Law Digest – Aug. 20, 2015

Court of Special Appeals

Civil Procedure, Bankruptcy exemption: Where the circuit court granted summary judgment in favor of the defendants in plaintiff’s personal injury action on the basis that, because the plaintiff had filed for bankruptcy protection after being injured but failed to disclose her personal injury claim and failed to assert that the claim was exempt from the claims of her creditors, the personal injury claim was owned not by the plaintiff but by the bankruptcy trustee, the circuit court, after learning that the plaintiff had reopened the bankruptcy case, disclosed the personal injury claim, and acquired the claim, was obligated to revisit its erroneous grant of summary judgment and, therefore, erred in denying the plaintiff’s motion to alter or amend the judgment. Schlotzhauer v. Morton, No. 49, Sept. Term, 2014.

Contract Law, Formation: Circuit court properly dismissed for failure to state a claim plaintiff’s breach of contract action alleging that defendant violated a “teaming agreement” between the parties, because the “teaming agreement” was merely an “agreement to agree” on a potential future subcontract and did not demonstrate an intent to be bound, and, therefore, was not an enforceable contract. Advance Telecom Process LLC v. DSFederal, No. 1371, Sept. Term, 2014.

Criminal Procedure, Search incident to arrest: Circuit court properly denied defendant’s motion to suppress evidence found in his vehicle, which was searched upon defendant’s arrest under suspicion of driving while intoxicated, because the arresting officer’s training and experience supported a reasonable basis for determining that defendant was intoxicated, the lack of any innocent explanation for apparent intoxication was grounds for reasonable suspicion, and it was reasonable to think defendant became intoxicated in the vehicle. Taylor v. State, No. 494, Sept. Term, 2014.

Labor & Employment, Reasonable accommodations: In plaintiff-employee brought an action against her employer under the Maryland Fair Employment Practices Act, circuit court erred in granting defendant-employer summary judgment because material issues of fact existed as to whether plaintiff gave defendant required notice of her disability and need for accommodation. Adkins v. Peninsula Regional Medical Center, No. 712, Sept. Term, 2014.

Torts, Judicial immunity: Circuit court erred in denying the State’s motion to dismiss the plaintiff’s tort action against a courtroom clerk who erroneously issued an arrest warrant against the plaintiff because the clerk, as a judicial officer who was performing a judicial act, was entitled to judicial immunity. State v. Keller-Bee, No. 1110, Sept. Term, 2014.

Criminal Procedure

Bankruptcy exemption

BOTTOM LINE: Where the circuit court granted summary judgment in favor of the defendants in plaintiff’s personal injury action on the basis that, because the plaintiff had filed for bankruptcy protection after being injured but failed to disclose her personal injury claim and failed to assert that the claim was exempt from the claims of her creditors, the personal injury claim was owned not by the plaintiff but by the bankruptcy trustee, the circuit court, after learning that the plaintiff had reopened the bankruptcy case, disclosed the personal injury claim, and acquired the claim, was obligated to revisit its erroneous grant of summary judgment and, therefore, erred in denying the plaintiff’s motion to alter or amend the judgment.

CASE: Schlotzhauer v. Morton, No. 49, Sept. Term, 2014 (filed July 30, 2015) (Judges Meredith, ARTHUR & Leahy). RecordFax No. 15-0730- , pages.

FACTS: When a person files for protection from creditors under federal bankruptcy law, all of the person’s property, including personal injury claims, become the property of the bankruptcy estate, even if the person intentionally, inadvertently, or innocently fails to disclose them to the trustee, the bankruptcy court, and the creditors. Generally, the bankruptcy trustee alone may assert that person’s rights, including the right to pursue a tort claim for personal injuries, unless the trustee abandons the rights. If the rights have not been abandoned or exempted, the bankruptcy trustee retains the sole right to assert them even after the bankruptcy court has closed the bankruptcy case and granted the debtor a discharge.

Cindy Schlotzhauer filed for bankruptcy protection a few months after she suffered personal injuries in an automobile accident. In her bankruptcy filings, however, Schlotzhauer neither disclosed her personal injury claim nor asserted that it was exempt from the claims of her creditors. Consequently, her bankruptcy trustee did not abandon the claim, and the court did not declare it to be exempt. Instead, even after the bankruptcy court discharged her debts and closed her case, the claim remained the property of her estate, which her trustee alone could assert.

After emerging from bankruptcy, Schlotzhauer asserted the personal injury claim in the circuit court. The defendants, Kevin Morton and Uni-Select USA, Inc. (collectively “Uni-Select”), moved for summary judgment on the ground that she had no right to assert the claim because it belonged to her bankruptcy trustee. Schlotzhauer responded by promptly returning to the bankruptcy court, reopening her case, disclosing the personal injury claim, and obtaining a ruling that the claim was exempt from the claims of her creditors and had been revested in her. Nonetheless, on the same day that the bankruptcy court docketed the ruling in which it declared the claim to be exempt and to have been revested in Schlotzhauer, the circuit court, which was unaware of the bankruptcy court’s decision, granted Uni-Select’s motion for summary judgment.

In a motion to alter or amend filed pursuant to Maryland Rule 2-534, Schlotzhauer apprised the circuit court both of the bankruptcy court’s decision and of a subsequent decision in which the bankruptcy court ruled that the personal injury claim had been re-vested in her by operation of federal bankruptcy law before she even commenced this case. The circuit court denied the motion to alter or amend.

Schlotzhauer appealed to the Court of Special Appeals, which vacated the judgment of the circuit court and remanded the case.

LAW: Maryland Rule 2-534 permits parties to invoke the court’s revisory power, stating that the court, on motion of any party filed within ten days after entry of judgment, the court may open the judgment to receive additional evidence, may amend its findings or its statement of reasons for the decision, may set forth additional findings or reasons, may enter new findings or new reasons, may amend the judgment, or may enter a new judgment. Pursuant to this Rule, the circuit court has broad discretion whether to grant motions to alter or amend filed within ten days of the entry of judgment, and its discretion is to be applied liberally so that a technicality does not triumph over justice. Benson v. State, 389 Md. 615, 653 (2005).

In the instant case, the circuit court properly exercised its discretion to consider the impact of the bankruptcy court’s orders. See In re Adoption/Guardianship of Joshua M., 166 Md. App. 341, 356 (2005). The circuit court scheduled a hearing even though a hearing is typically not required for a motion to reconsider the grant of summary judgment. See Md. Rule 2-311(f). Furthermore, the hearing transcript reflected that the court accepted the evidence of the post-judgment developments and considered the parties’ written arguments regarding the effect of the bankruptcy court’s decisions. The court specifically directed the parties to address the potential curative effect of the bankruptcy court’s orders.

Uni-Select did not object to the consideration of “post-judgment” evidence, but instead maintained that the circuit court’s ruling was legally correct even in light of the outcome of the bankruptcy proceedings. Although the circuit court did not elaborate when it denied Schlotzhauer’s post-judgment motion, the circumstances established that the court credited the argument that Uni-Select was legally entitled to judgment even if Schlotzhauer had been revested with the right to assert her claim as of the date of her bankruptcy petition in 2010. See Wormwood v. Batching Sys., Inc., 124 Md. App. 695, 701 (1999). Consequently, the central question on appeal was whether, after the circuit court exercised its discretion to consider the bankruptcy court’s rulings concerning when Schlotzhauer reacquired her claim, the court was correct in ruling that Uni-Select was still entitled to summary judgment.

A petition for bankruptcy, when filed by a debtor such as Schlotzhauer, creates an estate consisting of “all property,” including all legal or equitable interests of the debtor in property at the commencement of the case. 11 U.S.C. §541(a)(1). This definition encompasses all kinds of tangible and intangible assets, including personal injury claims as well as property that may be exempt under state law. See, e.g., In re Orso, 283 F.3d 686, 691 (5th Cir. 2002). The estate is represented by a trustee, who has the capacity to file suit to assert the debtor’s claims. See 11 U.S.C. §323. The debtor must file a schedule of assets and liabilities at the time of the petition and must list all property that the debtor claims as exempt. 11 U.S.C. §522(l).

Maryland residents can claim exemptions under state law, including an exemption “from execution on a judgment” that is “payable in the event of sickness, accident, injury, or death of any person, including compensation for loss of future earnings.” CJP §11-504(b)(2). Debtors may amend or supplement their schedules as a matter of course before the bankruptcy case closes. Fed. R. Bankr. P. 1009(a). In addition, the bankruptcy court has discretion to reopen a case “to administer assets, to accord relief to the debtor, or for other cause.” 11 U.S.C. §350. The bankruptcy court has discretion to permit a party to perform an act, such as the filing of amended asset schedules, even after the specified period in which the act is required or allowed to be done. Fed. R. Bankr. P. 9006(b)(1). It was pursuant to these provisions that the bankruptcy court permitted Schlotzhauer to reopen her bankruptcy case, file amended schedules, and claim an exemption for her cause of action against Uni-Select.

In granting summary judgment in favor of Uni-Select, on January 8, 2014, the circuit court asserted that the bankruptcy court had “not taken any action” yet and that the cause of action “currently” belonged to the bankruptcy estate. Unbeknownst to the circuit court, however, the bankruptcy court had just ruled that, after the allowance of the exemption, which took effect on November 26, 2013, the claim “belonged and belongs” to Schlotzhauer. In light of the bankruptcy court’s clear ruling on this principle of federal bankruptcy law, the circuit court’s contrary conclusion was legally incorrect, as was the accompanying grant of summary judgment. Therefore, when Schlotzhauer brought the error to the circuit court’s attention, it was obligated to revisit its ruling and to consider the consequences of its unintended error. See Williams v. Hous. Auth. of Baltimore City, 361 Md. 143, 153 (2000).

In its initial grant of summary judgment, the circuit court had relied prominently on Bowie v. Rose Shanis Financial Services, LLC, in which the Court of Appeals affirmed the entry of summary judgment against a bankrupt debtor who had never disclosed his claim in his bankruptcy case, whose claim was plainly not exempt from creditor claims, and who had never sought an exemption. Bowie v. Rose Shanis Financial Services, LLC, 160 Md. App. 227 (2004). Even before the bankruptcy court handed down its decisions concerning when Schlotzhauer reacquired her claim, Bowie was readily distinguishable from this case: Schlotzhauer disclosed her claim (albeit belatedly); she claimed an exemption; and she was very clearly entitled to the exemption. See CJP §11-504(b)(2). These factors placed Schlotzhauer’s claim outside the bankruptcy estate the trustee is charged to administer. Schwab v. Reilly, 560 U.S. 770, 800 (2010).

Accordingly, the judgment of the circuit court was vacated and the case remanded.

COMMENTARY: Uni-Select argued that limitations barred Schlotzhauer from proceeding in her personal injury lawsuit as she was not the real party in interest on December 27, 2012, the date she filed suit, and, hence, “lacked standing.”

This argument, however, failed to account for the operation of the doctrine of relation back. Through the allowance of the exemption by the bankruptcy court, Schlothauer reacquired her claim by operation of law. In exempting her claims from the bankruptcy estate, she became the real party in interest, replacing the trustee as the real party in interest.

When Schlotzhauer replaced the trustee as real party in interest, her rights related back to the commencement of the lawsuit. See Crowe v. Houseworth, 272 Md. 481 (1974). Therefore, as a matter of law, the statute of limitations did not bar Schlotzhauer’s claim.

Contract Law

Formation

BOTTOM LINE: Circuit court properly dismissed for failure to state a claim plaintiff’s breach of contract action alleging that defendant violated a “teaming agreement” between the parties, because the “teaming agreement” was merely an “agreement to agree” on a potential future subcontract and did not demonstrate an intent to be bound, and, therefore, was not an enforceable contract.

CASE: Advance Telecom Process LLC v. DSFederal, No. 1371, Sept. Term, 2014 (filed July 30, 2015) (Judges Krauser, GRAEFF & Kehoe). RecordFax No. 15-0730- , pages.

FACTS: Advance Telecom Process, LLC filed an eight-count complaint against DSFederal, Inc. in the circuit court, alleging that DSFederal unlawfully terminated a Teaming Agreement between the parties and committed a variety of other torts. The complaint alleged that, over a 12-month period, Advance created and developed two projects: (1) Enterprise Applications Security, Identity Management & Access Management, and (2) Rapid Development of “Proof Concept” Application. Advance then submitted to U.S. Citizenship & Immigration Services, U.S. Department of Homeland Security (“USCIS-DHS”), a White Paper proposing the projects.

According to the complaint, the White Paper was formatted in a way that it could be submitted to other federal agencies for implementation into their systems once it had been fully approved, implemented and deemed a success by USCIS-DHS, thereby increasing its value as a selling point of Advance. After Advance presented the White Paper, USCIS-DHS notified Advance that it would accept the proposal under a sole-source contract, based upon Federal Acquisition Regulations (“FAR”) 6.3. USCIS-DHS also informed Advance that the sole-source contract would be subject to the 8(a) STARS II GWAC program.

Advance then began researching the available certified 8(a) STARS contractors, and it was referred to DSFederal. Advance contacted DSFederal and disclosed “all the relevant facts and details involving” the proposal. DSFederal then entered into a contractual relationship with Advance. The complaint characterized this relationship as including “the parties’ execution of any and all Teaming Agreement(s), subcontract(s), and/or any and all required necessary documentation for the purpose of obtaining and working on the sole-source contract of the proposed project that [Advance] had submitted to USCIS-DHS.” DSFederal agreed and contracted with Advance to “jointly develop and submit a bid to USCIS-DHS for said project.” Based on the contractual relationship between the parties, Advance submitted DSFederal’s name to USCIS-DHS as the 8(a) STARS contractor for the project.

Thereafter, Advance and DSFederal developed a proposal and bid to submit to USCIS-DHS,” which offer and proposal included “the relationship between” Advance and DSFederal. Advance and DSFederal also entered into a Teaming Agreement, which the complaint alleged incorporated the scope of work to be performed by each party. According to the complaint, the Teaming Agreement provided that, within ten days of receipt of the contract from USCIS-DHS, DSFederal was to provide a copy of the contract to Advance, issue a subcontract to Advance for consulting support, and use its “best efforts” to award Advance a target work share of 58 percent of effort based on labor costs awarded under the contract. Advance was required to provide DSFederal with “proprietary information and industry expertise.”

Advance and DSFederal worked together to complete all applicable requirements of the pre-bid solicitation. After submitting the bid, DSFederal was awarded a sole-source GWAC by the USCIS-DHS to develop and implement the two projects based on the “combined efforts of the parties.” Subsequently, the complaint alleged, DSFederal “constructively terminated” Advance, despite a clause in the Teaming Agreement requiring mutual termination. Count I of the complaint, alleging breach of contract, stated that DSFederal had a contractual obligation to execute a subcontract with Advance. DSFederal also failed to present Advance with a copy of the contract with USCIS-DHS, failed to allow Advance’s staff to begin work, and illegally terminated the Teaming Agreement. Advance sought damages in the amount of $2.2 million.

DSFederal filed a motion to dismiss the complaint. The circuit court granted the motion to dismiss, agreeing with DSFederal that the Teaming Agreement was “an agreement to agree,” and therefore, it was not an enforceable contract.

Advance appealed to the Court of Special Appeals, which affirmed the judgment of the circuit court.

LAW: Advance argued that the court erred in finding that the Teaming Agreement was an agreement to agree and not a contract.” While Advance conceded that relevant Maryland law, and that of other jurisdictions, generally speaks to the unenforceability of teaming agreements, where future negotiations between the parties are contemplated, it argued that in this case, where the terms of the Teaming Agreement were either explicitly stated and/or provided a framework for interpreting the terms, the agreement showed mutual assent to be bound, and therefore, was an enforceable contract.

In Maryland, an essential prerequisite to the creation or formation of a contract is a manifestation of mutual assent. Cochran v. Norkunas, 398 Md. 1, 14 (2007). Manifestation of mutual assent includes two issues: (1) intent to be bound, and (2) definiteness of terms. Id. The failure of parties to agree on an essential term of a contract may indicate that the mutual assent required to make a contract is lacking. Id. Likewise, if parties do not intend to be bound until a final agreement is executed, there is no contract. Id.

With regard to the intent requirement, the primary source for determining the intention of the parties is the language of the contract itself. 8621 Ltd. P’ship v. LDG, Inc., 169 Md. App. 214, 226, cert. denied, 394 Md. 480 (2006). Although the Maryland appellate courts had not previously addressed whether, or under what circumstances, teaming agreements are enforceable, courts in other jurisdictions have done so. Typically, a teaming agreement is an arrangement whereby a subcontractor will “team” with a company intending to bid on a government contract as a prime contractor in order to pool financial and technical resources. See ATACS Corp. v. Trans World Commc’ns, Inc., 155 F.3d 659, 666-67 (3d Cir. 1998).

Under such teaming agreements, the subcontractor would ordinarily provide technical expertise and assist in the prime contractor’s bid submission in return for the prime contractor’s promise to award the subcontract. Id. Parties to such a teaming agreement benefit from the arrangement not only as a means of sharing resources, but also as a hedge against the many uncertainties involved in government contracting. Id. In many cases, the finalized subcontract between the parties to a teaming agreement will specifically enumerate the scope of obligations for each party contingent upon the prime contractor winning the RFP so that there is usually little need to enforce the teaming arrangement itself. Id. Often, however, the parties may reach an understanding to team, but fail to execute a subcontract as anticipated in the teaming agreement. Id. As with most other “preliminary agreements” precedent to an executed contract, question arises whether the teaming agreement itself, absent an executed subcontract, may constitute the basis for contractual liability. Id.

The fact that the parties never finalized an implementing subcontract is not, of itself, usually fatal to enforcing the teaming agreement on its own – if the parties intended the teaming agreement itself to constitute a binding agreement that enumerated definite terms of behavior governing the parties during, or even after, the bidding process. Id. Where a teaming agreement provides for obligations that are definite and mutually agreed upon, such as an agreement to negotiate in good faith or an agreement to negotiate exclusively, the obligations can be enforced. Id. at 667-68. However, a simple promise to enter into a subcontract at a later date does not constitute an enforceable contract. Id. at 667; see also Cyberlock Consulting, Inc., v. Info. Experts, Inc., 939 F. Supp. 2d 572, 579 (2013), aff’d, 549 Fed. Appx. 211 (4th Cir. 2014). Thus, the terms of a Teaming Agreement, like any other contract, are enforceable only if the parties demonstrate mutual assent, i.e., the intent to be bound and definite terms.

Here, the Teaming Agreement contained some obligations that were enforceable, such as a provision stating that in the event that a contract was awarded to DSFederal as a result of the submitted proposals, the parties would negotiate in good faith and execute a subcontract agreement. Because this provision contained a definite and mutually agreed upon requirement to negotiate in good faith, this was an enforceable obligation. See ATACS, 155 F.3d at 667-68. However, Advance did not argue that DSFederal breached its duty to negotiate in good faith. Instead, it asserted that DSFederal breached the Teaming Agreement by failing to actually execute a subcontract. The Teaming Agreement, when read as a whole, did not impose a contract obligation on DSFederal to execute a subcontract. Rather, it was an “agreement to agree” on a potential future subcontract, which is not an enforceable contract provision.

The Teaming Agreement, read as a whole, indicated that the parties intended to establish not a binding obligation to issue a subcontract, but merely an agreed framework for negotiation of a future subcontract. Because the Teaming Agreement left material terms for future negotiation, it constituted an agreement to agree on a future subcontract, and there was no enforceable requirement that DSFederal issue a subcontract to Advance. As such, the circuit court properly found that the complaint failed to state a legal cause of action for breach of contract, and it properly granted the motion to dismiss.

Accordingly, the judgment of the circuit court was affirmed.

COMMENTARY: As a preliminary matter, Advance argued that the circuit court erred by treating the motion to dismiss as a motion for summary judgment and granting the motion prior to determining whether material facts existed that were not discernible from the complaint. As a general proposition, where matters outside of the allegations in the complaint and any exhibits incorporated in it are considered by the trial court, a motion to dismiss generally will be treated as one for summary judgment. See, e.g., Worsham v. Ehrlich, 181 Md. App. 711, 722, cert. denied, 406 Md. 747 (2008). However, the record reflected that the parties and the circuit court proceeded on the understanding that the hearing was addressing a motion to dismiss. As such, this argument was without merit.

PRACTICE TIPS: Although the Maryland Rules of Civil Procedure are silent as to when a request for leave to amend may be filed, a party may not amend the pleadings in the appellate court after an appealable final judgment has been entered.

Criminal Procedure

Search incident to arrest

BOTTOM LINE: Circuit court properly denied defendant’s motion to suppress evidence found in his vehicle, which was searched upon defendant’s arrest under suspicion of driving while intoxicated, because the arresting officer’s training and experience supported a reasonable basis for determining that defendant was intoxicated, the lack of any innocent explanation for apparent intoxication was grounds for reasonable suspicion, and it was reasonable to think defendant became intoxicated in the vehicle.

CASE: Taylor v. State, No. 494, Sept. Term, 2014 (filed July 30, 2015) (Judges Eyler, D., ZARNOCH & Nazarian). RecordFax No. 15-0730- , pages.

FACTS: At 1:00 a.m. on March 1, 2013, Patrolman Chad Mothersell observed an SUV speeding and passing through a stop sign. Mothersell pulled over the SUV and approached the vehicle, in which Efrain Taylor was the only occupant. Mothersell detected a minor odor of alcohol from Taylor and he observed that Taylor’s speech was slurred and difficult to understand. Mothersell further observed that Taylor’s eyes were bloodshot and glassy.

Mothersell asked Taylor to step out of the vehicle so that the officer could administer field sobriety tests. Mothersell determined that Taylor failed these tests.

Mothersell placed Taylor under arrest for suspicion of DUI. By that time, Mothersell’s back-up officer, Officer Carroll searched the vehicle and found inside the center console a clear plastic baggy containing several knotted bags of what he suspected to be cocaine.

Taylor was charged with possession with intent to distribute Controlled, driving while impaired and other traffic violations. Prior to trial, Taylor filed a motion to suppress evidence. Mothersell explained at the suppression hearing that the purpose of a “search of a vehicle is to locate any other alcohol, open containers, anything pertaining to the DUI arrest.”

Taylor’s counsel later argued that Mothersell lacked “independent probable cause” for the search, because Mothersell testified that he saw no potential open containers when he initially approached Taylor’s car and because there was no odor of alcohol identified by the law-enforcement officer emanating from the vehicle itself as opposed to Taylor.

The court denied his motion.

Taylor was convicted of possession with intent to distribute Controlled Dangerous Substance (CDS), Md. Code (2002, 2012 Repl. Vol., 2014 Supp.), Criminal Law Article (“CL”) §5-602, possession of CDS, CL §5-60; driving under the influence, Transportation Article (“TR”) §21-902(a); and driving while impaired, TR §21-902(b).

The court sentenced Taylor as a subsequent offender. He received a sentence of forty years of incarceration, with twenty years suspended, for the possession with intent to distribute charge, to be served consecutively to a sentence from a prior conviction. He was also sentenced to one year of incarceration for driving or attempting to drive a vehicle under the influence of alcohol, to be served concurrently with the possession with intent to distribute sentence.

Taylor appealed to the Court of Special Appeals, which affirmed the convictions, but reversed and remanded for re-sentencing.

LAW: Taylor challenged the legality of his search under the Fourth Amendment to the United States Constitution, which prohibits warrantless searches and seizures of a citizen’s “persons, houses, papers, and effects.” One of a number of exceptions to this rule is that an officer may, in certain circumstances, conduct a “search incident to an arrest.” New York v. Belton, 453 U.S. 454, 459 (1981).

Police may search an automobile incident to arrest of its driver or passenger for two reasons. First, officers may “search a vehicle incident to a recent occupant’s arrest only when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search.” Arizona v. Gant, 556 U.S. 332, 343 (2009). No one suggests that this exception applies. Second, officers may also search incident to a lawful arrest when it is “reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle.” Id. Absent either of these circumstances, a search of the vehicle would be unreasonable.

The question is under what circumstances is it reasonable to believe that evidence of the offense of arrest will be in the vehicle? The Supreme Court did not explain what quantum of suspicion this standard would require. Is it a preponderance of the evidence, probable cause, or the reasonable suspicion for a stop-and-frisk under Terry v. Ohio, 392 U.S. 1, 21 (1968)?

Courts that have considered this issue have held that “[p]resumably, the ‘reasonable to believe’ standard requires less than probable cause, because otherwise Gant’s evidentiary rationale would merely duplicate the ‘automobile exception,’ which the Court specifically identified as a distinct exception to the warrant requirement.” United States v. Vinton, 594 F.3d 14, 25 (D.C. Cir. 2010) (citing Gant, 556 U.S. at 347)). Because the automobile exception “allows searches for evidence relevant to offenses other than the offense of arrest, and the scope of the search authorized is broader,” an officer must have a greater level of suspicion, i.e. “probable cause to believe a vehicle contains evidence of criminal activity.” Gant, 556 U.S. at 347. “Rather, the ‘reasonable to believe’ standard probably is akin to the “reasonable suspicion” standard required to justify a Terry search.” Vinton, 594 F.3d at 25 (citing Adams v. Williams, 407 U.S. 143, 146 (1972)) (noting that a Terry search is permissible if the officer has reason to believe that the suspect is armed and dangerous).

“Accordingly, the officer’s assessment of the likelihood that there will be relevant evidence inside the car must be based on more than ‘a mere hunch,’ but ‘falls considerably short of [needing to] satisfy[ ] a preponderance of the evidence standard.’” Id. (quoting United States v. Arvizu, 534 U.S. 266, 74 (2002).

Similarly, a Gant-like search of an automobile incident to arrest must be based on a similar level of reasonable suspicion as in an automobile stop under Terry. Therefore it was necessary to look at the Terry line of cases for guidance here.

Whether a belief is reasonable depends upon the totality of the circumstances, rather than a categorical rule. See Arvizu, 534 U.S. at 274. In Graham v. State, 325 Md. 398, 408 (1992), where the officers “were immediately confronted with an array of facts which led them to reasonably suspect that” the defendant was engaged in some kind of criminal activity, the subsequent arrest and seizure of property was not be tainted and was not unconstitutional. Relevant cases indicate that the following are appropriate considerations in developing a reason to believe evidence will be found in the vehicle: (1) a police officer’s training and experience; (2) the lack of an innocent explanation for a driver’s seemingly illicit behavior; and (3) the nature of the crime of arrest.

First, an officer may draw on his or her personal training and experience to develop a reasonable suspicion, or reason to believe, that a crime is afoot. Assessing the totality of the circumstances includes, inter alia, “allow[ing] officers to draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that ‘might well elude an untrained person.’” Arvizu, 534 U.S. at 273.

Second, an officer cannot, however, simply assert that “presumably innocent” behavior provides reason to believe evidence of the crime of arrest is in the vehicle. See Ferris v. State, 355 Md. 356, 387 (1999). In Ferris, a driver was stopped for speeding at 1:00 a.m. and appeared to the arresting officer to have bloodshot eyes, but there was no odor of alcohol on his breath. Id. at 362-68. The officer concluded that the driver was not under the influence of alcohol, but some other CDS. The Court of Appeals held that the officer lacked reasonable suspicion to search the vehicle for evidence of intoxication.

Third, certain offenses by their nature will involve evidence that an officer could reasonably believe is in a vehicle. A number of state courts to consider this issue have found that a DUI arrest provides reason to believe there will be containers of alcohol in the vehicle.

In State v. Cantrell, 233 P.3d 178 (Idaho Ct. App. 2010), the DUI arrestee challenged the search of his vehicle, stating that it was “not reasonable to believe that evidence of the offense of arrest, DUI, might be found in the vehicle based solely upon evidence of intoxication.” Id. at 184. He argued that officers “must possess some additional information suggesting that evidence related to a DUI might be found in the vehicle,” such as evidence “in plain view, or partially hidden, but visible to the officers.” Id. However, the Court of Appeals of Idaho rejected this argument and held that no additional evidence was required once the arrestee was found to be intoxicated; the search incident to arrest for evidence of the DUI offense was “authorized irrespective of whether evidence is known to be located in the vehicle.” Id. It was “reasonable to believe that evidence of the offense, e.g. alcohol containers or other evidence of alcohol use, ‘might be found in the vehicle.’” Id. at 185. Notably, the court explained, Cantrell’s admission to consuming alcohol did not make it unreasonable for officers to still search for further evidence, as “officers are not required to accept as true a defendant’s version of the events.” Id.

It is clear that (1) an officer’s training and experience is an important, though not dispositive factor; (2) the lack of any innocent explanation for apparent intoxication in a vehicle may be grounds for reasonable suspicion; and (3) unless there are contrary indications, it is not unreasonable to think an intoxicated driver became intoxicated in the vehicle.

Here, all three of these factors support the suppression court’s finding that it was reasonable for Mothersell to believe Taylor had alcoholic beverages in his vehicle that would be evidence of his DUI. First, Mothersell stated that in his experience, “I’ve had several DUI arrests where there’s plenty of open containers left in the vehicle.” Though not dispositive, this experience further established the reasonableness of the search. See Reagan, 713 F. Supp. 2d at 733-34. Second, there was no innocent explanation for Taylor’s apparent intoxication. Unlike in Ferris, there was no “innocent” explanation for why Taylor or any other driver would be inebriated; any person may have bloodshot eyes while driving late at night, see 355 Md. at 387, but it was hard to construct a scenario in which a driver would smell of alcohol, have glassy eyes, and would fail sobriety tests lest they had consumed alcohol. It was clear Taylor had consumed alcohol sometime prior to the arrest; the remaining questions were where, when, and how much.

But during the suppression hearing, no evidence was presented of where or when Taylor had consumed alcohol. The first time Mothersell observed Taylor was when Taylor’s SUV passed him. After that, it became clear to Mothersell that Taylor was under the influence of alcohol, although there was no evidence as to where or when he came under the influence.8 As part of his search for evidence of the DUI, Mothersell had to determine whether instruments of the offense, the intoxicants, were in Taylor’s vehicle (the only place he knew Taylor had been) or somewhere else, about which Mothersell could only speculate. It was reasonable, in this scenario, to believe that Taylor had been drinking in the place where he was stopped.

In addition, it was reasonable to search for additional evidence of inebriation even after Taylor failed the sobriety tests; as Mothersell explained, “I want[ed] to make sure there’s no other alcohol in the vehicle for the probable cause for my DUI stop.” That way, even if Taylor had successfully challenged a chemical test or the field sobriety tests, the presence of an alcoholic beverage container would have provided additional evidence to establish Taylor’s guilt.

Mothersell, therefore, had reason to believe that Taylor would have alcoholic beverages in his vehicle and thus, the search was justified. Accordingly, the judgment of the circuit court was affirmed.

COMMENTARY: Taylor also argued that he was improperly sentenced to ten years’ incarceration without parole because the State did not offer proof of a predicate conviction to justify that enhancement.

Possession with intent to distribute, CL §5-608, permits a 10 year mandatory minimum sentence when a defendant is convicted for a second qualifying narcotics offense. CL §608(b). The statute applies this enhancement only to offenses enumerated in §§5-602 through 5-606, conspiracy to commit those offenses, or any other crime in the United States that would be a violation of those offenses. CL §5-608(b)(i) – (iii).

The State agreed with Taylor that it did not meet its burden of proving that Taylor had violated one of these offenses. The only offense the State offered as proof was a violation of CL §5-601, simple possession of narcotics, which is not covered by CL § 5-608(b).

An appellate court may, under Rule 4-345(a), “correct an illegal sentence at any time,” whether the issue was raised during sentencing proceedings or not. Bryant v. State, 436 Md. 653, 660-62 (2014). A sentence is illegal when “the illegality inheres in the sentence itself.” Id. at 663.

Here, the court incorrectly sentenced Taylor because the State did not establish a predicate conviction under CL §5-608(b) to warrant the enhanced sentence. Accordingly, the case was remanded for resentencing.

Labor & Employment

Reasonable accommodations

BOTTOM LINE: In plaintiff-employee brought an action against her employer under the Maryland Fair Employment Practices Act, circuit court erred in granting defendant-employer summary judgment because material issues of fact existed as to whether plaintiff gave defendant required notice of her disability and need for accommodation.

CASE: Adkins v. Peninsula Regional Medical Center, No. 712, Sept. Term, 2014 (filed July 30, 2015) (Judges LEAHY, Friedman & Thieme (Retired, Specially Assigned)). RecordFax No. 15-0730- , pages.

FACTS: In 2011, Tracey Adkins, learned that she needed hip surgery. At the time, Ms. Adkins was employed by Appellee Peninsula Regional Medical Center (“PRMC”) as a storekeeper. Following her surgery, Ms. Adkins could no longer perform the largely physical tasks of the storekeeper position because her surgeon placed her on a sedentary work restriction.

Ms. Adkins exhausted her initial leave to which she was entitled under the Family Medical Leave Act (“FMLA”), 29 U.S.C. §§ 2601 et seq. PRMC then granted Ms. Adkins 14 weeks of additional FMLA leave, and advised her to begin applying for other positions. Meanwhile, PRMC filled Ms. Adkins’s storekeeper position, and Ms. Adkins began applying to numerous vacant positions at PRMC. She was rejected from each one.

In February 2012, following expiration of her extended leave, PRMC terminated Ms. Adkins’s employment. PRMC also rejected Ms. Adkins from additional positions to which she applied following termination.

Ms. Adkins then filed a lawsuit against PRMC in February 2013 in the circuit court for Wicomico County, alleging disability discrimination and failure to accommodate under the Maryland Fair Employment Practices Act (“MFEPA”), Maryland Code (1984, 2014 Repl. Vol.), State Government Article (“SG”) §§20-601 to 20-609. The circuit court granted PRMC’s motion for summary judgment based on its conclusion that, although Ms. Adkins had a disability within the meaning of the MFEPA, she was not otherwise qualified for any of the vacant positions to which she applied and did not request an accommodation from PRMC.

Ms. Adkins appealed to the Court of Special Appeals, which reversed.

LAW: The Maryland General Assembly enacted laws prohibiting discrimination on the basis of disability. Beginning in 1965, Maryland passed the Maryland Fair Employment Practices Law, codified at Article 49B. In 1974, the General Assembly amended Article 49B’s ban on discrimination to include “physically or mentally handicapped persons.” 1974 Md. Laws, ch. 601. Initially, employees who alleged disability discrimination in the workplace were required to file a complaint with the Maryland Commission on Human Relations, which would, in turn, investigate the complaint and ultimately decide whether to bring a civil action on the employee’s behalf upon a finding of probable cause that an unlawful employment practice occurred. Art. 49B, §§9A-12.

In 2009, the disability provisions that were formerly contained in Article 49B (§§14-18) were re-codified in Title 20, the Human Relations Title of the State Government Article without substantive change. SG §§20-601 to 20-609. An amendment to the Code expanded the definition of “disabled” to include those persons having a record of a physical or mental impairment. 2009 Md. Laws, ch. 299, §1 (S.B. 670).

The General Assembly also added explicit language making an employer’s failure or refusal to make a reasonable accommodation for an otherwise qualified employee known to have a disability, a separate ground for an illegal employment practice. Id. The General Assembly carefully qualified this obligation to say that an employer is not required “to reasonably accommodate an employee’s…disability if the accommodation would cause undue hardship on the conduct of the employer’s business.” SG §20-603(2); 2009 Md. Laws, ch. 299, §1. (S.B. 670).

To determine whether an undue hardship exists, factors to be considered include: “(1) The nature and cost of the accommodation needed; (2) The financial resources of the covered entity, and any parent corporation if applicable; (3) The size of the business with respect to the number and type of facilities; (4) The type of business or program, including the composition and structure of the work force; (5) The ability of the covered entity to conduct business or operate programs with the accommodation; (6) The effect of the accommodation on other

Employees’ performance; and (7) Legitimate safety concerns.” COMAR §14.03.02.06(B).

Here, Ms. Adkins asserted three counts in her complaint: (1) disability discrimination based on actual disability; (2) disability discrimination based on being “regarded as” having a physical impairment; and (3) failure to accommodate. The circuit court granted summary judgment in favor of PRMC as to all three counts, but Ms. Adkins only disputes the rulings as to disability discrimination based on an actual disability (Count 1), and failure to accommodate (Count 3). Notably, PRMC did not challenge the court’s conclusion that Ms. Adkins is an individual with a disability on appeal.

In Maryland, it is unlawful for a covered employer to “fail or refuse to hire, discharge, or otherwise discriminate against any individual with respect to the individual’s compensation, terms, conditions, or privileges of employment” based on his or her “disability [that is] unrelated in nature and extent so as to reasonably preclude the performance of the employment.” SG §20-606(a)(1)(i); see also the Code of Maryland Regulations (“COMAR”) §14.03.02.04(A)(2) (establishing various forms of unlawful employment discrimination against “a qualified individual with a disability,” including “[h]iring, upgrading, promotion, tenure, demotion, transfer, layoff, termination, right of return from layoff, and rehiring”). An employee must be “a qualified individual with a disability” to prevail in either a disability discrimination claim under SG §20-606(a)(1) or a failure-to-accommodate claim under SG §20-606(a)(4).

A “qualified individual with a disability” is “an individual with a disability who: (a) [w]ith or without reasonable accommodation can perform the essential functions of the job in question; or (b) [i]s otherwise qualified for the benefit, term, condition, or privilege of employment at issue.” COMAR §14.03.02.02(B)(10). As the party needing to present a prima facie case, the employee-plaintiff bears the initial burden of showing that he or she is a “qualified individual with a disability.” See Hawkins v. Rockville Printing & Graphics, Inc., 189 Md. App. 1, 11 (2009); Gaither v. Anne Arundel Cnty., 94 Md. App. 569, 583 (1993).

In this case, it was undisputed that, without a reasonable accommodation, Ms. Adkins was no longer capable of performing the essential functions of “the job in question”—her then-current position of storekeeper. In her deposition, Ms. Adkins ranked the position as a ten on a scale from one to ten regarding its level of physical demand, and the uncontroverted evidence in the record reflected that Ms. Adkins confirmed she was unable to perform her storekeeper duties following surgery and expiration of FMLA leave.Whether Ms. Adkins could “perform the essential functions of the job” with a reasonable accommodation, however, was the subject of dispute in this case.

A “reasonable accommodation” may include “job restructuring”; “[r]eassigning or transferring an employee to a vacant position, light duty job, different work location, or other alternative employment opportunity which is available under the employer’s existing policies or practices”; or “[m]aking reasonable modifications in the covered entity’s rules, policies, and practices if the modification may enable an applicant or employee with a disability to perform the essential functions of the job.” COMAR §14.03.02.05(B)(3), (5), (11).

Here, Ms. Adkins did not contend that PRMC could have altered or restructured her storekeeper position to accommodate her disability; instead, she contends that PRMC could have reassigned her to a vacant position. When reassignment or transfer is requested, and the employee is unable to perform the essential functions of the formerly held position even if an alteration to that position is made, the “job in question” subject to evaluation under COMAR §14.03.02.02(B)(10) is not the formerly-held job, but the vacant position to which the employee sought reassignment or transfer. Indeed, by their plain meaning, the words “reassignment” and “transfer” used in the regulation necessarily presume that the disabled individual seeking this accommodation is a present employee and that the possibility of a reasonable accommodation for that employee exists beyond simply altering the individual’s existing job. The regulations expressly contemplate transfer to a vacant job.

Ms. Adkins conceded that she could not perform the essential functions of her storekeeper position; even so, she could have been considered a “qualified individual with a disability” if she had carried her burden of establishing that she was able to perform the essential functions of a vacant position at PRMC, with or without a reasonable accommodation, to which she could be reassigned.

Turning to Ms. Adkins’s claims of disability discrimination and failure to accommodate, the question was whether there was any material fact that remained in dispute before the circuit court as to whether Ms. Adkins was a “qualified individual with a disability.” As noted, PRMC did not challenge the court’s conclusion that Ms. Adkins is disabled, nor did PRMC argue that Ms. Adkins was terminated for some independent reason other than her disability. Therefore, the core issue was Ms. Adkins’s failure to accommodate.

To establish a prima facie case for a failure-to-accommodate claim, the employee must show: (1) that he or she was an individual with a disability; (2) that the employer had notice of his or her disability; (3) that with reasonable accommodation, he or she could perform the essential functions of the position (in other words, that he or she was a “qualified individual with a disability”); and (4) the employer failed or refused to make such accommodations. Wilson v. Dollar Gen. Corp., 717 F.3d 337, 346 (4th Cir. 2013); SG §20-606(a)(4).

To receive an accommodation, the employee must “communicate[] to his employer his disability and his desire for an accommodation for that disability.” Wilson, 717 F.3d at 346-47. The employee need not submit a formal request for an accommodation, nor must the employee use “magic phrases”; instead, the employee must provide the employer with “adequate notice” of his disability and need for an accommodation. Pollard v. Balt. Cnty. Bd. of Educ., 65 F. Supp. 3d 449, 456 (D. Md. 2014). This requirement exists for the obvious reason that “[a]n employer simply cannot be expected to accommodate disabilities of which it is unaware.” Pollard, 65 F. Supp. 3d at 456-57. In determining whether the employee provided adequate notice of his or her need for an accommodation, the totality of the circumstances must be considered. Taylor v. Phoenixville Sch. Dist., 184 F.3d 296, 313 (3d Cir. 1999).

Here, the circuit court found that it was undisputed that Ms.Adkins never approached PRMC about any accommodations. However, a genuine dispute of material fact regarding whether Ms. Adkins provided adequate notice to PRMC did, in fact, exist. The record disclosed that, following her surgery and while on FMLA leave, Ms. Adkins updated her supervisor as to her follow-up appointment and delivered a letter from her surgeon to him and PRMC’s Employee Health Office. After she returned from her FMLA leave in November 2011, Ms. Adkins met with a nurse with the Employee Health Office and advised that she was no longer able to perform the essential duties of her storekeeper position due to her hip injury and her sedentary work restrictions. The Employee Health Office could not accommodate her restrictions. Ms. Adkins then took extended leave under the FMLA, and PRMC filled Ms. Adkins’s storekeeper position. PRMC encouraged Ms. Adkins to apply for vacant positions at PRMC, and Ms. Adkins did so.

Based on the foregoing, a reasonable jury could conclude that PRMC had notice that Ms. Adkins was no longer able to perform the essential functions of her storekeeper position and, considering the totality of the circumstances, that she adequately notified PRMC that she needed assistance in locating a position that she could physically perform. PRMC knew that Ms. Adkins could not perform the storekeeper function; knew that the position had been filled; and knew that Ms. Adkins had been submitting applications for other vacant positions within the company to remain employed. Taken together, these particulars demonstrate that whether Ms. Adkins provided “adequate notice” of her disability and her need for assistance is a factual dispute left unresolved by the record. The record here was therefore unsuitable for summary judgment.

Accordingly, the judgment of the circuit court was reversed.

COMMENTARY: Ms. Adkins further argued that following her adequate notice to PRMC that she needed an accommodation, PRMC failed to engage in an “interactive process” with her to help her identify a reasonable accommodation.

The phrase “interactive process” is a feature of federal regulatory disability discrimination law. To determine the appropriate reasonable accommodation it may be necessary for the covered entity to initiate an informal, interactive process with the individual with a disability in need of the accommodation. This process should identify the precise limitations resulting from the disability and potential reasonable accommodations that could overcome those limitations. 29 C.F.R. §1630.2(o)(3). Although the regulation is phrased as permissive with the use of “may” rather than “shall,” the employer’s duty to engage an employee in an interactive process is often construed as mandatory. E.E.O.C. v. Ford Motor Co., 782 F.3d 753, 778 (6th Cir. 2015).

COMAR §14.03.02.04(B)(3) requires action akin to the interactive process; that is, an individualized assessment by the employer of the employee’s abilities to perform the essential functions of a job. The “individualized assessment” provides stronger protection for the employee than the federal “interactive process” regulation because it explicitly provides that failure to conduct an individualized assessment constitutes an unlawful employment practice.

Here, the record generated a genuine dispute of material fact regarding whether PRMC conducted an individualized assessment of Ms. Adkins. On one hand, according to PRMC, its

Human Resources Department attempted to contact Ms. Adkins without success. From this information, a jury could determine that Ms. Adkins refused to participate in the requisite individualized assessment process. On the other hand, according to Ms. Adkins, PRMC did not assist her with finding an accommodation.

Torts

Judicial immunity

BOTTOM LINE: Circuit court erred in denying the State’s motion to dismiss the plaintiff’s tort action against a courtroom clerk who erroneously issued an arrest warrant against the plaintiff because the clerk, as a judicial officer who was performing a judicial act, was entitled to judicial immunity.

CASE: State v. Keller-Bee, No. 1110, Sept. Term, 2014 (filed July 6, 2015) (Judges Zarnoch, HOTTEN & Reed). RecordFax No. 15-0706- , pages.

FACTS: Cynthia Keller-Bee, was taken into custody pursuant to a body attachment that was improperly issued by the district court. On April 16, 2010, Keller-Bee appeared in the district court pursuant to a show cause order in a civil action in which a judgment had been obtained against her. She appeared for the hearing, but the creditor-plaintiff did not. As such, the district court dismissed the show cause order.

Nine months later, on January 20, 2011, the district court issued a Body Attachment/Arrest Warrant, based on a motion for contempt by the creditor-plaintiff, asserting that Keller-Bee failed to appear at the April 16, 2010 court date. Keller-Bee was taken into custody on January 27, 2011. Following an appearance before a Court Commissioner, she was released on her own recognizance and instructed that she would receive notice regarding a court date to address her failure to appear. On February 4, 2011, Keller-Bee went to the district court clerk’s office to ascertain why she had been arrested. Following an investigation by that office, it was determined that the warrant had been improperly issued.

On December 27, 2013, Keller-Bee filed a two-count lawsuit against the State of Maryland. The first count alleged negligence on the part of the unidentified employee of the clerk’s office who presented the arrest warrant to the district court judge. The second count claimed violations of Keller-Bee’s constitutional rights under Article 24 of the Maryland Declaration of Rights. The State filed a motion to dismiss, asserting absolute judicial immunity. The circuit court denied the motion to dismiss.

The State appealed pursuant to the collateral order doctrine. Keller-Bee moved to dismiss the State’s appeal, which the Court of Special Appeals denied. The Court of Special Appeals ultimately reversed the judgment of the circuit court.

LAW: The State argued that the circuit court’s denial of its motion to dismiss should be reversed and Keller-Bee’s complaint dismissed because Maryland law establishes that absolute judicial immunity precludes a tort lawsuit based on an order by a judge. Keller-Bee, in turn, maintained that the court did not err because judicial immunity does not extend to the negligent acts of all employees in clerk’s office. The circuit court’s denial of the State’s motion was predicated on its concern that the clerk may not have acted under the direction of the judge because of the nine-month lapse in time between the hearing and the erroneous presentment of the arrest warrant. The circuit court appeared to understand that absolute judicial immunity applied when a clerk acts within the scope of her or his employment at the direction of a judge, but questioned whether the clerk was acting within those parameters in this instance.

Relevant to the present case was the factually similar case Parker v. State, in which Parker was convicted of speeding and fined $150. Parker v. State, 337 Md. 271, 275 (1995). Following Parker’s failure to pay the fine, an arrest warrant was issued against her. Id. Parker eventually appealed her conviction in the circuit court and was acquitted of the speeding offense. Id. However, following her acquittal, the Sheriff presented an arrest warrant to a circuit court judge based on her failure to pay the original $150 fine. Id. The circuit court issued the warrant without reviewing the case file. Id. Parker was thereafter arrested and detained until she paid the fine. Parker later filed suit alleging negligence, false imprisonment and false arrest, against the circuit court judge and the clerk. Id.

The circuit court granted the State’s motion to dismiss Parker’s complaint, asserting judicial immunity as to the counts against the circuit court judge. Id. The Court of Special Appeals affirmed the circuit court’s grant of the motion to dismiss, holding that the circuit court judge had jurisdiction to issue the warrant and, therefore, was judicially immune. Id. at 276. The Court of Appeals affirmed, holding that issuing warrants was a judicial activity, and, therefore, by performing a judicial act, the judge was entitled to absolute judicial immunity. Id.

The appropriate test for determining whether an individual is entitled to receive the benefit of absolute judicial immunity for certain functions is whether: (1) the act performed was by a judicial officer; and (2) the act was a judicial act. D’Aoust v. Diamond, et al., 424 Md. 549, 598 (2012). The most important inquiry in determining whether an individual is entitled to judicial immunity is what function that person performed. Id. The function matters more than the identity of the person acting because the goal of judicial immunity is to permit judicial officers to perform their duties free from fear of civil liability. Id. Under this standard, individuals such as law clerks and court clerks are entitled to judicial immunity when performing tasks that are integral to the judicial process. Id. at 599-600.

As such, in the present case, in order to ascertain whether Keller-Bee could maintain an action against the courtroom clerk, it was necessary to determine first whether the act was performed by a judicial officer and, second, whether the act was a judicial act. Id.

Law clerks and courtroom clerks, such as the clerk who issued the warrant in the present case, enjoy the same immunity as the judge for whom they work. Gill v. Ripley, 352 Md. 754 (1999)). Thus, in the present case, the courtroom clerk was indeed a “judicial officer.” Id. And, because the courtroom clerk’s act of issuing an arrest warrant against Keller-Bee constituted a judicial act, the second element was likewise met. Therefore, under the D’Aoust test, the courtroom clerk, as a judicial officer performing a judicial act, was afforded judicial immunity.

Accordingly, the judgment of the circuit court was reversed.

COMMENTARY: Keller-Bee filed a motion to dismiss with the Court of Special Appeals, arguing that the circuit court’s denial of the State’s motion to dismiss was not an appealable order.

As a general rule, interlocutory trial court orders rejecting defenses of common law sovereign immunity, governmental immunity, public official immunity, statutory immunity, or any other type of immunity, are not appealable under the Maryland collateral order doctrine. See Dawkins v. Baltimore City Police Dep’t, 376 Md. 53, 64 (2003). However, the Dawkins Court left for courts to determine “in any future cases that might arise” the decision as to whether to entertain an appeal of a denial of a motion to dismiss asserting judicial immunity pursuant to the collateral order doctrine. Id. at 65.

In the instant case, the circuit court’s denial of the State’s motion to dismiss was appealable under the collateral order doctrine, because Maryland courts have clearly established that a judge is immune from tort liability for judicial acts. If judicial immunity were not extended to courtroom clerks, courts would face the danger that disappointed litigants, blocked by the doctrine of absolute immunity from suing the judge directly would vent their wrath on clerks, court reporters, and other judicial adjuncts. Sindram v. Suda, 986 F.2d 1459, 1461 (D.C. Cir. 1993).

As such, under the collateral order doctrine, the State was permitted to appeal the circuit court’s denial of its motion to dismiss and the overruling of its assertion of absolute judicial immunity.