State v. Rovin

State of Maryland, et al. v. Valerie Rovin, No. 29, September Term, 2020 SUMMARY JUDGMENT – PROSECUTORIAL IMMUNITY – JUDICIAL IMMUNITY – MARYLAND TORT CLAIMS ACT – STATE PERSONNEL IMMUNITY – Court of Appeals held that trial court was correct in concluding that there was no genuine dispute of material fact as to prosecutors’ entitlement to absolute common law immunity in form of prosecutorial immunity and that grant of summary judgment in favor of prosecutors was warranted as matter of law. Because prosecutors are entitled to prosecutorial immunity, State cannot be held civilly liable for their actions. As such, trial court was correct in granting summary judgment in favor of two prosecutors and State as to any action in complaint alleged to have been taken by prosecutors. Court of Appeals held that law enforcement officers are not entitled to absolute immunity in form of prosecutorial immunity.

Similarly, Court of Appeals held that absolute immunity in form of judicial immunity does not apply to actions of officers alleged in complaint. Court declined to extend judicial immunity under Keller-Bee v. State, 448 Md. 300 , 138 A.3d 1253 (2016), to officers. Court of Appeals held, however, that State personnel immunity— form of statutory immunity—under Maryland Tort Claims Act (“MTCA”) bars claims against prosecutors and officers in their individual capacities. As such, State does not have immunity under MTCA but whether State is liable for any actions taken by officers, who do not have absolute common law immunity, is matter to be resolved by further proceedings in trial court.

Court of Appeals declined Petitioners’ request to apply Supreme Court’s holding in Heien v. North Carolina, 574 U.S. 54 (2014), to officers’ conduct in this case as Petitioners failed to raise issue regarding applicability of Heien in trial court and before Court of Special Appeals. Court of Appeals concluded that Petitioners did not raise, in petition for writ of certiorari, any issue, apart from applicability of common law and statutory immunities, as to claims for defamation and false light invasion of privacy. Petitioners’ contention that Court of Special Appeals erred in reversing grant of summary judgment as to those claims on ground that one officer’s statements were not false is not before Court. As result of determinations, all of claims against State based on alleged actions of officers—i.e., false arrest, false imprisonment, malicious prosecution, violation of Article 24 of the Maryland Declaration of Rights, defamation, false light invasion of privacy, and intentional infliction of emotional distress—remain.

Circuit Court for Wicomico County Case No. C-22-CV-17-000326 Argued: January 7, 2021 IN THE COURT OF APPEALS OF MARYLAND No. 29 September Term, 2020 ______________________________________ STATE OF MARYLAND, ET AL. v. VALERIE ROVIN ______________________________________ Barbera, C.J. McDonald Watts Hotten Getty Booth Biran, JJ. ______________________________________ Opinion by Watts, J. McDonald, J., concurs in the judgment. ______________________________________ Filed: March 2, 2021 Pursuant to Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State Government Article) this document is authentic. 2021-05-26 12:22-04:00 Suzanne C. Johnson, Clerk This case stems from a lawsuit brought by Valerie Rovin (“Ms. Rovin”), Respondent, against the State and the prosecutors and law enforcement officers who were responsible for charging her with juror intimidation and assault after she allegedly threatened the foreperson of a jury that had convicted her daughter of a criminal offense. The primary question presented in the case is whether a type of immunity—absolute common law judicial or prosecutorial immunity or statutory immunity under the Maryland Tort Claims Act (“the MTCA”)—bars Ms. Rovin’s claims against the State and the prosecutors and law enforcement officers who participated in her arrest and prosecution such that summary judgment was correctly granted in favor of all of them. We are also asked to determine whether the law enforcement officers can be civilly liable for an arrest (Ms. Rovin’s) made pursuant to an arrest warrant based on a judicial officer’s determination that probable cause existed for the arrest, where that determination was later held by a trial court to be based on an error of law. Absolute immunity is “[a] complete exemption from civil liability, usu[ally] afforded to officials while performing particularly important functions, such as a representative enacting legislation and a judge presiding over a lawsuit.” Absolute Immunity, Black’s Law Dictionary (11th ed. 2019).

One variety of absolute immunity is judicial immunity, which has been defined as the “immunity of a judge from civil liability arising from the performance of judicial duties.” Judicial Immunity, Black’s Law Dictionary (11th ed. 2019). Another form of absolute immunity is prosecutorial immunity, which has been defined as “[t]he absolute immunity of a prosecutor from civil liability for decisions made and actions taken in a criminal prosecution.” Prosecutorial Immunity, Black’s Law Dictionary (11th ed. 2019). Although judicial immunity and prosecutorial immunity are common law doctrines, see Gill v. Ripley, 352 Md. 754, 765-66 , 724 A.2d 88, 94 (1999), another form of immunity is statutory. The General Assembly has created immunity for State personnel under certain circumstances.

Md. Code Ann., State Gov’t (1984, 2014 Repl. Vol.) (“SG”) § 12-105, which is part of the MTCA, provides that “State personnel shall have the immunity from liability described under” Md. Code Ann., Cts. & Jud. Proc. (1974, 2020 Repl.

Vol.) (“CJ”) § 5-522(b). CJ § 5-522(b) provides: State personnel, as defined in § 12-101 of the State Government Article,[1] are immune from suit in courts of the State and from liability in tort for a tortious act or omission that is within the scope of the public duties of the State personnel and is made without malice or gross negligence, and for which the State or its units have waived immunity under Title 12, Subtitle 1 of the State Government Article, even if the damages exceed the limits of that waiver. The facts that gave rise to the question concerning immunities in this case are as follows. Later on the same day after the conclusion of a jury trial in which her daughter was found guilty of criminal charges, including drunk driving, Ms. Rovin went to the workplace of Robert Rovin (“Mr. Rovin”), who had served as the foreperson of the jury.

(Mr. Rovin is not related to Ms. Rovin.) Ms. Rovin and Mr. Rovin have offered differing accounts of their encounter that day. Ms. Rovin has alleged that she and Mr. Rovin had a conversation, whereas Mr. Rovin has alleged that Ms. Rovin verbally assaulted him and threatened to have someone cause him bodily harm. In any event, after Ms. Rovin left, Mr. 1 SG § 12-101(a) provides a list of fourteen categories of groups of individuals who are defined as State personnel. -2- Rovin called the Wicomico County Sheriff’s Office to report the encounter. Deputy Sheriff Matthew Cook responded to the call.

The next day, Mr. Rovin filed a petition for a peace order in the District Court of Maryland, sitting in Wicomico County, regarding Ms. Rovin’s alleged conduct. The District Court denied the petition but advised that there is a statute making it a criminal offense to intimidate a juror and that Ms. Rovin may have committed a crime. Deputy Cook consulted with the Office of the State’s Attorney for Wicomico County, and was advised to apply for a statement of charges. Deputy Cook did so.

A District Court Commissioner approved the application for a statement of charges and issued an arrest warrant for Ms. Rovin. Ms. Rovin was arrested, detained, and released on bond with a condition of electronic monitoring. The State filed a criminal information, which the State’s Attorney for Wicomico County Matthew A. Maciarello2 signed, charging Ms. Rovin with juror intimidation in violation of Md. Code Ann., Crim. Law (2002, 2012 Repl.

Vol.) (“CR”) § 9-305(a) and second-degree assault. While Ms. Rovin’s criminal case was pending, the Sheriff of Wicomico County, Michael Lewis, made statements about the case on the Sheriff’s Office Facebook page and in the media. At a jury trial in Ms. Rovin’s case, in which the State was represented by Assistant State’s Attorney Richard Brueckner, approximately four months after Ms. Rovin’s release on bond, the Circuit Court for Wicomico County granted a motion for judgment of acquittal as to both charges, upon 2 Maciarello is no longer the State’s Attorney for Wicomico County. At some point after his involvement in the events of the case, Maciarello was appointed a judge of the Circuit Court for Wicomico County. -3- finding that Ms. Rovin’s interaction with Mr. Rovin did not constitute juror intimidation under CR § 9-305(a) or assault.

Subsequently, in the circuit court, Ms. Rovin sued the State, Maciarello, Assistant State’s Attorney Brueckner, Sheriff Lewis, and Deputy Cook (together, “Petitioners”)3 for false arrest, false imprisonment, malicious prosecution, violation of Article 24 of the Maryland Declaration of Rights, false light invasion of privacy, defamation, and intentional infliction of emotional distress. The State and prosecutors filed a motion to dismiss or for summary judgment. The officers filed a separate motion to dismiss or for summary judgment. After Ms. Rovin filed a request for production of documents, the State and prosecutors filed a motion for a protective order.

The circuit court granted the motion for a protective order, and granted summary judgment in favor of all of the Petitioners as to all of Ms. Rovin’s claims. The circuit court concluded, among other things, that Maciarello and Assistant State’s Attorney Brueckner were entitled to prosecutorial immunity for all claims brought against them, which extended to the State as well, and that the prosecutors and the officers were entitled to qualified immunity. Ms. Rovin appealed, and the Court of Special Appeals vacated the circuit court’s judgment and remanded the case to the circuit court. See Valerie Rovin v. State of Maryland, et al., No. 233, Sept. Term, 2018, 2020 WL 3265119 , at ⁹ (Md. Ct. Spec.

App. June 17, 2020). The Court of Special Appeals reasoned that the circuit court abused its 3 Ms. Rovin also sued the Wicomico County State’s Attorney’s Office and the Wicomico County Sheriff’s Office, neither of which is a legal entity subject to suit or a Petitioner here. See n.9 below. -4- discretion in precluding Ms. Rovin from engaging in discovery before granting summary judgment. See id. at ¹.

The Court of Special Appeals held that the circuit court erred in granting summary judgment because there was a genuine dispute of material fact as to whether the reason that the defendants pursued criminal charges against Ms. Rovin was that the circumstances justified doing so or that the defendants had an ulterior or otherwise inappropriate motive for doing so. See id. at ⁹. In this Court, the State filed a petition for a writ of certiorari on behalf of itself, Maciarello, Assistant State’s Attorney Brueckner, Sheriff Lewis, and Deputy Cook, which this Court granted. See State v. Rovin, 471 Md. 103 , 240 A.3d 853 (2020).

Before us, Petitioners contend that absolute common law immunity and State personnel statutory immunity bar all of Ms. Rovin’s claims. Petitioners also argue that Ms. Rovin’s claims arising from the officers’ actions fail because the officers had a good faith belief that her conduct violated the juror intimidation statute and that her claims for defamation and false light invasion of privacy fail because she cannot establish the element of falsity that is required for both claims. Ms. Rovin responds that the record is insufficient to demonstrate that any form of immunity bars her claims. She also contends that whether the officers had a good faith belief that she violated the juror intimidation statute is a question of fact and argues that her claims for defamation and false light invasion of privacy are viable.

Upon careful consideration of the record and our case law, as to the immunity issue, we hold that the circuit court was correct in concluding that there was no genuine dispute of material fact as to Maciarello’s and Assistant State’s Attorney Brueckner’s entitlement -5- to absolute common law immunity in the form of prosecutorial immunity, and that the grant of summary judgment in favor of the prosecutors was warranted as a matter of law as to all of Ms. Rovin’s claims. Because Maciarello and Assistant State’s Attorney Brueckner are entitled to prosecutorial immunity, the State is not civilly liable for their actions in this case. As such, the circuit court was correct in granting summary judgment in favor of the State, Maciarello, and Assistant State’s Attorney Brueckner as to any action in the complaint alleged to have been taken by the prosecutors. On the other hand, the officers, Sheriff Lewis and Deputy Cook, are not entitled to absolute common law immunity in the form of prosecutorial immunity.

Similarly, the officers are not entitled to absolute common law immunity in the form of judicial immunity. We decline to extend judicial immunity under the holding in Keller-Bee v. State, 448 Md. 300 , 138 A.3d 1253 (2016), to the officers. State personnel statutory immunity under the MTCA, however, bars Ms. Rovin’s claims against the officers, as well as the prosecutors, in their individual capacities. As such, the State does not have immunity under the MTCA, but whether the State is liable for any actions taken by Deputy Cook and Sheriff Lewis, who do not have absolute common law immunity, is a matter to be resolved by further proceedings in the circuit court.

As to the second issue, we decline Petitioners’ request that we apply the Supreme Court’s holding in Heien v. North Carolina, 574 U.S. 54 (2014), to the officers’ conduct in this case as Petitioners failed to raise an issue regarding the applicability of Heien in the circuit court and before Court of Special Appeals. In addition, because Petitioners did not raise, in the petition for a writ of certiorari, any issue, apart from the applicability of -6- common law and statutory immunities, as to the claims for defamation and false light invasion of privacy, Petitioners’ contention that the Court of Special Appeals erred in reversing the grant of summary judgment as to those claims on the ground that statements made by Sheriff Lewis were not false is not before this Court. See Md. R. 8-131(b)(1) (“Unless otherwise provided by the order granting the writ of certiorari, in reviewing a decision rendered by the Court of Special Appeals . . . , the Court of Appeals ordinarily will consider only an issue that has been raised in the petition for certiorari or any cross- petition and that has been preserved for review by the Court of Appeals.”). These issues may, of course, be considered by the circuit court on remand.

For all of these reasons, we reverse the Court of Special Appeals’s judgment vacating the grant of summary judgment in favor of Maciarello and Assistant State’s Attorney Brueckner and the State with respect to any action in the complaint alleged to have been taken by Maciarello and Assistant State’s Attorney Brueckner. We also reverse the Court of Special Appeals’s judgment vacating the grant of summary judgment in favor of Sheriff Lewis and Deputy Cook as the officers are entitled to State personnel immunity under the MTCA. We affirm the judgment of Court of Special Appeals vacating the grant of summary judgment in favor of the State as to any action in the complaint alleged to have been taken by the officers, Sheriff Lewis and Deputy Cook. As a result of these determinations, all of the claims against the State based on the alleged actions of Sheriff Lewis and Deputy Cook with respect to the claims of false arrest, false imprisonment, malicious prosecution, violation of Article 24 of the Maryland Declaration of Rights, defamation, false light invasion of privacy, and intentional infliction of emotional distress -7- remain.

BACKGROUND The Complaint On July 26, 2017, in the circuit court, Ms. Rovin filed a seven-count complaint. Ms. Rovin sued Maciarello, Assistant State’s Attorney Brueckner, Sheriff Lewis, and Deputy Cook in their “official capacities” as the State’s Attorney for Wicomico County, an Assistant State’s Attorney for Wicomico County, the Sheriff of Wicomico County, and a Deputy Sheriff of Wicomico County, respectively. Ms. Rovin also identified the State of Maryland, the Wicomico County Sheriff’s Office, and the Office of the State’s Attorney for Wicomico County as defendants in the lawsuit. In the complaint, Ms. Rovin alleged seven counts—false arrest, false imprisonment, malicious prosecution, violation of Article 24 of the Maryland Declaration of rights, defamation, false light invasion of privacy, and intentional infliction of emotional distress.

In a section of the complaint labeled “Factual Background,” Ms. Rovin alleged the following. In or around June 2014, she and Mr. Rovin met for the first time. When they met, the two discussed the fact that they have the same last name, as well as that of a man named Bill Rovin, who had moved to Nicaragua, and was possibly a relative of both Ms. Rovin and Mr. Rovin. Ms. Rovin indicated, however, that, to her knowledge, she and Mr. Rovin are not related.

At some point, on Facebook, Mr. Rovin became friends with one of Ms. Rovin’s daughters. Approximately one year later, on June 16, 2015, Mr. Rovin served as the jury foreperson when another one of Ms. Rovin’s daughters was tried for driving under the -8- influence of alcohol and related traffic offenses in the Circuit Court for Wicomico County. The trial lasted one day and concluded with Ms. Rovin’s daughter being found guilty. Later on the same day, Ms. Rovin visited Mr. Rovin at his workplace.

Ms. Rovin acknowledged that she was upset that the jury had found her daughter guilty and that a “fellow Rovin” had served as the foreperson of the jury. Ms. Rovin denied that she initiated physical contact with Mr. Rovin or threatened that she would physically harm him. After Ms. Rovin left, Mr. Rovin telephoned the Sheriff’s Office. Deputy Cook responded to the call.

The next day, in the District Court of Maryland, sitting in Wicomico County, Mr. Rovin filed a petition for a peace order, which the District Court denied. At the hearing for the peace order, Mr. Rovin stated that the State’s Attorney’s Office had advised him to apply for the peace order. On June 18, 2015, an arrest warrant was issued for Ms. Rovin. The warrant stated that the arrest was for the charge of intimidating a juror in violation of CR § 9-305(a).

The arrest warrant was based on an application submitted by Deputy Cook. Ms. Rovin stated that prior to obtaining the warrant, Deputy Cook consulted with Maciarello and Assistant State’s Attorney Brueckner as to the charge. Later on the same day, deputies of the Sheriff’s Office arrested Ms. Rovin at her home, and she was detained at the Wicomico County Detention Center over night from June 18 through 19, 2015. Ms. Rovin alleged that after her arrest, in statements to the general public and the media, and in posts on the Facebook page of the Sheriff’s Office, Sheriff Lewis made false and defamatory statements by asserting that she committed a crime when she had not and saying that her conduct was egregious. -9- On June 19, 2015, in Ms. Rovin’s criminal case, the District Court conducted a bail review hearing.

At the bail review hearing, Clay Groton IV, an Assistant State’s Attorney for Wicomico County, told the District Court that according to Assistant State’s Attorney Brueckner, Ms. Rovin had threatened to kill Mr. Rovin “if the jury found her daughter guilty.” Ms. Rovin alleged that Assistant State’s Attorney Groton’s statement was false, and that he made it in an attempt to have the District Court restrict her liberty pending trial. The District Court set bail at $30,000 and ordered Ms. Rovin to pay bail in its entirety, to be subject to pretrial supervision and electronic monitoring using an ankle bracelet, and to disconnect her cell phone and not use a computer pending trial. On the same day as the bail review hearing, Ms. Rovin was released from detention. According to Ms. Rovin, on July 9, 2015, under the auspices of Maciarello and Assistant State’s Attorney Brueckner, the Office of the State’s Attorney filed in the circuit court a criminal information, charging her with juror intimidation and second-degree assault.

On October 7, 2015, the circuit court conducted a jury trial, at which Assistant State’s Attorney Brueckner represented the State. At the close of the State’s case, Ms. Rovin’s counsel made a motion for judgment of acquittal as to both counts, which the circuit court granted, finding that her actions constituted neither juror intimidation nor assault. In the complaint, Ms. Rovin contended that her actions did not constitute a crime as a matter of law and that therefore no probable cause existed for the prosecution. Ms. Rovin alleged that as a result of the defendants’ actions she suffered severe emotional distress and mental anguish as well as substantial monetary damages. - 10 - Motions, Exhibits, and Responses On August 11, 2017, the State and prosecutors filed a motion to dismiss or for summary judgment.

In the motion, the State contended that Maciarello and Assistant State’s Attorney Brueckner were entitled to prosecutorial immunity, and that, accordingly, the State was not civilly liable for their conduct. The State also argued that Maciarello and Assistant State’s Attorney Brueckner were entitled to State personnel immunity under the MTCA. The State attached six exhibits to the motion. Exhibit 1 was a transcript of the hearing that the District Court conducted on Mr. Rovin’s petition for a peace order on June 17, 2015.4 Exhibit 2 was the application for a statement of charges and an arrest warrant that Deputy Cook signed on June 17, 2015.

In the application, Deputy Cook averred that on June 16, 2015, he met with Mr. Rovin at his workplace, and Mr. Rovin told him, among other things, that the day after her daughter’s conviction, Ms. Rovin visited his workplace and became verbally assaultive. Ms. Rovin was incensed by the notion that Mr. Rovin had sent a “fellow Rovin” to jail. Ms. Rovin threatened to have a man named Bill Rovin “take care of” Mr. Rovin. Ms. Rovin said that Bill Rovin worked in Nicaragua and knew people who would “take care of” Mr. Rovin.

Mr. Rovin took Ms. Rovin’s statement as an indirect 4 The transcript reflected that at the peace order hearing, Mr. Rovin represented himself and the District Court asked Mr. Rovin questions to determine whether the circumstances satisfied any of the grounds for issuing a peace order. Mr. Rovin’s responses caused the District Court to conclude that the issuance of a peace order was not warranted. Although the District Court denied the petition for a peace order, the District Court pointed out that, if Ms. Rovin’s conduct was as Mr. Rovin had described, her actions could constitute a crime. - 11 - death threat. At the time, Mr. Rovin was still a member of the circuit court’s jury pool for the month of June 2015.

As a result of the incident, Mr. Rovin was discharged from further jury duties. In the application, Deputy Cook also stated that he e-mailed Assistant State’s Attorney Brueckner, who had represented the State at the trial in Ms. Rovin’s daughter’s criminal case, to let him know about Ms. Rovin’s conduct. On June 17, 2015, Deputy Cook spoke with Carsten Wendlandt, an investigator of the Office of the State’s Attorney, who advised that, after he conferred with Maciarello and Assistant State’s Attorney Brueckner, it was believed that the circumstances constituted “a case of witness/jury intimidation and should be charged accordingly.” Exhibit 3 included a press release dated June 18, 2015.5 Exhibit 4 was a printout of an article by a person named Vanessa Junkin with the website address www.delmarvanow.com and the date June 19, 2015 at the bottom.6 Exhibit 5 was a criminal information that Maciarello signed, through which the State charged Ms. Rovin with juror intimidation and second-degree assault. 5 We do not address the content of the press release because, on brief, Ms. Rovin states that her claims for defamation and false light invasion of privacy are not based on the press release. 6 The headline of the article read: “Sheriff: Juror intimidation case is ‘egregious[.]’” In the article, Junkin stated that Ms. Rovin “found out where the foreman of the jury that convicted her daughter of driving under the influence worked, and she went there and threatened him[.]” Junkin stated that Sheriff Lewis “said this week’s case of juror intimidation is probably the ‘most egregious’ incident of that type he’s seen during his time in office.” Junkin stated that Sheriff Lewis said that “jurors shouldn’t have to worry about actions like this, calling what [Ms.] Rovin is alleged to have done ‘absolutely unacceptable.’” Junkin also quoted Sheriff Lewis as saying that “‘[i]t’s absolutely shocking[.]’” - 12 - Exhibit 6 was an excerpt of the transcript of the trial in Ms. Rovin’s criminal case, which was conducted on October 7, 2015. The excerpt included the circuit court’s ruling on Ms. Rovin’s counsel’s motion for judgment of acquittal.

In ruling, the circuit court stated that juror intimidation consists of attempting to influence or impede a juror in the performance of the juror’s official duties. The circuit court noted that, once the trial in Ms. Rovin’s daughter’s criminal case was over, Mr. Rovin could not have done anything to affect the outcome of the case. Thus, the circuit court determined that Ms. Rovin did not commit juror intimidation.7 The circuit court also determined that Ms. Rovin did not commit second-degree assault as she merely threatened to do something at some point in the future. In this case, on August 25, 2017, Ms. Rovin filed an opposition to the State’s motion to dismiss or for summary judgment.8 In the opposition, Ms. Rovin contended that 7 Within a year of Ms. Rovin’s acquittal, the General Assembly amended a different statute than the one that Ms. Rovin was charged with violating, entitled “Retaliation for Testimony[,]” Md. Code Ann., Crim.

Law (2002, 2012 Repl. Vol., 2015 Supp.) (“CR (2015)”) § 9-303(a), to apply to retaliation against a juror. See 2016 Md. Laws 6564 -65 (Vol. VIII, Ch. 532, S.B. 156); 2016 Md. Laws 6566 -67 (Vol.

VIII, Ch. 533, H.B. 93). On brief, the parties agree that the amendment to CR (2015) § 9-303(a) to prohibit juror retaliation was in response to Ms. Rovin’s acquittal. The General Assembly amended CR (2015) § 9-303(a), in pertinent part, with new language as follows: “A person may not intentionally harm another, threaten to harm another, or damage or destroy property with the intent of retaliating against: . . . (2) a juror for any reason relating to the performance of the juror’s official duties in a pending or completed case[.]” 2016 Md. Laws 6564 -67 (underlining and some capitalization omitted). 8 Ms. Rovin also filed a motion for recusal and special assignment.

In the motion, Ms. Rovin noted that Maciarello had become a judge of the Circuit Court for Wicomico County. Ms. Rovin requested that the judges of the Circuit Court for Wicomico County be recused, and that a judge of another circuit court be specially assigned to the case. On August 29, 2017, the circuit court issued an order granting the motion. The Honorable - 13 - prosecutorial immunity and State personnel immunity apply only where a plaintiff sues a defendant in a personal capacity, as opposed to in an official capacity.

Ms. Rovin attached a signed affidavit to the opposition in which she acknowledged that, on June 16, 2015, she went to Mr. Rovin’s workplace to talk to him about her daughter’s conviction. Ms. Rovin also acknowledged that, at the time, she was upset about the conviction. Ms. Rovin, however, denied threatening to harm Mr. Rovin or telling him that someone else would harm him. On August 28, 2017, the State filed a reply to the opposition.

On September 6, 2017, Sheriff Lewis and Deputy Cook filed a separate motion to dismiss or for summary judgment and a memorandum in support, contending that they were entitled to State personnel immunity. On September 18, 2017, Ms. Rovin filed an opposition to, as well as a separate motion to strike, the officers’ motion. In the opposition, Ms. Rovin acknowledged that, although she reserved the right to do so if she received substantiating evidence during discovery, she had not alleged that any of the individuals involved in the case acted with malice or gross negligence for purposes of State personnel immunity. In the motion to strike, Ms. Rovin contended that the officers lacked standing or capacity to file a motion to dismiss or for summary judgment because she sued them in their official capacities.

Thereafter, the parties filed various other oppositions and replies. On November 22, 2017, Ms. Rovin filed a notice of discovery, stating that her first request for production of documents had been mailed to the State’s counsel and the Paul Martin Bowman of the Circuit Court for Kent County was specially assigned to the case. - 14 - officers’ counsel. On November 28, 2017, the State filed a motion for a protective order, requesting that discovery not be had until after the circuit court ruled on the State’s motion to dismiss or for summary judgment. Ms. Rovin filed an opposition to the motion for a protective order, and the State filed a reply to the opposition.

The Circuit Court’s Rulings On January 29, 2018, the circuit court conducted a hearing on the pending motions. At the motions hearing, ruling from the bench, the circuit court granted the motion for a protective order, denied the motion to strike, and held both motions to dismiss or for summary judgment sub curia. In an order issued the same day, the circuit court indicated that it granted the motion for a protective order pending its ruling on the State’s motion to dismiss or for summary judgment. On February 10, 2018, the circuit court issued orders denying the motion to strike, as well as an opinion and order treating the State’s motion to dismiss or for summary judgment as a motion for summary judgment and granting the same.

Although the circuit court did not expressly rule on the officers’ motion to dismiss or for summary judgment, the circuit court addressed issues related to the officers in its opinion. In the opinion, the circuit court concluded that there was no genuine dispute of material fact as to what occurred between Ms. and Mr. Rovin. The circuit court observed that, at the motions hearing, Ms. Rovin’s counsel neither alluded to any dispute of material fact nor disputed Mr. Rovin’s testimony at the peace order hearing regarding what Ms. Rovin said to him. The circuit court stated that, instead, at the motions hearing, Ms. Rovin’s counsel simply offered legal argument that she did not commit juror intimidation.

The circuit court - 15 - determined that, accordingly, it could dispose of this case as a matter of law. The circuit court stated that denying summary judgment so that Ms. Rovin could participate in discovery would amount to sanctioning “a fishing expedition[.]” The circuit court concluded that the prosecutors were entitled to prosecutorial immunity for actions within the scope of their duties in the judicial process. The circuit court discussed whether the officers were entitled to immunity under the MTCA, but indicated that the officers were entitled to immunity under CJ § 5-507, which provides immunity for certain municipal officials, and indicated that immunity extended to the State if the individuals did not commit “any tortious conduct[.]”9 The circuit court stated that “it is clear that both the State’s Attorney’s Office and the Sheriff’s Office enjoy immunity when conducting their official duties.” In discussing the malicious prosecution claim in particular, the circuit court indicated that there had been probable cause to prosecute Ms. Rovin for juror intimidation and that it did not find that the prosecutors had acted with “malicious intent,” as Ms. Rovin had alleged. 9 On brief, the parties appear to agree that the circuit court erred in reasoning that the officers were entitled to municipal official immunity. CJ § 5-507(a)(1) provides that “[a]n official of a municipal corporation, while acting in a discretionary capacity, without malice, and within the scope of the official’s employment or authority shall be immune as an official or individual from any civil liability for the performance of the action.” The Sheriff’s Office, however, is not a municipal corporation.

Indeed, it is not a legal entity. In Boyer v. State, 323 Md. 558 , 572 n.9, 594 A.2d 121 , 128 n.9 (1991), this Court held that the “the Charles County ‘Sheriff’s Department’” is not a legal entity that can be properly sued. This Court cited Md. Const., Art. 4, § 44, which requires each county, and Baltimore City, to have a sheriff. See id. at 572 n.9, 594 A.2d at 128 n.9.

This Court explained, however, that no constitutional provision, statute, or ordinance creates a governmental agency called “the ‘Sheriff’s Department.’” Id. at 572 n.9, 594 A.2d at 128 n.9. It is clear that the officers are not entitled to municipal official immunity and we need not address the application of municipal official immunity under CJ § 5-507(a)(1). - 16 - The circuit court determined that its findings regarding immunity applied to all of Ms. Rovin’s claims. The circuit court concluded that, even if its findings regarding immunity did not apply to Ms. Rovin’s claim for defamation, the claim was not viable. Addressing the defamation claim, the circuit court determined that Sheriff Lewis’s statements were neither defamatory nor false, and that the statements were not made with the required “common law malice.”10 Opinion of the Court of Special Appeals On April 3, 2018, Ms. Rovin filed a notice of appeal.

On June 17, 2020, in an unreported opinion, the Court of Special Appeals vacated the circuit court’s grant of the motion for a protective order and the grant of summary judgment, and remanded the case to the circuit court for further proceedings, including discovery. See Rovin, 2020 WL 3265119 , at ⁹. The Court of Special Appeals determined that the circuit court abused its discretion in precluding Ms. Rovin from in engaging in discovery before the circuit court granted summary judgment. See id. at ¹.

The Court of Special Appeals held that the circuit court erred in granting summary judgment because there was a genuine dispute of material fact as to whether the reason why the prosecutors and officers pursued criminal charges against Ms. Rovin was that the circumstances justified doing so or that they had an ulterior or otherwise inappropriate motive for doing so. See id. The Court of Special 10 After the circuit court issued its opinion, on February 20, 2018, Ms. Rovin filed a motion to alter or amend the judgment. On February 22, 2018, the State filed an opposition to the motion to alter or amend the judgment.

On March 1, 2018, the officers filed an opposition to the motion to alter or amend the judgment. On March 7, 2018, the circuit court issued an order denying the motion to alter or amend the judgment. - 17 - Appeals indicated that the question of whether the criminal charges against Ms. Rovin were justified depended on a resolution of the dispute regarding what happened between Ms. Rovin and Mr. Rovin. See id. Petition for a Writ of Certiorari On August 4, 2020, Petitioners filed a petition for a writ of certiorari, raising the following two issues: 1.

Do common law absolute judicial and prosecutorial immunity and statutory immunity under the Maryland Tort Claims Act bar tort claims against prosecutors and law enforcement officers arising from an arrest based on the State’s Attorney’s and District Court Commissioner’s legal determination of probable cause? 2. Can law enforcement officers be civilly liable in tort when they sought an arrest warrant on the advice of the State’s Attorney and made an arrest with a warrant based on a judicial officer’s determination that the arrestee’s alleged conduct amounted to a crime, when that determination was later held to be legally erroneous? On October 6, 2020, this Court granted the petition. See Rovin, 471 Md. 103 , 240 A.3d 853 .

STANDARD OF REVIEW “An appellate court reviews without deference a trial court’s grant of a motion for summary judgment, reviews the record in the light most favorable to the nonmoving party, and construes any reasonable inferences that may be drawn from the facts against the moving party.” Baltimore City Police Dep’t v. Potts, 468 Md. 265, 282 , 227 A.3d 186, 196 (2020) (cleaned up). Summary judgment is appropriate where “there is no genuine dispute as to any material fact and [] the [moving] party is entitled to judgment as a matter of law.” Md. R. 2-501(a). - 18 - DISCUSSION I. The Parties’ Contentions Petitioners contend that Ms. Rovin’s claims are barred by common law and statutory immunities. Petitioners argue that the prosecutors are entitled to absolute common law prosecutorial immunity for their alleged role in all of Ms. Rovin’s claims, and that prosecutorial immunity extends to the State as such immunity is not limited to claims against individuals in their personal capacity. Petitioners also assert that absolute immunity requires dismissal of the claims against the officers because the officers relied on probable cause determinations made by the prosecutors and the District Court Commissioner and these determinations were the “proximate cause” of Ms. Rovin’s arrest.

Specifically, Petitioners contend that, under Keller-Bee, 448 Md. 300 , 138 A.3d 1253 , the officers are entitled to absolute immunity from civil liability because the proximate cause of Ms. Rovin’s allegedly false arrest was not the officers’ actions, but instead the determinations made by Maciarello, Assistant State’s Attorney Brueckner, and the District Court Commissioner that there was probable cause. Petitioners also maintain that the prosecutors and officers have State personnel immunity under the MTCA, as they were acting within the scope of their duties with respect to the arrest and prosecution of Ms. Rovin and neither malice nor gross negligence has been alleged. Among many other things, Ms. Rovin responds that judicial immunity does not bar any of her claims and that neither the circuit court nor the Court of Special Appeals determined that judicial immunity applies. Ms. Rovin contends that the holding in Keller- - 19 - Bee, 448 Md. 300 , 138 A.3d 1253 , is distinguishable from the circumstances of this case because Keller-Bee involved claims against a judicial employee based on the employee’s role in the judicial process.

Ms. Rovin maintains that the Court of Special Appeals correctly determined that she should have been permitted to conduct discovery prior to a ruling on the State’s motion for summary judgment. Ms. Rovin acknowledges that Petitioners are likely correct that the prosecutors and officers are entitled to immunity under the MTCA, but asserts that Petitioners’ position that the MTCA applies is a “judicial admission” that the State is accepting liability on behalf of the prosecutors and officers. Ms. Rovin argues that, because the circuit court did not find that the MTCA applies and “mix[ed] up aspects of the MTCA” with the form of immunity set forth in CJ § 5-507, summary judgment may not be upheld based on the MTCA, i.e., a ground that she contends was not relied upon by the circuit court. Ms. Rovin also alleges that the applicability of the MTCA is a question for the trier of fact.

Ms. Rovin contends that the record is insufficient to demonstrate that prosecutorial immunity bars her claims. According to Ms. Rovin, Petitioners bear the burden of demonstrating which actions of a prosecutor are subject to prosecutorial immunity, and, here, the record is “sparse” as to the prosecutors’ involvement in the events leading up to her arrest and imprisonment. Ms. Rovin maintains that prosecutorial immunity does not apply to a prosecutor giving advice to a law enforcement officer during a criminal investigation. Ms. Rovin also contends that prosecutorial immunity does not apply to a law enforcement officer obtaining an arrest warrant. - 20 - Law Judicial Immunity Judicial immunity is a common law doctrine and a form of absolute immunity.

See D’Aoust v. Diamond, 424 Md. 549, 585, 596 , 36 A.3d 941, 962, 968 (2012). The purpose of judicial immunity is to promote the independence of the courts by ensuring that, when exercising their authority, judicial officers are free to act upon their convictions without fear of any lawsuits that “disgruntled litigants” may initiate. Id. at 597 , 36 A.3d at 969 (cleaned up). The applicability of judicial immunity does not depend on whether a judicial officer acted with malice.

See id. at 585 , 36 A.3d at 961-62 . In discussing judicial immunity, we have observed that the immunity afforded judges “may be overcome in only two sets of circumstances—when the conduct is non-judicial, i.e., actions not taken in the judge’s judicial capacity, and when the conduct though judicial in nature, is taken in the complete absence of all jurisdiction.” Gill, 352 Md. at 761 , 724 A.2d at 92 (cleaned up). More recently, we stated that to be entitled to judicial immunity from civil liability for an act, a party must be a judicial officer, the act must have been a judicial act, and the party must not have known that the party clearly lacked jurisdiction over the matter at issue. See D’Aoust, 424 Md. at 598-99 , 36 A.3d at 969-70 .

In Keller-Bee, 448 Md. at 302 , 138 A.3d at 1254 , this Court held that judicial immunity bars a lawsuit against the State based on an allegedly negligent act of an employee of a clerk of court’s office where the proximate cause of the plaintiff’s alleged injuries was a judge’s issuance of a body attachment. In Keller-Bee, id. at 302 , 138 A.3d at 1254 , the judge issued a body attachment against the plaintiff for failing to appear at a - 21 - hearing, when, in fact, the plaintiff had appeared at the hearing. The judge mistakenly believed otherwise because the other party in the case had moved to find the plaintiff in contempt for failing to appear at the hearing and had requested a body attachment. See id. at 302 , 138 A.3d at 1254 .

An employee of the clerk’s office who generated the body attachment papers and presented them to the judge allegedly did not verify whether the plaintiff had failed to appear at the hearing. See id. at 302-03 , 138 A.3d at 1254-55 . The plaintiff sued the State for negligence and a violation of Article 24 of the Maryland Declaration of Rights, attempting to have the State be civilly liable for the employee’s actions in preparing the body attachment papers and not confirming whether the plaintiff had failed to appear at the hearing. See id. at 303 , 138 A.3d at 1254-55 .

The plaintiff did not attempt to hold the State civilly liable for the judge’s act of issuing the body attachment. See id. at 303 , 138 A.3d at 1254-55 . We pointed out that the plaintiff apparently realized that, due to judicial immunity, it would be futile to sue the judge. See id. at 309 , 138 A.3d at 1258 .

We explained that the plaintiff tried to shift the blame for the body attachment from the judge to the employee. See id. at 309 , 138 A.3d at 1258 . Specifically, the plaintiff contended that the employee had a duty to independently assess the merits of the request for a body attachment to prevent the judge from issuing an erroneous body attachment. See id. at 309 , 138 A.3d at 1258 .

We determined that, in contending as much, the plaintiff conceded that it was the judge, not the employee, who had erred. See id. at 309 , 138 A.3d at 1258 . We concluded that the plaintiff failed to state a claim upon which relief could be granted because the proximate cause of the plaintiff’s alleged injuries was not the - 22 - employee’s action. See id. at 310 , 138 A.3d at 1259 .

We determined that, instead, the proximate cause of the plaintiff’s alleged injuries was the judge’s issuance of the body attachment, an act to which judicial immunity applied. See id. at 309-10 , 138 A.3d at 1258 - 59. We stated that it was not necessary to decide whether clerical employees are entitled to judicial immunity to the same extent as judges or whether in preparing the paperwork the employee acted under the supervision of the judge because the employee’s conduct did not cause the plaintiff’s injuries, i.e., the judge’s act in issuing the body attachment was the action that caused the injuries and that action was covered by judicial immunity. See id. at 307 , 138 A.3d at 1257 .

Prosecutorial Immunity Prosecutorial immunity is another type of absolute immunity and is also a common law doctrine. See Gill, 352 Md. at 770 , 724 A.2d at 96 . Prosecutorial immunity arose out of, and is related to, judicial immunity. See id. at 770 , 724 A.2d at 96 .

Similar to the purpose of judicial immunity, the purpose of prosecutorial immunity is to protect prosecutors’ independent decision-making by ensuring that fear of unfounded lawsuits does not affect their actions. See id. at 767 , 724 A.2d at 94 . As with judicial immunity, the applicability of prosecutorial immunity does not depend on whether a prosecutor acted with malice. See id. at 774 , 724 A.2d at 98 .

In Gill, id. at 770 , 724 A.2d at 96 , we stated: Although, as noted, we have not dealt specifically with prosecutorial immunity, we have, in defining and applying judicial immunity, from which prosecutorial immunity arose and with which it maintains some affinity, adopted the functional approach taken by the Supreme Court, holding that absolute immunity protects judges so long as their acts are judicial in nature and within the very general scope of their jurisdiction. - 23 - (Cleaned up). As a result, we concluded, “as a matter of Maryland common law, that prosecutors enjoy absolute immunity with respect to claims arising from their role in the judicial process[.]” Id. at 770 , 724 A.2d at 96 . Such claims may involve “evaluating whether to commence a prosecution by criminal information, presenting evidence to a grand jury in the quest for an indictment, filing charges, [] preparing and presenting the State’s case in court[,]” id. at 770 , 724 A.2d at 96 (footnote omitted), and terminating a prosecution with or without prejudice, see id. at 774 , 724 A.2d at 98 . In Gill, id. at 780, 773 , 724 A.2d at 101, 97 , this Court held that a clerical employee within the Office of the State’s Attorney for Harford County had prosecutorial immunity for erroneously informing a plaintiff after the dismissal of a paternity action that the plaintiff would not be able to ever bring such an action again, and the employee refused, upon request, to assist the plaintiff with efforts to reopen the proceeding.

We concluded that the employee, who acted under the State’s Attorney’s direction, and whose conduct was directly involved with the prosecution of the paternity proceeding, was entitled to prosecutorial immunity. See id. at 773 , 724 A.2d at 97-98 . We explained that there was no valid reason to distinguish the employee’s role in the prosecution from that of law clerks or court clerks who act under the control and supervision of judges, see id. at 773 , 724 A.2d at 97-98 , and perform tasks that are integral to the judicial process, and, as a result, are entitled to judicial immunity, see id. at 771 , 724 A.2d at 96 . State Personnel Immunity Sovereign immunity is yet another form of absolute immunity and is also a common law doctrine.

See Washington Suburban Sanitary Comm’n v. Bowen, 410 Md. 287, 301 , - 24 - 299, 978 A.2d 678, 687, 685 (2009). Under the doctrine of sovereign immunity, the State cannot incur civil liability without its consent. See Beka Indus., Inc. v. Worcester Cty. Bd. of Educ., 419 Md. 194, 206 , 18 A.3d 890, 897 (2011).

Such consent is known as a waiver of sovereign immunity. See Bd. of Educ. of Baltimore Cty. v. Zimmer-Rubert, 409 Md. 200, 212 , 973 A.2d 233, 240 (2009). The General Assembly has partially waived the State’s sovereign immunity by enacting SG § 12-104(a), which is part of the MTCA. See Cooper v. Rodriguez, 443 Md. 680, 706-07 , 118 A.3d 829, 844-45 (2015).

Specifically, SG § 12-104(a) provides that sovereign immunity is waived as to a tort action, up to $400,000 per claimant per incident or occurrence. See SG § 12-104(a)(1) and (a)(2). SG § 12-104(b), however, provides that sovereign immunity is not waived in certain respects, as provided in CJ § 5-522. One subsection, CJ § 5-522(a)(4), provides that sovereign immunity is not waived for “[a]ny tortious act or omission of State personnel that: (i) Is not within the scope of the public duties of the State personnel; or (ii) Is made with malice or gross negligence[.]” (Paragraph breaks omitted).

SG § 12-105, which is also part of the MTCA, provides that “State personnel shall have the immunity from liability described under” CJ § 5-522(b). CJ § 5- 522(b) provides, in pertinent part, that “State personnel . . . are immune from suit in courts of the State and from liability in tort for a tortious act or omission that is within the scope of the public duties of the State personnel and is made without malice or gross negligence[.]” Read together, these provisions contemplate two possible outcomes where an individual who is State personnel has allegedly engaged in a tortious act or omission for - 25 - which there is an issue of. See Cooper, 443 Md. at 707-08 , 118 A.3d at 845 . If the individual acts within the scope of the individual’s public duties and without malice or gross negligence, the individual is entitled to State personnel immunity, and the State is not entitled to sovereign immunity.

See id. at 708 , 118 A.3d at 845 . By contrast, if the individual does not act within the scope of the individual’s public duties or if the individual acts with malice or gross negligence, then the individual is not entitled to State personnel immunity, and the State is entitled to sovereign immunity because sovereign immunity is not waived under that circumstance. See id. at 708 , 118 A.3d at 845 . In the first outcome, the individual is not civilly liable under the MTCA, and the State is.

See id. at 708 , 118 A.3d at 845 . In the second outcome, the individual is civilly liable, and the State is not. See id. at 708 , 118 A.3d at 845 . That said, where the individual is entitled to a form of absolute immunity, e.g., prosecutorial immunity or judicial immunity, neither the individual nor the State is civilly liable, even if the individual is also entitled to State personnel immunity under the MTCA.

In Parker v. State, 337 Md. 271, 286 , 653 A.2d 436, 443 (1995), this Court stated that “[j]udicial acts performed by judges are among those governmental functions that cannot give rise to civil liability in tort. Accordingly, a suit that is barred by judicial immunity cannot form the basis of a recovery against the State under the Tort Claims Act.” In Parker, id. at 274-75 , 653 A.2d at 437-38 , a motorist who was ultimately acquitted of the charge of speeding in the circuit court sued a circuit court judge who had mistakenly issued an arrest warrant that led to the motorist’s arrest. The motorist contended that the circuit court judge was not entitled to judicial immunity because the judge lacked jurisdiction to issue - 26 - the arrest warrant. See id. at 276 , 653 A.2d at 438 .

The parties had agreed that, if the judge had judicial immunity, then the State would not be liable under the MTCA. See id. at 277 , 653 A.2d at 438-39 . This Court held that the judge was entitled to judicial immunity and explained that, where an action is precluded by judicial immunity, there can be no recovery against the State under the MTCA. See id. at 286-87 , 653 A.2d at 443-44 .

This Court explained: The differences between absolute judicial immunity and the qualified immunity of most other public officials are justified by the same concerns that precipitated the development of judicial immunity. Like other public officials, judges might be deterred from conscientious decision making if they were susceptible to civil liability for their official actions. Unlike other public officials, judges are required, on a daily basis, to make numerous decisions in disputes between adverse parties. With respect to each judicial decision, there is a winner and a loser. . . .

With such important issues at stake in an adversarial context, absolute immunity is needed to forestall endless collateral attacks on judgments through civil actions against the judges themselves. Id. at 286-87 , 653 A.2d at 443 (citation omitted). Analysis Here, upon careful consideration of the record and our case law, we hold that the circuit court was correct in concluding that there was no genuine dispute of material fact as to the prosecutors’ entitlement to absolute common law immunity in the form of prosecutorial immunity, and that summary judgment was warranted as a matter of law as to all of Ms. Rovin’s claims involving Maciarello and Assistant State’s Attorney Brueckner. Given that Maciarello and Assistant State’s Attorney Brueckner are entitled to prosecutorial immunity, an absolute immunity, the State cannot be held civilly liable for their actions in this case.

As such, the circuit court was correct in granting summary - 27 - judgment in favor of the prosecutors and the State as to any action in the complaint alleged to have been taken by Maciarello and Assistant State’s Attorney Brueckner. The officers, Sherriff Lewis and Deputy Cook, however, are not entitled to absolute prosecutorial immunity. Similarly, absolute immunity in the form of judicial immunity does not apply to the actions of the officers. Moreover, we decline to extend judicial immunity under the holding in Keller-Bee to the officers.

State personnel immunity under the MTCA, though, bars Ms. Rovin’s claims against the officers, as well as the prosecutors, in their individual capacities. As such, the State does not have immunity under the MTCA, but whether the State is liable for any actions taken by Sheriff Lewis and Deputy Cook, who are not entitled to absolute immunity, is a matter to be resolved by further proceedings in the circuit court. We discuss our conclusions in order. To begin, as the circuit court concluded, there is no genuine dispute of material fact that would bar the prosecutors and the State from entitlement to absolute prosecutorial immunity for the actions of the prosecutors alleged in Ms. Rovin’s complaint.

In its current state, the record is sufficient for us to determine whether the prosecutors and the State are entitled to judgment as a matter of law on the basis of prosecutorial immunity. Contrary to the Court of Special Appeals’s reasoning, in assessing the applicability of prosecutorial immunity, it is not necessary to determine whether the circumstances of the encounter between Ms. Rovin and Mr. Rovin at his workplace “justified” the prosecutors pursuing charges or whether they had “an ulterior or otherwise improper motive” for doing so. Rovin, 2020 WL 3265119 , at ⁹. It is a well-established tenet of Maryland common law that prosecutors enjoy absolute prosecutorial immunity for claims arising from their role - 28 - in the judicial process and that the immunity extends to