District Heights v. Denny

• Decision Date: 28 October 1998
• Docket Number: No. 1920,1920
• Citation: 719 A.2d 998,123 Md. App. 508
• Parties: CITY OF DISTRICT HEIGHTS et al. v. Deborah DENNY.
• Court: Court of Special Appeals of Maryland

719 A.2d 998

123 Md. App. 508

CITY OF DISTRICT HEIGHTS et al. v. Deborah DENNY.

No. 1920, Sept. Term, 1997.

Court of Special Appeals of Maryland.

October 28, 1998.

William J. Chen, Jr. (Chen, Walsh, Tecler & McCabe on the brief), Rockville, for appellants.

Mary Ann Ryan (Anna M. Coyle and Ryan & Coyle on the brief), Laurel, for appellee.

Argued before THIEME, KENNEY and BYRNES, JJ.

KENNEY, Judge.

On November 25, 1996, appellee, Deborah Denny, a commissioner of the City of District Heights,¹ filed a complaint in the Circuit Court for Prince George's County against Mary A. Pumphrey, the Mayor of the City of District Heights, Cheyenne Watson, Vice-Mayor and Commissioner of the City of District Heights, Americo Sesso, Commissioner of the City of District Heights, and the City of District Heights (collectively, "appellants"). The four-count complaint alleged defamation, violation of 42 U.S.C. § 1983, intentional infliction of emotional distress, and malfeasance in office. Appellants removed the action to federal court, which dismissed, with prejudice, the § 1983 claim and remanded the remaining state law claims to the circuit court.

On September 9, 1997, appellants filed a motion to dismiss, asserting, inter alia, that they were protected from suit by various doctrines of immunity. On October 20, 1997, the trial court filed an order that denied appellants' motion to dismiss. Appellants filed this appeal, asking three questions, which we have rephrased:

I. Were appellee's claims against Pumphrey, Watson, and Sesso barred by the doctrine of absolute immunity or the doctrine of public official immunity?

II. Was the action against the City of District Heights barred by the doctrine of governmental immunity?

III. Did the trial court err by denying appellants' motions to dismiss?

As to appellants' first question, to the extent that liability was based on the Commission's decision not to investigate Sesso, we hold that appellee's claims against Pumphrey, Watson, and Sesso are barred by the doctrine of absolute immunity. To the extent that his liability was based on the comments he allegedly uttered, we hold that Sesso is not entitled to absolute immunity and that the applicability of public official immunity must be resolved by the trial court. As to appellants' second question, we hold that appellee's claims against the City of District Heights are barred by the doctrine of governmental immunity. We decline to address appellants' third question as it relates to appellant Sesso because it involves matters not presently ripe for appellate review.

FACTS

In affidavits attached to the complaint and incorporated therein, three employees of the Department of Public Works for the City of District Heights testified that appellant Americo Sesso made disparaging and racist remarks about appellee. Brian Edwards testified that, on August 2, 1996, he had a conversation with Sesso in the Public Works' garage and that, during this conversation, Commissioner Sesso made defamatory comments about Commissioner Denny's race and professional abilities. Robert Vasquez testified that, on August 2, 1996, he was in the Public Works' garage and he heard Sesso make defamatory comments about Commissioner Denny's race and professional abilities. George Benton testified that he had heard Sesso make derogatory remarks about Commissioner Denny.

According to her complaint, appellee asked Sesso for a public apology but none was forthcoming. Thereafter, during an open meeting of the Commission, appellee raised the issue of Sesso's comments and demanded that the matter be investigated. According to appellee, however, "defendant Mayor Mary Pumphrey, as head of the Commission, and the other defendant commissioners, brushed off these highly publicized slurs, refused to allow [her] to raise this matter again, and refused to launch an investigation into the incident." Appellee responded by filing the underlying complaint, alleging defamation, violation of 42 U.S.C. § 1983, intentional infliction of emotional distress, and malfeasance in office.

The case was removed to the United States District Court for the District of Maryland, which dismissed appellee's federal claim, with prejudice. The court stated:

Proceeding directly to the merits, this is an unfortunate case of name-calling and insults. While the racial epithets alleged may well give rise to causes of action under state law [See Gaiters v. Lynn, 831 F.2d 51 (4th Cir.1987); see generally, Rodney A. Smolla, Rethinking First Amendment Assumptions About Racist and Sexist Speech, 47 WASH. & LEE L. REV. 171 (1990),] federal law is clear. Federal civil rights statutes, including 42 U.S.C. § 1983, are not transgressed. Paul v. Davis, 424

U.S. 693, 712 [96 S.Ct. 1155, 47 L.Ed.2d 405] (1976). Denny's claim of violation of 42 U.S.C. § 1983 is therefore DISMISSED WITH PREJUDICE.

The case was remanded to the circuit court for a determination on the remaining state law claims. Upon remand, appellants filed a motion to dismiss, asserting that the remaining claims against Pumphrey, Watson, and Sesso were barred by the doctrine of absolute immunity and/or the doctrine of public official immunity, and that the claims against the City of District Heights were barred by the doctrine of governmental immunity. On October 20, 1997, appellants' motion to dismiss was denied by the trial court without comment.

DISCUSSION

I. Motion to Dismiss

We are currently presented with an appeal of the denial of a motion to dismiss filed pursuant to Maryland Rule 2-322(b). In reviewing the grant or denial of a motion to dismiss filed pursuant to this rule,

"we must assume the truth of all relevant and material facts that are well pleaded and all inferences which can reasonably be drawn from those pleadings. The complaint should not be dismissed unless it appears that no set of facts can be proven in support of the claim set forth therein.'

Simms v. Constantine, 113 Md.App. 291, 294, 688 A.2d 1 (1997)(quoting Bennett Heating & Air Conditioning, Inc. v. NationsBank of Maryland, 103 Md.App. 749, 757, 654 A.2d 949 (1995), rev'd in part on other grounds, 342 Md. 169, 674 A.2d 534 (1996) (citations omitted)).

Because the denial of a motion to dismiss is not a final judgment, it is ordinarily not subject to interlocutory review. Appellants contend, however, that, because they asserted various immunity defenses in their motion to dismiss, the denial of that motion is immediately appealable under the collateral order doctrine. Before discussing the elements of that doctrine, we consider first the nature of the immunities asserted by appellants.

II. Immunity

Pumphrey, Watson, and Sesso contend that the claims against them are barred by the doctrine of absolute immunity and/or the doctrine of public official immunity. In Montgomery County v. Schooley, 97 Md.App. 107, 115, 627 A.2d 69 (1993), this Court held that it is "beyond dispute that municipal legislators enjoy the protection of immunity when acting in the sphere of legitimate legislative activity." See also Manders v. Brown, 101 Md.App. 191, 205, 643 A.2d 931,cert. denied, 336 Md. 592, 650 A.2d 238 (1994). We explained that

[t]he purpose of this immunity is to insure that the legislative function may be performed independently without fear of outside interference.... To preserve legislative independence, we have concluded that `legislators engaged "in the sphere of legitimate legislative activity" ... should be protected not only from the consequences of litigation's results but also from the burden of defending themselves.'

Schooley, 97 Md.App. at 116, 627 A.2d 69 (quoting Supreme Court of Virginia v. Consumers Union, 446 U.S. 719, 731-32, 100 S.Ct. 1967, 64 L.Ed.2d 641 (1980)).

We have recognized previously, however, that not everything a municipal official does in his or her official capacity is legislative. Manders, 101 Md.App. at 210, 643 A.2d 931. In fact, municipal officials often act as "executives and administrators who enforce and administer the law, especially in county or commission forms of government where there is no separate executive official." Id. For instance, "when municipal officials do more than adopt prospective, legislative type rules and take the next step into the area of enforcement," that activity is most appropriately characterized as executive. Id.

In lieu of designing a specific test for determining what is and what is not legislative activity, Maryland has adopted a "functional approach" to legislative immunity, where the scope of immunity is determined in light of the functions and duties of municipal officials. See Manders, supra; Mandel v. O'Hara, 320 Md. 103, 576 A.2d 766 (1990). Under this approach, if the conduct engaged in by a municipal official can be characterized as "legislative," the actor is absolutely immune from any liability or suit emanating from that action. Id.

Pumphrey, Watson, and Sesso also contend that, even if they are not entitled to absolute immunity, appellee's claims against them are barred by the doctrine of public official immunity. In Maryland, public official immunity is recognized both at common law and by statute. For common law public official immunity to apply:

(1) the actor must be a public official, rather than a mere government employee or agent; (2) the conduct must have occurred while the actor was performing discretionary, as opposed to ministerial, acts; and (3) the actor must have performed the relevant acts within the scope of his official duties. If those three conditions are met, the public official enjoys a qualified immunity in the absence of `malice.'

Thomas v. City of Annapolis, 113 Md.App. 440, 452, 688 A.2d 448 (1997).

In addition, the General Assembly has enacted a statutory public official immunity, which 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...