Manders v. Brown

DAVIS, Judge. In this appeal, we are called upon to determine whether the appellees were properly afforded the shield of legislative immunity when they modified the Urban Renewal Plan without first holding a public meeting, allegedly in violation of the Crisfield City Code, Article XIII, § C13-5(B). Appellant asks us to decide that municipal officials who function in a legislative or administrative capacity or whose conduct involves enforcement designed to further allegedly corrupt or fraudulent motives do not have the broad immunity available for legislative acts. Because the record below does not permit us to determine whether the legislators in this case have restricted their functions to the traditional roles of speech and debate protected during legislative deliberations or actions indirectly required to carry on those deliberations, we remand this case for further proceedings in accordance with this opinion.

THE CASE SUB JUDICE Logan J. Manders appeals from an order of the Circuit Court for Somerset County granting a motion to dismiss his complaint against appellees, Roland Brown, Allison Milbourne, and Larry Tyler, who were Councilmen for the City of Crisfield at the time of the alleged wrongs, and Richard Scott, who was Mayor of the City of Crisfield at the time of the alleged wrongs. The genesis of this appeal, however, is an “Amended And Restated Complaint” filed on April 18, 1991 by Logan Manders, Crisfield Shipyard Properties, Ltd., and Crisfield Shipyard Services, Inc. (collectively “Manders”) against appellees for misrepresentation (Count I), interference with a contractual relationship and prospective economic advantage (Count II), and misapplication of public funds (Count III). The relief sought was a money judgment. Manders’s original ¹⁹⁵ complaint was in the form of a class action against the City of Crisfield, Mayor of Crisfield, and Crisfield City Council.

Trial was held on the claims set forth in Manders’s “Amended And Restated Complaint” on September 9 and 10, 1991. At the conclusion of Manders’s case-in-chief, appellees moved for a directed verdict and summary judgment. The court granted appellees’ motion only as to Count III, which alleged misapplication of public funds. When all of the evidence was presented, appellees moved for judgment on the remaining counts and Manders made a motion for judgment.

The trial court reserved decision on the motions for judgment. The jury returned a verdict in favor of Manders. As to the intentional misrepresentation count, the jury awarded plaintiffs $97,000 in compensatory damages and $100,000 in punitive damages; as to the interference with contractual relationship and prospective economic advantage count, Manders was awarded $200,000 in compensatory damages. Treating appellees’ motion for judgment as a motion for judgment non obstante veredicto (n.o.v.), the court denied the motion.

Judgment was entered on September 11, 1991. Within 10 days after entry of judgment, appellees moved again for a judgment n.o.v. and alternatively for a new trial. The trial court ordered a hearing on appellees’ motion. In the meantime, appellees obtained new counsel and supplemented their motion for judgment n.o.v. and alternatively a new trial.

Eventually, on January 26, 1992, a hearing was held on appellees’ motion for judgment n.o.v. and alternatively a new trial, and the trial court granted a new trial. In response to the granting of a new trial, Manders filed for a writ of prohibition with the Court of Appeals, asserting that the trial court erred in granting a new trial. The writ and accompanying request for attorneys’ fees were denied. Thereafter, appellees filed an answer stating as an affirmative defense that they are immune from liability under the doctrines of legislative and official immunity.

In addition, appellees filed a motion for dismissal or summary judgment. Manders subsequently amended his “Amended and Restated Com ¹⁹⁶ plaint” by adding two constitutional tort counts: violation of the Maryland Declaration of Rights, Article 24 (Count IV) and violation of the Fourteenth Amendment to the U.S. Constitution (Count V). These amendments were titled “First Amendment to the Amended And Restated Complaint.” In response, appellees filed another motion to strike or alternatively for dismissal. After an unsuccessful attempt to have the case removed to federal court, Manders filed a motion for recusal of the trial judge.

This motion was denied. Manders again amended his complaint (“Second Amendment to Amended And Restated Complaint”) with a count alleging gross negligent misrepresentation and a count alleging negligent misrepresentation. Also added were many factual allegations regarding appellees’ alleged deceptive scheme to gain government funding. On November 15,1993, a hearing was held on appellees’ motion to dismiss Manders’s complaint; the motion was granted without an opinion.

Manders presents the following questions for review: 1. Did the trial court abuse its discretion [in] granting [appellees’] new trial motion? 2. Did the trial court commit error in refusing to recuse itself from the hearing on [appellees’] motion to dismiss? 3. Did the trial court commit error in granting [appellees’] motion to dismiss [Manders’s] complaint?

FACTS Manders and his son owned and operated a shipyard located on the Little Annemessex River in Crisfield, Maryland. They conducted business through Crisfield Shipyard Properties, Ltd. and Crisfield Shipyard Services, Inc. Their main business since 1972 was building, repairing, and restoring boats. On October 11, 1987, two city blocks adjacent to Manders’s property burned down, including “Tawes Lumberyard” and several old warehouses. Manders’s property suffered only slight damage. ¹⁹⁷ On October 13, 1987, Tony Bruce, the Crisfíeld City Solicitor, telephoned Manders and told him that the fire had provided the City with an opportunity to proceed with an urban redevelopment plan for the area.

He also told Manders that his shipyard was inconsistent with that plan to rezone the area from commercial to tourist/maritime. That night, a hearing was held concerning redevelopment of the area. The central project was to be the construction of an upscale mini-mall. The same night, some of the appellees, acting as Crisfield’s City Council, enacted “Resolution 207” that declared the two burnt-out blocks and Manders’s property to be an urban renewal area under Article XIII of the City Charter.

In furtherance of the redevelopment plan, on February 7,1988, the appellees, acting as Mayor and City Council, approved Urban Renewal Plan # 3 (“Project Phoenix”), after holding a public hearing on the matter. The plan included the construction of a mini-mall and pedestrian walkway located on the site of the destroyed Tawes Lumberyard. At the public hearing, owners of crab processing plants neighboring the renewal zone expressed disapproval of the mini-mall project because it would be inconsistent with the odor emanating from their plants. Manders asserts that appellees, acting through Mr. Bruce, the City Solicitor, agreed to swap a strip of City land on the western border of Manders’s property (adjacent to the portion of 11th Street that was to be "widened) for the portion of 10th street that bisected Manders’s property.

On March 15, 1988, Manders’s property and other property in the urban renewal area were rezoned to tourist/maritime under Ordinance 428. In reliance on the City’s actions, Manders went forward with efforts to redevelop his property into a townhouse complex. Manders eventually contracted for sale of his property to a developer, contingent, inter alia, on the City’s action to close a portion of 10th Street that bisected Manders’s property and to go forward with the urban renewal plan. In March 1989, appellees reviewed the development plan for Manders’s property and, in June 1989, approved the site plan ¹⁹⁸ for Manders’s property.

Manders contends that despite appellees’ June approval of his site plan, in March, appellees secretly made substantial modifications to Urban Renewal Plan # 3 and had actually granted a permit for reconstruction of Tawes Lumberyard. The remaining redevelopment plans were limited to infrastructure expansions. Moreover, Manders states that, despite his involvement with the redevelopment and his regular business visits to City Hall, appellees never gave him notice of the change or held a public hearing on the matter. Manders asserts that the City Charter Article XIII requires such notice.

Manders additionally contends that modification of the redevelopment plan had a detrimental financial impact on his contract for sale of the property. Regarding the intentions of the appellees in not holding a public hearing prior to modifying Urban Renewal Plan #3, Manders asserts that the appellees “were concerned that if [Manders] knew about the change then [he] might interfere with [appellees’] scheme to get funds from the government for the plan, but not implement it as regards the mini-mall and the condominium development on [his] property.” In addition, appellees “sought to accommodate the objections of the crab house owners, as well as others who [appellees] viewed as important, influential and long-time citizens of Crisfield who could advance [appellees’] political careers and/or elevate their personal, social status within that community.” Pertinent portions of the trial court’s opinion on the motion for judgment n.o.v. and alternatively a new trial provide the most telling account of how the case proceeded at trial: The court thinks, first of all, that this trial and the integrity of its outcome was virtually doomed from the outset by inadequate preparation on the part of both sides. I don’t think the jury went off on a tangent. I think the court’s instructions here were correct in as far as they went based on what instructions were requested by counsel and the arguments that were made by counsel ¹⁹⁹ regarding those instructions.

Likewise, the rulings on evidence. It is also clear to the court from the get go that this case was being presented to the court and to the jury as a suit against the City of Crisfield and against the named individuals in their official capacity as members of the city commission or the city council, whatever they call themselves. It’s clear to me that Mr. Bruce [the City Solicitor and counsel for appellees] thought so, I’m not sure I understand the full depth of why he thought so, and that he was in the case as the attorney for the City of Crisfield. Why that’s somewhat unclear to me as to why Mr. Bruce apparently thought that as given the second amended complaint and his subsequently filed motions to dismiss it or strike it and the rulings on that , make it difficult to understand why Mr. Bruce did not appreciate, once the second amended complaint had been filed, that this was no longer a suit against the City of Crisfield or against the individuals in their capacity as city commissioners, but against the named persons as individuals.

That, incidentally, is a matter about which the court was not made aware until after the verdict had already been announced. It was not mentioned by either counsel prior to that point in time. I don’t know whether and cannot speak as to whether Mr. Stein [Manders’s counsel] labored under the same misconception .... I do feel that either he did or was close to being disingenuous in the presentation of the case to the court and to the jury in terms of arguments concerning principles of law to the court, in terms of arguments concerning the facts to the jury.

Thus, for example, evidence was presented by [Manders] concerning statements made to him by Mr. Bruce and the statements made to him by a Mr. Tyler who was planning director, not the same Mr. Tyler who is one of the parties to this case, as to this, that, or the other, offered without objection from the defendants, but equally without a shred of evidence as to any agency between Mr. Bruce and Mr. Tyler and these individual defendants as individuals, without the first shred of evidence that any of these individuals, much less all of them, directed Mr. Bruce or Mr. Tyler to make those representations to ²⁰⁰ Mr. Manders. Thus, it was argued by [Mr. Manders] for the jury to arrive at essentially the verdict that they did because the city did this, and the city did that, and the city did the other, without any evidence in this record ... of any act done by any of them in their individual capacities. [I]t was not until the jury had already arrived at their verdict that any contention was made on the part of the defendants that governmental immunity somehow or other came into play of this case.... [T]he court must say that it views this case and the results with no confidence that the result was either just or proper. One is tempted to say that you had your day in court, you had your opportunity to raise issues raised. The temptation to say that would, I think, be considerably stronger if all of the errors had been unilateral on the part of the defendants, but I don’t believe that they were.

I may not be dealing with mutual mistake here, but the errors were as replete on one side as they were on the other. LEGAL ANALYSIS I Manders’s first argument is that the trial court erred in granting appellees’ motion for a new trial. The standards governing appellate review of a trial court’s decision to grant a new trial was carefully reviewed by the Court of Appeals in Buck v. Cam’s Broadloom Rugs, Inc., 328 Md. 51 , 612 A.2d 1294 (1992). After reviewing the history of appellate review of a trial court’s grant of a new trial, the court concluded that “the correct statement of the law in this area” is as follows: The question whether to grant a new trial is within the discretion of the trial court.

Ordinarily, a trial court’s order denying a motion for a new trial will be reviewed on appeal if it is claimed that the trial court abused its discretion. However, an appellate court does not generally disturb the ²⁰¹ exercise of a trial court’s discretion in denying a motion for a new trial. Id. at 57 , 612 A.2d 1294 (quoting Mack v. State, 300 Md. 583, 600 , 479 A.2d 1344 (1984)). Under Maryland law, “the emphasis has consistently been upon granting the broadest range of discretion to trial judges whenever the decision has necessarily depended upon the judge’s evaluation of the character of the testimony and of the trial when the judge is considering the core question of whether justice has been done.” Id.

In addition, when it becomes clear from extrinsic evidence that a jury’s consideration of a case “was seriously distorted by information that should not have been before the jury, a trial judge may have little or no ‘discretion’ to deny a new trial.” Id., 328 Md. at 58 , 612 A.2d 1294 . Where a motion for a new trial asks the trial judge to draw upon his or her own view of the weight of the evidence, the net effect of accumulated errors or improprieties by counsel, or a determination of whether justice is served by the verdict, the judge’s range of discretion is at its broadest. Id. at 59 , 612 A.2d 1294 . In the case sub judice the trial court essentially concluded that the jury’s verdict “was seriously distorted by information that should not have been before [them].” See id. at 58 , 612 A.2d 1294 .

Thus, the court had “little or no ‘discretion’ to deny a new trial.” See id. Due to the apparent inadequacies in the presentation of the cases of both parties, this case was presented in an improper and distorted manner. Although appellant is correct in asserting that a public official acting in a discretionary capacity can, under Maryland law, be sued for malicious acts taken in his official capacity, 1 the trial judge’s assessment of this trial was that the jury believed, erroneously so, that “this was a suit against the City ²⁰² of Crisfield, that these individuals were being named only in their official capacity as representing in human form the City of Crisfield.” Manders directs us to portions of the transcript where references were made to the appellees as individuals; this does not, however, remedy the taint injected by the improper references and overall presentation of the case. Manders had amended his complaint so that the City of Crisfield was no longer a party.

Furthermore, under Maryland law, the City of Crisfield is protected by governmental immunity for its torts committed while acting in a governmental capacity 2 . See Board of Educ. of Prince George’s County v. Mayor of Riverdale, 320 Md. 384, 389-90 , 578 A.2d 207 (1990); Austin v. City of Baltimore, 286 Md. 51, 53 , 405 A.2d 255 (1979); see also Anne Arundel County v. McCormick, 323 Md. 688, 695 , 594 A.2d 1138 (1991). We conclude that the trial judge did not abuse his discretion in granting a new trial. II Relying on Jefferson-El v. State, 330 Md. 99 , 622 A.2d 737 (1993) and Md. Rule 1232, Canon 3 C of the Maryland Code of Judicial Conduct, Manders suggests that the trial judge erred in not recusing himself because he created the appearance that he could no longer act on this matter in an impartial manner.

The only support provided by Manders is the cryptic allegation that “the trial court’s view on [appellees’] ‘immunity’ as individuals for acts as public officials clearly suggested that it was impossible for [Manders] to receive an impartial hearing on [appellees’] motion to dismiss, given that [Manders’s] claims concerned the actions of the [appellees] in their official capacity and sought to hold them liable in their individual capacity.” In Jeffersoro-El, the Court of Appeals stated that, in determining whether the trial judge created the appearance of impropriety, “the test is an objective one which assumes that a ²⁰³ reasonable person knows and understands all of the relevant facts ... [and then] would recuse the judge.” Id. at 108 , 622 A.2d 737 (emphasis in original) (quoting Boyd v. State, 321 Md. 69, 86 , 581 A.2d 1 (1990)). In the case sub judice, it is apparent that Manders’s complaint is limited to the trial judge’s interpretation of the law. This does not create the appearance of impropriety; but, rather, it is the trial judge’s authorized office to rule on matters of law. If a party believes that the trial court has ruled incorrectly, established procedures exist for appellate review.

Indeed, Manders has sought our review of the trial court’s interpretation of the immunity issue. It is the antithesis of our judicial system to suggest that a legal ruling against a party is per se grounds for recusal. 3 In addition, it should be noted that the trial judge had equally admonished counsel on both sides and even took into consideration Manders’s initial attempts to proceed pro se. The trial court did not abuse its discretion in denying the motion for recusal. Id., 330 Md. at 107 , 622 A.2d 737 .

Ill Manders finally claims the trial court erred in granting appellees’ motion to dismiss Manders’s complaint. Despite the various amendments to Manders’s complaint, the essential claim has remained the same, that appellees violated Crisfield City Code, Article XIII, § C13-5(B) when they secretly modified the urban renewal plan without first holding a public meeting and with the intention of benefitting certain constituents and themselves. Section C13-5(B) provides: Modification. An urban renewal plan may be modified at any time....

Where the proposed modification will substantially change the renewal plan as previously approved ²⁰⁴ by the municipality, the modification shall be formally approved by the municipality as in the case of an original plan. Formal approval in the case of an original plan is pursuant to § C13-5(A) and requires, inter alia, a public hearing. 4 In response, appellees argue that the doctrine of absolute legislative immunity insulates them from suit on this matter. In a nutshell, they suggest that modifying Urban Renewal Plan # 3 was a legislative action falling under the doctrine of legislative immunity, even if they failed to follow required procedures and hold a public hearing prior to modifying that legislation. ²⁰⁵ A The origin of the doctrine of legislative immunity or legislative privilege was carefully reviewed by Chief Judge Wilner in Montgomery County v. Schooley, 97 Md.App. 107 , 627 A.2d 69 (1993). 5 Relying on federal case law, Judge Wilner concluded that it is “ ‘beyond dispute that municipal legislators enjoy the protection of immunity when acting in the sphere of legitimate legislative activity.’ ” Id. at 115 , 627 A.2d 69 (quoting Baker v. Mayor of Baltimore, 894 F.2d 679 (4th Cir.), cert. denied, 498 U.S. 815 , 111 S.Ct. 56 , 112 L.Ed.2d 31 (1990)). Moreover, “[sjubject to the consequences of the Supremacy Clause, that immunity, conferred as a matter of common law, appears to be co-extensive in scope with the Constitutional immunity enjoyed by members of Congress and the Maryland General Assembly.” Id.

The privilege as it applies to Congress is found in the Speech or Debate Clause of the United States Constitution, Art. I, § 6; as to the Maryland General Assembly, the privilege is found in Article 10 of the Maryland Declaration of Rights and Art. Ill, § 18 of the State constitution. The majority of the Supreme Court case law focuses on the application of the federal constitutional privilege as it applies to Congress. Despite the common law origins of legislative privilege as it applies to local legislative bodies, federal and local privileges are essentially co-extensive. Schooley, 97 Md. App. at 115 , 627 A.2d 69 .

Thus, in this context, a statement of law regarding a Member of Congress is applicable to a local legislator. In Schooley , we adopted the Supreme Court’s rationale regarding the scope of the privilege: “The purpose of this immunity is to insure that the legislative function may be performed independently without fear of outside interference.... To preserve legislative inde ²⁰⁶ pendence, 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 Va. v. Consumers Union, 446 U.S. 719, 731-32 , 100 S.Ct. 1967, 1974 , 64 L.Ed.2d 641 (1980)). Supreme Court cases have purposefully read the Speech or Debate Clause “ ‘broadly to effectuate its purposes,’ ” Gravel v. United States, 408 U.S. 606, 624 , 92 S.Ct. 2614, 2626 , 33 L.Ed.2d 583 (1972) (quoting United States v. Johnson, 383 U.S. 169, 180 , 86 S.Ct. 749, 755 , 15 L.Ed.2d 681 (1966)), and have, therefore, reached “anything ‘generally done in a session of the House by one of its members in relation to the business before it.’ ” Id.

(citations omitted). Thus, voting by Members and the creation of committee reports are protected, id., and a “Member’s conduct at legislative committee hearings, although subject to judicial review in various circumstances, as is legislation itself, may not be made the basis for a civil or criminal judgment against a Member because that conduct is within the ‘sphere of legitimate legislative activity.’ ” Id.; see also Tenney v. Brandhove, 341 U.S. 367, 377-78 , 71 S.Ct. 783, 788-89 , 95 L.Ed. 1019 (1951); Kilbourn v. Thompson, 103 U.S. 168, 204 , 26 L.Ed. 377 (1881). The cases also “make perfectly apparent, however, that everything a Member of Congress may regularly do is not a legislative act within the protection of the Speech or Debate Clause.” Doe v. McMillan, 412 U.S. 306, 313 , 93 S.Ct. 2018, 2025 , 36 L.Ed.2d 912 (1973). The clause has not been extended beyond the legislative sphere.

Id. Not everything a Member of Congress does in his/her official capacity is “legislative in nature.” Gravel, 408 U.S. at 625 , 92 S.Ct. at 2627 . When a Member of Congress interacts with the Executive Branch or an administrative agency “—they may cajole, and exhort with respect to the administration of a federal statute—but such conduct, though generally done, is not protected legislative activity.” Id.; Johnson, 383 U.S. at 172 , 86 S.Ct. at 751 (“No argument is made, nor do we think that it could be ²⁰⁷ successfully contended, that the Speech or Debate Clause reaches conduct, such as was involved in the attempt to influence the Department of Justice, that is no wise related to the due functioning of the legislative process.”). Legislative acts are not all-encompassing.

The heart of the Clause is speech or debate in either House. Insofar as the Clause is construed to reach other matters, they must be an integral part of the deliberative and communicative process by which Members participate in committee and House proceedings with respect to the consideration and passage or rejection of proposed legislation or with respect to other matters which the Constitution places within the jurisdiction of either House. As the Court of Appeals put it, the courts have extended the privilege to matters beyond pure speech or debate in either House, but ‘only when necessary to prevent indirect impairment of such deliberations.’ Gravel, 408 U.S. at 625 , 92 S.Ct. at 2627 (citations omitted) (emphasis added). The Supreme Court has “not fashioned a fixed invariable rule of immunity but has advised a discerning inquiry into whether the contributions of immunity to effective government in particular contexts outweigh the perhaps recurring harm to individual citizens.... ” Doe, 412 U.S. at 320 , 93 S.Ct. at 2028 .

The case law has followed a “ ‘functional’ approach to immunity law.” Harlow v. Fitzgerald, 457 U.S. 800, 810 , 102 S.Ct. 2727, 2734 , 73 L.Ed.2d 396 (1982); accord Mandel, 320 Md. at 120, 576 A.2d 766 . The pertinent question is, whether the person asserting immunity was “performing acts legislative in nature.” Harlow, 457 U.S. at 810 , 102 S.Ct. at 2734 . Thus, the “starting point is at least a minimum familiarity with the [appellees’] functions and duties.” Doe, 412 U.S. at 320 , 93 S.Ct. at 2029 . Members of Congress acting in their legislative capacity are immune from liability “even though their conduct, if performed in other than legislative contexts, would in itself be unconstitutional or otherwise contrary to criminal or civil ²⁰⁸ statutes.” Id. at 312-13 , 93 S.Ct. at 2025 .

In Tenney v. Brandhove, 341 U.S. at 377 , 71 S.Ct. at 788 , the Supreme Court declared: 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 [ 3 L.Ed. 162 (1810) ], that it was not consonant with our scheme of government