Kent County Bd. of Educ. v. Bilbrough

Decision Date01 September 1986
Docket NumberNo. 113,113
Citation309 Md. 487,525 A.2d 232
Parties, 39 Ed. Law Rep. 167 KENT COUNTY BOARD OF EDUCATION, et al. v. John R. BILBROUGH, Jr. ,
CourtMaryland Court of Appeals

Cynthia M. Hahn (Joseph C. Wich, Jr. and Cook, Howard, Downes & Tracy, on the brief), Towson, for appellants.

Jared W. Ingersoll, Chestertown, for appellee.

Argued before ELDRIDGE, COLE, RODOWSKY, COUCH, McAULIFFE, JJ., and MARVIN H. SMITH and CHARLES E. ORTH, Jr. (retired), specially assigned.


The issue here is whether respondent's claims against petitioners are barred by claim preclusion because the same claims had previously been adjudicated adversely to the respondent. The question presented turns on the application to the facts in this case of the elusive concept, "claim," as used in the law of claim preclusion.

Before stating the facts it seems helpful to review briefly the terms used for the concepts involved. The Supreme Court in Migra v. Warren City School District Board of Education, 465 U.S. 75, 77 n. 1, 104 S.Ct. 892, 894 n. 1, 79 L.Ed.2d 56, 59 n. 1 (1984) put it this way:

The preclusive effects of former adjudication are discussed in varying and, at times, seemingly conflicting terminology, attributable to the evolution of preclusion concepts over the years. These effects are referred to collectively by most commentators as the doctrine of "res judicata." See Restatement (Second) of Judgments, Introductory Note before ch. 3 (1982); 18 C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure § 4402 (1981). Res judicata is often analyzed further to consist of two preclusion concepts: "issue preclusion" and "claim preclusion." Issue preclusion refers to the effect of a judgment in foreclosing relitigation of a matter that has been litigated and decided. See Restatement, supra, § 27. This effect also is referred to as direct or collateral estoppel. Claim preclusion refers to the effect of a judgment in foreclosing litigation of a matter that never has been litigated, because of a determination that it should have been advanced in an earlier suit. Claim preclusion therefore encompasses the law of merger and bar. See id., Introductory Note before § 24.

The prior judgment of concern here was entered in a civil rights action brought by respondent, John R. Bilbrough, Jr. (Bilbrough), and another against seven defendants, including the petitioners here, Kent County Board of Education (the Board) and William Loller (Loller), in the United States District Court for the District of Maryland. The case was tried without a jury before Honorable Joseph H. Young who entered judgment for the defendants. That judgment was affirmed in an unpublished opinion by the United States Court of Appeals for the Fourth Circuit.

Bilbrough had been hired by the Board in the spring of 1978 as manager of maintenance services. He served in that capacity until the summer of 1981 when the position was abolished and its duties consolidated with those of another job classification. Bilbrough sought to show in the federal action that he was terminated for political activity on behalf of candidates for election to the Board who were favorable to the then incumbent county superintendent of schools. Judge Young found that the decision by the successor superintendent to eliminate Bilbrough's position "was made without any consideration of Bilbrough's previous political activities." The court found that the new superintendent viewed Bilbrough as "an ineffective and unproductive manager of maintenance services" and that the superintendent sought to achieve greater efficiency and cost savings.

While Bilbrough's appeal to the Fourth Circuit was pending he brought the instant action in the Circuit Court for Kent County against the Board, Loller, and four others. The complaint contained seven counts, as to all of which Loller and the Board obtained summary judgment based on claim preclusion. After a certification under Rule 2-602 Bilbrough appealed the judgments in favor of the two petitioners to the Court of Special Appeals. Before that court Bilbrough limited his argument to counts I through III which claimed invasions of alleged privacy interests. The Court of Special Appeals held that the privacy claims were not precluded; it reversed as to them; and affirmed as to counts IV through VII.

Each of the first three counts also alleged that the privacy invasions had caused Bilbrough to lose his job as maintenance supervisor and to suffer reduced earnings, for which he claimed damages. The intermediate appellate court held that issue preclusion barred relitigating those claims for damages in the instant action. Petitioners obtained certiorari from this Court for review of the reversal of the circuit court judgment with respect to the privacy counts of the complaint. There was no cross-petition by Bilbrough.

We now turn to the allegations against Loller and the Board in the first three counts, as the Court of Special Appeals has limited those counts by excluding any claim, on any theory, for lost wages. In count I Bilbrough says that in June of 1980 he sought employment with the police department of Rock Hall, a municipality in Kent County. In his pre-employment interview Bilbrough disclosed a 1970 conviction in Caroline County, Maryland, for breaking and entering and petty larceny for which he had been sentenced to eighteen months probation, later reduced to one year, and as to which he had made restitution, amounting to $99. The Rock Hall police department also obtained Bilbrough's criminal history record information from a central repository maintained by the Maryland State Police. Count I further alleges that two of the defendants, respectively a policeman and a councilman of Rock Hall, took the criminal history record information from the police files, made photocopies of it, and provided it to Loller who in turn made it available to other members of the Board. Bilbrough asserts that this conduct violated a number of statutes and regulations, including § 524(b) of the Omnibus Crime Control and Safe Streets Act of 1968, now codified as 42 U.S.C. § 3789g(b), and gives rise to a private cause of action. 1

In count II Bilbrough avers that Loller caused one of the individual co-defendants to obtain the docket entries of Bilbrough's conviction from the Circuit Court for Caroline County, avers that this was done in order to hide the fact that the information had been illegally obtained from the Rock Hall police department files, and concludes that it was tortious to obtain a copy of the public court record for that purpose. 2

Bilbrough's complaint labels count III: "Invasion of Privacy, False Light." There he alleges that he had ordered inscribed ballpoint pens and business cards which described him as " 'Manager of Maintenance and Security, Kent County Schools,' " but that the defendants falsely characterized these purchases as "a misuse or embezzlement of state funds or as an unauthorized impersonation of a police officer." He further avers that he had been authorized to drive his own vehicle from school to school on security rounds for which he received an allowance of fourteen cents per mile but that the defendants had characterized his expense vouchers as dishonest and had also accused him of stealing gasoline from Kent County pumps. Count III additionally asserts that in March 1981 when Bilbrough "had just come from target practice," he responded to a report of a break-in at a county high school. He says he met police officers at the scene, that they had their guns drawn, and that he also drew the target pistol which he happened still to have with him. Bilbrough alleges that the defendants publicized this conduct in such a way as to make it appear that he "was a maniacal, gun-toting, dangerous person." 3

In each of these three counts Bilbrough claims that the acts complained of caused, inter alia, emotional and mental distress.

The opinion of the Court of Special Appeals relied heavily on our decision in MPC, Inc. v. Kenny, 279 Md. 29, 33, 367 A.2d 486, 489 (1977), where we observed:

Courts elsewhere have applied a variety of tests in determining whether two causes of action are the same for purposes of invoking res judicata. The measure which seems to find favor with most courts, and one which we have applied, is whether the same evidentiary facts would sustain both actions. See Mettee v. Boone, 251 Md. 332, 340-41, 247 A.2d 390 (1968); Alvey v. Alvey, [225 Md. 386,] 390[, 171 A.2d 92 (1961) ]; Williams v. Messick, 177 Md. 605, 613, 11 A.2d 472 (1940).

The intermediate appellate court analyzed whether the same evidentiary facts would sustain both of Bilbrough's actions. The analysis proceeded in much the same fashion as one would apply the required evidence test to determine whether multiple convictions had offended double jeopardy. Cf. Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932); Mason v. State, 302 Md. 434, 441-42, 488 A.2d 955, 958-59 (1985).

In the court's view counts I and II concerned alleged public disclosure of private facts, the publication of which would be offensive and objectionable to a reasonable person of ordinary sensibilities. The court considered count III's allegations to involve public disclosure of a fact which falsely portrayed the fact and which unreasonably placed Bilbrough in a false light before the public. The Court of Special Appeals concluded that it was "evident that the evidence required to establish [Bilbrough's] wrongful discharge claim based upon the violation of his first amendment rights is different from that necessary to sustain his invasion of privacy counts in this action."

Petitioners attribute preclusive effect to the judgment of the United States District Court for the District of Maryland. "Federal law determines the effects under the rules of res judicata of a judgment of a federal court." Restatement (Second) of...

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