State v. Rovin

472 Md. 317

• Court: Court of Appeals of Maryland
• Decided: May 26, 2021
• Docket: 29/20
• Status: Published

Opinion

State of Maryland, et al. v. Valerie Rovin, No. 29, September Term, 2020

SUMMARY JUDGMENT – PROSECUTORIAL IMMUNITY – JUDICIAL IMMUNITY – MARYLAND TORT CLAIMS ACT – STATE PERSONNEL IMMUNITY – Court of Appeals held that trial court was correct in concluding that there was no genuine dispute of material fact as to prosecutors’ entitlement to absolute common law immunity in form of prosecutorial immunity and that grant of summary judgment in favor of prosecutors was warranted as matter of law. Because prosecutors are entitled to prosecutorial immunity, State cannot be held civilly liable for their actions. As such, trial court was correct in granting summary judgment in favor of two prosecutors and State as to any action in complaint alleged to have been taken by prosecutors. Court of Appeals held that law enforcement officers are not entitled to absolute immunity in form of prosecutorial immunity. Similarly, Court of Appeals held that absolute immunity in form of judicial immunity does not apply to actions of officers alleged in complaint. Court declined to extend judicial immunity under Keller-Bee v. State, 448 Md. 300, 138 A.3d 1253 (2016), to officers. Court of Appeals held, however, that State personnel immunity— form of statutory immunity—under Maryland Tort Claims Act (“MTCA”) bars claims against prosecutors and officers in their individual capacities. As such, State does not have immunity under MTCA but whether State is liable for any actions taken by officers, who do not have absolute common law immunity, is matter to be resolved by further proceedings in trial court.

Court of Appeals declined Petitioners’ request to apply Supreme Court’s holding in Heien v. North Carolina, 574 U.S. 54 (2014), to officers’ conduct in this case as Petitioners failed to raise issue regarding applicability of Heien in trial court and before Court of Special Appeals. Court of Appeals concluded that Petitioners did not raise, in petition for writ of certiorari, any issue, apart from applicability of common law and statutory immunities, as to claims for defamation and false light invasion of privacy. Petitioners’ contention that Court of Special Appeals erred in reversing grant of summary judgment as to those claims on ground that one officer’s statements were not false is not before Court.

As result of determinations, all of claims against State based on alleged actions of officers—i.e., false arrest, false imprisonment, malicious prosecution, violation of Article 24 of the Maryland Declaration of Rights, defamation, false light invasion of privacy, and intentional infliction of emotional distress—remain. Circuit Court for Wicomico County Case No. C-22-CV-17-000326

Argued: January 7, 2021 IN THE COURT OF APPEALS

OF MARYLAND

No. 29

September Term, 2020 ______________________________________

STATE OF MARYLAND, ET AL.

v.

VALERIE ROVIN ______________________________________

Barbera, C.J. McDonald Watts Hotten Getty Booth Biran,

JJ. ______________________________________

Opinion by Watts, J. McDonald, J., concurs in the judgment. ______________________________________

Filed: March 2, 2021

Pursuant to Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State Government Article) this document is authentic.

2021-05-26 12:22-04:00

Suzanne C. Johnson, Clerk This case stems from a lawsuit brought by Valerie Rovin (“Ms. Rovin”),

Respondent, against the State and the prosecutors and law enforcement officers who were

responsible for charging her with juror intimidation and assault after she allegedly

threatened the foreperson of a jury that had convicted her daughter of a criminal offense.

The primary question presented in the case is whether a type of immunity—absolute

common law judicial or prosecutorial immunity or statutory immunity under the Maryland

Tort Claims Act (“the MTCA”)—bars Ms. Rovin’s claims against the State and the

prosecutors and law enforcement officers who participated in her arrest and prosecution

such that summary judgment was correctly granted in favor of all of them. We are also

asked to determine whether the law enforcement officers can be civilly liable for an arrest

(Ms. Rovin’s) made pursuant to an arrest warrant based on a judicial officer’s

determination that probable cause existed for the arrest, where that determination was later

held by a trial court to be based on an error of law.

Absolute immunity is “[a] complete exemption from civil liability, usu[ally]

afforded to officials while performing particularly important functions, such as a

representative enacting legislation and a judge presiding over a lawsuit.” Absolute

Immunity, Black’s Law Dictionary (11th ed. 2019). One variety of absolute immunity is

judicial immunity, which has been defined as the “immunity of a judge from civil liability

arising from the performance of judicial duties.” Judicial Immunity, Black’s Law

Dictionary (11th ed. 2019). Another form of absolute immunity is prosecutorial immunity,

which has been defined as “[t]he absolute immunity of a prosecutor from civil liability for

decisions made and actions taken in a criminal prosecution.” Prosecutorial Immunity, Black’s Law Dictionary (11th ed. 2019).

Although judicial immunity and prosecutorial immunity are common law doctrines,

see Gill v. Ripley, 352 Md. 754, 765-66, 724 A.2d 88, 94 (1999), another form of immunity

is statutory. The General Assembly has created immunity for State personnel under certain

circumstances. Md. Code Ann., State Gov’t (1984, 2014 Repl. Vol.) (“SG”) § 12-105,

which is part of the MTCA, provides that “State personnel shall have the immunity from

liability described under” Md. Code Ann., Cts. & Jud. Proc. (1974, 2020 Repl. Vol.) (“CJ”)

§ 5-522(b). CJ § 5-522(b) provides:

State personnel, as defined in § 12-101 of the State Government Article,[1] are immune from suit in courts of the State and from liability in tort for a tortious act or omission that is within the scope of the public duties of the State personnel and is made without malice or gross negligence, and for which the State or its units have waived immunity under Title 12, Subtitle 1 of the State Government Article, even if the damages exceed the limits of that waiver.

The facts that gave rise to the question concerning immunities in this case are as

follows. Later on the same day after the conclusion of a jury trial in which her daughter

was found guilty of criminal charges, including drunk driving, Ms. Rovin went to the

workplace of Robert Rovin (“Mr. Rovin”), who had served as the foreperson of the jury.

(Mr. Rovin is not related to Ms. Rovin.) Ms. Rovin and Mr. Rovin have offered differing

accounts of their encounter that day. Ms. Rovin has alleged that she and Mr. Rovin had a

conversation, whereas Mr. Rovin has alleged that Ms. Rovin verbally assaulted him and

threatened to have someone cause him bodily harm. In any event, after Ms. Rovin left, Mr.

1 SG § 12-101(a) provides a list of fourteen categories of groups of individuals who are defined as State personnel.

-2- Rovin called the Wicomico County Sheriff’s Office to report the encounter. Deputy Sheriff

Matthew Cook responded to the call. The next day, Mr. Rovin filed a petition for a peace

order in the District Court of Maryland, sitting in Wicomico County, regarding Ms. Rovin’s

alleged conduct. The District Court denied the petition but advised that there is a statute

making it a criminal offense to intimidate a juror and that Ms. Rovin may have committed

a crime.

Deputy Cook consulted with the Office of the State’s Attorney for Wicomico

County, and was advised to apply for a statement of charges. Deputy Cook did so. A

District Court Commissioner approved the application for a statement of charges and

issued an arrest warrant for Ms. Rovin. Ms. Rovin was arrested, detained, and released on

bond with a condition of electronic monitoring. The State filed a criminal information,

which the State’s Attorney for Wicomico County Matthew A. Maciarello2 signed, charging

Ms. Rovin with juror intimidation in violation of Md. Code Ann., Crim. Law (2002, 2012

Repl. Vol.) (“CR”) § 9-305(a) and second-degree assault. While Ms. Rovin’s criminal case

was pending, the Sheriff of Wicomico County, Michael Lewis, made statements about the

case on the Sheriff’s Office Facebook page and in the media. At a jury trial in Ms. Rovin’s

case, in which the State was represented by Assistant State’s Attorney Richard Brueckner,

approximately four months after Ms. Rovin’s release on bond, the Circuit Court for

Wicomico County granted a motion for judgment of acquittal as to both charges, upon

2 Maciarello is no longer the State’s Attorney for Wicomico County. At some point after his involvement in the events of the case, Maciarello was appointed a judge of the Circuit Court for Wicomico County.

-3- finding that Ms. Rovin’s interaction with Mr. Rovin did not constitute juror intimidation

under CR § 9-305(a) or assault.

Subsequently, in the circuit court, Ms. Rovin sued the State, Maciarello, Assistant

State’s Attorney Brueckner, Sheriff Lewis, and Deputy Cook (together, “Petitioners”)3 for

false arrest, false imprisonment, malicious prosecution, violation of Article 24 of the

Maryland Declaration of Rights, false light invasion of privacy, defamation, and intentional

infliction of emotional distress. The State and prosecutors filed a motion to dismiss or for

summary judgment. The officers filed a separate motion to dismiss or for summary

judgment. After Ms. Rovin filed a request for production of documents, the State and

prosecutors filed a motion for a protective order. The circuit court granted the motion for

a protective order, and granted summary judgment in favor of all of the Petitioners as to all

of Ms. Rovin’s claims. The circuit court concluded, among other things, that Maciarello

and Assistant State’s Attorney Brueckner were entitled to prosecutorial immunity for all

claims brought against them, which extended to the State as well, and that the prosecutors

and the officers were entitled to qualified immunity.

Ms. Rovin appealed, and the Court of Special Appeals vacated the circuit court’s

judgment and remanded the case to the circuit court. See Valerie Rovin v. State of

Maryland, et al., No. 233, Sept. Term, 2018, 2020 WL 3265119, at *9 (Md. Ct. Spec. App.

June 17, 2020). The Court of Special Appeals reasoned that the circuit court abused its

3 Ms. Rovin also sued the Wicomico County State’s Attorney’s Office and the Wicomico County Sheriff’s Office, neither of which is a legal entity subject to suit or a Petitioner here. See n.9 below.

-4- discretion in precluding Ms. Rovin from engaging in discovery before granting summary

judgment. See id. at *1. The Court of Special Appeals held that the circuit court erred in

granting summary judgment because there was a genuine dispute of material fact as to

whether the reason that the defendants pursued criminal charges against Ms. Rovin was

that the circumstances justified doing so or that the defendants had an ulterior or otherwise

inappropriate motive for doing so. See id. at *9. In this Court, the State filed a petition for

a writ of certiorari on behalf of itself, Maciarello, Assistant State’s Attorney Brueckner,

Sheriff Lewis, and Deputy Cook, which this Court granted. See State v. Rovin, 471 Md.

103, 240 A.3d 853 (2020).

Before us, Petitioners contend that absolute common law immunity and State

personnel statutory immunity bar all of Ms. Rovin’s claims. Petitioners also argue that Ms.

Rovin’s claims arising from the officers’ actions fail because the officers had a good faith

belief that her conduct violated the juror intimidation statute and that her claims for

defamation and false light invasion of privacy fail because she cannot establish the element

of falsity that is required for both claims. Ms. Rovin responds that the record is insufficient

to demonstrate that any form of immunity bars her claims. She also contends that whether

the officers had a good faith belief that she violated the juror intimidation statute is a

question of fact and argues that her claims for defamation and false light invasion of

privacy are viable.

Upon careful consideration of the record and our case law, as to the immunity issue,

we hold that the circuit court was correct in concluding that there was no genuine dispute

of material fact as to Maciarello’s and Assistant State’s Attorney Brueckner’s entitlement

-5- to absolute common law immunity in the form of prosecutorial immunity, and that the grant

of summary judgment in favor of the prosecutors was warranted as a matter of law as to

all of Ms. Rovin’s claims. Because Maciarello and Assistant State’s Attorney Brueckner

are entitled to prosecutorial immunity, the State is not civilly liable for their actions in this

case. As such, the circuit court was correct in granting summary judgment in favor of the

State, Maciarello, and Assistant State’s Attorney Brueckner as to any action in the

complaint alleged to have been taken by the prosecutors.

On the other hand, the officers, Sheriff Lewis and Deputy Cook, are not entitled to

absolute common law immunity in the form of prosecutorial immunity. Similarly, the

officers are not entitled to absolute common law immunity in the form of judicial

immunity. We decline to extend judicial immunity under the holding in Keller-Bee v.

State, 448 Md. 300, 138 A.3d 1253 (2016), to the officers. State personnel statutory

immunity under the MTCA, however, bars Ms. Rovin’s claims against the officers, as well

as the prosecutors, in their individual capacities. As such, the State does not have immunity

under the MTCA, but whether the State is liable for any actions taken by Deputy Cook and

Sheriff Lewis, who do not have absolute common law immunity, is a matter to be resolved

by further proceedings in the circuit court.

As to the second issue, we decline Petitioners’ request that we apply the Supreme

Court’s holding in Heien v. North Carolina, 574 U.S. 54 (2014), to the officers’ conduct in

this case as Petitioners failed to raise an issue regarding the applicability of Heien in the

circuit court and before Court of Special Appeals. In addition, because Petitioners did not

raise, in the petition for a writ of certiorari, any issue, apart from the applicability of

-6- common law and statutory immunities, as to the claims for defamation and false light

invasion of privacy, Petitioners’ contention that the Court of Special Appeals erred in

reversing the grant of summary judgment as to those claims on the ground that statements

made by Sheriff Lewis were not false is not before this Court. See Md. R. 8-131(b)(1)

(“Unless otherwise provided by the order granting the writ of certiorari, in reviewing a

decision rendered by the Court of Special Appeals . . . , the Court of Appeals ordinarily

will consider only an issue that has been raised in the petition for certiorari or any cross-

petition and that has been preserved for review by the Court of Appeals.”). These issues

may, of course, be considered by the circuit court on remand.

For all of these reasons, we reverse the Court of Special Appeals’s judgment

vacating the grant of summary judgment in favor of Maciarello and Assistant State’s

Attorney Brueckner and the State with respect to any action in the complaint alleged to

have been taken by Maciarello and Assistant State’s Attorney Brueckner. We also reverse

the Court of Special Appeals’s judgment vacating the grant of summary judgment in favor

of Sheriff Lewis and Deputy Cook as the officers are entitled to State personnel immunity

under the MTCA. We affirm the judgment of Court of Special Appeals vacating the grant

of summary judgment in favor of the State as to any action in the complaint alleged to have

been taken by the officers, Sheriff Lewis and Deputy Cook. As a result of these

determinations, all of the claims against the State based on the alleged actions of Sheriff

Lewis and Deputy Cook with respect to the claims of false arrest, false imprisonment,

malicious prosecution, violation of Article 24 of the Maryland Declaration of Rights,

defamation, false light invasion of privacy, and intentional infliction of emotional distress

-7- remain.

BACKGROUND

The Complaint

On July 26, 2017, in the circuit court, Ms. Rovin filed a seven-count complaint. Ms.

Rovin sued Maciarello, Assistant State’s Attorney Brueckner, Sheriff Lewis, and Deputy

Cook in their “official capacities” as the State’s Attorney for Wicomico County, an

Assistant State’s Attorney for Wicomico County, the Sheriff of Wicomico County, and a

Deputy Sheriff of Wicomico County, respectively. Ms. Rovin also identified the State of

Maryland, the Wicomico County Sheriff’s Office, and the Office of the State’s Attorney

for Wicomico County as defendants in the lawsuit. In the complaint, Ms. Rovin alleged

seven counts—false arrest, false imprisonment, malicious prosecution, violation of Article

24 of the Maryland Declaration of rights, defamation, false light invasion of privacy, and

intentional infliction of emotional distress.

In a section of the complaint labeled “Factual Background,” Ms. Rovin alleged the

following. In or around June 2014, she and Mr. Rovin met for the first time. When they

met, the two discussed the fact that they have the same last name, as well as that of a man

named Bill Rovin, who had moved to Nicaragua, and was possibly a relative of both Ms.

Rovin and Mr. Rovin. Ms. Rovin indicated, however, that, to her knowledge, she and Mr.

Rovin are not related. At some point, on Facebook, Mr. Rovin became friends with one of

Ms. Rovin’s daughters.

Approximately one year later, on June 16, 2015, Mr. Rovin served as the jury

foreperson when another one of Ms. Rovin’s daughters was tried for driving under the

-8- influence of alcohol and related traffic offenses in the Circuit Court for Wicomico County.

The trial lasted one day and concluded with Ms. Rovin’s daughter being found guilty. Later

on the same day, Ms. Rovin visited Mr. Rovin at his workplace. Ms. Rovin acknowledged

that she was upset that the jury had found her daughter guilty and that a “fellow Rovin”

had served as the foreperson of the jury. Ms. Rovin denied that she initiated physical

contact with Mr. Rovin or threatened that she would physically harm him. After Ms. Rovin

left, Mr. Rovin telephoned the Sheriff’s Office. Deputy Cook responded to the call. The

next day, in the District Court of Maryland, sitting in Wicomico County, Mr. Rovin filed

a petition for a peace order, which the District Court denied. At the hearing for the peace

order, Mr. Rovin stated that the State’s Attorney’s Office had advised him to apply for the

peace order.

On June 18, 2015, an arrest warrant was issued for Ms. Rovin. The warrant stated

that the arrest was for the charge of intimidating a juror in violation of CR § 9-305(a). The

arrest warrant was based on an application submitted by Deputy Cook. Ms. Rovin stated

that prior to obtaining the warrant, Deputy Cook consulted with Maciarello and Assistant

State’s Attorney Brueckner as to the charge. Later on the same day, deputies of the

Sheriff’s Office arrested Ms. Rovin at her home, and she was detained at the Wicomico

County Detention Center over night from June 18 through 19, 2015.

Ms. Rovin alleged that after her arrest, in statements to the general public and the

media, and in posts on the Facebook page of the Sheriff’s Office, Sheriff Lewis made false

and defamatory statements by asserting that she committed a crime when she had not and

saying that her conduct was egregious.

-9- On June 19, 2015, in Ms. Rovin’s criminal case, the District Court conducted a bail

review hearing. At the bail review hearing, Clay Groton IV, an Assistant State’s Attorney

for Wicomico County, told the District Court that according to Assistant State’s Attorney

Brueckner, Ms. Rovin had threatened to kill Mr. Rovin “if the jury found her daughter

guilty.” Ms. Rovin alleged that Assistant State’s Attorney Groton’s statement was false,

and that he made it in an attempt to have the District Court restrict her liberty pending trial.

The District Court set bail at $30,000 and ordered Ms. Rovin to pay bail in its entirety, to

be subject to pretrial supervision and electronic monitoring using an ankle bracelet, and to

disconnect her cell phone and not use a computer pending trial. On the same day as the

bail review hearing, Ms. Rovin was released from detention.

According to Ms. Rovin, on July 9, 2015, under the auspices of Maciarello and

Assistant State’s Attorney Brueckner, the Office of the State’s Attorney filed in the circuit

court a criminal information, charging her with juror intimidation and second-degree

assault. On October 7, 2015, the circuit court conducted a jury trial, at which Assistant

State’s Attorney Brueckner represented the State. At the close of the State’s case, Ms.

Rovin’s counsel made a motion for judgment of acquittal as to both counts, which the

circuit court granted, finding that her actions constituted neither juror intimidation nor

assault.

In the complaint, Ms. Rovin contended that her actions did not constitute a crime as

a matter of law and that therefore no probable cause existed for the prosecution. Ms. Rovin

alleged that as a result of the defendants’ actions she suffered severe emotional distress and

mental anguish as well as substantial monetary damages.

- 10 - Motions, Exhibits, and Responses

On August 11, 2017, the State and prosecutors filed a motion to dismiss or for

summary judgment. In the motion, the State contended that Maciarello and Assistant

State’s Attorney Brueckner were entitled to prosecutorial immunity, and that, accordingly,

the State was not civilly liable for their conduct. The State also argued that Maciarello and

Assistant State’s Attorney Brueckner were entitled to State personnel immunity under the

MTCA.

The State attached six exhibits to the motion. Exhibit 1 was a transcript of the

hearing that the District Court conducted on Mr. Rovin’s petition for a peace order on June

17, 2015.4 Exhibit 2 was the application for a statement of charges and an arrest warrant

that Deputy Cook signed on June 17, 2015. In the application, Deputy Cook averred that

on June 16, 2015, he met with Mr. Rovin at his workplace, and Mr. Rovin told him, among

other things, that the day after her daughter’s conviction, Ms. Rovin visited his workplace

and became verbally assaultive. Ms. Rovin was incensed by the notion that Mr. Rovin had

sent a “fellow Rovin” to jail. Ms. Rovin threatened to have a man named Bill Rovin “take

care of” Mr. Rovin. Ms. Rovin said that Bill Rovin worked in Nicaragua and knew people

who would “take care of” Mr. Rovin. Mr. Rovin took Ms. Rovin’s statement as an indirect

4 The transcript reflected that at the peace order hearing, Mr. Rovin represented himself and the District Court asked Mr. Rovin questions to determine whether the circumstances satisfied any of the grounds for issuing a peace order. Mr. Rovin’s responses caused the District Court to conclude that the issuance of a peace order was not warranted. Although the District Court denied the petition for a peace order, the District Court pointed out that, if Ms. Rovin’s conduct was as Mr. Rovin had described, her actions could constitute a crime.

- 11 - death threat. At the time, Mr. Rovin was still a member of the circuit court’s jury pool for

the month of June 2015. As a result of the incident, Mr. Rovin was discharged from further

jury duties.

In the application, Deputy Cook also stated that he e-mailed Assistant State’s

Attorney Brueckner, who had represented the State at the trial in Ms. Rovin’s daughter’s

criminal case, to let him know about Ms. Rovin’s conduct. On June 17, 2015, Deputy

Cook spoke with Carsten Wendlandt, an investigator of the Office of the State’s Attorney,

who advised that, after he conferred with Maciarello and Assistant State’s Attorney

Brueckner, it was believed that the circumstances constituted “a case of witness/jury

intimidation and should be charged accordingly.”

Exhibit 3 included a press release dated June 18, 2015.5 Exhibit 4 was a printout of

an article by a person named Vanessa Junkin with the website address

www.delmarvanow.com and the date June 19, 2015 at the bottom.6 Exhibit 5 was a

criminal information that Maciarello signed, through which the State charged Ms. Rovin

with juror intimidation and second-degree assault.

5 We do not address the content of the press release because, on brief, Ms. Rovin states that her claims for defamation and false light invasion of privacy are not based on the press release. 6 The headline of the article read: “Sheriff: Juror intimidation case is ‘egregious[.]’” In the article, Junkin stated that Ms. Rovin “found out where the foreman of the jury that convicted her daughter of driving under the influence worked, and she went there and threatened him[.]” Junkin stated that Sheriff Lewis “said this week’s case of juror intimidation is probably the ‘most egregious’ incident of that type he’s seen during his time in office.” Junkin stated that Sheriff Lewis said that “jurors shouldn’t have to worry about actions like this, calling what [Ms.] Rovin is alleged to have done ‘absolutely unacceptable.’” Junkin also quoted Sheriff Lewis as saying that “‘[i]t’s absolutely shocking[.]’”

- 12 - Exhibit 6 was an excerpt of the transcript of the trial in Ms. Rovin’s criminal case,

which was conducted on October 7, 2015. The excerpt included the circuit court’s ruling

on Ms. Rovin’s counsel’s motion for judgment of acquittal. In ruling, the circuit court

stated that juror intimidation consists of attempting to influence or impede a juror in the

performance of the juror’s official duties. The circuit court noted that, once the trial in Ms.

Rovin’s daughter’s criminal case was over, Mr. Rovin could not have done anything to

affect the outcome of the case. Thus, the circuit court determined that Ms. Rovin did not

commit juror intimidation.7 The circuit court also determined that Ms. Rovin did not

commit second-degree assault as she merely threatened to do something at some point in

the future.

In this case, on August 25, 2017, Ms. Rovin filed an opposition to the State’s motion

to dismiss or for summary judgment.8 In the opposition, Ms. Rovin contended that

7 Within a year of Ms. Rovin’s acquittal, the General Assembly amended a different statute than the one that Ms. Rovin was charged with violating, entitled “Retaliation for Testimony[,]” Md. Code Ann., Crim. Law (2002, 2012 Repl. Vol., 2015 Supp.) (“CR (2015)”) § 9-303(a), to apply to retaliation against a juror. See 2016 Md. Laws 6564-65 (Vol. VIII, Ch. 532, S.B. 156); 2016 Md. Laws 6566-67 (Vol. VIII, Ch. 533, H.B. 93). On brief, the parties agree that the amendment to CR (2015) § 9-303(a) to prohibit juror retaliation was in response to Ms. Rovin’s acquittal. The General Assembly amended CR (2015) § 9-303(a), in pertinent part, with new language as follows: “A person may not intentionally harm another, threaten to harm another, or damage or destroy property with the intent of retaliating against: . . . (2) a juror for any reason relating to the performance of the juror’s official duties in a pending or completed case[.]” 2016 Md. Laws 6564-67 (underlining and some capitalization omitted). 8 Ms. Rovin also filed a motion for recusal and special assignment. In the motion, Ms. Rovin noted that Maciarello had become a judge of the Circuit Court for Wicomico County. Ms. Rovin requested that the judges of the Circuit Court for Wicomico County be recused, and that a judge of another circuit court be specially assigned to the case. On August 29, 2017, the circuit court issued an order granting the motion. The Honorable

- 13 - prosecutorial immunity and State personnel immunity apply only where a plaintiff sues a

defendant in a personal capacity, as opposed to in an official capacity. Ms. Rovin attached

a signed affidavit to the opposition in which she acknowledged that, on June 16, 2015, she

went to Mr. Rovin’s workplace to talk to him about her daughter’s conviction. Ms. Rovin

also acknowledged that, at the time, she was upset about the conviction. Ms. Rovin,

however, denied threatening to harm Mr. Rovin or telling him that someone else would

harm him.

On August 28, 2017, the State filed a reply to the opposition. On September 6,

2017, Sheriff Lewis and Deputy Cook filed a separate motion to dismiss or for summary

judgment and a memorandum in support, contending that they were entitled to State

personnel immunity. On September 18, 2017, Ms. Rovin filed an opposition to, as well as

a separate motion to strike, the officers’ motion. In the opposition, Ms. Rovin

acknowledged that, although she reserved the right to do so if she received substantiating

evidence during discovery, she had not alleged that any of the individuals involved in the

case acted with malice or gross negligence for purposes of State personnel immunity. In

the motion to strike, Ms. Rovin contended that the officers lacked standing or capacity to

file a motion to dismiss or for summary judgment because she sued them in their official

capacities. Thereafter, the parties filed various other oppositions and replies.

On November 22, 2017, Ms. Rovin filed a notice of discovery, stating that her first

request for production of documents had been mailed to the State’s counsel and the

Paul Martin Bowman of the Circuit Court for Kent County was specially assigned to the case.

- 14 - officers’ counsel. On November 28, 2017, the State filed a motion for a protective order,

requesting that discovery not be had until after the circuit court ruled on the State’s motion

to dismiss or for summary judgment. Ms. Rovin filed an opposition to the motion for a

protective order, and the State filed a reply to the opposition.

The Circuit Court’s Rulings

On January 29, 2018, the circuit court conducted a hearing on the pending motions.

At the motions hearing, ruling from the bench, the circuit court granted the motion for a

protective order, denied the motion to strike, and held both motions to dismiss or for

summary judgment sub curia. In an order issued the same day, the circuit court indicated

that it granted the motion for a protective order pending its ruling on the State’s motion to

dismiss or for summary judgment.

On February 10, 2018, the circuit court issued orders denying the motion to strike,

as well as an opinion and order treating the State’s motion to dismiss or for summary

judgment as a motion for summary judgment and granting the same. Although the circuit

court did not expressly rule on the officers’ motion to dismiss or for summary judgment,

the circuit court addressed issues related to the officers in its opinion. In the opinion, the

circuit court concluded that there was no genuine dispute of material fact as to what

occurred between Ms. and Mr. Rovin. The circuit court observed that, at the motions

hearing, Ms. Rovin’s counsel neither alluded to any dispute of material fact nor disputed

Mr. Rovin’s testimony at the peace order hearing regarding what Ms. Rovin said to him.

The circuit court stated that, instead, at the motions hearing, Ms. Rovin’s counsel simply

offered legal argument that she did not commit juror intimidation. The circuit court

- 15 - determined that, accordingly, it could dispose of this case as a matter of law. The circuit

court stated that denying summary judgment so that Ms. Rovin could participate in

discovery would amount to sanctioning “a fishing expedition[.]”

The circuit court concluded that the prosecutors were entitled to prosecutorial

immunity for actions within the scope of their duties in the judicial process. The circuit

court discussed whether the officers were entitled to immunity under the MTCA, but

indicated that the officers were entitled to immunity under CJ § 5-507, which provides

immunity for certain municipal officials, and indicated that immunity extended to the State

if the individuals did not commit “any tortious conduct[.]”9 The circuit court stated that “it

is clear that both the State’s Attorney’s Office and the Sheriff’s Office enjoy immunity

when conducting their official duties.” In discussing the malicious prosecution claim in

particular, the circuit court indicated that there had been probable cause to prosecute Ms.

Rovin for juror intimidation and that it did not find that the prosecutors had acted with

“malicious intent,” as Ms. Rovin had alleged.

9 On brief, the parties appear to agree that the circuit court erred in reasoning that the officers were entitled to municipal official immunity. CJ § 5-507(a)(1) provides that “[a]n official of a municipal corporation, while acting in a discretionary capacity, without malice, and within the scope of the official’s employment or authority shall be immune as an official or individual from any civil liability for the performance of the action.” The Sheriff’s Office, however, is not a municipal corporation. Indeed, it is not a legal entity. In Boyer v. State, 323 Md. 558, 572 n.9, 594 A.2d 121, 128 n.9 (1991), this Court held that the “the Charles County ‘Sheriff’s Department’” is not a legal entity that can be properly sued. This Court cited Md. Const., Art. 4, § 44, which requires each county, and Baltimore City, to have a sheriff. See id. at 572 n.9, 594 A.2d at 128 n.9. This Court explained, however, that no constitutional provision, statute, or ordinance creates a governmental agency called “the ‘Sheriff’s Department.’” Id. at 572 n.9, 594 A.2d at 128 n.9. It is clear that the officers are not entitled to municipal official immunity and we need not address the application of municipal official immunity under CJ § 5-507(a)(1).

- 16 - The circuit court determined that its findings regarding immunity applied to all of

Ms. Rovin’s claims. The circuit court concluded that, even if its findings regarding

immunity did not apply to Ms. Rovin’s claim for defamation, the claim was not viable.

Addressing the defamation claim, the circuit court determined that Sheriff Lewis’s

statements were neither defamatory nor false, and that the statements were not made with

the required “common law malice.”10

Opinion of the Court of Special Appeals

On April 3, 2018, Ms. Rovin filed a notice of appeal. On June 17, 2020, in an

unreported opinion, the Court of Special Appeals vacated the circuit court’s grant of the

motion for a protective order and the grant of summary judgment, and remanded the case

to the circuit court for further proceedings, including discovery. See Rovin, 2020 WL

3265119, at *9. The Court of Special Appeals determined that the circuit court abused its

discretion in precluding Ms. Rovin from in engaging in discovery before the circuit court

granted summary judgment. See id. at *1. The Court of Special Appeals held that the

circuit court erred in granting summary judgment because there was a genuine dispute of

material fact as to whether the reason why the prosecutors and officers pursued criminal

charges against Ms. Rovin was that the circumstances justified doing so or that they had

an ulterior or otherwise inappropriate motive for doing so. See id. The Court of Special

10 After the circuit court issued its opinion, on February 20, 2018, Ms. Rovin filed a motion to alter or amend the judgment. On February 22, 2018, the State filed an opposition to the motion to alter or amend the judgment. On March 1, 2018, the officers filed an opposition to the motion to alter or amend the judgment. On March 7, 2018, the circuit court issued an order denying the motion to alter or amend the judgment.

- 17 - Appeals indicated that the question of whether the criminal charges against Ms. Rovin were

justified depended on a resolution of the dispute regarding what happened between Ms.

Rovin and Mr. Rovin. See id.

Petition for a Writ of Certiorari

On August 4, 2020, Petitioners filed a petition for a writ of certiorari, raising the

following two issues:

1. Do common law absolute judicial and prosecutorial immunity and statutory immunity under the Maryland Tort Claims Act bar tort claims against prosecutors and law enforcement officers arising from an arrest based on the State’s Attorney’s and District Court Commissioner’s legal determination of probable cause?

2. Can law enforcement officers be civilly liable in tort when they sought an arrest warrant on the advice of the State’s Attorney and made an arrest with a warrant based on a judicial officer’s determination that the arrestee’s alleged conduct amounted to a crime, when that determination was later held to be legally erroneous?

On October 6, 2020, this Court granted the petition. See Rovin, 471 Md. 103, 240 A.3d

853.

STANDARD OF REVIEW

“An appellate court reviews without deference a trial court’s grant of a motion for

summary judgment, reviews the record in the light most favorable to the nonmoving party,

and construes any reasonable inferences that may be drawn from the facts against the

moving party.” Baltimore City Police Dep’t v. Potts, 468 Md. 265, 282, 227 A.3d 186,

196 (2020) (cleaned up). Summary judgment is appropriate where “there is no genuine

dispute as to any material fact and [] the [moving] party is entitled to judgment as a matter

of law.” Md. R. 2-501(a).

- 18 - DISCUSSION

I.

The Parties’ Contentions

Petitioners contend that Ms. Rovin’s claims are barred by common law and statutory

immunities. Petitioners argue that the prosecutors are entitled to absolute common law

prosecutorial immunity for their alleged role in all of Ms. Rovin’s claims, and that

prosecutorial immunity extends to the State as such immunity is not limited to claims

against individuals in their personal capacity. Petitioners also assert that absolute immunity

requires dismissal of the claims against the officers because the officers relied on probable

cause determinations made by the prosecutors and the District Court Commissioner and

these determinations were the “proximate cause” of Ms. Rovin’s arrest. Specifically,

Petitioners contend that, under Keller-Bee, 448 Md. 300, 138 A.3d 1253, the officers are

entitled to absolute immunity from civil liability because the proximate cause of Ms.

Rovin’s allegedly false arrest was not the officers’ actions, but instead the determinations

made by Maciarello, Assistant State’s Attorney Brueckner, and the District Court

Commissioner that there was probable cause. Petitioners also maintain that the prosecutors

and officers have State personnel immunity under the MTCA, as they were acting within

the scope of their duties with respect to the arrest and prosecution of Ms. Rovin and neither

malice nor gross negligence has been alleged.

Among many other things, Ms. Rovin responds that judicial immunity does not bar

any of her claims and that neither the circuit court nor the Court of Special Appeals

determined that judicial immunity applies. Ms. Rovin contends that the holding in Keller-

- 19 - Bee, 448 Md. 300, 138 A.3d 1253, is distinguishable from the circumstances of this case

because Keller-Bee involved claims against a judicial employee based on the employee’s

role in the judicial process. Ms. Rovin maintains that the Court of Special Appeals

correctly determined that she should have been permitted to conduct discovery prior to a

ruling on the State’s motion for summary judgment.

Ms. Rovin acknowledges that Petitioners are likely correct that the prosecutors and

officers are entitled to immunity under the MTCA, but asserts that Petitioners’ position that

the MTCA applies is a “judicial admission” that the State is accepting liability on behalf

of the prosecutors and officers. Ms. Rovin argues that, because the circuit court did not

find that the MTCA applies and “mix[ed] up aspects of the MTCA” with the form of

immunity set forth in CJ § 5-507, summary judgment may not be upheld based on the

MTCA, i.e., a ground that she contends was not relied upon by the circuit court. Ms. Rovin

also alleges that the applicability of the MTCA is a question for the trier of fact.

Ms. Rovin contends that the record is insufficient to demonstrate that prosecutorial

immunity bars her claims. According to Ms. Rovin, Petitioners bear the burden of

demonstrating which actions of a prosecutor are subject to prosecutorial immunity, and,

here, the record is “sparse” as to the prosecutors’ involvement in the events leading up to

her arrest and imprisonment. Ms. Rovin maintains that prosecutorial immunity does not

apply to a prosecutor giving advice to a law enforcement officer during a criminal

investigation. Ms. Rovin also contends that prosecutorial immunity does not apply to a

law enforcement officer obtaining an arrest warrant.

- 20 - Law

Judicial Immunity

Judicial immunity is a common law doctrine and a form of absolute immunity. See

D’Aoust v. Diamond, 424 Md. 549, 585, 596, 36 A.3d 941, 962, 968 (2012). The purpose

of judicial immunity is to promote the independence of the courts by ensuring that, when

exercising their authority, judicial officers are free to act upon their convictions without

fear of any lawsuits that “disgruntled litigants” may initiate. Id. at 597, 36 A.3d at 969

(cleaned up). The applicability of judicial immunity does not depend on whether a judicial

officer acted with malice. See id. at 585, 36 A.3d at 961-62. In discussing judicial

immunity, we have observed that the immunity afforded judges “may be overcome in only

two sets of circumstances—when the conduct is non-judicial, i.e., actions not taken in the

judge’s judicial capacity, and when the conduct though judicial in nature, is taken in the

complete absence of all jurisdiction.” Gill, 352 Md. at 761, 724 A.2d at 92 (cleaned up).

More recently, we stated that to be entitled to judicial immunity from civil liability for an

act, a party must be a judicial officer, the act must have been a judicial act, and the party

must not have known that the party clearly lacked jurisdiction over the matter at issue. See

D’Aoust, 424 Md. at 598-99, 36 A.3d at 969-70.

In Keller-Bee, 448 Md. at 302, 138 A.3d at 1254, this Court held that judicial

immunity bars a lawsuit against the State based on an allegedly negligent act of an

employee of a clerk of court’s office where the proximate cause of the plaintiff’s alleged

injuries was a judge’s issuance of a body attachment. In Keller-Bee, id. at 302, 138 A.3d

at 1254, the judge issued a body attachment against the plaintiff for failing to appear at a

- 21 - hearing, when, in fact, the plaintiff had appeared at the hearing. The judge mistakenly

believed otherwise because the other party in the case had moved to find the plaintiff in

contempt for failing to appear at the hearing and had requested a body attachment. See id.

at 302, 138 A.3d at 1254. An employee of the clerk’s office who generated the body

attachment papers and presented them to the judge allegedly did not verify whether the

plaintiff had failed to appear at the hearing. See id. at 302-03, 138 A.3d at 1254-55.

The plaintiff sued the State for negligence and a violation of Article 24 of the

Maryland Declaration of Rights, attempting to have the State be civilly liable for the

employee’s actions in preparing the body attachment papers and not confirming whether

the plaintiff had failed to appear at the hearing. See id. at 303, 138 A.3d at 1254-55. The

plaintiff did not attempt to hold the State civilly liable for the judge’s act of issuing the

body attachment. See id. at 303, 138 A.3d at 1254-55. We pointed out that the plaintiff

apparently realized that, due to judicial immunity, it would be futile to sue the judge. See

id. at 309, 138 A.3d at 1258. We explained that the plaintiff tried to shift the blame for the

body attachment from the judge to the employee. See id. at 309, 138 A.3d at 1258.

Specifically, the plaintiff contended that the employee had a duty to independently assess

the merits of the request for a body attachment to prevent the judge from issuing an

erroneous body attachment. See id. at 309, 138 A.3d at 1258. We determined that, in

contending as much, the plaintiff conceded that it was the judge, not the employee, who

had erred. See id. at 309, 138 A.3d at 1258.

We concluded that the plaintiff failed to state a claim upon which relief could be

granted because the proximate cause of the plaintiff’s alleged injuries was not the

- 22 - employee’s action. See id. at 310, 138 A.3d at 1259. We determined that, instead, the

proximate cause of the plaintiff’s alleged injuries was the judge’s issuance of the body

attachment, an act to which judicial immunity applied. See id. at 309-10, 138 A.3d at 1258-

59. We stated that it was not necessary to decide whether clerical employees are entitled

to judicial immunity to the same extent as judges or whether in preparing the paperwork

the employee acted under the supervision of the judge because the employee’s conduct did

not cause the plaintiff’s injuries, i.e., the judge’s act in issuing the body attachment was the

action that caused the injuries and that action was covered by judicial immunity. See id. at

307, 138 A.3d at 1257.

Prosecutorial Immunity

Prosecutorial immunity is another type of absolute immunity and is also a common

law doctrine. See Gill, 352 Md. at 770, 724 A.2d at 96. Prosecutorial immunity arose out

of, and is related to, judicial immunity. See id. at 770, 724 A.2d at 96. Similar to the

purpose of judicial immunity, the purpose of prosecutorial immunity is to protect

prosecutors’ independent decision-making by ensuring that fear of unfounded lawsuits

does not affect their actions. See id. at 767, 724 A.2d at 94. As with judicial immunity,

the applicability of prosecutorial immunity does not depend on whether a prosecutor acted

with malice. See id. at 774, 724 A.2d at 98. In Gill, id. at 770, 724 A.2d at 96, we stated:

Although, as noted, we have not dealt specifically with prosecutorial immunity, we have, in defining and applying judicial immunity, from which prosecutorial immunity arose and with which it maintains some affinity, adopted the functional approach taken by the Supreme Court, holding that absolute immunity protects judges so long as their acts are judicial in nature and within the very general scope of their jurisdiction.

- 23 - (Cleaned up). As a result, we concluded, “as a matter of Maryland common law, that

prosecutors enjoy absolute immunity with respect to claims arising from their role in the

judicial process[.]” Id. at 770, 724 A.2d at 96. Such claims may involve “evaluating

whether to commence a prosecution by criminal information, presenting evidence to a

grand jury in the quest for an indictment, filing charges, [] preparing and presenting the

State’s case in court[,]” id. at 770, 724 A.2d at 96 (footnote omitted), and terminating a

prosecution with or without prejudice, see id. at 774, 724 A.2d at 98.

In Gill, id. at 780, 773, 724 A.2d at 101, 97, this Court held that a clerical employee

within the Office of the State’s Attorney for Harford County had prosecutorial immunity

for erroneously informing a plaintiff after the dismissal of a paternity action that the

plaintiff would not be able to ever bring such an action again, and the employee refused,

upon request, to assist the plaintiff with efforts to reopen the proceeding. We concluded

that the employee, who acted under the State’s Attorney’s direction, and whose conduct

was directly involved with the prosecution of the paternity proceeding, was entitled to

prosecutorial immunity. See id. at 773, 724 A.2d at 97-98. We explained that there was

no valid reason to distinguish the employee’s role in the prosecution from that of law clerks

or court clerks who act under the control and supervision of judges, see id. at 773, 724 A.2d

at 97-98, and perform tasks that are integral to the judicial process, and, as a result, are

entitled to judicial immunity, see id. at 771, 724 A.2d at 96.

State Personnel Immunity

Sovereign immunity is yet another form of absolute immunity and is also a common

law doctrine. See Washington Suburban Sanitary Comm’n v. Bowen, 410 Md. 287, 301,

- 24 - 299, 978 A.2d 678, 687, 685 (2009). Under the doctrine of sovereign immunity, the State

cannot incur civil liability without its consent. See Beka Indus., Inc. v. Worcester Cty. Bd.

of Educ., 419 Md. 194, 206, 18 A.3d 890, 897 (2011). Such consent is known as a waiver

of sovereign immunity. See Bd. of Educ. of Baltimore Cty. v. Zimmer-Rubert, 409 Md.

200, 212, 973 A.2d 233, 240 (2009).

The General Assembly has partially waived the State’s sovereign immunity by

enacting SG § 12-104(a), which is part of the MTCA. See Cooper v. Rodriguez, 443 Md.

680, 706-07, 118 A.3d 829, 844-45 (2015). Specifically, SG § 12-104(a) provides that

sovereign immunity is waived as to a tort action, up to $400,000 per claimant per incident

or occurrence. See SG § 12-104(a)(1) and (a)(2). SG § 12-104(b), however, provides that

sovereign immunity is not waived in certain respects, as provided in CJ § 5-522. One

subsection, CJ § 5-522(a)(4), provides that sovereign immunity is not waived for “[a]ny

tortious act or omission of State personnel that: (i) Is not within the scope of the public

duties of the State personnel; or (ii) Is made with malice or gross negligence[.]” (Paragraph

breaks omitted). SG § 12-105, which is also part of the MTCA, provides that “State

personnel shall have the immunity from liability described under” CJ § 5-522(b). CJ § 5-

522(b) provides, in pertinent part, that “State personnel . . . are immune from suit in courts

of the State and from liability in tort for a tortious act or omission that is within the scope

of the public duties of the State personnel and is made without malice or gross

negligence[.]”

Read together, these provisions contemplate two possible outcomes where an

individual who is State personnel has allegedly engaged in a tortious act or omission for

- 25 - which there is an issue of. See Cooper, 443 Md. at 707-08, 118 A.3d at 845. If the

individual acts within the scope of the individual’s public duties and without malice or

gross negligence, the individual is entitled to State personnel immunity, and the State is

not entitled to sovereign immunity. See id. at 708, 118 A.3d at 845. By contrast, if the

individual does not act within the scope of the individual’s public duties or if the individual

acts with malice or gross negligence, then the individual is not entitled to State personnel

immunity, and the State is entitled to sovereign immunity because sovereign immunity is

not waived under that circumstance. See id. at 708, 118 A.3d at 845. In the first outcome,

the individual is not civilly liable under the MTCA, and the State is. See id. at 708, 118

A.3d at 845. In the second outcome, the individual is civilly liable, and the State is not.

See id. at 708, 118 A.3d at 845.

That said, where the individual is entitled to a form of absolute immunity, e.g.,

prosecutorial immunity or judicial immunity, neither the individual nor the State is civilly

liable, even if the individual is also entitled to State personnel immunity under the MTCA.

In Parker v. State, 337 Md. 271, 286, 653 A.2d 436, 443 (1995), this Court stated that

“[j]udicial acts performed by judges are among those governmental functions that cannot

give rise to civil liability in tort. Accordingly, a suit that is barred by judicial immunity

cannot form the basis of a recovery against the State under the Tort Claims Act.” In Parker,

id. at 274-75, 653 A.2d at 437-38, a motorist who was ultimately acquitted of the charge

of speeding in the circuit court sued a circuit court judge who had mistakenly issued an

arrest warrant that led to the motorist’s arrest. The motorist contended that the circuit court

judge was not entitled to judicial immunity because the judge lacked jurisdiction to issue

- 26 - the arrest warrant. See id. at 276, 653 A.2d at 438. The parties had agreed that, if the judge

had judicial immunity, then the State would not be liable under the MTCA. See id. at 277,

653 A.2d at 438-39. This Court held that the judge was entitled to judicial immunity and

explained that, where an action is precluded by judicial immunity, there can be no recovery

against the State under the MTCA. See id. at 286-87, 653 A.2d at 443-44. This Court

explained:

The differences between absolute judicial immunity and the qualified immunity of most other public officials are justified by the same concerns that precipitated the development of judicial immunity. Like other public officials, judges might be deterred from conscientious decision making if they were susceptible to civil liability for their official actions. Unlike other public officials, judges are required, on a daily basis, to make numerous decisions in disputes between adverse parties. With respect to each judicial decision, there is a winner and a loser. . . . With such important issues at stake in an adversarial context, absolute immunity is needed to forestall endless collateral attacks on judgments through civil actions against the judges themselves.

Id. at 286-87, 653 A.2d at 443 (citation omitted).

Analysis

Here, upon careful consideration of the record and our case law, we hold that the

circuit court was correct in concluding that there was no genuine dispute of material fact

as to the prosecutors’ entitlement to absolute common law immunity in the form of

prosecutorial immunity, and that summary judgment was warranted as a matter of law as

to all of Ms. Rovin’s claims involving Maciarello and Assistant State’s Attorney

Brueckner. Given that Maciarello and Assistant State’s Attorney Brueckner are entitled to

prosecutorial immunity, an absolute immunity, the State cannot be held civilly liable for

their actions in this case. As such, the circuit court was correct in granting summary

- 27 - judgment in favor of the prosecutors and the State as to any action in the complaint alleged

to have been taken by Maciarello and Assistant State’s Attorney Brueckner.

The officers, Sherriff Lewis and Deputy Cook, however, are not entitled to absolute

prosecutorial immunity. Similarly, absolute immunity in the form of judicial immunity

does not apply to the actions of the officers. Moreover, we decline to extend judicial

immunity under the holding in Keller-Bee to the officers. State personnel immunity under

the MTCA, though, bars Ms. Rovin’s claims against the officers, as well as the prosecutors,

in their individual capacities. As such, the State does not have immunity under the MTCA,

but whether the State is liable for any actions taken by Sheriff Lewis and Deputy Cook,

who are not entitled to absolute immunity, is a matter to be resolved by further proceedings

in the circuit court. We discuss our conclusions in order.

To begin, as the circuit court concluded, there is no genuine dispute of material fact

that would bar the prosecutors and the State from entitlement to absolute prosecutorial

immunity for the actions of the prosecutors alleged in Ms. Rovin’s complaint. In its current

state, the record is sufficient for us to determine whether the prosecutors and the State are

entitled to judgment as a matter of law on the basis of prosecutorial immunity. Contrary

to the Court of Special Appeals’s reasoning, in assessing the applicability of prosecutorial

immunity, it is not necessary to determine whether the circumstances of the encounter

between Ms. Rovin and Mr. Rovin at his workplace “justified” the prosecutors pursuing

charges or whether they had “an ulterior or otherwise improper motive” for doing so.

Rovin, 2020 WL 3265119, at *9. It is a well-established tenet of Maryland common law

that prosecutors enjoy absolute prosecutorial immunity for claims arising from their role

- 28 - in the judicial process and that the immunity extends to acts such as evaluating whether to

begin a prosecution by criminal information, presenting evidence to a grand jury to obtain

an indictment, filing charges, and preparing and presenting the State’s case in court. See

Gill, 352 Md. at 770, 724 A.2d at 96. It is equally well established that allegations of

malice do not defeat prosecutorial immunity. See id. at 774, 724 A.2d at 98. Prosecutorial

immunity is a close relative of judicial immunity and such absolute immunity protects both

judges and prosecutors so long as their acts arise from their role in the judicial process

regardless of their reasons for acting. See id. at 770, 724 A.2d at 96.

Maciarello and Assistant State’s Attorney Brueckner are entitled to prosecutorial

immunity for the conduct alleged by Ms. Rovin because the actions at issue plainly arose

from their role as prosecutors in the judicial process. Those actions include Maciarello and

Assistant State’s Attorney Brueckner giving advice to Deputy Cook about the institution

of charges, providing information to the prosecutor who represented the State at the bail

review hearing in Ms. Rovin’s criminal case, filing the criminal information against her in

the circuit court, and representing the State at the trial in her criminal case. This conduct

is of the type that has been specifically defined in case law as being that for which

prosecutors enjoy prosecutorial immunity. Given that a prosecutor’s reason for pursuing

criminal charges is not determinative of the issue of prosecutorial immunity, uncovering

the rationale or basis for Maciarello’s and Assistant State’s Attorney Brueckner’s decision

to pursue charges against Ms. Rovin is not necessary to evaluating the application of

prosecutorial immunity. Similarly, determining whether either Ms. Rovin’s or Mr. Rovin’s

account of what occurred during their interaction at his workplace is accurate is not

- 29 - determinative of the application of prosecutorial immunity. If the application of

prosecutorial immunity depended upon the outcome of a case, i.e., a defendant actually

being found guilty, prosecutorial immunity could not exist. Contrary to the Court of

Special Appeals’s reasoning, see Rovin, 2020 WL 3265119, at *1, the circuit court was not

required to allow discovery before granting summary judgment as to Maciarello and

Assistant State’s Attorney Brueckner on the basis of prosecutorial immunity.

As a general principle, where there is no genuine dispute of material fact and a party

is entitled to judgment as a matter of law, a trial court is not required to refrain from

granting summary judgment to allow development of a more complete factual record. In

A.J. Decoster Co. v. Westinghouse Elec. Corp., 333 Md. 245, 262-63, 634 A.2d 1330, 1338

(1994), this Court held that, while a trial “court has the discretion to deny a motion for

summary judgment so that a more complete factual record can be developed, it is not

reversible error if the court chooses not to do so.” (Citations omitted). This Court was

unpersuaded by the nonmoving party’s contention that, if it had been allowed to complete

discovery, it might have uncovered facts that would preclude summary judgment. See id.

at 262-63, 634 A.2d at 1338. This Court concluded that, because the facts were undisputed,

the trial court did not err in granting summary judgment without allowing the nonmoving

party to complete discovery. See id. at 262-63, 634 A.2d at 1338. Similarly, here, because

there was no genuine dispute of material fact as to the prosecutors’ entitlement to

prosecutorial immunity, the circuit court was not required to permit discovery before

granting summary judgment on that basis.

Because Ms. Rovin has raised an issue as to whether a prosecutor giving advice to

- 30 - a law enforcement officer is an act that falls under prosecutorial immunity, we will address

the issue. We are satisfied that prosecutorial immunity applies to Maciarello’s and

Assistant State’s Attorney Brueckner’s advice to Deputy Cook to charge Ms. Rovin with

juror intimidation. In advising Deputy Cook, Maciarello and Assistant State’s Attorney

Brueckner evaluated whether Ms. Rovin should have been charged with an offense in the

District Court, and, as such, engaged in an act that is as much a part of the judicial process

as “evaluating whether to commence a prosecution by criminal information[.]” Gill, 352

Md. at 770, 724 A.2d at 96.

We are not persuaded by Ms. Rovin’s contention that prosecutorial immunity does

not apply to advice that a prosecutor gives a law enforcement officer. In support of the

contention, Ms. Rovin relies on Burns v. Reed, 500 U.S. 478, 495 (1991), and two

subsequent opinions that cited Burns—Simms v. Constantine, 113 Md. App. 291, 306, 688

A.2d 1, 8 (1997) and Van de Kamp v. Goldstein, 555 U.S. 335, 343 (2009). These cases,

however, are distinguishable from the circumstances of this one. In Burns, 500 U.S. at

481-83, 496, a 1991 case that arose under 42 U.S.C. § 1983, the Supreme Court considered

whether a prosecutor who advised a law enforcement officer that a person who was

suspected of having multiple personalities could be questioned by the officer under

hypnosis, and while under hypnosis the person made incriminating statements, the

Supreme Court concluded that the prosecutor’s advice was not covered by absolute

prosecutorial immunity. The Supreme Court noted that, unlike the absolute common law

immunity from liability extended to prosecutors for malicious prosecution, the Supreme

Court had not been inclined to extend absolute immunity under 42 U.S.C. § 1983. See id.

- 31 - at 493. The Supreme Court indicated that it had previously observed that 42 U.S.C. § 1983

“on its face does not provide for any immunities[.]” Id. at 494 (emphasis in original). To

be sure, in response to the argument that a prosecutor giving legal advice is related to the

prosecutor’s role in screening cases for prosecution, the Supreme Court observed that

almost any action by a prosecutor, including direct participation in investigative activity,

could be said to be related to the ultimate decision of whether to prosecute. See id. at 495.

The Supreme Court indicated, however, that the application of absolute immunity

depended on whether the prosecutors’ actions are closely associated with the judicial

process. See id.

In Simms, 113 Md. App. at 299, 321, 688 A.2d at 5, 16, where prosecutors were

alleged to have manipulated or falsified evidence against police officers so as to cause the

initiation of criminal investigations against the officers, the Court of Special Appeals held

that the prosecutors’ alleged conduct was not covered by prosecutorial immunity. In

Simms, id. at 297-98, 688 A.2d at 4, law enforcement officers attempted to execute a search

warrant at the home of a relative of the wife of the mayor of Baltimore City, but allegedly,

the mayor learned that the search was happening, intervened, and caused someone in the

chain of command of the Baltimore Police Department to prohibit the officers from

completing the search. It was alleged that, because of a perceived affront, the mayor

enlisted the assistance of prosecutors and the police commissioner in instituting criminal

charges against the officers who conducted the search, and, thereafter, it was alleged that

the prosecutors manufactured evidence against the officers. See id. at 299, 688 A.2d at 4-

5. The prosecutors moved to dismiss the case on the ground of absolute prosecutorial

- 32 - immunity. See id. at 319, 688 A.2d at 14. The Court of Special Appeals characterized the

prosecutors’ conduct as investigative and was not persuaded that the alleged conduct

involved duties in the prosecutors’ role in the judicial process. See id. at 319-21, 688 A.2d

at 14-16. The Court of Special Appeals stated that “[i]n no sense can any investigative

activity undertaken by the [prosecutors] or any legal advice given by them to the police

commissioner, to the Mayor, or to anyone else be deemed to be a part of the judicial

function of the State’s Attorney’s Office.” Id. at 320, 688 A.2d at 15. The Court of Special

Appeals stated, under Burns, 500 U.S. at 495, that “[w]hen a prosecutor is involved in the

investigative function, [the prosecutor] is entitled to no more by way of immunity than is

the police officer who is involved in that same function[.]” Simms, 113 Md. App. at 314,

688 A.2d at 12. The Court of Special Appeals concluded that the trial court was correct in

denying the prosecutors’ motion to dismiss on the ground of prosecutorial immunity

because, at that stage of litigation, it could not be determined whether the prosecutors’

alleged actions fell into the category of investigative functions or in the category of the

prosecutors’ role in the judicial process. See id. at 319-21, 688 A.2d at 14-16.

In Van de Kamp, 555 U.S. at 338-39, the Supreme Court held that prosecutorial

immunity applied to claims that prosecutors failed to disclose impeachment material due

to failures to properly train and supervise prosecutors and to establish an information

system concerning potential impeachment material regarding informants. The Supreme

Court reiterated that prosecutorial immunity does not apply where a prosecutor is not acting

as an officer of the court, and instead is engaged in other tasks, such as investigative or

administrative ones. See id. at 342. The Supreme Court cited Burns, 500 U.S. at 492, 496,

- 33 - for the proposition that it had previously held that absolute immunity applies when a

prosecutor prepares to initiate a judicial proceeding, but had also held that absolute

immunity does not apply when a prosecutor gives advice to police during a criminal

investigation. See Van de Kamp, 555 U.S. at 343. Although the Supreme Court cited

Burns for the distinction with respect to prosecutorial immunity where a prosecutor is

engaged in an investigative function as opposed to a role in the judicial process, the

circumstances of Van de Kamp did not involve any issue whatsoever as to a prosecutor

giving legal advice.

Burns, 500 U.S. at 482, Simms, 113 Md. App. at 320, 688 A.2d at 15, and Van de

Kamp, 555 U.S. at 339, are distinguishable because they did not involve a prosecutor

giving legal advice regarding the initiation of criminal charges, but rather involved

prosecutors who either gave, or may have given, legal advice as part of an investigative

process or who did not give legal advice at all. In Burns, 500 U.S. at 482, the prosecutor

clearly gave a law enforcement officer advice concerning the process for gathering a

statement from a suspect, and not a matter related to the decision to begin prosecution. In

Simms, 113 Md. App. at 320, 688 A.2d at 15, the prosecutors involved were not even

alleged to have given advice to a law enforcement officer, but rather were said to have

potentially advised the mayor and police commissioner. And, as mentioned above, in Van

de Kamp, 555 U.S. at 339, the prosecutors did not give any advice at all. By contrast, here,

the record makes clear that Maciarello and Assistant State’s Attorney Brueckner gave

advice to Deputy Cook to institute charges against Ms. Rovin as part of their role in the

judicial process. Maciarello and Assistant State’s Attorney Brueckner did not give advice

- 34 - to Deputy Cook with respect to an investigation, e.g., to gather additional evidence or to

interrogate a suspect in a certain manner. We decline to follow the cases suggested by Ms.

Rovin and will apply the common law of Maryland regarding prosecutorial immunity, as

this Court determined it to be in Gill, 352 Md. at 770, 724 A.2d at 96. We conclude that

Maciarello’s and Assistant State’s Attorney Brueckner’s advice to Deputy Cook to institute

charges constituted an instance of “evaluating whether to commence a prosecution[.]” Gill,

352 Md. at 770, 724 A.2d at 96. As such, consistent with Gill, id. at 770, 724 A.2d at 96,

we hold that prosecutorial immunity applies where a prosecutor advises a law enforcement

officer to file with a judicial officer an application for a statement of charges as this is an

act related to the decision of whether to prosecute and an act closely associated with the

prosecutor’s role in the judicial process.

Because Maciarello and Assistant State’s Attorney Brueckner are entitled to

prosecutorial immunity, the State is not civilly liable for their actions in this case. Our

conclusion is informed by this Court’s holding in Parker, 337 Md. at 287, 653 A.2d at 444,

that, because a judge was entitled to judicial immunity, the State was not civilly liable for

the judge’s alleged torts. This Court explained that, where a judicial officer is entitled to

judicial immunity, a plaintiff cannot recover from the State for the judicial officer’s alleged

torts, notwithstanding the MTCA. See id. at 286, 653 A.2d at 443. The same is the case

where a prosecutor is entitled to prosecutorial immunity; the State cannot be held liable for

the prosecutors’ alleged torts.

Although Maciarello and Assistant State’s Attorney Brueckner as prosecutors are

entitled to prosecutorial immunity, our examination of relevant case law reveals that the

- 35 - officers are not entitled to prosecutorial immunity. We disagree with Petitioners’

contention that Sheriff Lewis and Deputy Cook are entitled to prosecutorial immunity

because they relied on Maciarello’s and Assistant State’s Attorney Brueckner’s

determination that there was probable cause to believe that Ms. Rovin violated the juror

intimidation statute. Although our holding in Gill, 352 Md. 754, 724 A.2d 88, indicates

that a prosecutor, or a clerical employee who acts at a prosecutor’s direction, can be entitled

to prosecutorial immunity, we decline to extend the same rationale to law enforcement

officers who consult with prosecutors. In Gill, id. at 770, 724 A.2d at 96, this Court

described the scope of prosecutorial immunity by stating “that prosecutors enjoy absolute

immunity with respect to claims arising from their role in the judicial process—evaluating

whether to commence a prosecution by criminal information, presenting evidence to a

grand jury in the quest for an indictment, filing charges, and preparing and presenting the

State’s case in court.” (Footnote omitted). In holding as such, we identified prosecutors

as the individuals in the judicial process for whom prosecutorial immunity is intended, and

also listed examples of conduct to which prosecutorial immunity applies, i.e., actions that

only a prosecutor can take, such as presenting evidence to a grand jury when seeking an

indictment.

This Court’s holding in Gill does not support the notion that a law enforcement

officer would be entitled to prosecutorial immunity. Although a law enforcement officer

may act at a prosecutor’s direction—as in this case, where Deputy Cook followed

Maciarello’s and Assistant State’s Attorney Brueckner’s advice to apply for a statement of

charges against Ms. Rovin—the relationship between a prosecutor and a law enforcement

- 36 - officer is not analogous to that of a judge and a law clerk or a clerk of the court, as was the

relationship between the State’s Attorney and the clerical employee who was entitled to

prosecutorial immunity in Gill, id. at 773, 724 A.2d at 97-98. Plainly, a prosecutor has no

supervisory authority over a police officer in the workplace, and a police officer who is

seeking a statement of charges and an arrest warrant independently brings to a prosecutor

information for the prosecutor’s use in determining whether to bring charges. These

circumstances demonstrate that prosecutorial immunity should not extend to law

enforcement officers in the pursuit of law enforcement related activities, even where an

officer consults with a prosecutor.

In addition to our holding in Gill, the Supreme Court’s decision in Malley v. Briggs,

475 U.S. 335 (1986), supports the conclusion that a law enforcement officer is not entitled

to prosecutorial immunity. In Malley, id. at 342, 337, the Supreme Court rejected a law

enforcement officer’s contention that he was entitled to prosecutorial immunity11 from civil

liability for applying for an arrest warrant in the alleged absence of probable cause. The

Supreme Court pointed out that, under the federal common law, only qualified immunity

could attach to an officer’s application for an arrest warrant. See Malley, 475 U.S. at 342.

The Supreme Court was unpersuaded by the officer’s attempt to analogize his role to that

of a prosecutor. See id. The Supreme Court determined that, although an officer’s

11 Although the Supreme Court did not use the term “prosecutorial immunity,” it stated that the officer requested the same form of absolute immunity as that which prosecutors enjoy. See Malley, 475 U.S. at 342. The Supreme Court cited Imbler v. Pachtman, 424 U.S. 409 (1976). See Malley, 475 U.S. at 342. In Imbler, 424 U.S. at 422, the Supreme Court referred to that form of absolute immunity as “prosecutorial immunity[.]”

- 37 - application for an arrest warrant is a vital part of the administration of criminal justice, it

is further removed from the judicial phase of criminal proceedings than a prosecutor’s

request for an indictment. See id. at 342-43. The Supreme Court’s holding in Malley

demonstrates the principle that is suggested by this Court’s holding in Gill—namely, that

a law enforcement officer is not entitled to absolute prosecutorial immunity.

This Court has previously found persuasive the Supreme Court’s holding in Malley

as to a law enforcement officer not being entitled to prosecutorial immunity. In Smith v.

Danielczyk, 400 Md. 98, 103, 928 A.2d 795, 798 (2007), this Court held that a law

enforcement officer is not entitled to absolute immunity from civil liability for making

allegedly false, defamatory statements in an application for a search warrant and disclosing

the statements to the media. This Court called Malley “instructive and persuasive,” and

agreed with the Supreme Court’s determination that an officer’s conduct in applying for a

search warrant would not be entitled to absolute immunity. Smith, 400 Md. at 124-25, 928

A.2d at 811. Consistent with the Supreme Court’s holding in Malley and our holdings in

Gill and Smith, we conclude that the officers in this case are not entitled to absolute

prosecutorial immunity with respect to the actions alleged by Ms. Rovin in her complaint.

Having determined that absolute prosecutorial immunity applies to Maciarello,

Assistant State’s Attorney Brueckner, and the State for the actions of the prosecutors, but

that such immunity does not apply to the officers, we examine whether judicial immunity

applies to the officers. To be entitled to absolute judicial immunity from civil liability for

an act, a party must be a judicial officer, the act must have been a judicial act, and the party

must not have known of the alleged lack of jurisdiction over the matter at issue. See

- 38 - D’Aoust, 424 Md. at 598-99, 36 A.3d at 969-70. This description of judicial immunity

makes clear that law enforcement officers are not entitled to such immunity. Indeed, this

Court has repeatedly indicated that, generally, law enforcement officers cannot be entitled

to any form of absolute immunity (such as judicial immunity), and instead can, at most, be

entitled to a form of qualified immunity (such as public official immunity). For example,

in Gill, 352 Md. at 763, 724 A.2d at 93, we stated that, generally, an executive official who

exercises an executive function is entitled either to qualified immunity, or to no immunity

at all. In Smith, 400 Md. at 124 n.9, 928 A.2d at 810 n.9, we observed that, generally, law

enforcement officers cannot be entitled to absolute immunity, and instead can be entitled

only to public official immunity. In Williams v. Mayor & City Council of Baltimore, 359

Md. 101, 139, 753 A.2d 41, 61 (2000), we noted that, unlike courts in certain other

jurisdictions, which have held that a law enforcement officer who acts within the scope of

official duties may be entitled to absolute immunity, we have conditioned the immunity of

a law enforcement officer on acting without malice. In other words, we have consistently

held that a law enforcement officer may be entitled to public official immunity, one element

of which is that the public official acts without malice. See id. at 138, 753 A.2d at 61. In

sum, this Court’s case law offers no support for the notion that a law enforcement officer

can be entitled to judicial immunity, and instead affirmatively demonstrates the opposite—

i.e., that a law enforcement officer is not entitled to judicial immunity.

Our holding in Keller-Bee, 448 Md. 300, 138 A.2d 1253, does not support the

principle that law enforcement officers are entitled to judicial immunity. In Keller-Bee, id.

at 302, 138 A.3d at 1254, this Court held that judicial immunity barred claims against the

- 39 - State for the alleged negligence of an employee of the Clerk of the Court where the

proximate cause of the plaintiff’s alleged injury was a judge’s issuance of a body

attachment. In Keller-Bee, id. at 309, 138 A.3d at 1258, a plaintiff tried to hold the State

civilly liable for the failure of the employee to prevent a judge from erroneously issuing a

body attachment. In holding that the plaintiff failed to state a claim upon which relief could

be granted because the proximate cause of the plaintiff’s alleged injury was the judge’s

issuance of the body attachment, an act to which judicial immunity applied, this Court

expressly declined to address whether the employee was entitled to judicial immunity. See

id. at 309-10, 138 A.3d at 1258-59, 1257. Instead, what mattered to this Court’s analysis

was the principle that judicial immunity applied to the proximate cause of the plaintiff’s

alleged injury—namely, the judge’s issuance of the body attachment. See id. at 309-10,

138 A.3d at 1258-59. Given that this Court did not apply judicial immunity to the employee

in Keller-Bee, this Court’s holding in that case would in no way support extending judicial

immunity to the law enforcement officers here. Just as we did not hold that the employee

was entitled to judicial immunity in Keller-Bee, id. at 307, 138 A.3d at 1257, here, we do

not hold that the officers are entitled to judicial immunity.

Nor are we persuaded by Petitioners’ contention that, under Keller-Bee, absolute

immunity bars Ms. Rovin’s claims against the officers because the proximate cause of Ms.

Rovin’s arrest was the determination by the District Court Commissioner that there was

probable cause for the arrest warrant—an act to which judicial immunity applied. Here,

although a District Court Commissioner issued the arrest warrant, the circumstances are

- 40 - vastly different than those in Keller-Bee.12 Keller-Bee involved claims against a judicial

employee based on the employee’s clerical role in the judicial process. A clerical employee

who drafts body attachment papers and presents them to a judge, as was the case in Keller-

Bee, is not at all analogous to a law enforcement officer who applies for and executes an

arrest warrant. The role of a law enforcement officer in applying for and executing an

arrest warrant is far more complex. A law enforcement officer plays a much more

significant role in seeking and executing an arrest warrant, especially given that the law

enforcement officer is the source of the factual allegations on which a judicial officer relies

in determining whether to issue the arrest warrant. As Petitioners themselves acknowledge,

when applying for an arrest warrant, a law enforcement officer is required to be honest in

providing information to a judicial officer. To hold that a judicial officer’s issuance of an

arrest warrant acts as a shield from civil liability for the law enforcement officer who

requested and executed the arrest warrant would be to ignore the circumstance that the

judicial officer’s decision to issue the warrant is based on factual allegations that the law

enforcement officer provides and that the law enforcement officer is ultimately responsible

for the manner in which the warrant is executed. Nothing in our holding in Keller-Bee

alters the conclusion that Ms. Rovin’s claims based on the officers’ actions are not barred

by absolute immunity, whether judicial or prosecutorial immunity.

12 Ms. Rovin’s reliance on Parker, 337 Md. 271, 653 A.2d 436, a case cited in Keller- Bee, 448 Md. at 307-08, 138 A.3d at 1257-58, is not well placed. In Parker, 337 Md. at 275, 653 A.2d at 437-38, the plaintiff sued the State, the judge, the clerk, the deputy clerk, and an assistant clerk, and in an amended complaint, also sued a sheriff and deputy sheriff. But, in Parker, id. at 276 n.3, 653 A.2d at 438 n.3, this Court noted that the plaintiff “raised no issue on appeal involving the actions of the sheriff and a deputy sheriff[.]”

- 41 - Moreover, to the extent that Petitioners ask us to extend absolute immunity to law

enforcement officers based on Keller-Bee, Petitioners’ request is at odds not only with

Keller-Bee, but also with other decisions of this Court. Our case law makes clear that,

generally, law enforcement officers are not entitled to absolute immunity—whether

judicial immunity, prosecutorial immunity, or otherwise.13 In previous cases, this Court

has pointed out the distinctions between judicial immunity (to which a judge can be

entitled) and public official immunity (to which a law enforcement officer can be entitled).

See Ashton v. Brown, 339 Md. 70, 118, 660 A.2d 447, 471 (1995); Parker, 337 Md. at 285,

653 A.2d at 442-43. In short, this Court has never made any form of absolute immunity

generally applicable to actions by law enforcement officers, and we decline to do so here.

Having addressed the applicability of absolute prosecutorial immunity and judicial

immunity, we turn to the applicability of State personnel immunity under the MTCA. The

record and the applicable provisions of the MTCA make clear that the officers, as well as

the prosecutors, are entitled to State personnel immunity. The officers and prosecutors

meet the definition of “State personnel” under the MTCA, and there is no allegation that

any of them acted with malice or gross negligence or was acting outside the scope of their

public duties.

13 The Supreme Court has made similar statements regarding whether a law enforcement officer can be entitled to absolute immunity under the federal common law. For example, in Rehberg v. Paulk, 566 U.S. 356, 363-64 (2012), the Supreme Court observed that it had not found absolute immunity for actions of law enforcement officers. Similarly, in Pierson v. Ray, 386 U.S. 547, 555 (1967), the Supreme Court noted that the federal common law had never given law enforcement officers absolute immunity.

- 42 - SG § 12-101(a) defines “State personnel” to include, in pertinent part: “(6) a sheriff

or deputy sheriff of a county or Baltimore City; [and] (8) a State’s Attorney of a county or

Baltimore City, or an employee of an office of a State’s Attorney[.]” Maciarello, Assistant

State’s Attorney Brueckner, Sheriff Lewis, and Deputy Cook were the State’s Attorney for

Wicomico County, an Assistant State’s Attorney for Wicomico County, the Sheriff of

Wicomico County, and a Deputy Sheriff of Wicomico County, respectively. Thus, plainly,

the prosecutors and officers are “State personnel” under the MTCA.

The purpose of State personnel immunity is generally to insulate State personnel

from civil liability for actions that are within the scope of employment and that are

performed without malice or gross negligence. See Cooper, 443 Md. at 725, 118 A.3d at

855-56. Ms. Rovin’s filings demonstrate that she has not taken the position that any of the

individual Petitioners have acted with the malice or gross negligence required to defeat

State personnel immunity. Indeed, the complaint is devoid of any allegation that an

individual Petitioner acted with such malice or gross negligence. Although Ms. Rovin

alleged that the defendants acted with malice in pursuing her prosecution without probable

cause, she did so only in the context of making a claim for malicious prosecution. The

definition of “malice” as an element of malicious prosecution, however, is not coterminous

with the definition of “malice” that negates State personnel immunity. As an element of

malicious prosecution, “malice” means that, in initiating a criminal case against a plaintiff,

a defendant had an improper motive—i.e., a purpose other than bringing the plaintiff to

justice. See DiPino v. Davis, 354 Md. 18, 55, 729 A.2d 354, 374 (1999). On the other

hand, the “malice” necessary to prevent the application of State personnel immunity has

- 43 - been defined as “behavior characterized by evil or wrongful motive, intent to injure,

knowing and deliberate wrongdoing, ill-will or fraud.” Newell v. Runnels, 407 Md. 578,

636, 967 A.2d 729, 763 (2009) (cleaned up). Given these very different definitions of

“malice,” Ms. Rovin’s allegation of “malice” as an element of malicious prosecution is not

an allegation of “malice” that would defeat the application of State personnel immunity.

In addition to the complaint, other filings by Ms. Rovin make clear that she has not

alleged that the existence of malice prevents the application of State personnel immunity.

Indeed, in the opposition to the officers’ motion to dismiss or for summary judgment, Ms.

Rovin stated that, although she reserved the right to do so if she uncovered corroborating

evidence during discovery, she did not allege that any of the officers acted with malice or

gross negligence for purposes of the MTCA.14 Similarly, on brief, Ms. Rovin

acknowledges that Petitioners are likely correct that the prosecutors and officers are

entitled to State personnel immunity but asserts that Petitioners’ contention that the MTCA

applies constitutes an admission that the State is accepting civil liability on behalf of the

prosecutors and the officers.

Contrary to Ms. Rovin’s suggestion, Petitioners have simply pointed out that,

because Ms. Rovin has not alleged malice or gross negligence, the officers, as well as the

prosecutors, are entitled to State personnel immunity. Petitioners have not conceded that

the State will ultimately be civilly liable for the individual Petitioners’ actions. Moreover,

14 Although the issues of malice and gross negligence are generally determined by the trier of fact, the grant of summary judgment based on the application of State personnel immunity is not precluded where neither malice nor gross negligence has been alleged in the first instance.

- 44 - where a plaintiff tries to hold the State civilly liable for the actions of an individual who is

entitled to State personnel immunity, where the individual is also entitled to a form of

absolute immunity, such as prosecutorial immunity, neither the individual nor the State is

civilly liable, notwithstanding the MTCA. See Parker, 337 Md. at 286, 653 A.2d at 443.

Thus, as previously explained, because Maciarello and Assistant State’s Attorney

Brueckner are entitled to prosecutorial immunity, the State is not civilly liable for their

actions in this case.

As a final matter about the MTCA, we note that the circumstance that Ms. Rovin

sued the officers and the prosecutors in their official capacities does not deprive them of

State personnel immunity. The application of immunity under the MTCA does not depend

on whether the plaintiff sues an individual in an official capacity or an individual capacity.

See Higginbotham v. Pub. Serv. Comm’n of Md., 412 Md. 112, 129-30, 985 A.2d 1183,

1192-93 (2009). An individual who qualifies for State personnel immunity under the

MTCA would be entitled to such immunity regardless of whether a complaint states that

the individual is sued in an official or individual capacity.

The conclusion that a plaintiff suing an individual in an ”official capacity” does not

preclude State personnel immunity, if applicable, is warranted by the purpose of the

immunity, which is “to insulate State employees generally from tort liability if their actions

are within the scope of employment and without malice or gross negligence.”

Higginbotham, 412 Md. at 130-31, 985 A.2d at 1193 (cleaned up). Nothing in the MTCA’s

plain language, or our case law interpreting the MTCA, alludes to the notion that suing a

defendant in an official capacity precludes State personnel immunity. Indeed, such a

- 45 - principle would allow a plaintiff to easily defeat the purpose of State personnel immunity

and improperly maintain an action against defendants who might be entitled to immunity.

Such a principle would also nullify the MTCA’s plain language, in that, by definition, an

individual who is entitled to State personnel immunity was necessarily acting within the

scope of employment—i.e., acting in his or her official capacity—at the time of the alleged

torts or constitutional violations. See SG § 12-105; CJ § 5-522(b). Simply put, the

MTCA’s plain language and purpose, as well as our case law, make clear that suing a

defendant in an official capacity does not defeat State personnel immunity. See

Higginbotham, 412 Md. at 130, 985 A.2d at 1193.

II.

Petitioners contend that Ms. Rovin’s claims based on the officers’ actions fail

because the officers acted on a reasonable, good faith belief that her conduct violated the

juror intimidation statute. Petitioners argue that this case presents an issue of first

impression—namely, whether liability can attach to an officer who makes an arrest based

on a reasonable, good faith belief that the conduct in question was criminal after conferring

with prosecutors and obtaining a warrant from a District Court Commissioner. Petitioners

assert that, although no Maryland case is directly on point, case law regarding an officer’s

state of mind when making an arrest indicates that an officer is not civilly liable for

applying for charges and obtaining an arrest warrant based on a reasonable, good faith

mistake of law. Citing Heien, 574 U.S. 54, and the Restatement (Second) of Torts 662,

cmt on clause (b) i (1977), Petitioners contend that this Court should “bring Maryland in

- 46 - line with law” from the Supreme Court indicating that probable cause may exist where an

accused avoids conviction due only to a court interpreting a statute in a manner that is not

readily apparent.

Petitioners contend that Ms. Rovin’s claims for false arrest, false imprisonment,

malicious prosecution, and violations of due process fail because the officers had legal

justification for the arrest and charges and executed a facially valid arrest warrant.

Petitioners contend that Ms. Rovin has not alleged that the officers made material

omissions or misstatements of fact in the arrest warrant application, and, accordingly, has

not alleged bad faith. Petitioners argue that the claim for malicious prosecution fails

because there was probable cause for Ms. Rovin’s arrest.

Additionally, Petitioners contend that Ms. Rovin’s claims for false light invasion of

privacy and defamation fail because she cannot demonstrate that any statement that Sheriff

Lewis made was false. Petitioners assert that both defamation and false light invasion of

privacy are causes of action that include the element of falsity—i.e., “in both causes of

action a ‘false’ statement is one ‘that is not substantially correct’”—and that Ms. Rovin has

failed to demonstrate the element of falsity as to both claims.

Ms. Rovin responds that this Court should rely on Maryland case law in evaluating

the viability of her claims against the officers and that, under Maryland law, probable cause

cannot support an arrest where the facts of the case did not constitute a crime as a matter

of law. Ms. Rovin contends that, in any event, the viability of her claims does not depend

on whether this Court uses the reasonableness test discussed by the Supreme Court in Heien

because the officers in this case made mistakes of law that were objectively unreasonable.

- 47 - Ms. Rovin asserts that Petitioners’ arguments as to the officers acting reasonably and in

good faith are based on facts and the arguments are not capable of determination in

Petitioners’ favor on summary judgment.

Ms. Rovin contends that the officers’ mistake of law was objectively unreasonable

because the warrant affidavit facially lacked probable cause and her actions were

indisputably not criminal. Ms. Rovin argues that it was objectively unreasonable to believe

that she violated CR § 9-305(a) because, when she visited Mr. Rovin, he was no longer a

juror and had finished performing his official duties. Ms. Rovin contends that she should

have been permitted to conduct discovery because the record lacks evidence to support

Petitioners’ position as to both reasonableness and good faith. Respondent argues that the

Court of Special Appeals violated the standard of review of a trial court’s grant of summary

judgment by drawing factual inferences as to good faith in Petitioners’ favor.

Lastly, Ms. Rovin argues that we should not address Petitioners’ position that her

claims for defamation and false light invasion of privacy fail because, according to Ms.

Rovin, Petitioners did not raise the issue in the petition for a writ of certiorari. As to merits,

Ms. Rovin asserts that her defamation claim is based on Sheriff Lewis’s statement to the

media that she was an “egregious criminal.” Ms. Rovin maintains that falsely accusing

someone of committing a crime necessarily constitutes defamation and false light invasion

of privacy.

Law

Section 662 (Existence of Probable Cause) of the Restatement (Second) of Torts

(1977) addresses how to determine whether a plaintiff in a malicious prosecution case has

- 48 - established a lack of probable cause. The section begins as follows:

One who initiates or continues criminal proceedings against another has probable cause for doing so if he correctly or reasonably believes

(a) that the person whom he accuses has acted or failed to act in a particular manner, and

(b) that those acts or omissions constitute the offense that he charges against the accused, and

(c) that he is sufficiently informed as to the law and the facts to justify him in initiating or continuing the prosecution.

Comment i specifically addresses mistakes of law, stating in pertinent part:

Less frequently than in the case of mistake of fact, a mistaken belief as to the legal consequences of the conduct in question may afford probable cause for criminal proceedings. In the ordinary case a layman, aware of his own ignorance of the law, will not be justified in initiating the proceedings unless he has been advised to do so by an attorney, in which case he will be protected under the rule stated in § 666.[15] This includes advice from a prosecuting attorney. But if the layman elects to proceed without this advice, he is ordinarily not acting as a reasonable man and does not have probable cause, since he knows or reasonably ought to know that he does not, as stated in Clause (c) of this Section, have sufficient information to justify him in

15 Section 666 (Effect of Advice of Counsel) of the Restatement (Second) of Torts (1977) states in pertinent part:

(1) The advice of an attorney at law admitted to practice and practicing in the state in which the proceedings are brought, whom the client has no reason to believe to have a personal interest in obtaining a conviction, is conclusive of the existence of probable cause for initiating criminal proceedings in reliance upon the advice if it is

(a) sought in good faith, and

(b) given after a full disclosure of the facts within the accuser’s knowledge and information.

- 49 - taking the step.[16]

Heien, 574 U.S. at 57, is a criminal case in which the Supreme Court held that the

reasonable articulable suspicion necessary to support a traffic stop can be based on a

reasonable mistake of law. In Heien, a law enforcement officer stopped a vehicle because

one of its two brake lights was out. See id. The defendant filed a motion to suppress,

which a trial court denied after conducting a hearing at which the officer testified. See id.

at 58. The Court of Appeals of North Carolina reversed, concluding that driving with one

working brake light did not violate the relevant North Carolina statute. See id. at 58-59.

The Supreme Court of North Carolina reversed the judgment of the Court of Appeals and

determined that the officer’s mistake of law was reasonable. See id. at 59.

The Supreme Court of the United States affirmed the judgment of the North

Carolina Supreme Court and concluded that reasonable suspicion for a stop may be based

on a law enforcement officer’s reasonable mistake of law. See id. at 67-68. The Supreme

Court observed that it had previously held that a search or seizure based on a mistake of

fact can be reasonable, and thus not violate the Fourth Amendment. See id. at 61. The

16 The modern counterpart to Section 662 (Existence of Probable Cause) of the Restatement (Second) of Torts (1977) is Section 22 (Probable Cause to Initiate Criminal Proceedings) of the Restatement (Third) of Torts: Liability for Economic Harm (2020). Comment c addresses mistakes of law, stating in pertinent part:

A party who accused the plaintiff of a crime based on a mistaken belief that the plaintiff’s actions were criminal will ordinarily be found to have made the accusation without probable cause. An accuser should be well-informed on the law or realize that more remains to be learned. A mistake of law may be considered reasonable, however, if the accuser relied on the advice of a lawyer, including a prosecutor.

- 50 - Supreme Court determined that the same should be true of a search or seizure based on a

mistake of law, stating:

[R]easonable men make mistakes of law, too, and such mistakes are no less compatible with the concept of reasonable suspicion. Reasonable suspicion arises from the combination of an officer’s understanding of the facts and his understanding of the relevant law. The officer may be reasonably mistaken on either ground. Whether the facts turn out to be not what was thought, or the law turns out to be not what was thought, the result is the same: The facts are outside the scope of the law. There is no reason, under the text of the Fourth Amendment or our precedents, why this same result should be acceptable when reached by way of a reasonable mistake of fact, but not when reached by way of a similarly reasonable mistake of law.

Id. The Supreme Court was unpersuaded by the defendant’s reliance on the maxim that

“Ignorance of the law is no excuse,” explaining:

Just as an individual generally cannot escape criminal liability based on a mistaken understanding of the law, so too the government cannot impose criminal liability based on a mistaken understanding of the law. If the law required two working brake lights, [the defendant] could not escape a ticket by claiming he reasonably thought he needed only one; if the law required only one, [the law enforcement officer] could not issue a valid ticket by claiming he reasonably thought drivers needed two. But just because mistakes of law cannot justify either the imposition or the avoidance of criminal liability, it does not follow that they cannot justify an investigatory stop. And [the defendant] is not appealing a brake-light ticket; he is appealing a cocaine-trafficking conviction as to which there is no asserted mistake of fact or law.

Id. at 67. The Supreme Court reviewed the relevant North Carolina statute and agreed that

the officer’s mistake of law was reasonable. See id.

As to the scope of appellate review, Maryland Rule 8-131(b)(1) provides in

pertinent part that this Court “ordinarily will consider only an issue that has been raised in

the petition for certiorari or any cross-petition[.]” Although Maryland Rule 8-131(b)’s use

of the word “ordinarily” demonstrates that this Court has the discretion to address an issue

- 51 - that was not raised in a petition for a writ of certiorari, this Court may exercise that

discretion only “where extraordinary circumstances provide a reason to do so.” Scott v.

State, 454 Md. 146, 189, 164 A.3d 177, 202 (2017) (cleaned up). Consistent with the

general principle that Maryland Rule 8-131(b)(1) sets forth, in several cases, citing that

provision, this Court has chosen not to address matters that were not raised in a petition for

a writ of certiorari. For example, in State v. Shortall, 463 Md. 324, 339-40, 205 A.3d 985,

993-94 (2019), this Court declined to consider an argument regarding the sufficiency of

the evidence that was not raised in the petition for a writ of certiorari. In Lillian C.

Blentlinger, LLC v. Cleanwater Linganore, Inc., 456 Md. 272, 299, 173 A.3d 549, 564

(2017), this Court concluded that an issue regarding the validity of a statutory provision

that was not raised in the petition for a writ of certiorari was not properly before this Court,

and would not be considered. In Williams v. Peninsula Reg’l Med. Ctr., 440 Md. 573, 577

n.3, 103 A.3d 658, 661 n.3 (2014), this Court declined to address an issue regarding an

allegedly heightened pleading standard that was not raised in the petition for a writ of

certiorari. And, in Hobby v. State, 436 Md. 526, 542–43, 83 A.3d 794, 803 (2014), this

Court declined to consider a contention regarding exerting unauthorized control that was

not raised in the petition for a writ of certiorari.

Here, we decline Petitioners’ request that we apply the Supreme Court’s holding in

Heien, 574 U.S. 54, to the officers’ conduct in this case as Heien was not relied upon by

Petitioners in either the circuit court or the Court of Special Appeals and, as such, was not

part of the grounds on which the circuit court granted summary judgment in the case. In

- 52 - the circuit court, in neither the motion to dismiss or for summary judgment nor the reply to

the opposition to the motion did the State request that the circuit court grant summary

judgment based on the Supreme Court’s holding in Heien. Nor did the State cite the

Supreme Court’s holding in Heien as a ground for affirming the circuit court’s grant of

summary judgment in the State’s brief in the Court of Special Appeals.

Similarly, in the circuit court, in their motion to dismiss or for summary judgment,

the officers did not raise an issue as to the grant of summary judgment based on the

Supreme Court’s holding in Heien. And, like the State, the officers did not cite the

Supreme Court’s holding in Heien in the Court of Special Appeals as a basis for affirming

the circuit court’s grant of summary judgment. Before this Court is the first instance in

which Petitioners have cited Heien and argued that, where an officer obtains an arrest

warrant based on an objectively reasonable mistake of law, the officer may not be held

civilly liable for the arrest.

To be sure, on brief in the Court of Special Appeals, the State argued that the claims

arising from the actions of the officers fail because those actions were based on a good

faith belief that Ms. Rovin’s undisputed conduct fell within the scope of the juror

intimidation statute. But, Petitioners did not rely on the rationale undergirding the Supreme

Court’s holding in Heien, i.e., that reasonable articulable suspicion or, in this case, probable

cause, may be based on an objectively reasonable mistake of law, and that Heien translates

into officers not being liable in a civil case. And neither was this the circuit court’s basis

for the grant of summary judgment.

As described above, Heien, 574 U.S. at 57, is a criminal case in which the Supreme

- 53 - Court held that the reasonable articulable suspicion necessary to support a traffic stop can

be based on a reasonable mistake of law. In Heien, id. at 67, the Supreme Court explained

that the existence of an objectively reasonable mistake of law would not serve to undermine

a determination that reasonable articulable suspicion existed for a stop. A determination

as to an objectively reasonable mistake of law involves an examination of the statute at

issue and a determination that a reasonable person could have interpreted the statute, as the

officers allegedly did, to prohibit the conduct complained of.

None of Petitioners’ filings in the circuit court even mention Heien, let alone include

Petitioners’ assertion on brief in this Court that Ms. Rovin’s claims against the officers

failed because they acted on the objectively reasonable belief that Ms. Rovin violated the

juror intimidation statute. Nor did the circuit court independently rely on Heien in granting

summary judgment.

We must be cognizant of the “general rule that in appeals from the granting of a

motion for summary judgment, absent exceptional circumstances, Maryland appellate

courts will only consider the grounds upon which the lower court granted summary

judgment[.]” Bishop v. State Farm Mut. Auto Ins., 360 Md. 225, 234, 757 A.2d 783, 787-

88 (2000) (citation omitted). To be sure, because this is a general rule rather than an

absolute one, there are exceptions. For example, we have indicated that an appellate court

may affirm on a different ground where the trial court would have had no discretion to

deny summary judgment as to that ground. See Wireless One, Inc. v. Mayor & City

Council of Baltimore, 465 Md. 588, 614 n.6, 214 A.3d 1152, 1167 n.6 (2019). We have

also indicated that an appellate court may affirm on a different ground where the “two

- 54 - grounds are so interrelated that they cannot be properly considered as separate and

distinct[.]” Ross v. State Bd. of Elections, 387 Md. 649, 659, 876 A.2d 692, 698 (2005)

(citation omitted). In this case, neither of these exceptions to the general prohibition on

affirming on a different ground cause us to address Petitioners’ contention regarding Heien.

Without having mentioned the case in the circuit court or the Court of Special Appeals,

Petitioners ask us to interpret the Supreme Court’s holding in Heien to give the officers an

exemption from civil liability. We decline to do so and shall return the case to the circuit

court for a determination as to whether Heien is applicable to the circumstances of this

case.

Next, we briefly turn to whether the circuit court properly granted summary

judgment with respect to the claims for defamation and false light invasion of privacy

irrespective of any immunity of the officers. On this point, we affirm the judgment of the

Court of Special Appeals insofar as it vacated the grant of summary judgment as to Ms.

Rovin’s claims for defamation and false light invasion of privacy and remanded for

discovery as to those claims. See Rovin, 2020 WL 3265119, at *9. Petitioners did not

raise an issue in the petition for a writ of certiorari as to whether summary judgment was

properly granted for the claims of defamation and false light invasion of privacy on the

ground that she failed to establish the element of falsity. Therefore, pursuant to Maryland

Rule 8-131(b)(1), Petitioners’ contention that the Court of Special Appeals erred in

reversing the grant of summary judgment on the ground that Sheriff Lewis’s statements

were not false is not before this Court.

- 55 - CONCLUSION

For the above reasons, we conclude that the circuit court correctly granted summary

judgment in favor of Maciarello, Assistant State’s Attorney Brueckner, and the State as to

any actions alleged in the complaint to have been taken by the prosecutors, as the

prosecutors are entitled to absolute prosecutorial immunity. The judgment of the Court of

Special Appeals is reversed as to the claims against the prosecutors and the State based on

the prosecutors’ alleged actions.

State personnel statutory immunity under the MTCA, though, bars Ms. Rovin’s

claims against Sheriff Lewis and Deputy Cook, as well as the prosecutors, in their

individual capacities. Accordingly, the State does not have immunity under the MTCA,

but whether the State is liable for any actions of the officers, who do not have absolute

common law immunity, is a matter to be resolved after further proceedings in the circuit

court. The circuit court erred in granting summary judgment as to the State based on the

actions of the officers, as the officers are not entitled to absolute judicial or prosecutorial

immunity. As such, all of the claims in the complaint against the State based on the alleged

actions of the officers remain, and the judgment of the Court of Special Appeals is affirmed

in that regard.

JUDGMENT OF THE COURT OF SPECIAL APPEALS REVERSED IN PART AND AFFIRMED IN PART AS STATED IN THE OPINION. COSTS TO BE DIVIDED EQUALLY BETWEEN THE PARTIES.

- 56 - Circuit Court for Wicomico County Case No. C-22-CV-17-000326

Opinion by McDonald, J., concurring in the judgment. ______________________________________

Filed: March 2, 2021 I agree with most of the Court’s very thorough opinion in this case. And I have no

problem with a disposition that sends the case back to the circuit court, although in my

view we could resolve all of the remaining counts that relate to probable cause for the

prosecution – i.e., the counts other than the defamation and false light counts – without

remanding. Those claims turn on whether the deputy sheriff who arrested Ms. Rovin was

at fault for executing the arrest warrant based on an error of law. The asserted error of law

relates to the breadth of the juror intimidation statute (Maryland Code, Criminal Law

Article, §9-305) at the time that the warrant was issued and executed. Several lawyers and

judicial officers – the District Court judge in the peace order hearing, the prosecutors in the

State’s Attorney’s Office, the District Court Commissioner – each opined that the facts

alleged by the victim fell within the juror intimidation statute. Only the trial judge at Ms.

Rovin’s criminal trial reached a different conclusion. The basis for the trial judge’s

conclusion was that the victim of the alleged intimidation had concluded his service at the

trial of Ms. Rovin’s daughter, even though (as alleged in the statement of charges) he

remained an active member of the jury pool at the time of the incident. That legal

conclusion was a questionable interpretation of §9-305, as the circuit court below

indicated,1 and was never reviewed by an appellate court because, of course, the State

cannot appeal an acquittal. Even if one were to conclude that the trial judge in Ms. Rovin’s

criminal case was correct as to the breadth of §9-305, it was not the role of the deputy

sheriff to foresee the future and overrule the legal judgments of the State’s Attorney who

1 Record Extract at E.34. authorized the prosecution and arrest and the judicial officer who ordered the arrest by

issuing the warrant.

However, as the Court’s opinion correctly points out, an appellate court in Maryland

typically will not affirm a grant of summary judgment on a ground different from that on

which the circuit court relied and instead will remand to the circuit court to consider the

alternative ground in the first instance. I suppose the wisdom of that unwritten rule, which

is somewhat peculiar to Maryland, could be questioned, but that is a question for another

day as it has not been briefed in this case. Accordingly, I concur in the judgment.

-2- The correction notice(s) for this opinion(s) can be found here:

https://mdcourts.gov/sites/default/files/import/appellate/correctionnotices/coa/29a20cn.pdf