Espina v. Prince George’s County – Separation of Powers and Legislative Damages Caps for Violation of Rights Based on Self-Executing State Constitutional Provisions
In Espina v. Prince George’s County, No. 2044 (Md Ct. Spec. App. Dec. 20, 2013), the Court of Special Appeals ruled that the damage cap in Maryland’s Local Government Tort Claims Act (“LGTCA”), codified at Md. Code Ann., Cts. & Jud. Proc. §§ 5-301 et seq., applies to tort claims based on a violation of the Maryland Declaration of Rights, in this particular case Article 24. Article 24 provides:
That no man ought to be taken or imprisoned or disseized of his freehold, liberties or privileges, or outlawed, or exiled, or, in any manner, destroyed, or deprived of his life, liberty or property, but by the judgment of his peers, or by the Law of the land
The essence of the LGTCA’s damages cap is codified in Section 5-303(a)(1) of the Courts and Judicial Proceedings Article, which provides:
[T]he liability of a local government may not exceed $200,000 per an individual claim, and $500,000 per total claims that arise from the same occurrence for damages resulting from tortious acts or omissions . . . .
The case grew out of an encounter between Manuel Espina and a Prince George’s County police officer, which eventuated in Espina’s death. After trial, a jury, finding that the officer acted with malice, awarded Espina’s family and his estate a total of $11,505,000, including $10,000,000 in non-economic damages. Despite the jury’s determination, as to which there was no factual challenge whatsoever by the Defendants in the Court of Special Appeals, the Court laid out the details of the actual encounter, from not just the Plaintiffs’ perspective but also the Defendants’ perspective and did so in unusual detail, in nearly the first quarter of its 53 page opinion (Slip Op. at 3-15). This “re-finding” of the facts is an undertaking by an appellate court hardly necessary for understanding the issues in the case or the substance of the court’s discussion, except perhaps to soften the ground for vacating the jury’s award, despite, in doing so, the Court’s breathtaking, albeit, likely unintentional abdication of judicial power and authority that eventually followed its unusual exposition of the facts here.
The Court’s opinion, after its renditions of the facts, is in essentially three parts. The Court first addressed whether the LGTCA covered state constitutional torts, that is, torts based on a violation of the Maryland Constitution. The Court determined that the LGTCA did so apply, after raising and considering a number of principles of statutory construction. Nowhere to be found in the Court’s analysis, however, is mention or consideration of the principle that statutory constructions avoiding constitutional questions should be indulged if possible. See State Bd. of Elections v. Libertarian Party, 426 Md. 488, 515-20 & n.12, 44 A.3d 1002, 1018-20 & n.12 (2012). After its determination that the LGTCA damages cap applied to constitutional torts, the Court necessarily turned to whether the cap, as applied to a constitutionally based tort, was itself constitutional and, then, after finding that there was no constitutional violation, to whether the damages cap had been properly applied in this case, a matter with which the observations here do not concern themselves.
The Court of Special Appeals’ consideration of the constitutional question that it found it necessary to reach initially seems to come close to recognizing the interests and powers at stake but, ultimately, fails in fealty to its own constitutional jurisdiction and powers. Thus, the Court’s opinion notes that “[w]e have … acknowledged an ‘uneasy fit’ between state constitutional torts and the requirements of the LGTCA.” Slip Op. at 20. Expanding on this, it quotes from its decision in Prince George’s County v. Longtin, 190 Md. App. 97, 117-19 (2010), aff’d, 419 Md. 450 (2011):
The Court of Appeals has consistently said that the LGTCA and the Maryland Tort Claims Act (MTCA) do not exclude State constitutional torts from their coverage. Less clear is whether the restriction of those statutes that would defeat all or partial recovery apply in every respect to State constitutional torts.
On the one hand, the Court of Appeals has said that a State constitutional tort, such as one premised on a violation of the “self-executing” constitution provision, like Article 24 of the Maryland Declaration of Rights, is enforceable in a common law action for damages ….
On the other hand, at least in MTCA cases, the Court of Appeals has indicated that recovery against the State is available as long as the claimant complies with procedural requirements of the Act.
After coming this close to recognizing the fundamental interests at stake, however, the Court frames the constitutional question before it as whether application of the LGTCA’s damages cap to a constitutional tort based on Article 24 of the Maryland Declaration of Rights abridges Article 19 of the Declaration. Article 19 provides:
That every man, for any injury done to him in his person or property, ought to have remedy by the course of the Law of the Land, and ought to have justice and right, freely without sale, fully without any denial, and speedily without delay, according to the Law of the Land.
What goes unrecognized in the Court’s analysis, however, for whatever reason, is the import, quite apart from and before getting to Article 19, of the Court’s own recognition that Article 24 is “self-executing.”
A self-executing constitutional provision “supplies a sufficient rule by means of which the right given may be enjoyed and protected.” Benson v. State, 389 Md. 615, 887 A.2d 525, 533 (2005), quoting Davis v. Burke, 179 U.S. 399, 403 (1900). “When a provision is so complete, it may be enforced by the courts without the need of further legislative authority or direction.” Benson, 389 Md. at 533, quoting Davis, 179 U.S. at 403 (emphasis added). When a constitutional provision is recognized as self-executing and a common law action does not already exist to remedy its violation, whether such an action should be recognized is a judicial decision. See Benson, 389 Md. at 534. See also Widgeon v. Eastern Shore Hosp. Ctr., 300 Md. 520, 532, 479 A.2d 921, 927 (1983) ([B]ecause Articles 24 and 26 of the Maryland Declaration of Rights … have consistently been held to be ‘in pari materia’ with or ‘equated with’ the Fourth, Fifth and Fourteenth Amendments to the United States Constitution, Supreme Court decisions with regard to those amendments are particularly persuasive,” and those decisions “have held that violations of those constitutional provisions give rise to private damage actions.”).
With respect to Article 24, therefore, it is unnecessary to consider whether and how the legislative branch has provided a remedy for the injuries to person or property that Article 19 contemplates, for that remedy necessarily exists and may be judicially created, quite apart from Article 19 and, instead, by virtue of the very operation of Article 24. See Widgeon, 300 Md. at 534-35, 479 A.2d at 928-29 (rejecting defendants’ position that because plaintiff had a remedy under 42 U.S.C. § 1983, it was inappropriate for state courts to recognize other remedies for deprivations of person or property). It is the province of the judicial branch and its constitutional license, therefore, to determine the remedy available under self-executing constitutional provisions, typically damages at law or coercive orders developed in the jurisprudence of equity. See id. at 535, 479 A.2d at 929 (rejecting position that allowing plaintiff to recover damages for a violation of state constitutional rights improperly requires implying a new cause of action “because, under common law, there already exists an action for damages to remedy violations of constitutional rights”). If there is any reason for the judicial branch to yield to legislation substantively, as opposed to perhaps procedurally, constraining or diminishing what would otherwise be the remedies determined by the judicial branch for violations of self-executing constitutional provisions like Article 24, none is presented in the Court’s opinion. Obediently, instead, the Court gives dubious deference to the LGTCA’s cap on the damages remedy for causes of action exclusively within the province of the Judiciary.
Overlooking the Judiciary’s inherent powers with respect to assuring remedy of violations of self-executing constitutional rights, the Espina Court proceeds, with deference to the Legislature, to consider the scope of limitations that may be legislatively imposed on the remedies vouchsafed under Article 19, which such limitations have been, to greater or less degrees and, despite Article 19’s constitutional residence, rightly or wrongly, recognized as lawful and, more importantly here, supplanting judicially fashioned remedies. Thus, according to the Court of Special Appeals (Slip Op. at 31):
The Court [of Appeals] has … provided that “the Legislature may ordinarily substitute a statutory remedy … for a common law remedy without violating Article 19 of the Declaration of Rights or other Maryland constitutional provisions.” [Jackson v. Dackman, Co., 422 Md. 357, 379, 30 A.3d 854, 867 (2011)] (quoting Robinson v. Bunch, 367 Md. 432, 446-47(2002)). The issue, therefore, is whether the LGTCA damages cap is reasonable under Article 19.
This is an overreading by the Espina Court of the Court of Appeals’ decisions in Jackson and, for that matter, Robinson, on which Jackson partially relies. In neither Jackson nor Robinson was a state constitutional right involved. Both cases involved statutory rights, the Maryland Consumer Protection Act in Jackson and the federal Fair Labor Standards Act in Robinson. Accordingly, the Court of Appeals’ statements in Jackson and quoted in Espina cannot necessarily be taken as holding that the Legislature has power under Article 19 to define, curtail or otherwise control judicially fashioned remedies for violations of self-executing state constitutional rights.
Even if the Court of Appeals were so holding, however, such a holding would be vulnerable to the criticism here, that viewing the judiciary’s power to create remedies for violations of self-executing state constitutional rights as residing in Article 19 and, therefore, subject to legislative control is a dangerous and at least unwitting abdication of the Judiciary’s inherent and independent authority with respect to self-executing constitution rights, such as those contained within Article 24 of the Maryland Declaration of Rights. It is yet to be known whether review of Espina will be sought in the Court of Appeals, but if it is and if review is granted, self-inflicted wounds to the Judiciary as a co-equal branch of government should be avoided. This is not to say that the Judiciary itself is at the mercy of runaway juries or other aberrational remedial results. Courts themselves, for example, have the power to guard against excessive or niggardly verdicts through their powers of remittitur and additur, to assess the sufficiency of evidence, and to grant new trials. It is simply to say that there is no justification for the Judiciary’s inflicting, eyes wide open, wounds to its own powers and authority, given that such wounds have the considerable potential to jeopardize rights and interests that the Judiciary may, best and inviolably can, and, therefore, should protect.
 Typically, when a law, constitutional or statutory, is self-executing, its violation results in distinct injury to some person or discrete group of persons, as opposed indistinctly to all persons in the jurisdiction that is the law’s source. Rights and interests under “self-executing” laws have been characterized as “Hohfeldian,” in contrast to rights and interests under laws that are not self-executing, such as limitations on a sovereign’s taxing and spending authority, which have been characterized as “Non-Hohfeldian.” See Flast v. Cohen, 392 U.S. 83, 119-20 (1968) (Harlan, J., dissenting); Jaffe, The Citizen as Litigant in Public Actions: The Non-Hohfeldian or Ideological Plaintiff, 116 U. Pa. L. Rev. 1033, 1033 (1968); see generally W.N. Hohfeld, Fundamental Legal Conceptions (1919). Non-Hohfeldian interests, because all are affected in common when such interests are violated, strongly (and barring fundamental problems in the construction of the politic) tend to be effectively addressed and protected through the political process. In contrast, by their individual oriented nature, the vindication of Hohfeldian interests tends to be vulnerable to the vagaries of the political majority. Hohfeldian interests, for example, include the interests of the “discrete and insular minorities” of which the Supreme Court famously spoke in footnote 4 of United States v. Carolene Products Co., 304 U.S. 144, 152 n.4 (1938). They are, therefore, as the Court opined in Carolene Products, the interests that it is particularly the province of courts to protect, not abandon through the abdication of their own powers.
 To be sure, those ostensible procedural constraints that are so burdensome as to impair any realistic remedy for the violation of a self-executing law become, in effect, substantive and unlawful. See Espina, Slip Op. at 30-31, quoting Jackson v. Dackman, 422 Md. 357, 377-79, 30 A.3d 854, 866-67 (2011).
 The Court of Special Appeals’ decision does consider (Slip Op. at 35 n.17) a separation of powers argument against the LGTCA damage cap, reasoning, on the basis of earlier cases, that because the Legislature can, for example, establish statutes of limitations and repose, create evidentiary presumptions and create and abolish causes of action, it can impose caps on non-economic damages without violating separation of powers doctrine. Restrictions, procedural or substantive, on common law, non-constitutional causes of action and, certainly, statutory causes of action, have never, either in England or in this country, been viewed as encroachments on judicial power, so the Legislature’s power to impose such restrictions says nothing about its powers to impose restrictions on causes of action that, because they are based on self-executing constitutional rights, are, as argued here, as to substance and remedy, exclusively within the province of the Judiciary.
To be sure, the Court of Appeals has held that legislative limitations on access to the courts, including jurisdictional constraints, do not violate the separation of powers, so long as the limitations, including jurisdictional constraints, are reasonable, including not leaving suitors totally remediless. See Murphy v. Edmonds, 325 Md. 342, 366-67, 601 A.2d 102, 113-14 (1990). Still, however, there is a distinction between nondiscriminatory control of access and jurisdiction and the exercise power, however arguably reasonable, over the causes of action that are the subject of the observations here, that is causes of action based on self-executing constitutional rights that are exclusively within the province of the Judiciary. Such exercise of power does violate the separation of powers.
3 responses to “Espina v. Prince George’s County – Separation of Powers and Legislative Damages Caps for Violation of Rights Based on Self-Executing State Constitutional Provisions”
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- May 15, 2014 -
- April 13, 2015 -
Very well said.