Mandel v. O'Hara

Decision Date01 September 1990
Docket NumberNo. 33,33
Citation576 A.2d 766,320 Md. 103
PartiesMarvin MANDEL v. James F. O'HARA, III et al. ,
CourtMaryland Court of Appeals

Marvin Mandel, Annapolis, and H. Thomas Howell (Semmes, Bowen & Semmes, Baltimore, on brief), for petitioner.

Roy L. Mason (Angus R. Everton, Gary R. Jones, Montedonico & Mason, Chartered, Baltimore, on brief), for respondents.

Argued Before COLE, RODOWSKY, JOHN J. GARRITY, Judge of Court of Special Appeals (Specially Assigned), THEODORE G. BLOOM, Judge of the Court of Special Appeals, Specially Assigned, DALE R. CATHELL, Judge of the Court of Special Appeals, Specially Assigned, MARVIN H. SMITH, Judge of the Court of Appeals (Retired), Specially Assigned, and JAMES S. GETTY, Judge of the Court of Special Appeals (Retired), Specially Assigned.


This case involves public official immunity from liability for common law, nonconstitutional torts. At issue is the extent of the immunity of Governors of Maryland when an alleged tort is based upon their vetoing or approving legislation. For the reasons set forth below we hold, as a matter of Maryland common law, that the immunity applicable to the gubernatorial veto/approval function is, civilly, as complete an immunity as that which protects members of the General Assembly when voting for or against legislative bills. Under that type of immunity damages in tort may not be awarded against either a Governor or a member of the legislature based upon what a court or jury believes were the motives underlying the public official's exercise of these functions.

Appellees, James F. O'Hara, III and Michael P. O'Hara (the O'Haras), are the remaining plaintiffs in this suit which was instituted in 1978. They were stockholders in the corporation which owned the Marlboro racetrack. Their complaint now consists of one count alleging that common law deceit was practiced upon them in the December 31, 1971, sale of their Marlboro stock. In a previous appeal in this case, we reversed a summary judgment in favor of the defendants based on limitations. O'Hara v. Kovens, 305 Md. 280, 503 A.2d 1313 (1986). 1

Defendants in this action (collectively, the Kovens Group) include former Governor Marvin Mandel, the instant appellant.

Certain undisputed background facts are set forth in O'Hara.

"Prior to, or during, the 1971 session of the Maryland General Assembly, Marlboro and an entity (Hagerstown) which also conducted horse racing with parimutuel betting had agreed that Hagerstown would sell to Marlboro eighteen racing days theretofore utilized for the Hagerstown meeting. Those eighteen days, together with eighteen days previously allocated to Marlboro, would allow thirty-six days of racing by Marlboro. Transfer of the Hagerstown days was subject to legislative approval.

Approval at either the 1971 or 1972 session of the Maryland General Assembly would have satisfied the approval condition in the contract. H.B. 1128, enacted at the 1971 legislative session, conferred the necessary approval. On May 28, 1971, then Governor Mandel, expressing concerns about the wisdom and constitutionality of the legislation, vetoed H.B. 1128. Following the sale by the plaintiffs of their stock in Marlboro the General Assembly on January 12, 1972, overrode the veto.... In December 1972 Marlboro merged with another corporation (Bowie) which conducted horse racing with parimutuel betting at the Bowie racetrack. On November 24, 1975, the federal government filed indictments against Governor Mandel and others ... of the Kovens Group."

305 Md. at 283-85, 503 A.2d at 1314-16 (footnote omitted). 2

Our opinion in the earlier appeal explained the theory of the plaintiffs' case to be

"that there was a conspiracy between Governor Mandel and others of the Kovens Group which antedated May 28, 1971. Plaintiffs in essence contend that the alleged conspirators planned (1) to have the Mandel veto depress the value of Marlboro stock below the price it would have commanded had H.B. 1128 been signed into law, (2) to acquire the stock at a depressed price, and then (3) to restore its value by having Governor Mandel 'himself and through his agents' induce the General Assembly to override the veto."

Id. at 286, 503 A.2d at 1316. On that previous appeal the only issue related exclusively to the limitations defense. We were not presented any issues concerned "with the sufficiency of any undisputed facts to prove any element of plaintiffs' deceit theory, or whether any alleged facts, if proved, would establish a cause of action." Id.

After our remand Governor Mandel moved for summary judgment on the ground of absolute immunity. The trial court denied that motion. Governor Mandel noted an appeal to the Court of Special Appeals and sought a stay which that court granted. He also petitioned this Court for certiorari. We issued the writ prior to any determination on the merits by the Court of Special Appeals in order to decide this question of public importance.

The parties agree that a Governor of Maryland, if performing gubernatorial duties involving the exercise of discretion, enjoys a degree of public official immunity. They disagree over whether an absolute or qualified immunity applies here. An absolute immunity from tort liability "stands even if the official acts in bad faith, or with malice or corrupt motives." Prosser & Keeton on Torts, § 132, at 1057 (5th ed. 1984) (footnote omitted) (Prosser). "[Q]ualified immunity is usually destroyed by 'malice,' bad faith or improper purpose[.]" Id. at 1059-60 (footnotes omitted).

Absolute "immunity protects both judges and legislators, so long as their acts are 'judicial' or legislative in nature and within the very general scope of their jurisdiction." Prosser at 1056-57 (footnotes omitted). And see Restatement (Second) of Torts § 895D, comment c, at 412 (1977) (a judge or a legislator "is not liable for [that official's] discretionary acts or omissions even though [the official] is found to have acted with malicious or other improper motives"). "The policy is to free the officer from the necessity of submitting [the officer's] purposes, motives and beliefs to the uncertain appraisal of juries or even judges." Id.

Determining immunity defenses at any given point across the wide range of various duties performed by the vast numbers of officials and employees in the executive branch of federal, state and local governments is by no means as relatively clear-cut as determining legislative and judicial immunities. The Restatement's attempt at generalization is that "[a] high-level executive officer is usually accorded the same type of immunity as that given the judge and for the same reasons." § 895D, comment d, at 413. The high-level executive must feel free to make discretionary decisions "without being subject to influence by the threat of a harassing suit." Id. Immunity "is not confined to the executive officials who are at the highest level." Id. There are many situations, some giving rise to absolute immunity, others qualified immunity and still others only a defense based on reasonableness of the decision. Id. at 413-15. Prosser's attempt at generalization is that, in most states, officials and employees of the executive department, with respect to state law claims against them, "enjoy no immunity at all for ministerial acts and only a qualified immunity on matters calling for the officer's discretion." Prosser, at 1059 (footnote omitted).

In the case before us Governor Mandel attempts to avoid the thicket which is the law of immunities resting solely on executive department duties. One of his arguments is that the veto/approval function is a legislative function, so that a Maryland Governor is protected civilly in that function by an absolute immunity, as are legislators.

We also granted certiorari on whether the order denying the motion for summary judgment is appealable. It is. We shall first explain our resolution of the immunity questions and then appealability.


The decisions of this Court neither compel nor foreclose the conclusion that a Governor of Maryland has an absolute civil immunity when vetoing or approving legislation. The occasion to consider that issue simply has not arisen. But some discussion of absolute versus qualified immunity for executive department officials of lesser rank than Governor does appear in our cases.

When a mayor of Baltimore City ordered a painting removed from a municipal museum, the artist sued the mayor alleging, inter alia, interference with contractual relations, libel and slander. The mayor argued absolute immunity or privilege, and the trial court sustained a demurrer. In Walker v. D'Alesandro, 212 Md. 163, 129 A.2d 148 (1957), this Court, speaking through Chief Judge Brune, said:

"The basis for immunity from liability by reason of privilege is that a public or social interest is to be served by according the privilege; and as Professor Prosser observes ( [Prosser, Torts (2d ed. 1955) ], § 16), 'The sliding scale by which the law balances the interests of the parties to accomplish a social purpose is nowhere better illustrated than in the field of privilege.' An absolute privilege is accorded to judicial proceedings and to legislative proceedings and to the activities of high executive officers.... As to executive officers, see Spalding v. Vilas, 161 U.S. 483 [16 S.Ct. 631, 40 L.Ed. 780] (U.S. Postmaster General) and Matson v. Margiotti, 371 Pa. 188, 88 A.2d 892 (State Attorney General)."

Id. at 169-70, 129 A.2d at 151. The Court assumed, without holding, that an absolute privilege would be accorded to the holder of the office of Mayor of Baltimore City, but concluded "that none of the acts complained of ... are within the actual field of the defendant's powers or duties as Mayor or so closely related thereto as to be entitled to an absolute privilege...." Id. at 173, 129 A.2d at 153.

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