Maryland Attorney General Opinion 96 OAG 076

76 [96 Op. Att’y

STATE’S ATTORNEYS’ COORDINATOR

TORTS – IMMUNITY – WHETHER STATE’S ATTORNEYS’

COORDINATOR HAS STATUTORY AND COMMON LAW

IMMUNITY WHEN APPOINTED A SPECIAL ASSISTANT

STATE’S ATTORNEY

October 5, 2011

Steven I. Kroll, Esquire

State’s Attorneys’ Coordinator

On behalf of the State’s Attorneys’ Coordination Council

(“Coordination Council”), you have asked for our opinion whether

the State’s Attorney’s Coordinator (“Coordinator”) has various

immunities from liability if the Coordinator is appointed a Special

Assistant State’s Attorney to handle a particular criminal prosecution

when the State’s Attorney for the jurisdiction has a conflict of

interest.

In our opinion, if the Coordinator accepts appointment as a

Special Assistant State’s Attorney for a particular case in accordance

with a direction of the Coordination Council, the Coordinator will

have the same prosecutorial immunity and protection under the

Maryland Tort Claims Act as other Assistant State’s Attorneys.

I

Background

A. State’s Attorneys’ Coordinator

In 1977, the General Assembly created the Coordination

Council and the position of Coordinator. Chapter 710, Laws of

Maryland 1977, now codified at Annotated Code of Maryland,

Criminal Procedure Article (“CP”), §15-201 et seq. The

Coordination Council consists of the Attorney General and ten

State’s Attorneys selected in accordance with the statute. CP §15-

202. The Coordinator serves as Secretary to the Coordination

Council and assists it in carrying out its functions. CP §15-204.

Gen. 76] 77

The Coordinator is appointed by the Coordination Council and

serves at its pleasure. CP §15-301(a). The Coordinator is to

establish and implement training programs for State’s Attorneys and

their staffs, devise uniform reporting procedures for gathering

statistical information related to the prosecutorial function, and

administer the Victim and Witness Protection and Relocation

Program. CP §15-302(1)-(3), (7)-(8). The statute confers some

general powers and duties on the Coordinator – obtaining grants,

expending funds, entering into agreements and contracts, and

conferring with the Attorney General, individual State’s Attorneys,

and the Coordination Council. CP §15-302(4)-(5), (9). In addition,

the Coordinator is to “provide services and functions as the Council

directs to carry out the duties of the office of Coordinator.” CP §15-

302(6). The Coordinator is to devote full time to these duties and

may not engage in the private practice of law. CP §15-301(d).

Approximately fifteen years ago, a question arose as to whether

the position of Coordinator enjoyed any common law or statutory

immunity under Maryland law. This Office opined that the

Coordinator has no statutory immunity from tort liability by virtue

of the office. 81 Opinions of the Attorney General 232 (1996).1

That opinion also concluded that the Coordinator is not entitled to

assert public official immunity as Coordinator. Id. There have been

no substantive changes in the relevant statutes since that time.

Accordingly, the Coordinator does not ordinarily enjoy common law

or statutory immunity.

B. Special Assistant State’s Attorney

In each county, the State’s Attorney is an elected constitutional

officer on whom the General Assembly has conferred the

responsibility to prosecute criminal cases. Maryland Constitution,

Article V, §9; CP §15-102. State’s Attorneys are authorized to

1

The opinion reasoned that the Coordinator does not fall within

any of the categories of “State personnel,” as defined in the Maryland Tort

Claims Act; nor is the Coordinator an “employee” of a “local government”

under the Local Government Tort Claims Act. 81 Opinions of the

Attorney General at 234-35. In addition, because the Coordinator does not

ordinarily exercise the sovereignty of the State, the Coordinator is not

entitled to assert public official immunity. Id. at 235-36. However, the

opinion noted that the Attorney General’s Office would represent the

Coordinator, if sued, and that the Board of Public Works might well pay

a judgment rendered against the Coordinator. Id. at 236-37.

78 [96 Op. Att’y

employ deputies and assistants to help carry out their duties. See,

e.g., CP §15-403(c) (authorizing State’s Attorney for Anne Arundel

County to hire two deputies and the number of assistants provided

for in the budget).

From time to time, a State’s Attorney may encounter a conflict

of interest in prosecuting a particular case. For example, a State’s

Attorney may have the responsibility of prosecuting an individual

whom the State’s Attorney represented while in private practice. In

some circumstances, the State’s Attorney may be prohibited under

the ethical rules governing lawyers from handling such a

prosecution. See Maryland Lawyers’ Rules of Professional Conduct,

Rules 1.9, 1.11(d)(1); Gatewood v. State, 388 Md. 526, 541-51, 880

A.2d 322 (2005); Lykins v. State, 288 Md. 71, 85, 415 A.2d 1113

(1980) (State’s Attorney’s former representation of defendant

merited replacement of prosecutor, not dismissal of indictment).

Or, even when there is no absolute prohibition under the ethical

rules, a State’s Attorney may wish to avoid even the appearance of

a conflict of interest.

In such circumstances, the State’s Attorney may wish to assign

the case to a Special Assistant State’s Attorney who will function

independently of the State’s Attorney. See 59 Opinions of the

Attorney General 121 (1974) (discussing a proposed appointment of

a special prosecutor for cases in which a State’s Attorney had a

conflict). Such a prosecutor may be appointed by the State’s

Attorney. See Goldberg v. State, 69 Md. App. 702, 710-18, 519

A.2d 779 (1987), aff’d on other grounds, 315 Md. 653, 556 A.2d

267 (1989); State v. Aquilla, 18 Md. App. 487, 495, 309 A.2d 44

(1973). Alternatively, if charges have already been filed, the trial

court may appoint a special prosecutor, at the suggestion of the

State’s Attorney, under Annotated Code of Maryland, Courts &

Judicial Proceedings (“CJ”), §2-102.2

2

CJ §2-102(a) provides:

If advisable in a specific proceeding, a court may

appoint an ... assistant counsel for the State ... and

may require his presence in court.

This section has been recognized as a source of authority for appointment

of a Special Assistant State’s Attorney in conflict situations. See Lykins,

supra, 288 Md. at 86; 59 Opinions of the Attorney General at 122

(continued...)

Gen. 76] 79

II

Analysis

Your inquiry concerns situations in which the Coordinator is

asked to serve as a Special Assistant State’s Attorney when it is

deemed advisable to appoint someone other than the State’s Attorney

or the State’s Attorney’s staff to prosecute a particular case. You

have asked whether the Coordinator has the immunity of a

prosecutor, including coverage under the Maryland Tort Claims Act,

when the Coordinator serves as a Special Assistant State’s Attorney.

An initial question is whether the Coordinator may accept such an

assignment.

A. Whether the Coordinator May Serve as a Special Assistant

State’s Attorney

The statue that creates the position of Coordinator does not

explicitly authorize the Coordinator to serve as a Special Assistant

State’s Attorney. However, the statute states that the Coordinator is

to “provide services and functions as the [Coordination] Council

directs” in carrying out the duties of Coordinator. CP §15-302(6).

While this open-ended provision grants the Coordination Council

considerable discretion in directing the activities of the Coordinator,

it is evident that any services or functions undertaken by the

Coordinator should relate ultimately to the training, reporting, and

administrative duties of the position. In our view, the Council might

reasonably direct the Coordinator to serve as a Special Assistant

State’s Attorney from time to time. While such service may benefit

the individual State’s Attorney’s office that requires such services,

it also has the benefit of exposing the Coordinator to prosecutorial

2

(...continued)

(discussing such an appointment under the predecessor of CJ §2-102).

However, counsel appointed under CJ §2-102 would ordinarily be

assigned to prosecute a case that had already been commenced. See

Babbitt v. State, 294 Md. 134, 448 A.2d 930 (1982) (counsel appointed

under CJ §2-102 may not initiate a criminal prosecution by filing a

criminal information). The Court of Appeals in Lykins recognized that the

Attorney General’s Office could also provide an alternate prosecutor in

such situations.

80 [96 Op. Att’y

practices in a variety of jurisdictions.3 The Coordination Council

could reasonably conclude that such service enhances the

Coordinator’s ability to organize meaningful training programs for

State’s Attorneys and their staffs.

B. Whether the Coordinator Has Immunity as a Special

Assistant State’s Attorney

As noted above, the position of Coordinator itself does not

have the benefit of statutory or common law immunities.

Nevertheless, the particular services performed by the Coordinator

may confer obligations, as well as protections, not ordinarily

associated with the position. For example, in entering into a contract

– as authorized by the statute – the Coordinator may undertake

contractual obligations and rights that are not conferred on the

position by the statute. Similarly, in acting as a Special Assistant

State’s Attorney pursuant to the Coordination Council’s direction,

the Coordinator may have the benefit of an immunity that the

position of Coordinator by itself does not enjoy.

As a prosecutor, a State’s Attorney, as well as the deputy and

assistant State’s attorneys appointed by the State’s Attorney, enjoy

various immunities from liability. See, e.g., Gill v. Ripley, 352 Md.

754, 759-74, 724 A.2d 88 (1999) (tracing history of doctrine of

prosecutorial immunity and its various applications); Imbler v.

Pachtman, 424 U.S. 409 (1976) (prosecutors absolutely immune

from liability in §1983 actions for conduct in the judicial phase of

the criminal process). In addition, under the Maryland Tort Claims

Act, they have immunity from liability for tortious acts committed

without malice or gross negligence. See Annotated Code of

Maryland, Courts & Judicial Proceedings Article, §5-522(b)

(immunity of “State personnel” under Maryland Tort Claims Act);

State Government Article, §12-101(a)(8) (including “State’s

Attorney ... or an employee of an office of a State’s Attorney” within

3

In that regard, it is notable that the bill file for the legislation that

created the position of Coordinator contains a study of prosecuting

attorney coordinators in other states and discusses the advantages and

disadvantages of the various forms that such positions had taken as of that

time. It noted that a primary argument in favor of creating an independent

position, as the Maryland statute ultimately did, was to ensure that the

Coordinator was responsive to local application of the criminal law

throughout a state. See “Organization and Operation of Office (Appendix

A)” in Legislative File for Senate Bill 465 (1977).

Gen. 76] 81

the definition of “State personnel”); see also Newell v. Runnels, 407

Md. 578, 635-37, 967 A.2d 729 (2009).

An individual appointed as a Special Assistant State’s Attorney

would typically come from outside the prosecutor’s office and thus

would likely not have prosecutorial immunity in the individual’s

usual employment.4 In our view, such an individual would have that

immunity while serving as a special prosecutor for the State’s

Attorney’s Office. As the Supreme Court has indicated, the

application of prosecutorial immunity turns on “the nature of the

function performed, not the identity of the actor who performed it.”

Buckley v. Fitzsimmons, 509 U.S. 259, 269 (1993).5

With respect to coverage under the Maryland Tort Claims Act,

it is our view that an individual appointed as a Special Assistant

State’s Attorney will qualify for coverage under the Act. Such an

appointee would be covered either as an “employee” of the State’s

Attorney’s Office in his or her capacity as Special Assistant State’s

Attorney or as an unpaid “volunteer” who provides services to the

State.6

4

There may be some instances in which an attorney who is

appointed as a Special Assistant State’s Attorney normally works in

another position that has various immunities associated with it – e.g., an

Assistant Attorney General or an Assistant State’s Attorney from another

jurisdiction – but those immunities are presumably related to the

individual’s normal duties and not the special appointment.

5

The Supreme Court has held that, in some circumstances, private

individuals performing what might otherwise might be a government

function may not have official immunity. Richardson v. Walker, 521 U.S.

399 (1997) (prison guards at privatized prison did not have official

immunity). However, the Court has been careful to distinguish those

circumstances from instances in which a private individual is briefly

associated with a government body, serves as an adjunct to government in

an essential governmental activity, or acts under close official supervision

– all of which may characterize a private individual serving as a Special

Assistant State’s Attorney. See 521 U.S. at 413. The Court recently

granted a writ of certiorari to assess the application of official immunities

to a private attorney under contract with a municipality. See Filarsky v.

Delia, 2011 U.S. LEXIS 5204 (September 27, 2011).

6

The State Treasurer defines “volunteer” for purposes of the

Maryland Tort Claims Act as follows:

(continued...)

82 [96 Op. Att’y

Thus, in our view, if appointed a Special Assistant State’s

Attorney for a particular case, the Coordinator would enjoy the same

immunity from suit and liability as any other individual appointed to

that position. The fact that the Coordinator does not ordinarily enjoy

public official immunities or immunity under the Maryland Tort

Claims Act does not disqualify the Coordinator from having the

immunities that otherwise attach to the position of Special Assistant

State’s Attorney.

III

Conclusion

For the reasons set forth above, it is our opinion that, if the

Coordinator accepts appointment as a Special Assistant State’s

Attorney in a particular jurisdiction in accordance with a direction

of the Coordination Council, the Coordinator will have the same

6

(...continued)

(8) “Volunteer” means a person who:

(a) Is performing services to or for a unit of

State government, the employees of which are

considered State personnel under [the Tort Claims

Act and regulations];

(b) Is engaged in the actual performance of

services in §B(8)(a) at the time of the incident

giving rise to a claim; and

(c) In the performance of services in

§B(8)(a):

(i) Is participating in a formal volunteer

program, or

(ii) Before the beginning of those

services, is formally recognized by the unit as a

volunteer.

COMAR 25.02.01.02B(8). The employees of a State’s Attorney’s Office

are considered “State personnel” for purposes of the Tort Claims Act; an

appointment as an unpaid Special Assistant State’s Attorney to perform

the prosecutorial function of an Assistant State’s Attorney should suffice

as formal recognition of the individual as a volunteer.

Gen. 76] 83

prosecutorial immunity and protection under the Maryland Tort

Claims Act as other Assistant State’s Attorneys.

Douglas F. Gansler

Attorney General

Robert N. McDonald

Chief Counsel

Opinions and Advice