Surratt v. Prince George's County, Md.

• Decision Date: 04 September 1990
• Docket Number: No. 140,140
• Citation: 320 Md. 439,578 A.2d 745
• Parties: Blondine SURRATT, et al. v. PRINCE GEORGE'S COUNTY, MD. Sept. Term 1989.
• Court: Maryland Court of Appeals

Page 439

320 Md. 439

578 A.2d 745

Blondine SURRATT, et al. v. PRINCE GEORGE'S COUNTY, MD.

No. 140 Sept. Term 1989.

Court of Appeals of Maryland.

Sept. 4, 1990.

Elizabeth H. Hamlin (Christmas, Hamlin and Blaszkow, P.C., on brief), Washington, D.C., for petitioners

Michael O. Connaughton, Upper Marlboro, and Michael P. DeGeorge (Mell & Associates, Washington, D.C.) on brief, for respondent.

Argued before ELDRIDGE, COLE, RODOWSKY, McAULIFFE, ADKINS ^* and CHASANOW and CHARLES E. ORTH, Jr., Judge of the Court of Appeals of Maryland, (retired, Specially Assigned), JJ.

ADKINS, Judge.

In Prince George's County v. Fitzhugh, 308 Md. 384, 519 A.2d 1285 (1987), we held that § 1013 of the Prince George's County Charter constituted a full waiver of governmental immunity because a purported limitation of the scope of the immunity embodied in a 1982 charter amendment was not authorized by the Express Powers Act. We now hold that 1986 amendments to § 1013 were equally ineffective to abolish the waiver of immunity. We further hold that a plaintiff who accepts a remittitur may, nevertheless, cross-appeal if the defendant appeals. As a consequence of that holding, we deal with a difficult issue involving recusal of the trial judge. We reverse the judgment of the Court of Special Appeals in Prince George's County v. Surratt, 80 Md.App. 415, 564 A.2d 95 (1989). ¹

I. WAIVER OF IMMUNITY

To place this issue in context, we need sketch only briefly the outlines of the underlying litigation. We shall supply additional details when we address the other issues.

A.

Petitioners Blondine Surratt and Donald Jackson were the parents of Baby Boy Surratt who died at the age of 14 days as a result, petitioners alleged, of obstetrical malpractice. After their claims had been rejected by a health claims arbitration panel, Surratt (as personal representative of the infant's estate and as his mother) and Jackson (as the

                child's father) sued a doctor and respondent Prince George's County (owner and operator of the hospital where Surratt had undergone prenatal treatment and where the baby had been born).   A jury awarded damages of $533,739.86 against the County, the trial court having rejected the County's plea of governmental immunity.   The Court of Special Appeals decided otherwise and held that "the claims of medical malpractice and wrongful death are barred by governmental immunity."  Surratt, 80 Md.App. at 418, 564 A.2d at 97.   Our review of that holding requires us to revisit the somewhat convoluted history of governmental immunity in Prince George's County
                

B.

Fitzhugh traces that history, 308 Md. at 387-389, 519 A.2d at 1286-1287. Section 1013 of Prince George's County's first charter, adopted in 1970, in pertinent part permitted "[t]he County [to be] sued in actions sounding in tort in the same manner and to the same extent that any private person may be sued." Id. at 387, 519 A.2d at 1286. In Bradshaw v. Prince George's County, 284 Md. 294, 396 A.2d 255 (1979), we held that that language meant what it said, but no more than that. We concluded that the waiver did not extend to public official immunity of individual police officers, and that if the officers were immune, the County could not be held liable on the basis of respondeat superior. 284 Md. at 303-305, 396 A.2d at 261-262.

Although § 1013 had been somewhat amended in 1976, James v. Prince George's County, 288 Md. 315, 320-321, 418 A.2d 1173, 1176-1177 (1980), pronounced that the section still waived fully the County's governmental immunity. We modified Bradshaw, however, by holding that the language of the section "makes the county liable for the negligent conduct of all of its employees occurring in the course of their employment, without regard to their status as public officials." 288 Md. at 336, 418 A.2d at 1184 [footnote omitted]. See also Cox v. Prince George's County, 296 Md. 162, 460 A.2d 1038 (1983).

It seems that the County was not pleased with the outcome of James. The county attorney's office drafted an amendment to § 1013 which was adopted in 1982. The section then read [language added in 1982 emphasized]:

The County may be sued in actions sounding in tort for which its officers, agents, and employees may be liable, by actions filed in the courts of the State of Maryland, or in the United States District Court for the District of Maryland, with a maximum liability of ... ($250,000) per individual, per occurrence, to the extent of its liability insurance, whichever may be greater. The County shall carry liability insurance to protect itself, its officers, agents, and employees. Nothing herein shall preclude the County from meeting the requirements of this section by a funded self-insurance program, and nothing herein shall be deemed to be a waiver of any charitable, governmental, or sovereign immunity which any officer, agent, or employee shall otherwise have, by reason of any Statute of the United States of America, public general law of the State of Maryland, or common law as determined by the Courts of Maryland.

Fitzhugh, 308 Md. at 389, 519 A.2d at 1287.

That version was before us in Fitzhugh, where we struck down, as unauthorized by the Express Powers Act, ² the attempt to limit "the county's waiver of governmental immunity to cases in which county officers, agents, or employees do not possess public official or any other sort of individual immunity." Id. at 389, 394, 519 A.2d at 1287, 1290. We declined to decide whether the emphasized language (that added in 1982) could be severed, because the result would be the same in either case:

If the offending provision is severed, the remainder of § 1013 constitutes a full waiver of governmental immunity. The section would read as it did in 1976, and in James we held it had that effect. If the language added in 1982 is not severed, § 1013 is invalid in its entirety, because of Id. at 395, 519 A.2d at 1290.

                its violation of the Express Powers Act.   The total invalidity of the 1982 version of § 1013 means that this case is governed by the section as it was adopted in 1976
                

It seems that the outcome of Fitzhugh was not to the County's liking either, and that it had foreseen the possibility of that outcome even before our decision. In 1986 the county attorney's office drafted and the voters adopted yet another version of § 1013. Fitzhugh, 308 Md. at 388-389 n. 3, 519 A.2d at 1287 n. 3. The pertinent portions of that draft provided [new language emphasized]:

The County may be sued in actions sounding in tort only for those occurrences for which its officers, agents, and employees may be liable.... The sentences, clauses or phrases of this section shall not be severable. If any such sentence, clause or phrase of this section is declared unconstitutional or invalid for any reason, then it is intended and declared by the people of the County that the entire section be declared invalid.

It is the non-severability portion of this amendment that the County invokes in this case. Since Fitzhugh in effect held invalid the attempt to limit immunity evidenced by the first sentence, the County argues that the second sentence effectively repeals § 1013 altogether, thereby abolishing any waiver of governmental immunity. It persuaded the Court of Special Appeals to adopt this position, and thus to reverse the earlier judgments in favor of Surratt and Jackson. Surratt, 80 Md.App. at 423, 564 A.2d at 99. Were the 1986 amendment to the charter valid, that holding might well be correct. But the amendment was not valid. We explain.

C.

In Anne Arundel Co. v. McDonough, 277 Md. 271, 354 A.2d 788 (1976), we struck down the results of a referendum because we were convinced that the failure of the ballot question to present a clear, unambiguous and understandable statement of the full and complete nature of the issues included in [that question], coupled with the advertisements, limited as they were to a verbatim statement of the Question[,] constituted a "deviation from the prescribed forms of the law [and] had so vital an influence as probably to have prevented a free and full expression of the popular will."

Id. at 307, 354 A.2d at 809 (quoting Dutton v. Tawes, 225 Md. 484, 491, 171 A.2d 688, 691 (1961)). We explained that

"Question D," both as it was stated on the voting machines, and as it was advertised prior to the election, was so inaccurate, ambiguous and obtuse, that an ordinary voter, of average intelligence, could not, in a meaningful and comprehending manner, have knowledgeably exercised his franchise when called upon to vote either "FOR" or "AGAINST" that question.

McDonough, 277 Md. at 307-308, 354 A.2d at 809.

The ballot question in McDonough concerned a referendum on a complex zoning question. The ballot read:

"QUESTION NO. D

REFERENDUM

To rezone certain parcels of land in the median strip, the west side of the southbound lane and the east side of the northbound lane of Route 3; and to rezone one parcel of land on the west side of Brockbridge Road near Ellen Street; all parcels of which are in the Fourth Assessment District and which were rezoned by virtue of amendments to Bill No. 59-73."

277 Md. at 278, 354 A.2d at 792-793. Voters were directed to vote "FOR" or "AGAINST" this question. Id.

We thought that the question, so worded, limited the choice of voters "to a vote 'FOR' or 'AGAINST' 'rezoning.' " Id. at 298, 354 A.2d at 804. [emphasis in original]. As so limited, the ballot failed to disclose the nature of the rezoning (which involved 41 different amendments to County Bill No. 59-73), the location of the properties, or that the zoning of the J.F. Johnson Lumber Co., which was the subject of one of the amendments, would not, in fact, be affected in any way by the referendum. Id. at 298-299, 354 A.2d at 804. As a consequence, the ballot question did not comply with the requirement of Maryland Code (1957, 1986 Repl.Vol.), Article 33, § 16-6(a), that a ballot " 'shall contain a condensed...