Espina v. Jackson: Marbury v. Madison Revisited?
In Marbury v. Madison, 5 U.S. 137 (1803), Chief Justice John Marshall laid the cornerstone for this country’s view of judicial power, particularly as it relates to the powers of correspondent branches of government, in the case of the federal government, Congress and the President. There, in deciding whether the U.S. Supreme Court had jurisdiction to consider William Marbury’s petition to compel Secretary of State James Madison’s delivery of Marbury’s judicial commission by John Adams, Marshall’s opinion held that Madison’s withholding the commission was illegal. Sidestepping a confrontation with the executive branch, however, Marshall held that Marbury’s petition was not within the Court’s jurisdiction and denied it. Marshall ruled that the Judiciary Act of 1789, under which Marbury had brought his action, unconstitutionally expanded the Court’s Article III original jurisdiction, observing as a seeming aside that
It is emphatically the province and duty of the Judicial Department to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret that rule. If two laws conflict with each other, the Courts must decide on the operation of each.
So, if a law be in opposition to the Constitution, if both the law and the Constitution apply to a particular case, so that the Court must either decide that case conformably to the law, disregarding the Constitution, or conformably to the Constitution, disregarding the law, the Court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty. If, then, the Courts are to regard the Constitution, and the Constitution is superior to any ordinary act of the Legislature, the Constitution, and not such ordinary act, must govern the case to which they both apply.
5 U.S. at 177-78.
In the context of the heated controversy in which Marshall announced it, this collateral and seemingly unremarkable reasoning became the formal basis for the view that, in a constitutional government, the judiciary has the inherent and final power to say what the law is, including whether legislative or executive action is consistent with the government’s constitution. To the extent it was not already recognized at the state and lower federal court levels, Marshall’s notion of judicial review quickly and firmly embedded itself in judicial power as perceived by this country’s state and federal courts, including the Maryland Court of Appeals. See Painter v. Mattfeldt, 119 Md. 466, 472-73 (1913); Anderson v. Baker, 23 Md. 531, 563-65 (1865); Ex parte Maulsby, 13 Md. 625, 635 (1859).
That was the longstanding case, at least until the Court of Appeals’ recent decision in Espina v. Jackson, Sept. Term 2014, Slip Op. No. 35 (Mar. 30, 2015). In Espina, the Court of Appeals, in affirming the decision of the Court of Special Appeals in Espina v. Prince George’s County, 215 Md. App. 611 (2013), held “that the [Local Government Tort Claims Act (‘LGTCA’)], where applicable limits the damages recoverable against a local government for violations of the state constitution.” Slip Op. at 2. In an analysis previously posted on this Blog, I argued that, assuming the LGTCA applied to tort claims for violations of the Maryland constitution, a matter of statutory construction confirmed by the Court of Special Appeals and the Court of Appeals, there also lurked in the controversy a significant issue of separation of powers, given the conceptual underpinnings for constitutionally based torts. The Court of Specials Appeals did not address the separation-of-powers issue – intentionally ignoring the issue, it would appear, for the Appellant’s brief expressly presented it, arguing that “the judiciary has reserved to itself the ability to determine what remedies, such as monetary damages, exist for self-executing constitutional claims” and that “the use of a statute, the LGTCA, to limit remedies for constitutional violations runs afoul of the supremacy of the state constitution, and the independent authority of the judiciary[.]”
Conceptually, according to the Court of Appeals itself, 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, 628 (2005) (quoting Davis v. Burke, 179 U.S. 399, 403 (1900)) (emphasis added). Further, according to the Court’s prior decisions, “[w]hen 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 (emphasis added). Therefore, any legislative action compromising the right – whether directly, such as by narrowing its scope as judicially construed, or indirectly, by constraining the judicially determined remedies by which it may be “enjoyed and protected” – intrudes on the province of the judiciary. The concept of a self‑executing constitutional right, most strongly enunciated in Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971), at once embodies both the supremacy of the right, in terms of both scope and remedy, against legislative diminishment and the province to construe the right, a province that, under Marbury v. Madison and its state progeny (including earlier decisions of the Court of Appeals) is exclusively that of the judiciary.
This was unquestionably the case until the Court of Appeals’ decision in Espina. Insofar as it expressly addressed the range of Maryland constitutional concerns presented to it, the Court of Appeals in Espina simply framed the matter as whether the LGTCA damage cap comported with constitutional constraints on the General Assembly’s power to determine the remedies available to persons whose personal or property rights in general have been injured. The Court held that it did, pointing to Article 19 of the Maryland Declaration of Rights, which guarantees to individuals such remedies, and uncritically noting that “[r]emedies can be established either by common law or by statute” and, further, “‘Article 5 of the Maryland Declaration of Rights authorizes the General Assembly to change common law principles,’ including remedies.” Espina, Slip Op. at 26 n. 14 (quoting Piselli v. 75th St. Med., 371 Md. 188, 214 (2002)).
To the extent, however, that Article 19 says anything about who enforces the guaranty of a remedy for injuries to persons or property, it specifies the courts. 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.
As the Court of Appeals has observed, including in Espina itself, “Article 19 essentially ‘protects two interrelated rights: (1) a right to a remedy for any injury to one’s property; [and] (2) a right of access to the courts.’” Espina, Slip Op. at 23 (quoting Piselli, 371 Md. at 205).
Unsurprisingly, therefore, with respect to its own powers under Article 19, the Court of Appeals has noted, in Espina itself and in more than one prior case, that “[w]e have held that ‘it is a basic tenet, expressed in Article 19 of the Maryland Declaration of Rights, that a plaintiff injured by unconstitutional state action should have a remedy to redress the wrong.’” Espina, Slip Op. at 24 (quoting Piselli, 371 Md. at 205) (internal quotations removed). Thus, the Court has held that “one has a Maryland constitutional right to judicial review of adjudicatory administrative decisions.” Piselli, 371 Md. at 206 (citing State v. Bd. of Educ., 346 Md. 633, 647 (1997)). Finally, and significantly, in Piselli, after listing several decisions in which it upheld legislative modifications of rights involving “traditional” causes of action, the Court noted that, “[o]n the other hand, we have held that Article 19 precludes the Legislature from immunizing from suit both the government and government official involved, at least when the cause of action is based on a violation of state constitutional rights.”
What goes unaddressed in Espina, therefore, is the assumption, also unstated, that the General Assembly has the power to modify the scope of and remedies for torts construed by the Court of Appeals to exist under the Maryland constitution, including the Maryland Declaration of Rights. That is to say, Espina necessarily implies power in the General Assembly to operate within what has been the paramount province of the judiciary to construe constitutional provisions and determine whether they are so self-executing as to afford a judicially enforceable right regardless of legislative action. To be sure, nothing precludes the General Assembly itself from legislating causes of action for the violation of Maryland constitutional rights and to prescribe the remedies available pursuant to such legislation. The question here, however, is whether the Generally Assembly may intrude on a constitutionally based cause of action and remedy established by what, at least prior to Espina, was the Maryland judiciary’s preeminent power to construe the Maryland constitution.
With respect to constitutionally based torts, it is unnecessary to consider whether and how the legislative branch has provided a remedy guaranteed by Article 19 for the injuries to person or property, including injuries to constitutionally protected interests. Such a remedy necessarily and already exists quite apart from Article 19, by virtue of the self-executing nature of the constitutional provision protecting an individual interest. See Widgeon v. E. Shore Hosp. Ctr., 300 Md. 520, 532, 534-35 (1983) (rejecting the defendants’ position that because the 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 in violation of the Maryland Declaration of Rights). That being the case, it is, under at least the Marbury v. Madison notion of judicial review, the inviolate province of the judicial branch, pursuant to its direct constitutional authority, to determine the causes of action and remedies available under self-executing constitutional provisions. See id. at 535 (rejecting the argument that, “because, under common law, there already exists an action for damages to remedy violations of constitutional rights,” allowing a plaintiff to recover damages for a violation of state constitutional rights improperly implies a new cause of action). Indeed, Article 8 of the Maryland Declaration of Rights provides “[t]hat the Legislative, Executive and Judicial powers of Government ought to be forever separate and distinct from each other; and no person exercising the functions of one of said Departments shall assume or discharge the duties of any other.”
The power granted the Maryland legislature under Article 5 of the Maryland Declaration of Rights to modify common-law causes of action and remedies is not necessarily to the contrary. In pertinent part, Article 5 provides:
(a) (1) That the Inhabitants of Maryland are entitled to the Common Law of England …; subject, nevertheless, to the revision of, and amendment or repeal by, the Legislature of this State….
(emphasis added). There were no constitutionally based causes of action under the common law of England. In any case, reading Article 5 to permit legislative intrusion on actions construed under the Maryland constitution runs afoul the same separation-of-powers and, in particular, judicial-review concerns already discussed here.
There is no small difference between a constitutionally based cause of action legislated by the General Assembly and a constitutionally based cause of action established as a matter of judicial construction. The former is vulnerable to majoritarian influences, the latter much less so, sometimes not at all. The non-categorical, hedged statement of this proposition recognizes, however, the reality that state courts, much more so than federal courts, are vulnerable and, therefore, deferential to the legislative power of the purse. Perhaps, tellingly in this regard, at the outset of its Espina opinion, the Court of Appeals carefully noted, “We recognize the importance our decision has not only on the victim’s ability to receive compensation, but also on the local government’s ability to provide indispensable services to its citizens as well as the stability of the public fisc.” Espina, Slip Op. at 1-2.
As the subject here is compensatory, not punitive, damages, whether and to just what extent government as a defendant, unlike other defendants, should enjoy some moderation of liability for its wrongs as a function of its ability to pay is a topic the Court of Appeals neither explores (except perhaps as suggested by the Espina result) nor justifies. Arguably, at least, judicial concerns about the ability of government to pay for its constitutional wrongs should be left to the self-correcting nature of political processes: That is to say, where the constitutional wrongs of a jurisdiction are so notorious or pervasive as to result in judgments such as that in Espina, in which circumstances “the stability of the public fisc” may be demonstrably and actually, not colorably, jeopardized, courts should, rather than depreciate the injury to the individual, trust that the jurisdiction’s taxpayers (largely its voters) will act to place in office those leaders more likely to terminate wrongdoing, rather than allow it to continue after a slap on the wrist restrained by legislative damage caps.
More than just a dubiously based deference to the public fisc argues against the express and implied results in Espina, however. As discussed in my earlier comment on the Espina case in the Court of Special Appeals, most, if not all, self‑executing constitutional provisions involve rights and interests the violation of which results in injury to an individual or some distinct group of individuals. Such constitutionally based rights and interests – particularly those consecrated in the Maryland Declaration of Rights, such as Article 24, the root of the cause of action in Espina – protect important individual interests against majority rule. Such rights and interests have been characterized as “Hohfeldian,” in contrast to rights and interests created by provisions 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). 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 (1938).
Because all persons are affected in common when non-Hohfeldian interests are violated, they tend to be effectively addressed and protected through the political process (barring fundamental problems in the political structure of a sovereign). In contrast, because of their individual-oriented nature, the vindication of Hohfeldian interests tends to be vulnerable to the vagaries of the political majority and is, therefore, better effected through non‑democratic or non-majoritarian authority, specifically, the courts. These interests are, as opined in Carolene Products, particularly the province of courts to protect, not compromise through the abdication of their own powers. Yet that is what the Court of Appeals, sub silentio, has done in Espina. Espina, in short, stands as an intentional and, therefore, troublesome relinquishment of the Judiciary’s inherent and independent authority with respect to self-executing constitutional rights, such as those contained within the Maryland Declaration of Rights, and, more broadly, the province of judicial review.
 See Treanor, Judicial Review Before Marbury, 58 Stan. L. Rev. 455, 457–58 (2005); Prakash and Yoo, The Origins of Judicial Review, 70 U. Chi. L. Rev. 887, 933–39 (2003).
 Brief for Appellants, Espina v. Jackson, Md. Ct. of Spec. App., Sept. Term 2014, No. 35, at 36 (Aug. 25, 2014).
 An earlier, more expansive articulation of the rationale for the self-executing-law principle in the constitutional context may be found in Leser v. Lowenstein, 129 Md. 244 (1916), which, although a statutory construction case, relied on T.M. Cooley, Cooley on Constitutional Limitations (6th ed.), an old and still and respected authority. Quoting from Cooley, the Court stated:
It is said in Cooley on Constitutional Limitations (6th Ed.), 98, that: ‘But although none of the provisions of a constitution are to be looked upon as immaterial or merely advisory, there are some which, from the nature of the case, are as incapable of compulsory enforcement as are directory provisions in general. The reason is that, while the purpose may be to establish rights or to impose duties, they do not in and of themselves constitute a sufficient rule by means of which such right may be protected or such duty enforced. In such cases, before the constitutional provision can be made effectual, supplemental legislation must be had; and the provision may be in its nature mandatory to the legislature to enact the needful legislation, though back of it there lies no authority to enforce the command. … [By contrast, a] constitutional provision may be said to be self-executing if it supplies a sufficient rule by means of which the right given may be enjoyed and protected, or the duty imposed may be enforced; and it is not self-executing when it merely indicates principles, without laying down rules by means of which those principles may be given the force of law.
Leser, 129 Md. at 251-52.
 As the Espina appellants elaborated in their brief:
Citing Marbury v. Madison in his concurrence in Bivens [v. Six Unknown Named Agents, 403 U.S. 388 (1971)], Justice Harlan noted that ‘contemporary modes of judicial thought … appeared to link ‘rights’ and ‘remedies’ in a 1:1 correlation.’ The Supreme Court, therefore, has demonstrated serious concern over legislative interference with the judiciary’s inherent role in adjudicating constitutional claims. See Smith v. Robinson, 468 U.S. 992, 1012 n.15 (1984) (noting that constitutional remedies exist absent any congressional statutory remedies). This is inherent in the [C]onstitution itself and, in a sense, immunizes constitutional claims from the whims of popular opinion or political disagreement.
Indeed, not just “contemporary modes of judicial thought” link rights and remedies. The notion that for every violation of a vested legal right there must be a legal remedy has appeared in jurisprudence no less inveterate than Marbury v. Madison itself, where Justice Marshall, with respect to Marbury’s right to receive his commission, stated, “The Government of the United States has been emphatically termed a government of laws, and not of men. It will certainly cease to deserve this high appellation if the laws furnish no remedy for the violation of a vested legal right.” Marbury, 5 U.S. at 163.
 It bears noting that, in practice, the stated prerequisites for a self-executing constitutional provision hardly explain what actually occurs in judicial decisions expositing on such provisions. In Bivens, for example, the Supreme Court ruled that an implied cause of action existed for an individual whose Fourth Amendment freedom from unreasonable search and seizures had been violated by federal agents. The victim of such a deprivation could sue for the violation of the Amendment itself, despite the lack of any federal statute authorizing such a suit. The brief and simple terms of the Fourth Amendment, however, can hardly be characterized as “laying down rules by means of which [its] principles may be given the force of law” or as “of the detailed character which is intended to be operative, and which would be used by a Legislature were it enacting such a provision into law.” Given such judicial elucidation, the actual power that the Supreme Court in Bivens and other courts in cases like Bivens have exercised confirms, therefore, the exclusivity of the judiciary in defining and protecting self-executing constitutional provisions.
 See also Barbera, C.J., State of the Judiciary Address to the General Assembly of Maryland (Feb. 11, 2015); Senate president presses for bill to deal with bail issue, Daily Record, April 2, 2015, at 8A (reporting comments of Maryland Senate President Mike Miller in support of legislation aimed at relieving the State of obligations imposed, at a cost of approximately $10 million a year, by the Court of Appeals’ “wrong” and “inappropriate” decision in DeWolfe v. Richmond, 434 Md. 444 (2013) (right to counsel at bail hearings).
 Is it now the case that, at least with respect to the Maryland Declaration of Rights, the privilege of one to speak on highly controversial topics in a public forum varies inversely with respect to the cost of maintaining public safety and order? At any rate, there is no effort in the Court’s opinion even qualitatively to assess, on the one hand, the impact on the public fisc (in Espina, the Prince George’s County fisc) of compensating for injury to constitutionally protected interests and, on the other hand, the impact of damage caps on the adequacy of compensation and on the deterrent effect of damage awards. Instead, as to the level of damage caps, the Court retreats from its powers with the advice that “[t]his decision is a matter of policy,” which a legislature, hardly disinterested, may determine “in its wisdom.” Espina, Slip Op. at 34; see also Espina, Slip Op. at 34 n.18 (“The decision to alter or increase the damages cap based on inflation, however, is a matter best left to the Legislature.”).
 Legislative damage caps for violations of constitutional rights also indiscriminately and, in significant measure, arbitrarily impair the privity and sensitivity to the facts of non-majoritarian decision-makers (juries or judges) in individual cases, resulting in what must be, in at least some cases, a miscarriage of remedial justice, to the detriment not only of the individual injured but also the broader interest in deterring instances of pervasive constitutional abuse. It is noteworthy in this regard that the General Assembly does at least appear to be aware of the discrepancies that occur in some cases and is beginning to consider multiple methods of addressing the interests at stake. See, e.g., H.B. 114 (introduced Jan. 26, 2015) (increasing damage limits for certain government tort claims); Sen. Bill 147 (introduced Jan. 29, 2015) (to repeal certain tort claim notice requirements); H.B. 283 (introduced Feb. 4, 2015) (providing for recovery of legal costs in constitutional tort actions); H.B. 608 (introduced Feb. 12, 2015) (to limit confidentiality restrictions in tort settlement agreements involving law enforcement). On the other hand, insofar as the concern is with extreme judgments, courts are not powerless to addresses any such instances if and when they occur, and the public fisc is not in any true jeopardy. For example, as noted in my prior comment on Espina, courts themselves have the power to guard against excessive or niggardly verdicts by ordering remittitur and additur, assessing the sufficiency of evidence, and granting new trials. See, e.g., Exxon Mobile Corp. v. Ford, 204 Md. App. 1, 32-25 (2012), rev’d on other grounds, 433 Md. 426 (2013); Aronson & Co. v. Fetridge, 180 Md. App. 650 (2008).
 This notion is actually reflected in Article 6 of the Maryland Declaration of Rights, which provides:
That all persons invested with the Legislative or Executive powers of Government are the Trustees of the Public, and, as such, accountable for their conduct: Wherefore, whenever the ends of Government are perverted, and public liberty manifestly endangered, and all other means of redress are ineffectual, the People may, and of right ought, to reform the old, or establish a new Government; the doctrine of non-resistance against arbitrary power and oppression is absurd, slavish and destructive of the good and happiness of mankind.
 Cf. Bivens v. Six Unknown Named Agents, 403 U.S. 388, 407 (1971) (the “judiciary has a particular responsibility to assure the vindication of constitutional interests such as those embraced by the Fourth Amendment,” for “the Bill of Rights is particularly intended to vindicate the interests of the individual in the face of the popular will as expressed in legislative majorities”) (Harlan, J., concurring). Notably, Article 6 of the Maryland Declaration of Rights, quoted supra n. 9, provides for majoritarian recall only of persons exercising executive or legislative, not judicial, power. Likewise, Article 33 provides:
That the independency and uprightness of Judges are essential to the impartial administration of Justice, and a great security to the rights and liberties of the People: Wherefore, the Judges shall not be removed, except in the manner, and for the causes provided in this Constitution[.]
Similarly, Article 18 prohibits certain majoritarian laws against individuals, providing, in particular:
That no Law to attaint particular persons of treason or felony, ought to be made in any case, or at any time, hereafter.
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