O'HARA v. Kovens

¹¹ MOTZ, Judge. This appeal is the latest, and perhaps the final, chapter of the litigation arising out of the alleged impropriety involved in former Governor Marvin Mandel’s 1971 veto of legislation to provide additional racing dates for a Maryland race track. Critical to determination of this case is resolution of the question of whether the former governor’s motives for that veto can be examined by a court in a tort action against his alleged co-conspirators based on the veto. Because the separation of powers doctrine bars judicial inquiry into the former governor’s motives for his veto, we affirm the order of the Circuit Court for Baltimore City (Friedman, J.) granting summary judgment to the alleged co-conspirators.

(i) On November 22, 1978, appellants, James Francis O’Hara, III, and Michael Patrick O’Hara, individually and as guardians of the property of their mother, Josephine M. O’Hara (collectively “the O’Haras”) filed a declaration against Marvin Mandel, a former governor of the State of Maryland, W. Dale Hess, Harry W. Rodgers, III, William A. Rodgers, Ernest N. Cory, Jr., Irving T. Schwartz, Eugene B. Casey, and Irvin Kovens (collectively “the defendants”). 1 In that declaration the O’Haras alleged a claim for “common law fraud and deceit.” 2 They asserted that they were stockholders of Southern Maryland Agriculture Fair Association, Inc. (“Marlboro Race Track”), and that following indictments detailed in United States v. Mandel, 591 F.2d 1347 , vacated, 602 F.2d 653 (4th Cir.1979), cert, denied, 445 U.S. 961 , 100 S.Ct. 1647 , 64 L.Ed.2d 236 (1988), they discov ¹² ered that “at some point between January 7, 1969 and May 28, 1971” the defendants had made representations and failed to disclose material facts in order to induce the O’Haras “to sell stock in the Marlboro Race Track at a lower price than if defendants had not made such representations or omissions.” The O’Haras further allege that the defendants knowingly and intentionally, but secretly, conspired to do this and that the O’Haras relied upon the defendants’ representations and omissions in determining to sell their stock. In March 1971, House Bill 1128 was introduced in the House of Delegates for the purpose of obtaining the approval of the General Assembly for the permanent transfer of eighteen (18) racing days from Hagerstown Race Track to Marlboro Race Track. On May 28, 1971, former Governor Mandel vetoed House Bill 1128, allegedly “with the intent and the knowledge that his veto would depress the value of the stock of Marlboro Race Track and would deceive and defraud Plaintiffs and other owners of the stock of Marlboro Race Track about the value of their stock and the price that they could expect to obtain for the stock for sale on the open market.” Shortly thereafter, on June 1, 1971, defendant Schwartz “purported to buy fifteen thousand (15,000) shares of the Marlboro Race Track, at $7.00 per share” and on two subsequent occasions, purchased additional stock, buying a total of 2,000 additional shares. The O’Haras allege that on these occasions, Schwartz “acted to conceal the fact that he had no beneficial interest in the stock ... and that the true beneficial owner was” defendant Kovens.

It was further alleged that by use of the name of defendant Cory, individually and as attorney, defendants “concealed the fact that they were, during 1971, seeking to acquire” the O’Haras’ interest in the race track. In December 1971, the defendants “arranged for the purchase of the controlling interest in Marlboro Race Track [from the O’Haras] in such a way as to conceal their true identities as purchasers of the stock.” During 1971 and thereafter, defendants used the ¹³ name of defendant Schwartz to conceal the fact that “defendant Kovens was the true beneficial owner of the additional financial interests purchased in Marlboro Race Track acquired on December 31, 1971.” 3 On and after January 1, 1972, the defendants assertedly arranged for defendant Casey to represent himself falsely as the new owner of Marlboro Race Track, in order to conceal the financial interest of the other defendants in the race track. On January 7, 1992, Casey wrote a letter to all members of the General Assembly of Maryland to induce them to override then Governor Mandel’s veto of House Bill 1128. Override of the veto, by providing the race track with eighteen (18) additional racing days, would markedly increase the value of the Marlboro Race Track stock.

Moreover, the defendants allegedly conspired with former Governor Mandel so that he would “by virtue of his office as Governor of the State of Maryland ... act with the intent to induce the legislature to override the veto of May 28, 1971.” On January 12, 1972, the General Assembly did, in fact, override the veto, thereby permanently transferring to Marlboro Race Track the eighteen (18) racing days which formerly had been run at Hagerstown Race Track. Finally, the O’Haras alleged that during 1972 and thereafter, defendants used defendant Cory and “the names of approximately seven (7) of their friends and family members in such a way to conceal the identity of the true beneficial owners of financial interest in Marlboro Race Track.” Former Governor Mandel and the other defen ¹⁴ dants assertedly “used their efforts to induce the General Assembly of Maryland to pass the Race Track Consolidation Bill (Senate Bill 928 of 1972) the effect of which, as the defendants well knew, would be to further increase the value of Marlboro Race Track, theretofore, fraudulently acquired from Plaintiffs.” In December 1972, the defendants caused the merger of the Marlboro Race Track with the Bowie Race Track, thereby further increasing the value of Marlboro Race Track stock, which they had assertedly acquired by fraud from the O’Haras. On December 2, 1983, the Circuit Court for Baltimore City granted summary judgment to all defendants on the ground that this action was time-barred. On appeal, this court affirmed this order as to James and Michael O’Hara in their individual capacities, but reversed as to their claim on behalf of their mother’s estate.

O’Hara v. Kovens, 60 Md.App. 619 , 484 A.2d 275 (1984). The Court of Appeals granted certiorari, vacated the grant of summary judgment, and remanded for further proceedings. O’Hara v. Kovens, 305 Md. 280 , 503 A.2d 1313 (1986). 4 Following remand, the Estate of Josephine O’Hara voluntarily dismissed with prejudice its claim against former Governor Marvin Mandel, and settled with the remaining defendants. In September of 1989, there was a jury trial solely on the issue of whether limitations barred the still-pending claims of James and Michael O’Hara in their individual capacities.

During the trial, all defendants moved for judgment at the end of the plaintiffs’ case and at the close of all evidence; those motions were denied. By special verdict, the jury found that limitations did not bar the claims because James and Michael O’Hara were not aware, and should not have been aware, before November 22,1975, of any alleged wrong. Trial on the merits of the underlying claim was scheduled to begin on June 4, 1990. ¹⁵ On May 15, 1990, former Governor Mandel filed a motion to dismiss or for summary judgment on the ground that he was absolutely immune from liability. This motion was denied.

Mandel then filed a notice of appeal and simultaneously filed a motion for stay of proceedings pending the appeal, accompanied by a petition for writ of certiorari to the Court of Appeals. On June 1, 1990, this court entered an order staying all proceedings in the circuit court pending final disposition of the appeal and the Court of Appeals entered an order issuing a writ of certiorari. On July 27, 1990, the Court of Appeals, in a comprehensive opinion, reversed the order denying Mandel’s motion for summary judgment and remanded the case for judgment in his favor. Mandel v. O’Hara, 320 Md. 103 , 576 A.2d 766 (1990).

The court held that “as a matter of Maryland common law ... a Governor of Maryland enjoys an absolute immunity from liability for damages for nonconstitutional torts based on the approval or veto of legislative enactments.” 320 Md. at 134 , 576 A.2d 766 . The mandate of the Court of Appeals was issued on September 5, 1990. As part of the mandate, the stay issued on June 1, 1990, by this court, was lifted. On March 14, 1991, the remaining defendants filed a motion to dismiss or for summary judgment on the grounds that: (1) As a matter of law, the common law fraud claim was legally insufficient because it necessarily requires judicial inquiry into motives for a valid legislative act, which inquiry is forbidden by the separation of powers doctrine embodied in Article 8 of the Maryland Declaration of Rights.

(2) As a matter of law, the common law fraud claim was legally insufficient because the allegations and undisputed facts failed to show any fraudulent misrepresentation or concealment of any material fact on which plaintiffs relied. (3) As a matter of law, punitive damages cannot be recovered from the estate of a deceased person and, to ¹⁶ that extent, the claim against the personal representative of the late Irvin Kovens must be dismissed. On April 1, 1991, Judge Kathleen O’Ferrall Friedman of the Circuit Court for Baltimore City entered an order granting summary judgment to all defendants on the basis of the first ground set forth above. Judge Friedman carefully explained the rationale for her decision as follows: Inherent in the issue of deceit is the Governor’s motive in vetoing the legislation.

Absent evidence of an improper motive on the Governor’s part, there can be no deceit proven. Thus, the motive of the Governor is a material fact which cannot be separated from the deceit. However, the separation of powers doctrine prevents the judiciary from passing judgment on the Governor’s motives for exercising a legislative function. Courts cannot be vested with the power to perform non-judicial functions in violation of the separation of powers doctrine.

Because the court cannot inquire into or second-guess the motives underlying the Governor’s exercise of his legislative powers, the plaintiff[s] cannot then establish the requisite material fact of deceitful motive that is necessary to continue his [sic] case, (citations omitted.) Judge Friedman did not reach the remaining grounds for defendants’ motions. On appeal, the O’Haras raise a single issue: (1) Did the Circuit Court err in granting the defendant’s motions for summary judgment on the ground that the separation of powers principle precluded further pursuit of this action against the defendants other than former Governor Mandel on the basis of the fraud alleged in the declaration? On cross-appeal, the defendants raise the following additional issues: (2) Was the fraud claim properly dismissed because there was no misrepresentation of material fact but only a failure by the purchaser of corporate stock to identify the undisclosed principals for whom he was acting? ¹⁷ (3) Did the legally sufficient evidence at trial establish as a matter of law that the plaintiffs’ fraud claim was barred by the statute of limitations? (4) Does the death of an alleged tortfeaser who dies before judgment terminate liability for punitive damages?

Because we resolve the case on the basis of the first question, we need not, and do not, reach the others. 5 (ii) The O’Haras assert three principal reasons why grant of summary judgment against them should be reversed. First, they maintain that they can make out “a prima facie case of fraudulent conspiracy” against the other defendants “without inquiring into the Governor’s motives for vetoing the legislation.” In Mandel v. O’Hara, supra, the Court of Appeals specifically rejected precisely this argument, holding: ... The participation attributed to Governor Mandel in the alleged conspiracy is essential to any injury complained of by the plaintiffs, as well as to any computation of damages. Had Governor Mandel approved House Bill 1128 any negotiations by the O’Haras for the sale of their stock would have been for stock in a corporation entitled to, or to the use of, the additional racing days.

Indeed, in O’Hara v. Kovens, 305 Md. 280 , 503 A.2d 1313 , we interpreted this same complaint to make the state of mind of Governor Mandel prior to the veto critical to the claim. Id. at 302 , 503 A.2d at 1324 . It was only because there were conflicting factual inferences ¹⁸ whether a conspiracy antedated the veto and whether the reasons publicly given for the veto represented Governor Mandel’s true reasons for the veto that the complaint escaped dismissal as a matter of law on limitations grounds. Id. at 302-03 , 503 A.2d at 1324 .

We shall not permit the plaintiffs now to minimize the role of the veto in their theory of the case after they have made critical use of the veto to avoid the defense of limitations raised by all members of the Kovens Group. 320 Md. at 128-29 , 576 A.2d 766 (emphasis added.) The O’Haras’ other two arguments are that no applicable precedent: (1) “prevents inquiry into former Governor Mandel’s motives in vetoing legislation at issue now that Mr. Mandel has been offered immunity from liability,” or (2) entitles “private wrongdoers” to assert a “privilege of speech or debate in defending their own corrupt involvement in a scheme to manipulate the legislative process.” In support of these arguments, the O’Haras cite numerous cases dealing with common law and constitutional (speech and debate) 6 legislative immunity. These cases and the O’Haras’ arguments are relevant to the case at hand only if the basis for the grant of summary judgment was former Governor Mandel’s legislative immunity or if the defendants are relying upon this immunity in urging that the court below be upheld. The O’Haras treat the case as if immunity was the basis for Judge Friedman’s grant of summary judgment and that defendants are relying upon that argument in upholding her judgment. In fact, Judge Friedman in no way relied upon former Governor Mandel’s legislative immunity or privilege in reaching her decision.

Moreover, the defendants in their briefs and in oral argument, have expressly disavowed any reliance upon this immunity or privilege. Rather, they assert that the case at hand “does not involve the scope of legislative privilege” but a separation of powers question, i.e., “whether the ¹⁹ judicial branch is at liberty to inquire into the motives for the Governor’s disapproval or veto of legislation.” 7 Although defendants never indicate why they expressly disavow reliance on former Governor Mandel’s legislative immunity, our reading of the legislative immunity cases suggests that it is because while one of the O’Haras’ arguments as to that immunity is meritless, the other is correct and bars any reliance by these defendants on legislative immunity. Thus, it seems clear that one who properly invokes legislative immunity can, contrary to the O’Haras’ assertions, also invoke a legislative privilege not to testify. See, e.g., Gravel v. United States, supra, 408 U.S. at 616, 92 S.Ct. at 2622-23; Miller v. Transamerican Press, Inc., 709 F.2d 524, 529 (9th Cir.1983); United States v. Doe, 455 F.2d 753 , 758 n. 22 (1st Cir.1972); In re Grand Jury Subpoena, 626 F.Supp. 1319, 1327-28 (M.D.Pa.1986); United States v. People’s Temple of the Disciples of Christ, 515 F.Supp. ²⁰ 246, 247 (D.D.C.1981); Holmes v. Farmer, 475 A.2d 976, 983 (R.I.1984); Kerttula v. Abood, 686 P.2d 1197, 1204-05 (Alaska 1984).

On the other hand, it would seem to be equally clear that legislative immunity or privilege can only be asserted by the officer who possesses it, and not by others. See, e.g., Gravel, supra, 408 U.S. at 612 n. 9, 92 S.Ct. at 2620 n. 9; United States v. Reynolds, 345 U.S. 1, 7-8 , 73 S.Ct. 528, 531-32 , 97 L.Ed. 727 (1953); Miller v. Transamerican Press, Inc., 709 F.2d at 527 n. 1; Matter of Nelson, 131 F.R.D. 161, 164 (D.Neb.1989). See also Carl Zeiss Stiftung v. V.E.B. Carl Zeiss, Jena, 40 F.R.D. 318 , 326 n. 30 (D.D.C.1966). Hence, the defendants well may have concluded that it would be futile for them to rely on former Governor Mandel’s legislative immunity and privilege.

In any event, they do not. Accordingly, we turn to the principle upon which they do rely and which formed the basis for the holding of the court below — the separation of powers doctrine. (iii) There is no concept more fundamental to our system of government than the doctrine of separation of powers among the legislative, executive, and judicial branches. When President George Washington first declined to furnish the House of Representatives with a document requested by it, he gave as his reason for refusal: [i]t is essential to the due administration of the Government that the boundaries fixed by the Constitution between the different departments should be preserved, a just regard to the Constitution and to the duty of my office, under all the circumstances of this case, forbids a compliance with your request. 1 Richardson, Messages and Papers of the Presidents 196 (1986).

The doctrine of separation of powers was adopted by the founders, as Justice Brandéis explained, “not to promote efficiency but to preclude the exercise of arbitrary power.” Myers v. United States, 272 U.S. 52, 293 , 47 S.Ct. 21, 84-85 , 71 L.Ed. 160 (1926) (dissenting opinion). Accord ²¹ ingly, it was intended “not to avoid friction, but, by means of