Williams v. Morgan State Univ.

Michele Williams v. Morgan State University, et al., Misc. No. 9, September Term, 2022. Opinion by Eaves, J. SOVEREIGN IMMUNITY — WAIVER — MARYLAND TORT CLAIMS ACT — STATUTORY INTERPRETATION The United States Court of Appeals for the Fourth Circuit certified a question of law to the Supreme Court of Maryland. The Court reformulated the question as follows: Does Maryland’s waiver of sovereign immunity for a tort action under the Maryland Tort Claims Act extend to federal statutory claims?

The Court answered the certified question in the negative. United States Court of Appeals for the Fourth Circuit Case No.: 21-1918 Argued: February 2, 2023 IN THE SUPREME COURT OF MARYLAND* Misc. No. 9 September Term, 2022 MICHELE WILLIAMS v. MORGAN STATE UNIVERSITY, ET AL. Fader, C.J., Watts, Hotten, Booth, Biran, Gould, Eaves, JJ.

Opinion by Eaves, J. Filed: August 14, 2023 * At the November 8, 2022, general election, the Pursuant to the Maryland Uniform Electronic Legal Materials voters of Maryland ratified a constitutional Act (§§ 10-1601 et seq. of the State Government Article) this amendment changing the name of the Court of document is authentic. Appeals of Maryland to the Supreme Court of 2023-08-14 13:33-04:00 Maryland. The name change took effect on December 14, 2022. Gregory Hilton, Clerk The doctrine of sovereign immunity is an “ancient” concept.1 It is the long- established view that a sovereign, such as a state, is “infallible,”2 and, thus, immune from suit “absent the State’s consent.”3 The General Assembly provided such consent in the Maryland Tort Claims Act (“MTCA”), Md. Code Ann. State Gov’t (“SG”) (1984, 2021 Repl.

Vol., 2022 Supp.) § 12-104(a)(1), which waives the State’s immunity as to a “tort action in a court of the State[.]” In this case, we must determine whether the MTCA’s waiver of sovereign immunity as to “a tort action” extends to federal statutory claims. Although this case comes to us as a certified question from the United States Court of Appeals for the Fourth Circuit, it originated in the Circuit Court for Baltimore City. Michele Williams, Appellant, filed a complaint against her former employer, Morgan State University (“MSU”), and her former supervisor, Dean DeWayne Wickham, in his personal capacity (collectively “Appellees”) regarding her termination from the University. In an amended complaint, Appellant added claims alleging retaliation in violation of the National Defense Authorization Act (“NDAA”), 41 U.S.C. § 4712 , and the American Recovery and 1 United States v. Nordic Vil., Inc., 503 U.S. 30, 42 (1992) (Stevens, J., dissenting) (noting that the doctrine has an “ancient lineage”); see Godwin v. Cnty.

Comm’rs of St. Mary’s Cnty., 256 Md. 326 , 330–31 (1970) (“No suit or action, even in civil matters can be brought against the king, because no court can have jurisdiction over him. Authority to try would be in vain, without authority to redress; the sentence of a court would be contemptible, where it could not enforce execution, and who shall command the king? His person is sacred, even though his measures be tyrannical and arbitrary, for no jurisdiction can try him in a criminal manner, much less condemn him to punishment.” (quoting Browne’s Blackstone’s Commentaries at 77)). 2 ARA Health Servs., Inc. v. Dep’t of Pub. Safety & Corr.

Servs., 344 Md. 85, 91 (1996). 3 Id. at 92 (citing Dep’t of Nat. Res. v. Welsh, 308 Md. 54 , 58–59 (1986)). Reinvestment Act (“ARRA”), Pub. L. No. 111-5, § 1553 , 123 Stat. 115 , 297 (2009).

Appellees timely removed the suit to the United States District Court for the District of Maryland. As to her federal claims against MSU, Appellant alleges that her termination by MSU was impermissible retaliation for disclosing that the University, primarily Dean Wickham, had overstated “the University’s operating costs to the Corporation for Public Broadcasting and the United States Department of Education and . . . attempted to influence the 2016 Baltimore mayoral race by violating FCC regulation[s].” Eventually, the Fourth Circuit certified a question of law to this Court, which we have slightly rephrased: Does Maryland’s waiver of sovereign immunity for “a tort action” under the MTCA extend to federal statutory claims?4 For the reasons discussed below, we hold that the General Assembly did not waive the State’s sovereign immunity for such claims. I JURISDICTION AND STANDARD OF REVIEW The General Assembly has granted this Court the authority to “answer a question of law certified to it by a court of the United States . . . if the answer may be determinative of an issue in pending litigation in the certifying court and there is no controlling appellate decision, constitutional provision, or statute of this State.” Md. Code Ann., Cts. & Jud. 4 The Fourth Circuit’s original question was: “Does the waiver of sovereign immunity for ‘tort action[s]’ under the Maryland Tort Claims Act, Md. Code Ann., State Gov’t § 12-104(a)(1), extend to federal statutory claims, including those where the alleged harm is wrongful termination in retaliation for whistleblowing?” As acknowledged by the Fourth Circuit, however, this Court has the power to “reformulate [the] question of law certified to it.” Md. Code Ann., Cts. & Jud. Proc.

(“CJP”) (1974, 2020 Repl. Vol.) § 12- 604. 2 Proc. (“CJP”) (1974, 2020 Repl. Vol.) § 12-603.

The certifying court must “issue a certification order and forward it” to this Court. Id. § 12-605. That certification order must contain, among other things, the question of law to be answered and the relevant facts. Id. § 12-606.

This Court accepted the Fourth Circuit’s certified question of law. See id. § 12- 607. When answering a certified question, “this Court accepts the facts provided by the certifying court[,]” United Bank v. Buckingham, 472 Md. 407, 413 (2021) (citing Price v. Murdy, 462 Md. 145, 147 (2018)), and cabins its “legal analysis and final determinations of Maryland law to the question[] certified[,]” Dickson v. United States, 478 Md. 255, 260 (2022) (citing Buckingham, 472 Md. at 421 ). Because certified questions can encompass only legal questions, “our analysis necessarily is de novo.” Id.

II BACKGROUND To place this certified question in proper context, we first discuss the facts as provided by the Fourth Circuit, the relevant procedural history, and the MTCA. A. Factual Background Appellant worked from 2014 to 2017 as MSU’s Director of Broadcast Operations where she oversaw and managed MSU’s radio and television stations. Before Baltimore City’s 2016 mayoral election, Appellant organized a debate among all candidates. Then- incumbent Catherine Pugh, the Democratic Party candidate, was unable to attend the debate, so, according to Appellant, Dean Wickham instructed Appellant to cancel the debate at Mayor Pugh’s behest.

Adhering to prior guidance that candidates be provided 3 on-air interviews to compensate for cancelled debate time, Appellant granted requests for interviews from Republican and Green Party candidates. Dean Wickham disapproved of Appellant’s grants for interviews, stating that things would “not end well for her.” Appellant complained to MSU that she believed Dean Wickham’s actions violated various federal and state laws and regulations. Appellant also voiced concern to Dean Wickham and other MSU leaders that she believed that MSU intentionally was inflating expenses in reports submitted to state and federal agencies to secure larger grants. Appellant believes that her complaints resulted in her improper termination in 2017.

B. Procedural History Appellant filed a complaint in the Circuit Court for Baltimore City against MSU for wrongful termination in violation of a clear mandate of public policy (Count I), and against Dean Wickham for defamation (Count II). The operative first amended complaint, filed in December 2018, sought to “recover civil damages under Maryland common law torts and federal law” by adding to the initial complaint’s common law tort counts a claim against both defendants for retaliation under the NDAA and the ARRA (Count III).5 Appellees removed the suit to the United States District Court for the District of Maryland, which dismissed the action with prejudice. Appellant appealed, and the Fourth Circuit vacated the district court’s order dismissing Appellant’s federal statutory claims and remanded the case to the district court 5 Appellant’s additional claim against Appellees was for discrimination and retaliation in violation of 42 U.S.C. § 1981 (Count IV), but she later withdrew that allegation. 4 to address whether Maryland has waived state sovereign immunity against federal whistleblower claims by enacting the MTCA. Following remand and supplemental briefing by the parties, on July 26, 2021, the district court granted Appellees’ renewed motion to dismiss on the ground that the MTCA does not waive the State’s sovereign immunity with respect to such claims.

Appellant again appealed from the district court’s judgment dismissing her action. After briefing and oral argument, the Fourth Circuit certified the question of law to this Court, which we accepted. C. The MTCA’s Statutory Framework The MTCA is codified under the State Government Article as Subtitle 1 of Title 12. “The MTCA was enacted in 1981 as a waiver of the State’s sovereign immunity for tortious acts or omissions committed within the scope of the public duties of ‘state personnel’ and committed without malice or gross negligence.” Barbre v. Pope, 402 Md. 157, 173 (2007). Under the MTCA, a party injured by the negligent act or omission of a state officer or employee within the scope of the officer’s or employee’s public duties may obtain compensation for that injury from the State.

SG § 12-104 states in pertinent part: (a)(1) Subject to the exclusions and limitations in this subtitle and notwithstanding any other provision of the law, the immunity of the State and its units is waived as to a tort action, in a court of the State, to the extent provided under paragraph (2) of this subsection. (2)(i) Except as provided in subparagraph (ii) of this paragraph, the liability of the state and its units may not exceed $400,000 to a single claimant for injuries arising from a single incident or occurrence. * * * 5 (b) Immunity is not waived under this section as described under § 5-522(a) of the Courts and Judicial Proceedings Article. (Emphasis added). By its plain terms, SG § 12-104(b) provides that the scope of the State’s waiver of sovereign immunity is established by the interplay between subsection (a) and CJP § 5-522(a).

That section provides that the State’s immunity is not waived for, among other things, “[a]ny tortious act or omission of State personnel that: (i) [i]s not within the scope of the public duties of the State personnel; or (ii) [i]s made with malice or gross negligence[.]” CJP § 5-522(a)(4). The other central component of the MTCA, in addition to its waiver of the State’s sovereign immunity for tortious acts or omissions by State personnel, is a corresponding immunity from suit and from liability in tort for State personnel. See SG § 12-105 (“State personnel shall have the immunity from liability described under § 5-522(b) of the Courts and Judicial Proceedings Article.”); CJP § 5-522(b) (providing that State Personnel as defined under the MTCA 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 SG § 12-104, “even if the damages exceed the limits of that waiver.”). The Legislature has created a comprehensive statutory scheme, where the waiver of the State’s sovereign immunity for tort actions corresponds precisely with immunity from suit and liability for State personnel.

In lieu of recovery from the negligent State personnel, the party may obtain compensation for that injury from the State. Barbre, 402 Md. at 173– 6 74. “In other words, liability of the State and liability of individual State personnel are mutually exclusive. If the State is liable, the individual is immune; if the individual is liable, the State is immune.” Newell v. Runnels, 407 Md. 578, 635 (2009). “In effect, the MTCA substitutes the State for the State personnel as the appropriate defendant in such an action.” Rodriguez v. Cooper, 458 Md. 425 , 451–52 (2018). The MTCA also contains certain limitations on the scope of the waiver of the State’s sovereign immunity beyond those that are dependent on the actions of the State personnel.

Among those limitations are that the State has not waived immunity from claims for punitive damages or pre-judgment interest; its liability may not exceed $400,000 to a single claimant for injuries from a single incident or occurrence; and the MTCA does not waive any right or defense of the State, including any defense that is available under the Eleventh Amendment. SG §§ 12-103(2), 12-104(a)(2), (b); CJP § 5-522(a). III ANALYSIS We hold today that the MTCA does not waive the State’s sovereign immunity for federal statutory claims. In deciding this issue, we employ our traditional canons of statutory interpretation.

We demonstrate how the MTCA’s plain language, statutory framework, and historical amendments reflect that the General Assembly did not intend to include federal statutory claims under the MTCA’s limited waiver. We then illustrate along the way how that holding comports with the purposes of the MTCA and why 7 adopting Appellant’s interpretation would produce results at odds with the MTCA’s framework and purpose. A. The Parties’ Contentions Appellant alleges that the term “tort action” as used in SG § 12-104 is broad and was intended to include all federal statutory claims. She asserts that we must—in accordance with the MTCA’s mandate—construe the MTCA broadly to ensure a remedy for the injured party, which necessitates holding that the General Assembly waived the State’s sovereign immunity for federal statutory claims.

Appellant argues that, in other contexts, this Court has held that a “tort” encompasses all civil wrongs, including those based in statute, not just those recognized at common law. Appellant further argues that the historical amendments to the MTCA evince the General Assembly’s intent to include federal statutory claims under “a tort action.”6 For their part, Appellees argue that neither the statutory text nor the legislative history of the MTCA indicates that the General Assembly intended to waive the State’s immunity for federal statutory claims. Appellees also assert that the phrase “tort action” 6 Appellant also presents two ancillary arguments: (1) excluding from the MTCA’s waiver of sovereign immunity federal statutory claims analogous to state law claims that would qualify under the MTCA’s waiver would violate the Supremacy Clause of the United States Constitution by discriminating against an individual’s federal rights and (2) the phrase “a tort action” includes statutory employment claims. The first argument goes beyond the scope of this certified question.

Moreover, the Supreme Court of the United States, in rejecting a claim of “discriminat[ion] against federal rights by claiming sovereign immunity from” a federal statutory claim, already has held that if a state “has chosen to consent to certain classes of suits while maintaining its immunity from others, it has done no more than exercise a privilege of sovereignty concomitant to its constitutional immunity from suit.” Alden v. Maine, 527 U.S. 706, 758 (1999). Given our holding that the MTCA’s waiver does not include federal statutory claims, we need not address the second argument. 8 must be read within the overall context of the State’s immunity waiver provisions and corresponding grant of immunity provisions for State personnel, which work in tandem. Appellees assert that it would be illogical for the State to have waived their immunity for federal statutory claims under the MTCA because it could not provide a corresponding grant of immunity to State personnel. B. Discussion There is no question that MSU is an instrumentality of the State, sharing in its sovereign immunity.

See Md. Code Ann., Educ. (1978, 2022 Repl. Vol.) § 14-101(a)(2) (noting that MSU “is an instrumentality of the State and a public corporation”); Proctor v. Washington Metro. Area Trans.

Auth., 412 Md. 691, 709 (2010) (noting that the State’s sovereign immunity “is applicable not only to the State itself, but also to its agencies and instrumentalities, unless the General Assembly has waived the immunity either directly or by necessary implication” (quoting Katz v. Washington Suburban Sanitary Comm’n, 284 Md. 503 , 507–08 (1979))). Answering the certified question of law from the Fourth Circuit is an exercise in statutory interpretation, so we turn next to the principles used in such an exercise. 1. Canons of Statutory Interpretation: Generally and for Waivers of Sovereign Immunity In this case, we must determine whether the MTCA’s waiver of sovereign immunity for a “tort action” includes federal statutory claims. As we recently stated: Pursuant to the well-established principles of statutory construction, our goal is to ascertain and effectuate the actual intent of the General Assembly.

We first examine the plain meaning of the statutory language and, if the language is unambiguous and clearly consistent with the statute’s apparent purpose, 9 our inquiry generally ceases at that point and we apply the statute as written. In other words, we interpret the plain meaning of a statute to give effect to the unambiguous language (if, indeed, the language is unambiguous) and need not resort to a review of the legislative history. Thornton Mellon, LLC v. Adrienne Dennis Exempt Trust, 478 Md. 280 , 313–14 (2022) (citations and quotation marks omitted). When tasked with interpreting one section of a larger statutory scheme, we avoid interpreting that section in isolation; instead, we “analyze the statutory scheme as a whole considering the ‘purpose, aim, or policy of the enacting body[.]’” Proctor, 412 Md. at 714 (quoting Ray v. State, 410 Md. 384, 405 (2009)).

Throughout this process, we are mindful that a statute “must be given a reasonable interpretation, not one that is absurd, illogical, or incompatible with common sense.” Comptroller of Md. v. FC-GEN Operations Invs. LLC, 482 Md. 343, 380 (2022) (quoting Wheeling v. Selene Fin. LP, 473 Md. 356, 377 (2021)). When interpreting waivers of the State’s immunity, we employ the “traditional rules of statutory interpretation, remaining mindful of the policies underlying governmental immunity.” Bd. of Educ. of Balt.

Cnty. v. Zimmer-Rubert, 409 Md. 200, 214 (2009). Those policies are to “protect[] the State from burdensome interference with its governmental functions and preserve its control over State agencies and funds.” Id. at 211 (quoting Katz, 284 Md. at 507 ). Thus, we “strictly construe[]” any waiver of the State’s immunity “in favor of the sovereign[,]” id. at 212, because “dilution of the doctrine [of sovereign immunity] should not be accomplished by ‘judicial fiat[,]’” id. (quoting ARA Health Servs., Inc. v. Dep’t of Pub.

Safety & Corr. Servs., 344 Md. 85, 92 (1996)). We recently reaffirmed this long-standing principle when we stated that “waivers of sovereign immunity, which 10 are in derogation of the common law, are strictly construed in favor of the State.” Brawner Builders, Inc. v. State Highway Admin., 476 Md. 15, 32 (2021) (citing Proctor, 412 Md. at 709 ; Zimmer-Rubert, 409 Md. at 212 ). 2. The Plain Language and Statutory Context Starting with the plain text, the MTCA does not define the term “tort action.” In support of her position that “tort action,” as used in the MTCA, encompasses federal statutory claims, Appellant contends that three decisions of this Court “broaden[ed] the definition of ‘tort’” beyond common law tort actions: Green v. N.B.S., Inc., 409 Md. 528 (2009); Espina v. Jackson, 442 Md. 311 (2015); and Lee v. Cline, 384 Md. 245 (2004).7 None of those decisions supports Appellant’s contention that the MTCA waiver extends generally even to state statutory claims, much less federal statutory claims.

In Green, this Court considered whether to apply Maryland’s cap on noneconomic damages set forth in CJP § 11-108 to damages for a violation of the Maryland Consumer 7 At oral argument, Appellant directly claimed support from our decision in Hansen v. City of Laurel, 420 Md. 670 (2011), and, in her brief, she cites to unreported decisions of other courts that discuss that decision. Hansen, like the other cases on which Appellant relies, does not bolster her position. There, we held that a plaintiff bringing a claim for employment discrimination against a local government entity must provide notice as required by the Local Government Tort Claims Act (“LGTCA”) and plead compliance with that requirement. 420 Md. at 672–73. Our decision in Hansen concerned compliance with notice and pleading requirements.

It did not address waiver or the meaning of “tort action” or any similar phrase. Indeed, the notice requirement at issue in Hansen requires a claimant to provide notice of any “action for unliquidated damages,” not just tort actions, “brought against a local government or its employees.” Id. at 676 n.4 (quoting the then-applicable version of CJP § 5-304(b)(1)). We began our discussion by noting the “longstanding principle of Maryland jurisprudence that the LGTCA notice provision is a condition precedent to maintaining an action”—not just a tort action—“directly against a local government or its employees.” Id. at 682. Hansen, therefore, is inapposite. 11 Protection Act (“MCPA”). 409 Md. at 541–42.

The plaintiff in that case had brought claims for common law negligence and violation of the MCPA arising from exposure to lead-based paint. Id. at 534. The jury awarded damages that were not differentiated between those two claims. Id. at 535.

Affirming the Appellate Court of Maryland,8 we held that those damages were subject to the cap imposed by CJP § 11-108 on “damages for personal injury” applicable “to each direct victim of tortious conduct[.]” Id. at 539–40. In our analysis, we quoted with approval several portions of the Appellate Court’s opinion. In one of those portions, the Appellate Court rejected the plaintiff’s contention that the cap could not apply because the MCPA “is a statutory cause of action and not a tort.” Id. at 542. The Appellate Court observed that Black’s Law Dictionary defined “tort” in part as a “civil wrong for which a remedy may be obtained,” but did not limit it to “wrongs that were recognized as a civil wrong at common law.” Id. at 542 (quoting Green v. N.B.S., Inc., 180 Md. App.