State v. Card

WILNER, Chief Judge. The State of Maryland, joined by Charles County, appeals from a $50,000 judgment entered by the Circuit Court for Charles County in favor of appellee, Dale S. Card. The principal issue before us is whether a statute enacted in 1990, amending the State Tort Claims Act, is applicable to appellee’s claim. We shall hold that it is.

I. FACTUAL AND PROCEDURAL BACKGROUND On August 16,1989, while a pre-trial detainee in the Charles County Detention Center, appellee was attacked by another inmate, one James Sweeney. On July 29,1991, Card sued the State and the County for negligence. The State was sued on the ground that (1) Card was in the custody of the county sheriff, who is a State official and who was responsible for the operation of the detention center, (2) the sheriff was negligent in failing to control Sweeney, whom he knew to be dangerous, and in failing to maintain security and ventilation equipment within the detention center, and (3) the State is vicariously liable for the sheriffs negligence. The county was sued because it owns the detention center and allegedly had the power to correct the alleged deficiencies in the center.

The defendants moved to dismiss the complaint on the ground of sovereign or governmental immunity. When those motions were denied, they raised the immunity defenses again in motions for summary judgment. The county’s motion was granted upon a finding that the county enjoyed governmental immunity; the State’s motion was denied upon findings that (1) the sheriff is a State official and was responsible for the operation of the detention center, (2) by virtue of the 1990 enactment, the State had waived its sovereign immunity with respect to tortious conduct by sheriffs and their deputies, and (3) that enactment applied to appellee’s 1991 claim, even though the event underlying that claim occurred in 1989. As ⁴⁴¹ noted, the case against the State then proceeded to trial and resulted in a plaintiffs judgment.

II

DISCUSSION A. Tort Claims Act And Sheriffs—Legislative History Several issues are raised by the parties, but they all concern whether the State has retained its sovereign immunity with respect to appellee’s claim. In resolving that ultimate question and, with it, the respective interests of the State and Charles County, we need to examine some of the recent cases and legislative enactments concerning tort claims against sheriffs, their deputies, and their offices. We observe at this point that, although Charles County was dismissed as a defendant and the judgment was entered only against the State, it is Charles County that nonetheless bears the financial risk, for, as we shall explain later, if the State has lost its sovereign immunity, the county will be required by statute to reimburse the State for its expense in defending the action and discharging the judgment. We shall begin our analysis with a 1988 case that did not directly involve sheriffs or their deputies.

In Clea v. City of Baltimore, 312 Md. 662 , 541 A.2d 1303 (1988), the Court considered whether Baltimore City, as a municipality, was vicariously liable for the tortious conduct of City police officers. The Court held that the City Police Department was a State, rather than a City, agency and that, as a result, City police officers were State, rather than City, employees, at least for tort liability purposes. As no recovery was sought in that case against the State, whether, and to what extent, State sovereign immunity might apply to the claim was not addressed. As rewritten in 1985, the State Tort Claims Act waived the State’s sovereign immunity with respect to certain tortious conduct of “State personnel,” and defined that term as including “an individual who, with or without compensation, exercises a part of the sovereignty of the State.” Md.Code, State Govt. art. § 12-101(4) (1984; 1988 Supp.).

It was immediately ⁴⁴² apparent, of course, that nearly all local law enforcement officers, as well as sheriffs and their deputies, routinely exercise a part of the sovereignty of the State. Thus, as we pointed out in State v. Meade, 101 Md.App. 512, 523 , 647 A.2d 830 (1994), even though the scope of the State Tort Claims Act was not specifically addressed in Clea , the Opinion in that case nonetheless “raised the specter of State liability for the conduct of persons regarded as State officers but who were neither paid nor directly controlled by the State.” Responding to that prospect, the State Treasurer’s Office, which was responsible for providing insurance to cover claims under the Act, drafted and presented a bill to the next (1989) session of the Legislature to limit the Act in this regard. The 1989 Act (1989 Md.Laws, ch. 413) essentially rewrote the definition of “State personnel,” but, for our purposes, the relevant changes were in limiting its scope to State employees or officials who are paid in whole or in part by the Central Payroll Bureau in the Comptroller’s office and other persons exercising the sovereignty of the State without compensation. Those changes served to exclude from the Act, and thus to restore the State’s sovereign immunity with respect to, sheriffs, deputy sheriffs, and other local law enforcement personnel who were compensated for their services but were not paid through the State Central Payroll Bureau.

The next event in the chain was Rucker v. Harford County, 316 Md. 275 , 558 A.2d 399 (1989), where, in response to two questions certified to it by the United States District Court, the Court of Appeals held that sheriffs and their deputies were State, rather than county, employees, and that, as a result, the county had no obligation to fund expenses associated with tort claims against those officials. In dealing with the second question, the Court examined the State Tort Claims Act, as it existed immediately prior to the 1989 amendment—that amendment not yet having taken effect—as well as the Local Government Tort Claims Act (LGTCA). The Court first concluded that, although the Legislature had, in the LGTCA, imposed liability on the counties ⁴⁴³ for the tortious conduct of some State personnel, it had not imposed liability under that Act for the conduct of sheriffs and their deputies. As a matter of statutory construction, therefore, the county had no obligation to fund any of the expenses associated with tort liability claims against the sheriff, his or her deputies, or the sheriffs office. 316 Md. at 297 , 558 A.2d 399 .

As we noted above, the State Act, prior to 1989, purported to waive the State’s sovereign immunity with respect to certain tortious conduct of any person who exercised a part of the sovereignty of the State, with or without compensation. The State conceded in Rucker that, read literally, that language encompassed sheriffs and their deputies, who clearly exercised part of the sovereignty of the State. It argued, however, that the statute should not be read literally, for to do so would also sweep within its ambit a host of local employees who were neither paid by nor subject to the control of the State. The Court agreed that the language did not encompass the torts of “purely local government officials and employees,” but held that it did include conduct of persons who were either State officers or employees or who were directly acting for the State, rather than a local, government.

Id. at 299 . It therefore included sheriffs and their deputies. The Rucker Opinion was filed in June, 1989. Although the Court did not consider the effect of the 1989 amendment (see 316 Md. at 298, n. 11 , 558 A.2d 399 ), the combined effect of Rucker and the 1989 statute was to leave sheriffs and their deputies excluded from both the LGTCA and the State Tort Claims Act.

Rucker declared them outside the scope of the LGTCA, and the 1989 statute excluded them from the State Tort Claims Act. See Meade, supra, 101 Md.App. at 524 , 647 A.2d 830 . Because they were excluded from both statutes, they had only their common law governmental immunity to protect them; to the extent that immunity did not apply or was overcome, they faced the prospect of personal liability for their tortious conduct. Claimants, of course, were without the resources of the county or the State to pay any judgment they might obtain. ⁴⁴⁴ Those problems were addressed in the next (1990) session of the Legislature.

Through emergency legislation, effective when signed by the Governor on May 29, 1990, the General Assembly attempted to sort out the various functions performed by sheriffs and their deputies throughout the State, which varied from county to county, and to provide an umbrella of State protection, with the cost of that protection to be assessed to the State or the county, depending on the function involved. Documents on file with the Department of Legislative Reference indicate that the final version of the Act (1990 Md. Laws, ch. 508) represented a compromise among the Maryland Sheriffs Association, the Maryland Association of Counties, the State Treasurer’s Office, the Attorney General, and the Administration. Sheriffs and their deputies were specifically included within the definition of “State personnel” for purposes of the State Tort Claims Act (State Govt, art., § 12-101), but the Board of Public Works was precluded from paying any claim against such persons unless it directly related to courthouse security, service of process, or transportation of inmates to or from court proceedings. Those were the three functions for which the State assumed ultimate financial responsibility.

Through a new section (§ 9-108) added to the title of the State Fin. & Proc. art. dealing with the State insurance program, the counties were authorized to obtain insurance coverage with respect to all other tort claims made against sheriffs and their deputies. To the extent that a county did not obtain insurance adequate “to satisfy the coverage and defense necessary under the Maryland Tort Claims Act,” the State was authorized to set off against certain funds due from the State to the county an assessment for coverage and litigation expenses. See also State Gov’t art., § 12-501(a)(iv), authorizing the Board of Public Works to pay such a claim from one of those funds. The Assistant Executive Director of the Maryland Association of Counties, in a letter to the Senate Judicial Proceedings Committee, characterized the bill, with the agreed-upon amendments, as follows: ⁴⁴⁵ “The counties that use the sheriff for police protection and for detention center purposes gain the benefits of the State Tort Claims Act and will pay the insurance costs and will reimburse the state when it pays for any settlements of judgments outside the scope of the Act, such as federal civil rights lawsuits.

The counties that use their sheriff for only courthouse purposes will be covered by the State Tort Claims Act without any cost.” As we indicated, the 1990 statute was passed as emergency legislation (Md. Const, art. XVI, § 2) and thus was stated to “take effect from the date it is enacted.” B. Application of Tort Claims Act To Appellee’s Claim In defending his judgment, Card makes two arguments. First, he contends that the applicability of the 1990 statute is irrelevant because under the pre-existing law, even with the 1989 amendment, State sovereign immunity had been waived. Alternatively, he argues that the 1990 law does apply to his claim.

Section 12-10Jp(a) Card’s first argument is based on the premise that, because his action, as it now survives, is solely