirmed the view expressed by the United States District Court for the District of Maryland in 1976 in United States v. Mandel, 415 F.Supp. at 1028 , that absolute immunity for state legislators, as recognized in Tenney v. Brandhove, 341 U.S. 367 , 71 S.Ct. 783 , is not restricted to the scope of ¹²¹ the speech or debate clauses expressed in the federal and in state constitutions. Tahoe, 440 U.S. at 404 , 99 S.Ct. at 1178 . “Rather, the rule of [Tenney ] recognizes the need for immunity to protect the ‘public good.’ ” Tahoe, 440 U.S. at 404-05 , 99 S.Ct. at 1179 . Similarly, if a state supreme court is acting legislatively, it enjoys an absolute legislative immunity from § 1983 damages.

See Supreme Court of Virginia v. Consumers Union of the United States, Inc., 446 U.S. 719 , 100 S.Ct. 1967 , 64 L.Ed.2d 641 (1980). C Here the function involved is the exercise of the power to veto or approve legislation. See Maryland Constitution, art. II, § 17. 7 “[A]s a matter of historical development as well ¹²² as of theory ... the veto is a legislative power.” E. Mason, The Veto Power § 100 (A. Hart ed. 1967).

People v. Bowen, 21 N.Y. 517 (1860), presented a clear exposition of the political theory underlying veto power. Bowen held that the power to approve and sign a bill presented to the Governor of New York within a specified number of days prior to adjournment of the legislature does not cease with the adjournment. The court said: “Whatever the authority,