Md. Bd. of Physicians v. Geier

Maryland Board of Physicians, et al. v. Mark R. Geier, et al., No. 1979, Sept. Term 2017,

and No. 338, Sept. Term 2018. Opinion by Arthur, J.

APPELLATE PROCEDURE—SEPARATE DOCUMENT REQUIREMENT

Under a mechanical application of Md. Rule 2-601, the circuit court’s 112-page

memorandum opinion purporting to award damages to three plaintiffs did not set forth a

final judgment. The court did not set forth a final judgment on a separate document

within the meaning of Rule 2-601(a) until the court issued a subsequent order stating each

defendant’s liability for damages and directing the clerk to enter a final judgment.

FEDERAL CIVIL RIGHTS CLAIMS—LIABILITY OF STATE AGENCY

42 U.S.C. § 1983 does not authorize an action for damages against a state or a state

agency. The Board of Physicians had no liability for damages under 42 U.S.C. § 1983,

where the complaint did not name the Board as a defendant in the § 1983 count, but

instead named the Board as a defendant only in a separate tort count. Because the Board

had no § 1983 liability, the Board could not be required to pay an award of attorneys’

fees under 42 U.S.C. § 1988.

FEDERAL CIVIL RIGHTS CLAIMS—ABSOLUTE QUASI-JUDICIAL

IMMUNITY

Under federal law, government officials who perform adjudicative or prosecutorial

functions in administrative proceedings have absolute immunity from being sued for

damages under 42 U.S.C. § 1983, as long as those proceedings afford procedural

safeguards adequate to restrain unconstitutional conduct by agency officials.

In this case, members and staff of the State Board of Physicians were entitled to absolute

immunity in an action under 42 U.S.C. § 1983 to recover damages resulting from their

participation in the adjudicative function of issuing a cease-and-desist order. The

administrative prosecutor who drafted the order was also entitled to absolute immunity,

because she acted as an advocate for the State in asking the Board to include provisions

in the order.

MARYLAND TORT CLAIMS—ABSOLUTE QUASI-JUDICIAL IMMUNITY

As a matter of first impression, under Maryland common law, agency officials who

perform either adjudicative or prosecutorial functions in administrative proceedings are

absolutely immune from suit for non-constitutional tort claims based on conduct for

which those officials would enjoy absolute immunity under federal law in a suit for

damages for alleged violations of the federal constitution.

STATUTORY INTERPETATION—PRESUMPTION AGAINST PREEMPTION

OF COMMON LAW

Section 5-715(b) of the Courts and Judicial Proceedings Article provides that a member

or legally authorized agent of the State Board of Physicians “who acts without malice …

is not civilly liable for … acting on an allegation for Board action made to the Board[.]”

Absent an express statement or clear implication of legislative intent to preempt the

common law, this statute must be interpreted as neither changing nor limiting other

defenses that might be available under common law.

CIVIL PROCEDURE—ABSOLUTE IMMUNITY

The defense of absolute immunity may be raised in a preliminary motion to dismiss or in

a motion for summary judgment. An interlocutory order overruling a claim of absolute

immunity is subject to de novo review on appeal from an adverse final judgment. If the

circuit court erroneously rejected a valid claim of absolute immunity, the appellate court

should reverse the judgment with the direction to dismiss the action.

DISCOVERY—SANCTIONS AGAINST MULTIPLE DEFENDANTS

A decision to impose sanctions based on a defendant’s discovery failure, without more,

does not justify the imposition of sanctions against a co-defendant. In this case, the

circuit court abused its discretion by imposing a default as to the liability of 25 individual

defendants as a sanction for discovery failures attributed to their co-defendant, the State

Board of Physicians. The court further erred when it refused to vacate the default as to

those defendants, based on the court’s clearly erroneous finding that those defendants

previously waived their objection to being sanctioned for the Board’s discovery failures.

MARYLAND TORT CLAIMS—LIABILITY OF STATE AGENCY

In an action where all officials of a state agency have absolute immunity, the agency

cannot be made liable for the conduct of those officials under the Maryland Tort Claims

Act. Where the conduct of the agency officials is the only basis for liability of the

agency, a judgment in favor of all of the agency officials inures to the benefit of the

agency even if the agency is in default.

Circuit Court for Montgomery County

Case No. 371761V

REPORTED

IN THE COURT OF SPECIAL APPEALS

OF MARYLAND

No. 1979

September Term, 2017

No. 338

September Term, 2018

______________________________________

CONSOLIDATED CASES

______________________________________

MARYLAND BOARD OF PHYSICIANS,

ET AL.

v.

MARK R. GEIER, ET AL.

______________________________________

Arthur,

Leahy,

Reed,

JJ.*

______________________________________

Opinion by Arthur, J.

______________________________________

Filed: June 26, 2019

Pursuant to Maryland Uniform Electronic Legal

Materials Act

*Chief Judge Matthew J. Fader, Judge Donald

(§§ 10-1601 et seq. of the State Government Article) this document is authentic.

E. Beachley, and Judge Steven B. Gould did not

2019-06-26 15:01-04:00 participate in the Court’s decision to designate

this opinion for publication pursuant to Md.

Rule 8-605.1

Suzanne C. Johnson, Clerk

TABLE OF CONTENTS

Statutory and Regulatory Background ........................................................................... 1

A. The Maryland State Board of Physicians and Board Personnel ......................... 2

B. General Procedures for the Board’s Medical Disciplinary Proceedings ............ 5

The Administrative Proceedings ...................................................................................... 7

A. The Initial Medical Disciplinary Proceedings Against the Geiers ..................... 7

B. The Cease-and-Desist Order Dated January 25, 2012........................................ 9

C. The Amended Cease-and-Desist Order Dated February 22, 2012 ................... 10

D. Outcome of the Medical Disciplinary Proceedings .......................................... 12

The Proceedings in the Circuit Court ............................................................................ 14

A. The Geiers’ Action Against Board Personnel and the Board ........................... 14

B. Denial of Motion to Dismiss on the Ground of Absolute Immunity................ 16

C. Grant of Motions to Compel Discovery and for Discovery Sanctions ............. 18

D. The First Interlocutory Appellate Decision on Discovery Matters .................. 20

E. Rejection of Absolute Immunity and Other Rulings on Remand .................... 21

F. The Second Interlocutory Appellate Decision on Discovery Matters .............. 23

G. Remaining Pretrial Rulings .............................................................................. 24

H. Bench Trial on Damages .................................................................................. 26

I. Opinion Awarding Compensatory and Punitive Damages .................................. 28

J. Award of Attorneys’ Fees and Entry of Final Judgment ..................................... 32

Scope of Appellate Review .............................................................................................. 34

Questions Presented ........................................................................................................ 38

Discussion ......................................................................................................................... 40

I. Liability of the State Board of Physicians Under 42 U.S.C. § 1983 ....................... 40

II. Claim Against Board Personnel Under 42 U.S.C. § 1983 ................................... 44

A. Absolute Judicial and Prosecutorial Immunity in § 1983 Actions ................... 44

B. Absolute Immunity in the Context of Administrative Proceedings ................. 47

C. Absolute Immunity in Relation to Medical Disciplinary Proceedings............. 50

D. Absolute Immunity for Medical Disciplinary Proceedings in Maryland ......... 53

E. Absolute Immunity for the Issuance of a Cease-and-Desist Order .................. 57

F. Absolute Immunity of Others Participating in the Board’s Decision .............. 63

III. Maryland Tort Claim Against Board Personnel and the Board ........................... 65

A. Absolute Judicial (and Quasi-Judicial) Privilege Under Maryland Law ......... 65

B. Absolute Immunity for Government Officials Under Maryland Law ............. 71

C. Qualified Immunity for Board Personnel Under Maryland Statutes ................ 82

IV. Absolute Immunity in the Procedural Context of this Case ................................ 91

A. Denials of Motion to Dismiss and Motion for Summary Judgment ................ 91

B. Refusal to Consider Absolute Immunity After Default as to Liability ............ 97

Conclusion ...................................................................................................................... 108

ii

In 2012, the Maryland Board of Physicians issued a public cease-and-desist order

against Mark Geier, M.D. The text of the order included information about medications

prescribed to Dr. Geier, his wife, and his son. The Geiers filed suit in the Circuit Court

for Montgomery County, seeking to recover damages from 25 persons who were alleged

to have participated in the drafting or approval of the order and from the Board itself.

The court rejected the defendants’ assertions that they were entitled to absolute immunity

with respect to their functions in the administrative proceedings.

The defendants managed to narrow the discovery of some matters by prevailing in

two interlocutory appeals: Maryland Board of Physicians v. Geier (“Geier I”), 225 Md.

App. 114 (2015), and Maryland Board of Physicians v. Geier (“Geier II”), 451 Md. 526

(2017). Ultimately, as a sanction for the Board’s discovery failures, the circuit court

ordered a default as to the liability of all defendants. After a bench trial on damages, the

court awarded a total of $1.25 million in compensatory damages and a total of $1.25

million in punitive damages. The court further ordered the defendants to pay nearly $2.4

million in attorneys’ fees. All defendants appealed from the final judgment.

Foremost in a litany of challenges, the defendants contend that they are entitled to

absolute immunity as to all claims. For the reasons discussed in this opinion, we

conclude that their contention is correct. The judgment shall be reversed.

STATUTORY AND REGULATORY BACKGROUND

The defendants in this case are appealing from a civil judgment for damages based

on actions that occurred in the context of medical disciplinary proceedings. To

understand the issues presented, it is necessary to begin with some understanding of the

statutes and regulations that governed those proceedings.

A. The Maryland State Board of Physicians and Board Personnel

In Maryland, health occupations are “regulated and controlled” to “protect the

health, safety, and welfare of the public.” Md. Code (1981, 2014 Repl. Vol., 2018

Supp.), § 1-102(a) of the Health Occupations Article. The General Assembly has created

independent health occupations boards, the majority of whose members are licensed to

practice in the regulated occupation, “with the intent that a peer group is best qualified to

regulate, control, and otherwise discipline in a fair and unbiased manner the licensees . . .

who practice in the State.” Id. § 1-102(b). The State Board of Physicians is one such

board within the Department of Health (id. § 14-201), one of the principal departments of

the executive branch of the State government. See Md. Code (1984, 2014 Repl. Vol.,

2018 Supp.), § 8-201(b)(8) of the State Government Article.

The Board is responsible for administering the Maryland Medical Practice Act,

codified at Title 14 of the Health Occupations Article. Many of the Board’s proceedings

are governed by the Contested Cases subtitle of the Administrative Procedure Act:

Subtitle 2 of Title 10 of the State Government Article. Regulations for the Board’s

disciplinary and licensing matters are codified at Title 10, Subtitle 32, Chapter 2, of the

Code of Maryland Regulations. Because the underlying events occurred in 2011 and

2012, our analysis concerns the provisions in effect at that time. Unless otherwise

specified, subsequent citations to “HO” refer to the 2009 Replacement Volume and 2011

Supplement of the Health Occupations Article; citations to “SG” refer to the 2009

Replacement Volume and 2011 Supplement of the State Government Article; and

2

citations to “COMAR” refer to the 2011 version of the Code of Maryland Regulations.1

Under the Medical Practice Act, any person who practices medicine in Maryland

must be licensed by the State Board of Physicians. See HO §§ 14-301, 14-601. The Act

expressly empowered the Board to adopt rules and regulations to carry out the provisions

of the Act (HO § 14-205(a)(1)(i)(1)); to investigate alleged violations of the Act (HO §

14-205(a)(2)); to reprimand a licensee, place any licensee on probation, or suspend or

revoke a license upon a determination that the licensee engaged in conduct prohibited by

the Act (HO § 14-404(a)); to impose fines instead of or in addition to other sanctions (HO

§ 14-405.1(a)); to issue a cease-and-desist order or obtain injunctive relief for practicing

medicine without a license (HO § 14-206(e)); and to levy fines for practicing medicine

without a license (HO § 14-606(a)(4)(ii)).

Before 2013, the Board consisted of 21 members appointed by the Governor with

the advice of the Secretary of the Department2 and with the advice and consent of the

Senate. HO § 14-202(a)(1). Those members included: 13 practicing licensed physicians,

including one doctor of osteopathy and one representative of an academic medical

institution; one representative of the Department; one certified physician assistant; five

“consumer members”; and one “public member knowledgeable in risk management or

quality assurance matters[.]” HO § 14-202(a)(2)(i)-(vii). The “consumer” and “public”

1

In the intervening years, both the Medical Practice Act and the Board’s

regulations have undergone substantial revisions.

2

In 2017, the General Assembly renamed the Department of Health and Mental

Hygiene as the Department of Health. See 2017 Md. Laws ch. 214.

3

members are persons who have never trained to become a physician and who maintain

limited personal and financial ties to the field of medicine. See HO § 14-202(b).

Members serve four-year terms (HO § 14-202(i)), during which they may be removed for

cause (see HO § 14-202(k)). The Governor appoints one chair of the Board, who serves a

two-year term. HO § 14-203(a).

Board members are entitled to compensation in accordance with the State budget.

HO § 14-204(c). In practice, however, because most members are practicing physicians,

they make limited time commitments to the Board’s activities, for which they receive

modest compensation. According to a notice soliciting nominations to fill vacancies in

2012, Board members attend one full-day meeting each month (along with their service

on one or more committees), and for their attendance they receive complimentary lunch,

travel reimbursement, and a $250 per diem (or a $300 per diem for the chair).3

To assist the Board with its many duties, the Secretary employs a full-time staff

headed by an executive director. See HO § 14-204(d). Assistant attorneys general,

investigators, and hearing officers assist with “the investigation, development, and

prosecution of cases referred to the Board[.]” HO § 14-204(e). Attorneys assigned to

prosecute administrative charges are known as administrative prosecutors. COMAR

10.32.02.02(B)(3). Attorneys assigned for the purpose of giving advice on legal matters

before the Board are known as Board counsel. COMAR 10.32.02.02(B)(6).4

3

MARYLAND DEPARTMENT OF HEALTH, CURRENT RECRUITMENTS: BOARD OF

PHYSICIANS, https://perma.cc/MH47-QTWM.

4

To maintain separation of these functions, guidelines from the Office of the

4

B. General Procedures for the Board’s Medical Disciplinary Proceedings

When the Board receives an allegation of grounds for disciplinary action, the

Board’s staff undertakes an investigation. HO § 14-401(a); COMAR 10.32.02.03(A).

The Board investigates and adjudicates allegations of the unlicensed practice of medicine

under the same process that it uses for disciplinary actions against licensed physicians.

See COMAR 10.32.02.06(B)(1). In connection with an investigation, the Board may

issue subpoenas under the authorization of one of the Board’s officers or directors. HO

§§ 14-206(a), 14-401(i). If the allegations concern the failure to meet the appropriate

standard of care, the Board must refer the matter to the Medical and Chirurgical Faculty

of Maryland, a non-profit organization, for peer review by physicians in the relevant

medical specialty. HO § 14-401(c)(2); COMAR 10.32.02.03(B).

Based on its review of investigation reports, the Board may “[t]ake any

appropriate and immediate action” (HO § 14-401(c)(1)(ii)), such as issuing a cease-and-

desist order or issuing formal charges for violation of the Medical Practice Act. See

COMAR 10.32.02.03(C)(1). After service of charges (COMAR 10.32.02.03(C)(5)), the

Attorney General prohibit ex parte communications between the attorneys who serve as

“advocates” in agency proceedings and the attorneys who serve as “advisors” to the

agency; and further require those attorneys to keep separate files. See Office of Attorney

General, Guidelines for Administrative Adjudicatory Proceedings (Oct. 27, 1994),

available at https://web.archive.org/web/20150907151423/http://www.mbp.state.md.us/

forms/ag_guidelines.pdf. The combination of investigative and adjudicatory functions in

the same agency does not violate due process if the investigators do not participate in the

adjudication, and the adjudicators do not participate in the investigation. Consumer

Protection Div., Office of the Att’y Gen. v. Consumer Publishing Co., 304 Md. 731, 763

(1985); see also State Bd. of Physicians v. Bernstein, 167 Md. App. 714, 766-67 (2006)

(rejecting an argument that the combination of prosecutorial and adjudicative functions in

the State Board of Physicians was, in itself, a violation of due process).

5

respondent may request an evidentiary hearing conducted by an administrative law judge

from the Office of Administrative Hearings. HO § 14-405(b)(1); COMAR

10.32.02.03(E)(1). The respondent has the right to be represented by counsel at the

hearing (HO § 14-405(c)) and at any other stage in the proceedings (COMAR

13.32.02.03(D)(1)). Each party is entitled to call witnesses, offer evidence, cross-

examine witnesses, and make arguments. SG § 10-213(f); COMAR 28.02.01.20(A)(1).

Following the hearing, the administrative law judge refers proposed findings of

fact, proposed conclusions of law, and any proposed disposition to the Board. HO § 14-

405(e); COMAR 10.32.02.03(E)(10). If either party files exceptions, the Board holds an

exceptions hearing before it issues its own findings of fact, conclusions of law, and

disposition. COMAR 10.32.02.03(F)(2). The Board’s final decision is subject to judicial

review in the circuit court. See HO § 14-408(b); COMAR 10.32.02.03(H). The circuit

court’s judgment is subject to appellate review. See SG § 10-223(b).

Ordinarily, the Board must give notice and the opportunity for a hearing in

accordance with the Administrative Procedure Act before it suspends or revokes a

physician’s license. HO § 14-405(a); see SG § 10-226(c)(1). The Board has limited

authority to “order summarily the suspension of a license” as an “emergency action,” and

then it must provide notice and the opportunity for a hearing “promptly” thereafter. SG §

10-226(c)(2); see COMAR 10.32.02.05. After being suspended summarily, the licensee

may demand a full evidentiary hearing. COMAR 10.32.02.05(I).

This regulatory scheme includes provisions to maintain confidentiality for the

Board’s proceedings, while also ensuring public access to information about the licensing

6

and discipline of physicians. “Except as otherwise expressly provided” in the Act, “the

Board or any of its investigatory bodies may not disclose any information contained in a

record” of its proceedings. HO § 14-411(b); see also COMAR 10.32.02.08(A) (“[e]xcept

for formal charging documents, notices of intent to deny [licensure], or as otherwise

provided by law, the proceedings of the Board are confidential”). Upon a request under

the Public Information Act, a custodian of records must permit inspection of “any orders

and findings that result from formal disciplinary actions” against a licensee. SG § 10-

617(h)(2)(vi). Furthermore, the Board must “create and maintain a public individual

profile on each licensee” that must include a “description of any disciplinary action taken

by the Board against the licensee within the most recent 10-year period that includes a

copy of the public order[.]” HO § 14-411.1(b)(1). The Board is required to “maintain a

website that serves as a single point of entry where all physician profile information is

available to the public on the Internet[.]” HO § 14-411.1(d)(2).

THE ADMINISTRATIVE PROCEEDINGS

A. The Initial Medical Disciplinary Proceedings Against the Geiers

Dr. Mark Geier first obtained his license to practice medicine in Maryland in

1979. For many years, he operated a medical practice in Rockville known as Genetic

Centers of America, which offered treatment to children with autism spectrum disorder.

His son David Geier, who is not a physician, but who has a bachelor’s degree in biology,

worked in a subordinate role at the medical practice. Dr. Geier’s wife, Anne Geier, was

generally not involved in the medical practice, except that she served on a review board

established to oversee Dr. Geier’s research.

7

Together, Dr. Geier and David Geier promoted a theory that thimerosal, a

mercury-based compound used as a preservative in some vaccines, can cause autism in

genetically susceptible children. See generally Blackwell v. Wyeth, 408 Md. 575, 609-10

(2009) (listing articles written by Mark R. Geier & David A. Geier).5 Based on that

theory, Dr. Geier developed an experimental treatment protocol for autistic children, in

which he administered the drug Lupron to suppress hormone production. For some

patients, he used chelation therapy, a treatment that removes heavy metals from the body.

As early as 2006, the Board began investigating a series of complaints related to

Dr. Geier’s medical practice. The Board eventually referred several patient records for

physician peer review. On April 27, 2011, the Board summarily suspended Dr. Geier’s

medical license. The suspension order accused him of “endanger[ing] autistic children

and exploit[ing] their parents by administering a treatment protocol that has a known

substantial risk of serious harm and which is neither consistent with evidence-based

medicine nor generally accepted in the relevant scientific community.”

Promptly thereafter, the Board issued formal charges under the Medical Practice

Act, accusing Dr. Geier of violating various ethical and professional standards in the use

of his treatment protocol. At the same time, the Board pursued separate charges against

David Geier, alleging that he engaged in the unlicensed practice of medicine by

5

In Blackwell v. Wyeth, 408 Md. 575 (2009), the Court of Appeals upheld a ruling

to preclude Dr. Geier from testifying as an expert in an action brought by the parents of

an autistic child against a vaccine manufacturer. The Court adopted the trial judge’s

reasoning “that Dr. Geier’s genetic susceptibility theory is no more than hypothesis and

conjecture, devoid of a generally accepted methodology to support it[.]” Id. at 618.

8

diagnosing and treating a patient at Dr. Geier’s medical practice.

B. The Cease-and-Desist Order Dated January 25, 2012

While these charges were pending, a representative from a pharmacy-benefits

management company informed the Board that someone from Dr. Geier’s medical

practice had authorized prescription refills after the suspension of Dr. Geier’s license.

The Board notified Dr. Geier of the new complaint, and he denied writing any

prescriptions in Maryland during his suspension. Based on pharmacy records, the

Board’s staff concluded that Dr. Geier had verbally authorized the prescription refills.

Staff members prepared a report recommending that the Board issue a public

cease-and-desist order against Dr. Geier. The Board’s staff submitted the proposal for

the Board to consider at its monthly meeting in January 2012. The administrative

prosecutor who was assigned to prosecute the disciplinary charges against the Geiers

drafted the proposed order.

The proposed order stated that the Board had “received information that [Dr.

Geier] prescribed drugs to himself, his son and his wife after his license was suspended.”

One paragraph went on to identify five specific drugs that he allegedly prescribed and the

person to whom each drug was prescribed. It did not mention either David Geier or Anne

Geier by name, but it instead referred to them as Dr. Geier’s “son” and his “wife,”

respectively. Four footnotes, inserted immediately after the names of four of the drugs,

further described the medical conditions that each drug is commonly used to treat. The

fifth drug was listed by a common name, and its intended use is known to the public.

Based on the “investigative findings” that Dr. Geier practiced medicine while his

9

license was suspended, the order required Dr. Geier to “CEASE AND DESIST from

providing any and all services that constitute the practice of medicine[.]” It further

provided “that this is a PUBLIC DOCUMENT.” The order notified Dr. Geier that if he

“challenge[d]” the order the matter would be “adjudicated according to the procedures in

the Board’s regulations at COMAR 10.32.02.03[,]” i.e., under the same procedures used

for formal disciplinary actions. See COMAR 10.32.02.09.

At a closed-session meeting on January 25, 2012, the 20 Board members in

attendance voted unanimously to issue a public cease-and-desist order against Dr. Geier.

The chair of the Board signed the document on behalf of the Board. Within the next few

days, the Board’s technical staff published a PDF document displaying the complete

order on the Board’s website. Links to that document were posted on the website’s home

page and on the practitioner profile page for Dr. Geier.

C. The Amended Cease-and-Desist Order Dated February 22, 2012

After service of the cease-and-desist order, an attorney for Dr. Geier sent a letter to

the Board in protest of its decision to “specify the drugs in question including the

conditions for which such drugs are used” in a public document. The attorney informed

the Board that he had advised the Geier family to pursue civil claims against any

personnel “responsible for generating and making public this Order[.]” Among other

things, the letter accused the Board of violating a regulation in effect at that time, which

authorized the Board to “issue a nonpublic cease and desist order” during an investigation

10

of the unlicensed practice of medicine. COMAR 10.32.02.06(B)(2).6

After receiving the letter of protest, Board counsel sent an urgent email advising

high-level Board personnel to “immediately redact” from the Board’s website any

information identifying a particular patient or a drug prescribed to a patient. In response,

the chair of the Board wrote: “Are we really including ‘patient identifiable/specific’

information on the website/in public disclosure of charging/conviction

documentation???? If we are….., I agree that we should cease this activity asap!!!” The

Board’s deputy director instructed the chief of information systems to “[r]emove the

cease and desist order from the website and profile” until further discussion.

The Board approved an amended cease-and-desist order at its next monthly

meeting, on February 22, 2012. The amended order omitted mention of any particular

patients, drugs, or medical conditions. It simply stated that the Board had reason to

believe that Dr. Geier prescribed drugs “for at least three patients.” A new footnote

stated: “Dr. Geier is aware of the names of these three patients. The names of the drugs

and identifying prescription information is known to him and is also available to him

upon request.”

The amended order was published on the Board’s website, and a link to the new

document was posted on the website’s profile for Dr. Geier. Yet even though the website

no longer included direct links to the original order, the website continued to host the

6

As a result of an amendment enacted in 2013, the Board’s regulations now

provide that an “initial Board order to cease and desist . . . from the unauthorized practice

of medicine” is “a public document[.]” COMAR 10.32.02.11(E)(1)(a) (2018).

11

page showing the PDF document for the original order. The original order continued to

appear in internet search results involving Dr. Geier. Consequently, the original order

remained accessible long after the Board issued the amended order.

Through his attorney, Dr. Geier requested a hearing on the amended cease-and-

desist order. Several months later, in June 2012, the Board issued formal charges against

him, using language substantially similar to the language of the amended cease-and-desist

order. The charging document alleged that Dr. Geier had prescribed drugs to three

unnamed patients, without identifying the drugs prescribed to those patients.

Dr. Geier contested those charges. The administrative law judge was unconvinced

by the evidence connecting Dr. Geier to the prescription refills and recommended that the

charges not be upheld. The administrative prosecutor filed exceptions, and after an

exceptions hearing, the Board found that someone other than Dr. Geier had authorized

the prescription refills in question. The Board dismissed the charges against Dr. Geier for

violation of the summary suspension order and terminated the amended cease-and-desist

order “as moot” on March 22, 2013.

D. Outcome of the Medical Disciplinary Proceedings

Meanwhile, in March 2012, administrative law judges issued the proposed

decisions for the other disciplinary proceedings against Dr. Geier and David Geier. An

administrative law judge recommended that the Board find that Dr. Geier committed

multiple violations of the Medical Practice Act and revoke his license as a penalty. Dr.

Geier filed exceptions with the Board. Another administrative law judge recommended

that the Board dismiss the charges against David Geier for practicing medicine without a

12

license. The administrative prosecutor filed exceptions with the Board.

Two days before the exceptions hearings in May 2012, Dr. Geier made a motion

asking that all Board members recuse themselves from the proceedings. Dr. Geier argued

that the Board’s handling of the proceedings revealed a “personal bias” against him. He

informed the Board that an attorney for the Geier family had sent a notice-of-claim form

to the State treasurer regarding their potential civil claims against Board personnel for the

unauthorized disclosure of private medical information. His motion argued that the

“prospect of litigation that may affect the personal finances of certain members” would

“undoubtedly affect the Board’s ability to act toward Dr. Geier with impartiality.”

At a meeting on May 23, 2012, the Board denied the recusal motion and

proceeded to hear the exceptions. The Board voted to adopt proposed findings that Dr.

Geier committed multiple violations of the Medical Practice Act and to accept the

recommendation to revoke his medical license.7 The Board also voted to reject the

proposed findings that David Geier did not engage in the unauthorized practice of

medicine and to levy a $10,000 fine against him. Both Dr. Geier and David Geier sought

judicial review, and the Board’s decisions were later upheld in the circuit court and in this

Court. Mark R. Geier v. Maryland State Bd. of Physicians, 223 Md. App. 404 (2015)

(upholding revocation of Dr. Geier’s license); David A. Geier v. Maryland Bd. of

Physicians, No. 709, Sept. Term 2014 (filed July 31, 2015) (unreported) (upholding

7

The Board concluded that Dr. Geier failed to meet the standard of adequate care

in using his Lupron protocol to treat autistic children, that he committed unprofessional

conduct by using misleading methods to obtain parental consent for treatments, and that

he failed to keep adequate records for those treatments.

13

penalty against David Geier for the unlicensed practice of medicine).

The Board’s scrutiny of Dr. Geier’s medical practice spawned an additional

investigation of his medical partner, John L. Young, M.D., concerning the continuation of

treatment after the suspension of Dr. Geier’s license. The Board suspended Dr. Young’s

license, issued formal charges against him, and ultimately decided in 2014 to impose one

year of probation upon the reinstatement of his license. The circuit court upheld that

decision, and Dr. Young did not appeal.

THE PROCEEDINGS IN THE CIRCUIT COURT

A. The Geiers’ Action Against Board Personnel and the Board

On December 21, 2012, during the litigation of the Geiers’ petitions for judicial

review, three members of the Geier family (Dr. Mark Geier; his wife, Anne Geier; and

his son, David Geier) commenced the action at issue in the present appeal by filing a

three-count complaint in the Circuit Court for Montgomery County. The complaint

named 25 Board personnel as defendants: 20 Board members, the executive director, a

deputy director, two staff members, and the administrative prosecutor.

All claims centered on the disclosure of “private medical information” in the

original cease-and-desist order, “including the names of the drugs prescribed to [the

Geiers] and the specific conditions those prescriptions were intended to treat.” The

Geiers alleged that they suffered “severe humiliation and embarrassment” when members

of the public viewed the order on the Board’s website. The Geiers theorized that Board

personnel “acted with ill will and with intent to injure” the Geiers, as “part of a

systematic effort on the part of the [defendants] to discredit and punish [Dr. Geier and

14

David Geier] for promoting views and treatment plans not endorsed” by the Board.

In Count One, the Geiers raised a federal civil rights claim under 42 U.S.C. §

1983. They claimed to have “a recognized right to privacy in their private medical

information, established and protected by the federal Constitution.” They alleged that, in

“publishing the [o]rder on the internet with [the Geiers’] private medical information,”

Board personnel knowingly deprived them of “their [c]onstitutional right to privacy as

guaranteed by the First, Third, Fourth, Ninth, Fifth, and Fourteenth Amendments[.]” In

addition to damages, the Geiers sought attorneys’ fees under 42 U.S.C. § 1988.

In Count Two, the Geiers claimed that Board personnel knowingly violated the

Maryland Confidentiality of Medical Records Act (Md. Code (1982, 2009 Repl. Vol.), §§

4-301 through 4-309 of the Health-General Article) by disclosing their prescription

information without their consent.

In Count Three, the Geiers claimed that Board personnel committed the tort of

invasion of privacy by giving unreasonable publicity to private facts not of legitimate

public concern. They asserted that the medical conditions described in the order were “of

an extremely personal nature” and that the “disclosure of this type of information would

undoubtedly be highly offensive to a reasonable person.”

Although the complaint included an allegation that the original cease-and-desist

order was still available on the Board’s website, the Geiers did not request an injunction.

In all counts, the Geiers demanded judgment against the 25 defendants, jointly and

severally, for $3 million of compensatory damages and $3 million of punitive damages.

“Alternatively,” in Count Three, the Geiers demanded judgment against the Board

15

itself, “as an agency of the State of Maryland, in the amount of . . . $200,000.00 per

individual plaintiff[.]” This count appeared to invoke the limited waiver of sovereign

immunity from the Maryland Tort Claims Act. See SG § 12-104(a) (limiting the tort

liability of the State and its units to “$200,000 to a single claimant for injuries arising

from a single incident or occurrence”). The Geiers named the Board as a defendant only

in Count Three.

B. Denial of Motion to Dismiss on the Ground of Absolute Immunity

Initially, counsel from the Attorney General’s office jointly represented all

defendants. Before answering the complaint, the defendants moved for dismissal of all

claims.

In addition to challenges specific to each of the three counts, the defendants

contended that they possessed “absolute quasi-judicial immunity” as to any claims for

damages based on their acts in the medical disciplinary proceedings. Because

Maryland’s appellate courts have never decided whether quasi-judicial decision-makers

have absolute immunity from suit, the defendants relied on Ostrzenski v. Seigel, 177 F.3d

245 (4th Cir. 1999). In that case, the Fourth Circuit held that a defendant had absolute

immunity with respect to prosecutorial functions that he performed at the behest of the

Maryland Board of Physician Quality Assurance, the predecessor of the Board of

Physicians. On that ground, the Fourth Circuit affirmed the dismissal of both a federal

claim under 42 U.S.C. § 1983 and a claim for invasion of privacy under Maryland law.

The Geiers contended that their claims should proceed because their complaint

included allegations of malice. Primarily, they relied on a Maryland statute that protects

16

members and agents of the Board from civil liability for certain actions taken “without

malice” in connection with the Board’s proceedings. See Md. Code (1974, 2013 Repl.

Vol.), § 5-715(b) of the Courts and Judicial Proceedings Article. In the alternative, the

Geiers argued that the doctrine of absolute quasi-judicial immunity should not apply to

the decision to issue a cease-and-desist order.

The court denied the motion to dismiss “to the extent that it relie[d] on the

immunities, common law or otherwise[.]” The court believed that it did not “have an

adequate record at the motion-to-dismiss stage to fairly, much less, correctly decide

whether any of the various immunities” might apply. The court said that it might

“revisit” the immunity issue on a motion for summary judgment. The court, however,

went on to dismiss Count Two with prejudice on other grounds, concluding that the

Confidentiality of Medical Records Act did not create a private cause of action.

In their answer, the defendants raised a host of different defenses, including

“absolute quasi-judicial immunity” as to the two remaining counts. As to the count under

42 U.S.C. § 1983, the individual defendants asserted that the alleged conduct did not

violate any clearly established constitutional right, while the Board maintained that it

could not be sued under that statute. Other defenses to the invasion-of-privacy count

largely depended on whether Board personnel had acted with malice: the immunity under

§ 5-715(b) of the Courts and Judicial Proceedings Article, for members and agents of the

Board acting without malice; and the immunity under § 5-522(b) of the State

Government Article, for State personnel acting without malice or gross negligence.

17

C. Grant of Motions to Compel Discovery and for Discovery Sanctions

In search of evidence of malice, the Geiers made expansive discovery requests.

They sought to explore not only the process that produced the cease-and-desist order, but

also the entire decision-making process in the related medical disciplinary proceedings

(which were still the subject of their petitions for judicial review at that time). The

defendants frequently withheld the requested information, invoking various common-law

evidentiary privileges as well as a statute restricting discovery of the “proceedings,

records, or files of the Board or any of its investigatory bodies[.]” HO § 14-410(a)(1).

More often than not, the court ordered the defendants to make the requested disclosures,

either because it concluded that their objections lacked merit or because it concluded that

they failed to make timely objections.

The most consequential of these discovery contests concerned the defendants’

reliance on the “deliberative (executive) privilege” as a ground for refusing to produce

documents from the medical disciplinary proceedings and refusing to answer questions

about the Board’s decisions. This evidentiary privilege may prevent the disclosure of

certain “confidential advisory and deliberative communications between officials and

those who assist them in formulating and deciding upon future governmental action.”

Hamilton v. Verdow, 287 Md. 544, 558 (1980). In cases where the government itself is a

party or where a litigant alleges government misconduct, a litigant can overcome a formal

claim of deliberative privilege by showing that the litigant’s need for production of the

information outweighs the government’s need for confidentiality. See id. at 565-67.

The Geiers moved for an order compelling the defendants to respond to the

18

discovery requests and barring any future assertions of deliberative privilege. The court

granted the motion, reasoning that “the privilege must yield” because the case involved

“a charge of misconduct” by the agency asserting the privilege. The defendants did not

pursue an appeal of that ruling.

The Geiers moved for discovery sanctions a few months later, as the Board was

still in the process of gradually disclosing thousands of pages of documents related to the

disciplinary proceedings against the Geiers. The court granted the motion in part, but

reserved its ruling on the specific sanction to impose.

The Geiers also moved to compel the production of the Board’s complete files

from the disciplinary proceedings against Dr. Geier’s medical partner, Dr. Young (while

those proceedings were still being adjudicated). The court granted the motion over the

defendants’ objections. The defendants noted an appeal from that order. The court then

granted a motion for sanctions based on the Board’s failure to obey the order compelling

disclosure of its files on Dr. Young.

During the pendency of the appeal, the Geiers requested the entry of a default

judgment against the Board as a sanction for the Board’s noncompliance with a notice of

deposition under Md. Rule 2-412(d). The Geiers had moved for sanctions when the

witness designated to testify on the Board’s behalf failed to appear on the date initially

scheduled for the deposition, without obtaining a protective order. The Geiers again

moved for sanctions when, at the rescheduled deposition, the Board’s designee was

inadequately prepared to answer questions about the majority of the 167 topics listed in

the notice of deposition. The court granted both motions.

19

On December 16, 2014, the court issued a written opinion announcing its decision

to “enter a default against the defendants but on the issue of liability only” as a sanction

for the Board’s discovery failures. The court announced that it would schedule a trial on

damages after resolution of the interlocutory appeal. The defendants filed a second

notice of appeal as soon as the court entered the order imposing the sanction of default.

D. The First Interlocutory Appellate Decision on Discovery Matters

The Geiers moved to dismiss both appeals as premature. In a consolidated

opinion, this Court explained that the order deeming all defendants in default as to

liability was not subject to review until the entry of a final judgment that included any

damage award. Maryland Bd. of Physicians v. Geier (“Geier I”), 225 Md. App. 114,

139-43 (2015). This Court determined, however, that the order compelling the

production of documents related to Dr. Young was appealable under the collateral order

doctrine. Id. at 121. This Court explained that, although routine discovery orders are not

immediately appealable, “the collateral order doctrine may permit an immediate appeal of

a discovery order that permits a litigant to inquire into the decisional processes of high-

level government officials[.]” Id. at 131. This holding ensures that those officials need

not await the outcome of a trial before seeking to vindicate an objection to the pretrial

probing of their decisional thought processes. See id. at 131-32.

Addressing the merits of the discovery order, this Court held that HO § 14-410 did

not permit the Geiers to discover documents from Dr. Young’s disciplinary proceedings

in their action against the Board and its personnel. Geier I, 225 Md. App. at 144-47.

This Court also set aside the discovery order because the court “did not expressly balance

20

the public interest in maintaining the confidentiality of the Board’s deliberations

concerning Dr. Young against the Geiers’ need for disclosure of those documents and the

impact of nondisclosure upon the fair administration of justice” when it rejected the

assertion of deliberative privilege. Id. at 151. Noting that the “decision concerning the

discovery order may affect some of the premises of the order of default, such as the

breadth and scope of the deposition of the Board’s designee[,]” this Court said that “the

circuit court, upon a proper motion, should reevaluate” that order on remand. Id. at 155.

As part of their interlocutory appeal, the defendants also asked this Court to

address the issue of “absolute quasi-judicial immunity,” which the circuit court had

declined to evaluate when it denied the preliminary motion to dismiss. Geier I, 225 Md.

App. at 120 & n.2. This Court “express[ed] no opinion on the applicability” of any

immunity, explaining that those issues were not properly reviewable in the appeal from

the discovery ruling. Id. at 152 n.22. This Court nevertheless encouraged the circuit

court “[a]s part of the balancing process on remand” to “assess the Board’s immunity

claims,” because the Geiers would not be entitled to discovery “if an immunity insulates

the defendants from liability or from suit.” Id.

E. Rejection of Absolute Immunity and Other Rulings on Remand

When the case returned to the circuit court, all defendants moved for

reconsideration of the order imposing the sanction of default and for summary judgment

in their favor on the ground of absolute quasi-judicial immunity. They also invoked

absolute immunity as grounds for a protective order from further discovery requests.

At a hearing on March 24, 2016, the court considered and rejected the defendants’

21

contention that they were entitled to absolute immunity. The court was unmoved by the

defendants’ reliance on federal cases, which the court deemed not to be controlling. The

court also expressed concern that recognizing an absolute immunity would displace § 5-

715(b) of the Courts and Judicial Proceedings Article, which grants the Board’s members

and agents an immunity from civil liability for actions taken without malice. The court

observed that the Maryland “legislature has staked out a very detailed, specific statutory

scheme” of qualified immunity, and that the defendants had “not cited any a case from

the Court of Appeals or the Supreme Court” extending absolute immunity to Board

personnel. For identical reasons, the court denied the motion for a protective order based

on absolute immunity.

During the same hearing, the court declined to vacate the order imposing the

sanction of default as to the defendants’ liability. Referring to the Board’s delay in

producing documents, the failure of the Board’s representative to attend her duly-noted

deposition, and the Board’s subsequent failure to produce a representative who was

prepared to testify about all 167 topics in the deposition notice, the court concluded that

“the conduct . . . of the defendants here was . . . abysmal, abominable, [and]

sanctionable[.]”

At the same hearing, the Geiers pursued yet another motion for sanctions, arguing

that the Board improperly withheld audio recordings of its deliberations in the medical

disciplinary proceedings. The court granted the motion, reasoning that the defendants

had previously “waived” their assertion of privilege over the deliberations.

The defendants immediately noted another appeal, seeking review of each of the

22

rulings made on remand in favor of the Geiers. The Court of Appeals granted certiorari

on its own initiative before any consideration by this Court.

F. The Second Interlocutory Appellate Decision on Discovery Matters

In the second round of appellate review, the defendants implored the Court “to

consider their claims regarding the denial of their quasi-judicial immunity in the orders

denying their motions for reconsideration and for a protective order.” Maryland Board of

Physicians v. Geier (“Geier II”), 451 Md. 526, 553 (2017). The Court, however, held

that neither of those orders were immediately appealable under the collateral order

doctrine. Id. at 555-57. The Court relied on its prior pronouncement that

“‘[i]nterlocutory trial orders overruling immunity claims by . . . agencies . . . are not

appealable under this doctrine.’” Id. at 556 (quoting Dawkins v. Baltimore City Police

Dep’t, 376 Md. 53, 65 (2003)). The Court concluded that members of the Board of

Physicians, “a quasi-judicial body within an administrative agency[,]” were not in the

limited categories of officials that may be entitled to take an immediate appeal from an

order denying immunity. Geier II, 451 Md. at 557.8

The Court of Appeals held that only one order, the order granting sanctions based

on the failure to produce the audio recordings, was “properly appealable” at that time

under “the narrow exception allowing discovery orders denying ‘high level decision

8

The Court had previously decided that “interlocutory orders overruling immunity

defenses asserted by the Governor, Lieutenant Governor, Comptroller, Treasurer,

Attorney General, Speaker of the House, President of the Senate, or judges as defined in

Article IV, § 2, of the Maryland Constitution” might be immediately appealable under the

collateral order doctrine. Dawkins v. Baltimore City Police Dep’t, 376 Md. at 65.

23

makers’ their executive privilege to be immediately appealable under the collateral order

doctrine.” Geier II, 451 Md. at 547. The Court emphasized that “[r]egardless of the

outcome of the trial,” the harm done from “the disruption to the administrative process,

caused by placing the officials under pretrial scrutiny” would be “impossible to cure”

after the Board disclosed the audio recordings of its deliberations to the Geiers. Id. at 552

(citation and quotation marks omitted).

On the merits, the Court determined that the defendants made a timely assertion of

their deliberative privilege over the audio recordings. Geier II, 451 Md. at 567. The

Court reasoned that “preventing the disclosure of [the Board’s] pre-decisional

deliberations greatly benefits the public by allowing [the Board] to undertake [its] core

public protection function without the constant threat of harassment and intimidation by

aggrieved parties.” Id. at 569. The Court concluded that the Geiers failed to overcome

the presumption arising from the formal claim of privilege over the deliberations. Id. at

570. Consequently, the recordings were “not discoverable” by the Geiers. Id.

G. Remaining Pretrial Rulings

Despite the two appeals on discovery matters, the order imposing a default as to

liability remained in place against all defendants. Hence, when the case again returned to

the circuit court, the court permitted the Geiers to withdraw their demand for a jury trial

on the remaining issue of damages. See Md. Rule 2-325(f) (“[a]n election for trial by

jury may be withdrawn only with the consent of all parties not in default”). The court

rejected the defendants’ argument that they still had the right to have a jury determine

damages despite the default as to liability.

24

In addition, the defendants collectively moved for a partial dismissal, or for partial

summary judgment, as to the invasion-of-privacy claim originally raised by Anne Geier.

Mrs. Geier had died in October 2014, and thereafter Dr. Geier, in his capacity as personal

representative of his wife’s estate, had substituted himself for his wife. The defendants

contended that “an action for invasion of privacy can be maintained only by a living

individual whose privacy is invaded.” Restatement (Second) of Torts § 625I (1977). The

circuit court disagreed, concluding that the invasion-of-privacy claim was not a “cause of

action for slander[,]” which would abate upon a party’s death.

Six Board members, apparently dissatisfied with their representation through the

Attorney General’s office, retained private counsel as the trial date approached. Those

Board members each filed motions asking the court again to reconsider the decision to

sanction them for the Board’s discovery failures. Those defendants also moved for

summary judgment, arguing that the Geiers had no evidence of malice and that, therefore,

they should be immune from liability under Maryland statutes. Other defendants, still

represented through the Attorney General’s office, moved for partial summary judgment

as to any claims for punitive damages, arguing that the Geiers had no evidence of actual

malice. The court denied each of those motions and allowed all claims for damages to

proceed against all defendants.

At a hearing during the week before trial, the circuit court announced what it

called the “analytical framework” for the bench trial on damages. The court ruled that

the order imposing the sanction of default would satisfy the Geiers’ burden of proof as to

the liability of all defendants. The court also ruled that, to show their entitlement to

25

punitive damages from any particular defendant, the Geiers still needed to prove by clear

and convincing evidence that the defendant acted with actual malice.

The court nevertheless imposed some restrictions on the manner in which the

defendants might rebut the charge of malice. The court, on its own initiative, decided

that it would “draw an adverse inference” against “any defendant who either invoked the

[deliberative] privilege or who benefitted from the invocation of the privilege.” The

court further decided: “to the extent that a party has invoked a privilege or benefitted

from it, and thus thwarted the discovery of relevant facts, he or she . . . may not testify

about any of the undisclosed facts, or facts flowing from those undisclosed facts, at trial.”

Finally, the court said that it would impose “consequences, evidentiary or otherwise[,]” if

it found that the defendants failed to preserve relevant evidence after the Board first

received warning of the Geiers’ contemplated lawsuit.

H. Bench Trial on Damages

The trial on damages generated eight days of testimony in July and August of

2017. The Geiers offered testimony from Dr. Geier and David Geier, transcribed

testimony from the late Mrs. Geier, and documentary exhibits.

At the end of the Geiers’ case-in-chief, the individual defendants moved for

judgment, arguing that the Geiers had produced insufficient evidence of malice. The

court denied the motions, opining that “the record [was] replete . . . with legally sufficient

evidence, direct and circumstantial” upon which to “find actual malice . . . by clear and

convincing evidence.”

During the defense case, the Geiers objected to the introduction of evidence about

26

the roles of individual defendants in the meeting on January 25, 2012, at which the Board

voted to issue the public cease-and-desist order. The defendants who were represented

by private counsel asked to waive the prior assertions of deliberative privilege. An

assistant attorney general representing other individuals (but not the Board) also asked to

waive the privilege. A different attorney from the same office, representing the Board

(but none of the individual defendants), declined to waive the privilege on behalf of the

Board. The court refused to permit any defendant to waive the deliberative privilege.

The court reasoned that the defendants could not waive the privilege after they had

invoked it successfully in their appeal to the Court of Appeals to prevent pretrial

discovery of the audio recordings.

The court interpreted the Court of Appeals’ holding on deliberative privilege to

require the exclusion of not only the recordings but also other evidence of the

deliberations. Under that rationale, the court sustained objections to the testimony of

individual defendants about their participation in the meeting of January 25, 2012.

Various Board members proffered that, if they had been permitted to testify, they would

have said that they did not review the text of the cease-and-desist order before or during

that meeting. The court did admit testimony that, as a matter of custom, Board members

would not read orders before voting on proposed actions, but would rely on the Board’s

attorneys and staff to determine the wording of orders.

At the close of all evidence, the defendants renewed their motions for judgment as

to punitive damages, arguing that the trial record included insufficient evidence of

malice. In addition, the defendants moved for judgment based on the absolute immunity

27

arguments from their pretrial motions. The court denied the motions without comment.

I. Opinion Awarding Compensatory and Punitive Damages

Four months after trial, the circuit court issued a 112-page memorandum opinion

awarding damages to the Geiers based on “the knowing and intentional publication of

confidential medical information” by the defendants.

Before discussing damages, the court first addressed the Geiers’ allegations of

spoliation from an unresolved motion for sanctions. It was undisputed that, a few months

after the Board first received notice of the Geiers’ contemplated lawsuit, the technical

staff deleted electronic data of many email communications when the Department of

Health and Mental Hygiene transitioned from one email system to another. The court

found that, although the Board’s staff printed hard copies of a “handful” of relevant

emails, the defendants “intentionally failed to preserve” the electronic copies. The court

further found that Board members failed to make diligent searches of private email

accounts through which they received some documents related to hearings. The court

ruled that “the defendants’ intentional spoliation of the Board’s e-mail server and hard

drives, along with the defendants’ failure to preserve their own personal e-mail account

information, provides an additional ground to enter a default against all of the

defendants[.]”

The court reasoned that its “two default orders . . . satisf[ied] the plaintiffs’ burden

of proof as to the defendants’ liability for the specific causes of action pled.” The court

ruled that, “[i]n light of the default orders,” it would “not consider any of the defendants’

negative or affirmative defenses, including the immunity defenses.” The court

28

considered the issue of malice, on a defendant-by-defendant basis, solely for the purpose

of assessing punitive damages. The court equated actual malice with a defendant’s

“actual knowledge of” or “willful refusal to know” of “the publication of the [Geiers’]

private medical information[,]” along with a defendant’s intent “to disclose this

information to the public in violation of the law.”

The court found that defendant Victoria Pepper, the administrative prosecutor who

drafted the cease-and-desist order, intentionally included prescription information in the

order for the purpose of embarrassing the Geier family. The court found that defendant

Joshua Schafer, the staff member who had written the investigative report recommending

the order, supported the publication of the order knowing that it included the Geiers’

prescription information. The court concluded that both Ms. Pepper and Mr. Schafer

acted with actual malice. Those findings rested, in part, on emails between Ms. Pepper

and Mr. Schafer which, in the court’s view, evinced an “unprofessional” tone and

appeared to “celebrate[]” developments to the detriment of Dr. Geier and David Geier.

In its opinion, the court reiterated its pretrial decision to “draw an adverse

inference from the invocation of the [deliberative] privilege, as to any defendant who

invoked or benefitted from the invocation of the privilege and asked the privilege to be

upheld by the Court of Appeals.”9 The court found that all Board members who attended

9

The circuit court reasoned that the Court of Appeals “anticipated the drawing of

an adverse inference” in footnote 8 of Hamilton v. Verdow. There, the Court wrote that,

in cases where the government is a party, “a determination by a court that the

government’s need for confidentiality is outweighed by the opponent’s need for

disclosure[] does not absolutely prevent the government from maintaining

confidentiality.” Hamilton v. Verdow, 287 Md. at 564 n.8. The Court said that, even

29

the meeting on January 25, 2012, knew that the cease-and-desist order contained the

Geiers’ private medical information before they voted to approve it. The court said that it

“disbelieve[d]” testimony that the Board members customarily voted on disciplinary

matters without reading the text of orders. To the extent that it considered their

testimony, the court said that it “disbelieve[d] the testimony of the Board members that

they did not see the Order at the meeting and did not read it before it was signed[.]” The

court credited testimony from one Board member who recalled reading the order during

the January 2012 meeting. Notwithstanding the other rulings on privilege, the court

permitted the Board member to testify about the meetings because she had done so

without objection during a deposition.

The court found that, even though the Board’s deputy director promptly instructed

the technical staff to remove the original order from the website, the original order

remained accessible for nearly 18 months, until July 2013. The court faulted all

defendants for their collective inaction during that period of time – even the defendants

who left their positions with the Board well before July 2013. The court reasoned that all

defendants should have known that the original order remained on the website because

the Geiers’ lawyer said so in the statutory notice-of-claim form to the State treasurer in

March 2012, attached a copy of the notice-of-claim form as an exhibit to the recusal

after the court orders the government to disclose the putatively privileged information,

the government still has “the choice of either producing the information or having the

issue to which the information relates resolved against it.” Id. The adverse inference

suggested in this footnote arises where the court has rejected the assertion of privilege

and the government still declines to disclose the information. Here, by contrast, the

Court of Appeals upheld the assertion of privilege. Geier II, 451 Md. at 568-70.

30

motion in May 2012, and repeated the allegation in the civil complaint in December

2012.

The court said that the Board members “knew . . . that the problem had not been

fixed,” but that they “simply did not care.” Overall, the court concluded: “What was

done here . . . was done intentionally to embarrass and humiliate the Geier family because

[Ms. Pepper], [Mr. Schafer,] and each member of the Board did not like the way [Dr.

Geier] practiced medicine and wanted to send a message and teach him (and David Geier,

who worked hand and glove with his father) a lesson.”

The court concluded that the Geiers “had proven, by clear and convincing

evidence” that 13 Board members (including one who did not attend the January 2012

meeting) “acted with actual malice.” The court found that one Board member “did not

act with actual malice[,]” largely because the court credited her testimony about the

Board’s meetings. The court said it was “not persuaded” that four of the Board members

acted with malice because, “[i]n their particular cases, the court believe[d] their lack of

memory and assertions of good will.” The court made no express finding as to whether

two other Board members acted with malice.

The court found that three defendants “acted negligently in this matter.” Those

defendants were: the chief of compliance who supervised Mr. Schafer; the deputy

director who ordered the removal of the original order from the website; and the

executive director who took office one month after the Board issued the original order.

The court ruled that the harm resulting from their “negligent conduct” was “attributable

to the State of Maryland, and to the Board.” The court said: “As a consequence, the State

31

of Maryland is responsible for payment of the compensatory award.”

The court found that all three Geier plaintiffs suffered injury, including “insult,

embarrassment, humiliation, mental pain and suffering, nervousness, and indignity[,]” as

the result of the “acts of each defendant.” The court awarded compensatory damages of

$500,000 to Dr. Geier; $500,000 to the estate of Anne Geier; and $250,000 to David

Geier. The court further awarded punitive damages of $500,000 to Dr. Geier; $500,000

to Anne Geier; and $250,000 to David Geier.

Finally, the court allocated punitive damages in different amounts among Ms.

Pepper, Mr. Schafer, and 15 Board members, based on factors including the financial

ability and level of culpability of those defendants.

J. Award of Attorneys’ Fees and Entry of Final Judgment

The court entered the memorandum opinion awarding damages on December 7,

2017. All defendants filed a notice of appeal on the same day that the opinion was

entered. The Geiers promptly petitioned for an award of attorneys’ fees under 42 U.S.C.

§ 1988, based on the success of their claim under 42 U.S.C. § 1983.

Six weeks after the court entered the opinion awarding damages, counsel for the

Geiers sent an email directly to the trial judge’s law clerk, without sending a copy of the

email to any opposing counsel. The email “point[ed] out [an] inconsistency” in the

opinion. Specifically, on the final page of the opinion, the court allocated $200,000 of

punitive damages to one of the Board members, Dr. Nalla Ramakrishna, even though the

factual findings stated that the court was not persuaded that Dr. Ramakrishna acted with

actual malice. Counsel for the Geiers suggested that he could “raise the issue in a motion

32

to amend” or that the court might prefer to “address this issue sua sponte[.]”

Two weeks after receiving the email, the court issued an order stating that it had

“identified a clerical error” in the opinion and “correct[ing] that error” under Rule 2-

535(d). The order amended two sentences of its opinion, to remove Dr. Ramakrishna

from the list of defendants who had not acted with actual malice and to include him in the

list of defendants who did act with actual malice.

The defendants later learned, from an exhibit to a supplemental petition for

attorneys’ fees, that counsel for the Geiers had made a billing record of the time spent

writing the email. Upon the defendants’ request, counsel for the Geiers forwarded the

email.10

After an evidentiary hearing on attorneys’ fees, the court issued a memorandum

opinion explaining the basis for its decision to award fees under 42 U.S.C. § 1988. On

April 25, 2018, the court entered an order awarding $2,393,931.30 in attorneys’ fees and

$85,616.21 in litigation costs. On the same day, the court entered an order directing the

clerk to enter final judgment. The order imposed joint and several liability against all

defendants for the compensatory damages, attorneys’ fees, and litigation costs. It

obligated 17 of the individual defendants to pay punitive damages in specified amounts.11

10

The email is not part of the trial record. The defendants reproduced the

document in an appendix to their appellate brief. This Court granted an unopposed

motion to supplement the record on appeal so that it would include a copy of the email.

11

The judgment obligates 17 defendants to pay a total of $1.91 million in punitive

damages even though it “award[s]” a total of only $1.25 million in punitive damages to

the Geiers.

33

All defendants filed another notice of appeal upon the entry of final judgment.

The Geiers noted a cross-appeal, which they later dismissed voluntarily. This Court

consolidated the defendants’ appeal from the memorandum opinion entered on December

7, 2017, with their appeal from the judgment entered on April 25, 2018.

SCOPE OF APPELLATE REVIEW

The sequence of post-trial events has generated some confusion about when

exactly the circuit court entered its final judgment. Because that date is potentially

significant to our scope of review, we will clarify that matter before addressing the

substance of the appeal.

Subject to a few narrow exceptions, “appellate jurisdiction in Maryland is

ordinarily limited to review of final judgments.” Hiob v. Progressive American Ins. Co.,

440 Md. 466, 475 (2014) (citing Md. Code, § 12-301 of the Courts and Judicial

Proceedings Article). “Maryland Rule 8-202(a) details the time limitation for a party to

file an appeal from a final judgment in the circuit court.” Rosales v. State, 463 Md. 552,

563-64 (2019).

The defendants here noted an appeal from the “Memorandum Opinion and Order”

entered on December 7, 2017; they did not appeal from the order entered on January 29,

2018, which corrected the findings regarding one defendant, Dr. Ramakrishna; and they

noted a second appeal from the “Order to Enter Judgment” entered on April 25, 2018.

The defendants seek review of all awards of damages and fees, including the rulings that

concern Dr. Ramakrishna.

In many respects, the memorandum opinion appeared to announce a final decision.

34

The introduction stated: “This decision resolves all the outstanding discovery motions, as

well as the plaintiffs’ claims on the merits for compensatory and punitive damages.”

Unlike prior decisions deeming the defendants in default as to liability only, the opinion

“awarded” damages in definite amounts. The final paragraph stated: “All other relief

requested, and all other outstanding motions, are denied.” In light of that language, it is

more than understandable that the defendants decided to file a notice of appeal. When a

court issues a ruling that appears to be conclusive, practitioners can and should secure

their clients’ interests by filing a “timely protective notice of appeal.” County Council of

Prince George’s County v. Dutcher, 365 Md. 399, 411 (2001).

On closer inspection, however, the 112-page opinion did not set forth a final

judgment within the meaning of the Maryland Rules. A final judgment does not take

effect unless and until “it is set forth on a ‘separate document’ consistent with Rule 2-

601(a) and is entered on the docket consistent with Rule 2-601(b).” Hiob v. Progressive

American Ins. Co., 440 Md. at 471-72. The separate-document requirement “‘must be

mechanically applied in determining whether an appeal is timely.’” Id. at 480 (quoting

Byrum v. Horning, 360 Md. 23, 32 (2000)).

Full satisfaction of Rule 2-601(a) means something other than writing a few

arguably conclusive sentences spread across the final pages of a lengthy opinion. The

document embodying the judgment should “clearly indicate . . . which party has prevailed

on which issues and what type of relief, if any, has been granted by the court.” Hiob v.

Progressive American Ins. Co., 440 Md. at 486. To ensure clarity, Rule 2-601(a)

ordinarily requires that the separate document be “distinct from any opinion or

35

memorandum” explaining the basis for the judgment. Byrum v. Horning, 360 Md. at 26-

27 (citation and internal quotation marks omitted). This requirement of separation is

designed to relieve the uncertainties that may result if the court writes “an opinion or

memorandum containing some apparently directive or dispositive words” (id. at 26), but

otherwise leaves it “difficult for the clerk to determine the precise nature of the judgment

and the wording that needed to be included in the docket entry reflecting the court’s

judgment.” Wireless One, Inc. v. Mayor of Baltimore City, 239 Md. App. 687, 695 n.3

(2018), cert. granted, 462 Md. 556 (2019).

“Under a mechanical application of Rule 2-601” (Hiob v. Progressive American

Ins. Co., 440 Md. at 497), the court’s memorandum opinion was not effective as a final

judgment. The opinion purported to “award[]” specific amounts of compensatory

damages to the plaintiffs, but it did not state which defendants were liable for the

damages. The answer to that question was not obvious, in light of the court’s findings

that only certain defendants had acted maliciously (or even negligently) and the court’s

apparent reliance on the Maryland Tort Claims Act to impose liability against “the State”

as well. Adding further ambiguity, the total amount of punitive damages “allocated” to

the defendants exceeded the punitive damages “awarded” on behalf of the plaintiffs. In

addition, the opinion allocated punitive damages to one defendant in two different

amounts. Overall, the opinion did not provide a reader with the information needed to

discern the amount of each defendant’s liability for damages.

Not surprisingly, the clerk of the circuit court did not treat the memorandum

opinion as a judgment in any particular amount against any defendant. The clerk did not

36

record or index a judgment in the judgment records. The clerk docketed the opinion

under its title with the following notation: “punitive damages are awarded in this case, for

each plaintiff; all other relief requested, and all other outstanding motions, are denied[.]”

The clerk mailed copies of the opinion to the parties, but did not send notice that a

judgment had been entered.

At a hearing two weeks later, the Geiers opposed the defendants’ motion to stay

enforcement of the “judgment,” on the ground that the opinion was not a final judgment.

The court reviewed the docket entries and observed that “the clerk [had] docketed [the]

opinion[,]” but the court did not “see the entry of judgment by the clerk.” At a

subsequent hearing, the court rejected the Geiers’ request to order “judgment interest” to

run from the date of the entry of the opinion, again observing that “no judgment ha[d]

been entered in the case by the clerk.” The court explained that it still intended to “direct

the clerk in a written order to enter the damage award judgments.” The court said that the

subsequent order would specify the “amount to enter as to each defendant” so as to

provide “the information [the clerk] needs to comply with the rule regarding entry of

judgments.”

Afterwards, the court signed the “Order to Enter Judgment.” That document

included language imposing liability “against each of the Defendants, jointly and

severally” for the compensatory damages, attorneys’ fees, and litigation costs. It made 17

particular defendants “liable for punitive damages” in specific amounts. It directed the

clerk to “enter a final judgment in accordance with Md. Rule 2-601.” The clerk complied

on April 25, 2018, by docketing the judgment, recording monetary judgments against

37

each defendant in the judgment index, and sending notice of the entry of judgment.12

Unlike the earlier memorandum opinion, the order entered on April 25, 2018,

satisfied the separate document requirement. By filing a notice of appeal on that date, all

defendants have taken a timely appeal from the final judgment under Md. Rule 8-202(a).

Our review of that judgment encompasses all “interlocutory order[s] previously entered

in the action[,]” except for the discovery orders from which appeals have “previously

been taken” and “decided on the merits” by the appellate courts. See Md. Rule 8-131(d).

QUESTIONS PRESENTED

The defendants submitted one set of appellate briefs on behalf of the 25 Board

personnel, as individuals, and one on behalf of the Board of Physicians, as a state agency.

The opening brief from the “Individual Appellants” presents 11 questions. The Board

has adopted their arguments regarding six of those questions and has raised one

additional question. The appendix to this opinion reproduces the lists of questions

presented, in full.

Our discussion will begin with the following question posed by the Board alone:

“Did the court err in entering judgment against the State for damages, attorneys’ fees, and

costs for claims under 42 U.S.C. § 1983, where the State is not a ‘person’ under § 1983,

12

For actions commenced on or after January 1, 2014, the Court of Appeals has

established procedures for claims of attorneys’ fees and related expenses. See Md. Rules

2-701 through 2-706. Although this case predated the effective date of those rules, the

procedure used by the trial court here follows the road map set forth in Rule 2-703 for

cases where a party raises a claim for attorneys’ fees allowed by a statute, where the court

defers the presentation of evidence on the attorneys’ fees until after trial, and where the

court intends to include the fee award as part of the judgment.

38

and the State has Eleventh Amendment immunity?” We conclude that the Geiers were

not entitled to a judgment against the Board as to the count under 42 U.S.C. § 1983

because the Geiers did not and could not name the Board as a defendant to that count.

As the first question presented in their brief, the individual defendants ask: “Are

defendants entitled to absolute quasi-judicial immunity because the Geiers’ claims are

based entirely on actions taken in ongoing physician-disciplinary proceedings in which

the Board of Physicians was performing a discretionary quasi-judicial function?” We

conclude that the Board personnel have absolute immunity from both the federal claim

and the Maryland tort claim. By extension, there is no basis to make the Board liable,

either.

In their second question presented, the individual defendants ask: “Were

defendants denied due process of law, and did the court abuse its discretion in entering a

default judgment based on non-prejudicial failures of discovery by the Board?” We

conclude that the court abused its discretion when it sanctioned the individual defendants

for discovery failures attributed to the Board. Because the individual defendants never

should have been sanctioned with a default, they were fully entitled to rely on their

absolute immunity as a ground for summary judgment. The judgment in favor of those

defendants inures to the benefit of the Board regardless of whether the Board was in

default.

In light of those determinations, we need not decide any other issue. Nothing in

39

this opinion should be construed as a decision on the other challenges to the judgment.13

DISCUSSION

I. Liability of the State Board of Physicians Under 42 U.S.C. § 1983

The two surviving counts were: a federal civil rights claim, under 42 U.S.C §

1983, against individual Board personnel; and an invasion-of-privacy claim, under

Maryland tort law, against Board personnel and the Board itself. Proper analysis requires

this Court to apply two different bodies of law to these separate counts. See DiPino v.

Davis, 354 Md. 18, 45 (1999). A state court must apply federal law when it exercises

jurisdiction over a § 1983 claim. See County Exec. of Prince George’s County v. Doe,

300 Md. 445, 454 (1984).

42 U.S.C. § 1983 provides, in pertinent part: “Every person who, under color of

any statute, . . . [or] regulation[] . . . of any State . . ., subjects, or causes to be subjected,

any citizen of the United States or other person within the jurisdiction thereof to the

deprivation of any rights, privileges, or immunities secured by the Constitution and laws,

shall be liable to the party injured in an action at law[.]” This statute “permits a plaintiff

to recover damages when an individual, acting under the color of state law, transgresses a

federally created right of the plaintiff.” Okwa v. Harper, 360 Md. 191, 192 (2000) (citing

Howlett v. Rose, 496 U.S. 356, 358 (1990)).

13

We will not address the Board’s so-called Eleventh Amendment immunity, a

constitutional issue that is “unnecessary for our holding in this case.” Dep’t of Pub.

Safety & Corr. Servs. v. Doe, 439 Md. 201, 221 (2014). Because we conclude that the

circuit court abused its discretion when it imposed discovery sanctions, we will not

address the defendants’ argument that the court deprived them of due process of law. See

Fisher v. McCrary Crescent City, LLC, 186 Md. App. 86, 135 (2009).

40

As the statutory language suggests, the defendant in a § 1983 action must be a

“person.” Okwa v. Harper, 360 Md. at 192. The statute does not authorize an action for

damages against a state or a state agency, neither of which are “person[s]” within the

meaning of the statute. See Manikhi v. Mass Transit Admin., 360 Md. 333, 360 (2000).

The Geiers’ complaint correctly described the Board of Physicians as an agency of the

State of Maryland. Therefore, the Board “can have no § 1983 liability.” Id.

Perhaps recognizing that the Board could not be sued for damages under § 1983,

the Geiers did not name the Board as a defendant in Count One. Rather, they sued Board

personnel based on their alleged actions “as individuals and under color of state law.”

Federal law recognizes a dichotomy between § 1983 claims against state officials

in their “official” capacities as opposed to their “individual” capacities. See Ritchie v.

Donnelly, 324 Md. 344, 354-55 (1991). An official-capacity suit is, in substance, “‘a suit

against the official’s office[,]’” which makes it “‘no different from a suit against the state

itself.’” Id. at 355 (quoting Will v. Michigan Dep’t of State Police, 491 U.S. 58, 71

(1989)). A state official “sued in his or her official capacity, is not considered a ‘person’

when a plaintiff brings a § 1983 action for monetary damages.” Okwa v. Harper, 360

Md. at 193. “On the other hand, a state officer or employee, sued in his [or her]

individual capacity, is a ‘person’ subject to a suit for money damages under § 1983.”

Ritchie v. Donnelly, 324 Md. at 355 (emphasis removed).

In their preliminary motion to dismiss, the defendants argued that the Geiers could

not maintain any claim for damages under § 1983 against the Board, as a state agency.

At the ensuing hearing, counsel for the Geiers explained that the Board was “not a

41

defendant” in Count One, and that they were suing the named defendants “in their

personal capacit[ies].” For further clarification, counsel stated on the record that the

Board was a defendant only as to Count Three, the Maryland tort claim.

The Geiers eventually prevailed on Counts One and Three when the court imposed

a default as to liability and assessed damages after the bench trial. The Geiers then

requested an award of attorneys’ fees under 42 U.S.C. § 1988(b), which authorizes a

court to award reasonable attorneys’ fees to “the prevailing party” in an action to enforce

42 U.S.C. § 1983 and certain other statutes. In response, the defendants asserted that,

because the Board was never a defendant to Count One, the Board had no liability under

§ 1983 and could not be liable for attorneys’ fees under § 1988.

In the opinion explaining the award of attorneys’ fees, the court did not articulate

any basis for requiring the Board to pay those fees. The court nevertheless ordered all

“defendants, jointly and severally,” to pay $2,392,931.30 of attorneys’ fees. On appeal,

the Board asks this Court to reverse the “judgment” against it on the § 1983 claim and the

order requiring the Board to pay attorneys’ fees.

The record fails to show that the judgment even included any determination of the

Board’s liability on Count One. As the Geiers have noted: “A judgment by default

constitutes an admission by the defaulting party of its liability for the causes of action set

out in the complaint.” Pacific Mortg. & Inv. Grp., Ltd. v. Horn, 100 Md. App. 311, 332

(1994) (emphasis added). Yet the complaint did not set out any § 1983 claim against the

Board, the State, or anyone in an official capacity. Any such claim would have been

subject to dismissal. See Manikhi v. Mass Transit Admin., 360 Md. at 361; Ritchie v.

42

Donnelly, 324 Md. at 358-59.

The Geiers argue that the Board “can be held liable under § 1983” because the

State has “consented” to certain suits through the Maryland Tort Claims Act. See SG §

12-104(a)(1) (subject to certain exclusions and limitations, waiving “the immunity of the

State and its units . . . as to a tort action, in a court of the State”). Even if this waiver of

immunity could be construed to include a § 1983 action, no enactment of the General

Assembly can “create a cause of action under § 1983 against an entity whom Congress

has not subjected to liability.” Howlett v. Rose, 496 U.S. at 376. The State of Maryland

and its agencies are not “person[s]” subject to suit for damages under § 1983, regardless

of whether a plaintiff brings suit in federal court or in state court. See id. at 365, 376.

In any event, we must “decide the case not on the basis of what the plaintiffs

might have done, but on the basis of what they actually did.” State v. Braverman, 228

Md. App. 239, 254 (2016). Because the Geiers did not sue the Board under Count One,

the order imposing the default did not make the Board liable under Count One.

The Geiers did not (and could not) prevail on a nonexistent (and invalid) § 1983

claim against the Board. It follows that the court had no basis to order the Board to pay

attorneys’ fees. A defendant’s “liability on the merits” under § 1983 and “responsibility

for fees” under § 1988 “go hand in hand[.]” Kentucky v. Graham, 473 U.S. 159, 165

(1985). Accordingly, “a suit against a government official in his or her personal capacity

cannot lead to imposition of fee liability upon the government entity.” Id. at 167.

Because the Geiers asserted “no claim for merits relief” against the Board under § 1983,

“the fee award against [the Board] must be reversed.” Id. at 170.

43

II. Claim Against Board Personnel Under 42 U.S.C. § 1983

Unlike the Board, the 25 natural persons named in Count One were “person[s]”

capable of being sued for damages under 42 U.S.C. § 1983, at least in their personal

capacities. From the beginning of this case, those defendants have maintained that they

are entitled to absolute immunity. Their contention is correct.

A. Absolute Judicial and Prosecutorial Immunity in § 1983 Actions

Federal law governs a person’s immunity from a § 1983 claim. See, e.g., Okwa v.

Harper, 360 Md. 161, 197 (2000). Most of the Geiers’ arguments about immunity

concern Maryland law. Of course, Maryland law “does not control this [§ 1983] claim

even though the federal cause of action is being asserted in the [Maryland] courts.”

Martinez v. California, 444 U.S. 277, 284 (1980).

Federal law grants most officials no more than a “qualified” immunity in defense

of a § 1983 claim. See, e.g., Dehn Motor Sales, LLC v. Schultz, 439 Md. 460, 489

(2014). Under that form of qualified immunity, “‘government officials performing

discretionary functions generally are shielded from liability for civil damages insofar as

their conduct does not violate clearly established statutory or constitutional rights of

which a reasonable person would have known.’” Id. at 474 n.18 (quoting Harlow v.

Fitzgerald, 457 U.S. 800, 818 (1982)).14 The Supreme Court has recognized, however,

“that some officials perform ‘special functions’ which, because of their similarity to

functions [for which an official] would have been immune when Congress enacted §

14

This opinion does not address whether the defendants’ alleged conduct violated

a clearly established constitutional right of which a reasonable person would have known.

44

1983, deserve absolute protection from damages liability.” Buckley v. Fitzsimmons, 509

U.S. 259, 268-69 (1993). To determine whether an official has absolute immunity, the

Supreme Court uses “a ‘functional approach,’ which looks to ‘the nature of function

performed, not the identity of the actor who performed it.’” Id. at 269 (citations omitted).

The Supreme Court has consistently recognized the principle of absolute judicial

immunity in § 1983 cases. See Mireles v. Waco, 502 U.S. 9, 9 (1991) (per curiam). At

common law, “‘judges of courts of superior or general jurisdiction are not liable to civil

actions for their judicial acts, even when such acts are in excess of their jurisdiction, and

are alleged to have been done maliciously or corruptly.’” Stump v. Sparkman, 435 U.S.

349, 355-56 (1978) (quoting Bradley v. Fisher, 80 U.S. (13 Wall.) 335, 351 (1871)). The

Supreme Court has concluded that the enactment of § 1983 did not alter this “well

established” doctrine. Pierson v. Ray, 386 U.S. 547, 554-55 (1967). State judges,

therefore, are absolutely immune from being sued for damages under § 1983 based on

judicial acts within the general scope of their jurisdiction. See Stump v. Sparkman, 435

U.S. at 356.

Because judicial immunity is “an immunity from suit, not just from ultimate

assessment of damages[,]” it cannot be “overcome by allegations of bad faith or malice,

the existence of which ordinarily cannot be resolved without engaging in discovery and

eventual trial.” Mireles v. Waco, 502 U.S. at 11 (citations omitted). This immunity is

unaffected “by any consideration of the motives” for the judicial act. Bradley v. Fisher,

80 U.S. (13 Wall.) at 354. Moreover, a judicial officer who performs a judicial act

“cannot be subjected to responsibility for it in a civil action, however erroneous the act

45

may have been, and however injurious in its consequences it may have proved to the

plaintiff.” Id. at 347. A judge is not subject to liability even if he or she committed

“grave procedural errors” (Stump v. Sparkman, 435 U.S. at 359) or acted “in excess of his

[or her] authority[.]” Id. at 356. A judge may be sued only for “actions not taken in the

judge’s judicial capacity” or for “actions, though judicial in nature, taken in the complete

absence of all jurisdiction.” Mireles v. Waco, 502 U.S. at 11 (citations omitted).

The doctrine of judicial immunity is rooted in “a long-settled understanding that

the independent and impartial exercise of judgment vital to the judiciary might be

impaired by exposure to potential damages liability.” Antoine v. Byers & Anderson, Inc.,

508 U.S. 429, 435 (1993). Judges must decide “[c]ontroversies involving not merely

great pecuniary interests, but the liberty and character of the parties, and consequently

exciting the deepest feelings, . . . in which there is great conflict in the evidence and great

doubt as to the law which should govern their decision.” Bradley v. Fisher, 80 U.S. (13

Wall.) at 348. Dissatisfied litigants frequently will accuse judges of improper motives.

Id. “If civil actions could be maintained in such cases against the judge, because the

losing party should see fit to allege in [a] complaint that the acts of the judge were done

with partiality, or maliciously, or corruptly, the protection essential to judicial

independence would be entirely swept away.” Id.

The same policy considerations that support this immunity for judges led to the

recognition of a common-law absolute immunity for prosecutors. Imbler v. Pachtman,

424 U.S. 409, 422-23 (1976). In short, the “public trust of the prosecutor’s office would

suffer if he [or she] were constrained in making every decision by the consequences in

46

terms of his [or her] own potential liability for a suit in damages.” Id. at 424-25. Courts

have “described the prosecutor’s immunity as a form of ‘quasi-judicial’ immunity and

referred to it as derivative of the immunity of judges[.]” Id. at 420. A state prosecutor is

immune from being sued for damages under § 1983 based on acts that are closely

connected to the judicial process or that implicate the prosecutor’s role as the advocate

for the State. See id. at 430-31 & n.33. This absolute immunity attaches to acts such as:

initiating a prosecution and presenting the State’s case at a criminal trial (id. at 431);

presenting evidence in support of an application for a search warrant (Burns v. Reed, 500

U.S. 478, 492 (1991)); and preparing and filing charging documents (Kalina v. Fletcher,

522 U.S. 118, 129 (1997)). These functions are comparable to those of judges, insofar as

prosecutors “exercise a discretionary judgment on the basis of evidence” available to

them. Imbler v. Pachtman, 424 U.S. at 423 n.20.

B. Absolute Immunity in the Context of Administrative Proceedings

In Butz v. Economou, 438 U.S. 478 (1978), the Supreme Court extended absolute

immunity to agency officials who perform adjudicative or prosecutorial functions in

certain administrative proceedings. In that case, the owner of a regulated business sued

federal officials for damages, alleging that the officials instituted a proceeding to revoke

or suspend the business’s registration in retaliation for the business owner’s criticisms of

the agency. Id. at 480-81. The Court granted certiorari amid conflicting decisions about

whether executive officials might claim absolute immunity. See id. at 483-85.

The Court explained that, although most officials are entitled to only a qualified

immunity when sued for constitutional violations, some officials perform “special

47

functions” that justify “a full exemption from liability.” Butz v. Economou, 438 U.S. at

508. The Court observed that judges have absolute immunity because of the “special

nature of their responsibilities” (id. at 511), while prosecutors have absolute immunity

because they make decisions with “functional comparability” to the decisions of judges.

Id. at 512. The Court explained that the “characteristics of the judicial process” make its

participants the frequent targets of retaliatory litigation, creating a strong need “to assure

that judges, advocates, and witnesses can perform their respective functions without

harassment or intimidation.” Id.

“At the same time,” the Court observed that “safeguards built into the judicial

process tend to reduce the need for private damages actions as a means of controlling

unconstitutional conduct.” Butz v. Economou, 438 U.S. at 512. The Court mentioned

that judges are restrained by “insulation . . . from political influence, the importance of

precedent in resolving controversies, the adversary nature of the process, and the

correctability of error on appeal[.]” Id. Prosecutors, in their roles as “[a]dvocates[,]” are

restrained by their “professional obligations” and by the “knowledge that their assertions

will be contested by their adversaries in open court.” Id.

The Court concluded that “adjudication within a federal administrative agency

shares enough of the characteristics of the judicial process that those who participate in

such adjudication should also be immune from suits for damages.” Butz v. Economou,

438 U.S. at 512-13. The Court noted that agencies resolve conflicts “every bit as

fractious as those which come to court” and are subject to “many of the same safeguards

[that] are available in the judicial process.” Id. at 513. “In light of these safeguards,” the

48

Court decided that “the risk of an unconstitutional act by one presiding at an agency

hearing is clearly outweighed by the importance of preserving the independent judgment

of these men and women.” Id. at 514. Accordingly, the Court held that “persons subject

to these restraints and performing adjudicatory functions within a federal agency are

entitled to absolute immunity from damages liability for their judicial acts.” Id.

The Court further concluded that “agency officials performing certain functions

analogous to those of a prosecutor” should have absolute immunity from suits for

damages. Butz v. Economou, 438 U.S. at 515. The Court likened the “decision to initiate

administrative proceedings” to a prosecutor’s “decision to initiate or move forward with a

criminal prosecution.” Id. Similarly, the Court saw “no substantial difference between

the function of the agency attorney in presenting evidence in an agency hearing and the

function of a prosecutor who brings evidence before a court.” Id. at 516. Thus, “officials

who are responsible for the decision to initiate or continue a proceeding subject to agency

adjudication” (id.) and “agency attorney[s] who arrange[] for the presentation of evidence

on the record in the course of an adjudication” are absolutely immune from suits based on

the performance of those duties. Id. at 517.

Although Butz v. Economou arose from a so-called Bivens action15 alleging

unconstitutional conduct of federal officials, the Court opined that it is “untenable to

draw a distinction for purposes of immunity law between suits brought against state

15

See generally Bivens v. Six Unknown Named Agents of Federal Bureau of

Narcotics, 403 U.S. 388 (1971). In Bivens the Supreme Court “created a cause of action

to redress a federal official’s violation of a [federal] constitutional right.” Dehn Motor

Sales, LLC v. Schultz, 439 Md. 460, 490 n.31 (2014).

49

officials under § 1983 and suits brought directly under the Constitution against federal

officials.” Butz v. Economou, 438 U.S. at 504. Thus, Butz v. Economou governs the

analysis of whether a state official has absolute immunity from a § 1983 claim based on a

function in a state administrative proceeding.

C. Absolute Immunity in Relation to Medical Disciplinary Proceedings

Absolute immunity for agency officials has become known as a form of “quasi-

judicial” immunity. Over the past few decades, the federal circuit courts of appeal have

comprehensively analyzed the absolute immunity of state officials in 42 U.S.C. § 1983

actions arising out of conduct in the proceedings of medical licensing and disciplinary

boards.

In this context, courts hold that an official has absolute immunity based on the

performance of a discretionary function if: (1) the function is analogous to a function in a

judicial proceeding for which a judge or prosecutor enjoys absolute immunity; (2) the

official’s actions could potentially expose the official to frequent damages lawsuits unless

the official had absolute immunity; and (3) the function occurs within a regulatory

framework with safeguards sufficient to minimize the risk of unconstitutional acts. E.g.

Guttman v. Khalsa, 446 F.3d 1027, 1033-34 (10th Cir. 2006) (citing Horwitz v. State Bd.

of Med. Examiners of State of Colorado, 822 F.2d 1508, 1513 (10th Cir. 1987)).

Other courts have approached the issue by examining a list of non-exclusive

“factors,” none of which is necessarily controlling. E.g. Olsen v. Idaho State Bd. of

Medicine, 363 F.3d 916, 923-24 (9th Cir. 2004) (citing Mishler v. Clift, 191 F.3d 998,

1009 (9th Cir. 1999)). Those factors are: “(a) the need to assure that the individual can

50

perform his [or her] functions without harassment or intimidation; (b) the presence of

safeguards that reduce the need for private damages actions as a means of controlling

unconstitutional conduct; (c) insulation from political influence; (d) the importance of

precedent; (e) the adversary nature of the process; and (f) the correctability of error on

appeal.” Cleavinger v. Saxner, 474 U.S. 193, 202 (1985) (citing Butz v. Economou, 438

U.S. 478, 512 (1978)).

Under either rubric, courts have consistently concluded that members of a state

medical board who adjudicate disciplinary charges are functionally comparable to judges.

Board members typically do not have the degree of insulation from outside influence that

characterizes a judge or professional hearing examiner, but they have independence to the

extent that they serve fixed terms during which they may not be removed at will. See,

e.g., Watts v. Burkhart, 978 F.2d 269, 275-76 (6th Cir. 1992). In disciplinary hearings,

medical boards exercise the powers of trial judges, including the powers to compel the

attendance of witnesses, to administer oaths, and to make evidentiary rulings. See, e.g.,

O’Neal v. Mississippi Bd. of Nursing, 113 F.3d 62, 66 (5th Cir. 1997). Most importantly,

boards perform the core adjudicative tasks of making factual findings, reaching legal

conclusions, determining sanctions, and issuing orders and decisions. See, e.g.,

Coggeshall v. Massachusetts Bd. of Registration of Psychologists, 604 F.3d 658, 663 (1st

Cir. 2010) (citing Bettencourt v. Bd. of Registration in Medicine of Commonwealth of

Massachusetts, 904 F.2d 772, 783 (1st Cir. 1990)).

Courts uniformly agree that controversies over the licensing and discipline of

medical professionals are weighty enough to inspire retaliatory lawsuits. State medical

51

boards “make difficult and controversial decisions” affecting a person’s career and

livelihood. O’Neal v. Mississippi Bd. of Nursing, 113 F.3d at 66. It is “only natural” for

the person affected by the decision to “want some kind of redress.” Id. “In view of the

public interest of assuring quality health care” (Mishler v. Clift, 191 F.3d at 1005), there

is a corresponding interest in ensuring that board members can decide these matters “free

from the threat of incurring personal liability for every decision they hand down.”

O’Neal v. Mississippi Bd. of Nursing, 113 F.3d at 66.

State medical practice acts usually afford procedural rights (such as notice of

charges, representation through counsel, and the opportunity to present evidence and

cross-examine witnesses) equivalent to those available under federal administrative law.

See, e.g., Watts v. Burkhart, 978 F.2d at 275. Consequently, medical disciplinary

proceedings tend to be “inherently adversarial.” O’Neal v. Mississippi Bd. of Nursing,

113 F.3d at 66. The board compiles a record and issues its decision in writing, so that a

court may review the decision and correct any errors. See, e.g., Mishler v. Clift, 191 F.3d

at 1007. “These and other safeguards indicate that enough checks on malicious action by

Board members exist to warrant a grant of absolute immunity for the Board members’

actions in their adjudicatory capacities.” Bettencourt v. Bd. of Registration in Medicine

of Commonwealth of Massachusetts, 904 F.2d at 783.

In connection with these quasi-judicial proceedings, officials who perform

prosecutorial functions are “equally entitled to absolute immunity.” Guttman v. Khalsa,

446 F.3d at 1034. Consequently, an administrative prosecutor in a medical disciplinary

proceeding is absolutely immune from a § 1983 suit for damages based on functions such

52

as the initiation of charges and the presentation of evidence. See id. To decide whether a

function is prosecutorial, “the determinative factor is ‘advocacy’ because that is the

prosecutor’s main function and the one most akin to his [or her] quasi-judicial role.”

Pfeiffer v. Hartford Fire Ins. Co., 929 F.2d 1484, 1490 (10th Cir. 1991) (citation and

quotation marks omitted).

Overwhelmingly, these federal cases demonstrate that officials who perform

adjudicative or prosecutorial functions in state medical disciplinary proceedings have

absolute immunity from being sued for damages under § 1983, as long as those

proceedings are akin to adjudications under the federal Administrative Procedure Act.

D. Absolute Immunity for Medical Disciplinary Proceedings in Maryland

Proceedings of the State Board of Physicians are governed by the Medical Practice

Act, HO §§ 14-101 through 14-702; and the Maryland Administrative Procedure Act, SG

§§ 10-201 through 10-226. This regulatory framework is largely indistinguishable from

the many out-of-state counterparts for which officials have absolute immunity from being

sued for damages under § 1983.

Both the Board and the Office of Administrative Hearings, to which the Board

delegates some of its authority, have structural independence. See HO § 14-202(i), (k);

SG § 9-1605(a), (b). Board members and administrative law judges exercise judge-like

powers during disciplinary hearings. See HO §§ 14-206(a), (b), 14-401(i); SG § 9-

1605(c), (d). Together, they make findings of fact, reach conclusions of law, and decide

the ultimate disposition. See HO § 14-405(e); SG §§ 10-220, 10-221. The contested-

case provisions of the Maryland Administrative Procedure Act afford an adversarial

53

setting in which the respondent, through counsel, may dispute the charges. See HO § 14-

405; SG § 10-213. Errors, including constitutional errors, may be corrected through

judicial review and through further appellate review. See HO § 14-408; SG § 10-222.16

The defendants rely on Ostrzenski v. Seigel, 177 F.3d 245 (4th Cir. 1999), which

determined that a defendant had absolute immunity from a § 1983 claim based on

conduct in a proceeding under the Maryland Medical Practice Act. There, the Board

(under its former name, the Board of Physician Quality Assurance) had commissioned

peer review reports to determine whether to issue charges against a surgeon. Id. at 248.

The surgeon sued one of the peer reviewers under § 1983, alleging the deprivation of

constitutional rights through irregularities in the peer review process. Id. at 247-48. The

trial court dismissed that claim on the ground of absolute immunity (id. at 248), and the

Fourth Circuit upheld that conclusion. Id. at 253.

The Fourth Circuit observed: “Every court of appeals that has addressed the issue

has concluded that members of a state medical disciplinary board are entitled to absolute

quasi-judicial immunity for performing judicial or prosecutorial functions.” Ostrzenski v.

Seigel, 177 F.3d at 249 (collecting cases). The Court reasoned that, even though the peer

reviewer was “not a Board member, and thus he [was] one step removed from the

16

The Administrative Procedure Act authorized the court to “reverse or modify a

decision if any substantial right of the petitioner may have been prejudiced because a

finding, conclusion, or decision: (i) is unconstitutional; (ii) exceeds the statutory authority

or jurisdiction of the final decision maker; (iii) results from an unlawful procedure; (iv) is

affected by any other error of law; (v) is unsupported by competent, material, and

substantial evidence in light of the entire record as submitted; or (vi) is arbitrary or

capricious.” SG § 10-222(h)(3).

54

‘judicial’ functions of the Board, he nevertheless [would] be entitled to absolute quasi-

judicial immunity if he [was] engaged in a protected prosecutorial function.” Id.

The Fourth Circuit compared the role of the peer reviewer deciding whether to

recommend disciplinary charges to the role of “a prosecutor reviewing the evidence to

determine whether to recommend prosecution.” Ostrzenski v. Seigel, 177 F.3d at 250.

Given the “real risk” of retaliatory lawsuits by physicians (id. at 250-51), the Court

recognized a “strong need to ensure that peer reviewers perform their functions for the

public good without harassment and intimidation.” Id. at 250. Finally, the Court

identified “adequate procedural safeguards” under Maryland administrative law “to

protect against unconstitutional conduct by peer reviewers without reliance on private

damages lawsuits.” Id. at 251. Thus, the peer reviewer was absolutely immune from the

§ 1983 claim based on his prosecutorial role in the disciplinary proceedings. Id.

In view of Ostrzenski v. Seigel and other federal authorities, there is no reason to

doubt that Board members would have absolute immunity if the Geiers had sued them

under § 1983 to recover damages resulting from the decisions to issue charges against the

Geiers, to revoke Dr. Geier’s medical license, and to impose a penalty against David

Geier. Those discretionary decisions were “directly related to th[e] adjudicatory function

and the ultimate resolution of the disciplinary dispute[.]” Olsen v. Idaho State Bd. of

Medicine, 363 F.3d 916, 928 (9th Cir. 2004). The remedy for any unconstitutionality in

those decisions was to seek judicial review, as Dr. Geier and his son did. Their remedy

was not to sue the decision makers for damages.

This absolute immunity would reach even the Board’s decision to summarily

55

suspend Dr. Geier’s license, which occurred on an ex parte basis, before he received

notice and the opportunity to challenge the suspension. In Maryland, as in other states,

summary suspensions entail substantially fewer protections than those available in

ordinary disciplinary hearings. Courts have concluded, however, that “the exercise of

summary suspension authority . . . is ‘directly comparable to the function performed by a

judge in deciding whether to issue a temporary restraining order or preliminary

injunction.’” Buckwalter v. Nevada Bd. of Med. Examiners, 678 F.3d 737, 745-46 (9th

Cir. 2012) (quoting Watts v. Burkhart, 978 F.2d 269, 277 (6th Cir. 1992)).17 The

summary suspension of a medical license “is nothing more than a temporary expedient”

(Watts v. Burkhart, 978 F.2d at 276), followed promptly by an adversarial hearing “with a

full complement of procedural safeguards.” Buckwalter v. Nevada Bd. of Med.

Examiners, 678 F.3d at 743.18

The defendants appear to argue that, because the underlying proceedings against

Dr. Geier were “quasi-judicial” in nature, then absolute immunity should cover all

actions of Board personnel in relation to those proceedings. That suggestion is too broad.

Courts applying Butz v. Economou in similar contexts have analyzed the precise

functions at issue in the plaintiff’s claim. The § 1983 claim here concerns the drafting

17

Absolute judicial immunity bars a § 1983 suit for damages against a state judge

based on the act of issuing an injunction. See Dennis v. Sparks, 449 U.S. 24, 27 (1980).

18

Maryland’s summary suspension procedures are unlike those examined in

DiBlasio v. Novello, 344 F.3d 292 (2d Cir. 2003), which vested a single commissioner

with “virtually unfettered authority to determine whether a physician’s license should be

summarily suspended pending resolution of misconduct charges” and “provide[d] no

meaningful review of the summary suspension[.]” Id. at 299.

56

and issuing of the cease-and-desist order dated January 25, 2012. We must examine

whether those specific functions give rise to absolute immunity.

E. Absolute Immunity for the Issuance of a Cease-and-Desist Order

The Geiers’ main allegations are that the Board members intentionally included

private information in the cease-and-desist order and improperly designated the order as a

public document, resulting in its online publication. The Geiers make two arguments

pertinent to whether, under federal law, the Board members have absolute immunity from

the § 1983 claim based on their involvement with the order. The Geiers dispute whether

issuing a cease-and-desist order is sufficiently analogous to a judicial function for

absolute immunity to attach. They also dispute whether adequate safeguards exist to

protect against unlawful conduct by the Board personnel. The Geiers have not denied

that a strong need exists for Board personnel to “undertake their core public protection

function without the constant threat of harassment and intimidation by aggrieved parties.”

Maryland Bd. of Physicians v. Geier (“Geier II”), 451 Md. 526, 569 (2017) (discussing

deliberative privilege).

In the circuit court, the Geiers questioned whether the Board’s decision to issue a

cease-and-desist order requires the “exercise of judgment vital to the judiciary[.]”

Antoine v. Byers & Anderson, Inc., 508 U.S. 429, 435 (1993). To the contrary, when the

Board issues a cease-and-desist order, it performs the task of “‘authoritatively

adjudicating private rights.’” Id. at 436 (quoting Burns v. Reed, 500 U.S. 478, 500 (1991)

(Scalia, J., concurring)). The order has injunctive qualities insofar as it prohibits specific

conduct. Md. Rule 15-501(a) (defining an injunction as “an order mandating or

57

prohibiting a specified act”). Perhaps even more so than a summary suspension, the

decision to issue a cease-and-desist order “is ‘directly comparable to the function

performed by a judge in deciding whether to issue a temporary restraining order or

preliminary injunction.’” Buckwalter v. Nevada Bd. of Med. Examiners, 678 F.3d 737,

745-46 (9th Cir. 2012) (quoting Watts v. Burkhart, 978 F.2d 269, 277 (6th Cir. 1992)).

The only federal circuit court called upon to decide the issue held that members of

a state medical board were absolutely immune from a § 1983 claim based on the decision

to order a person to cease and desist from the unauthorized practice of medicine.

Dunham v. Wadley, 195 F.3d 1007 (8th Cir. 1999). In that case, a state veterinary board

determined, after deliberating on investigation reports, that a doctor was practicing

veterinary medicine in the state without a license. Id. at 1008-10. The board “issued

orders in the form of letters sent to [the doctor] and two of her employers informing them

of the board’s conclusion that [the doctor] was engaging in the practice of veterinary

medicine without a proper license, and warning that the employers themselves would be

subject to criminal punishment if they did not ‘cease and desist’ from their employment

of her.” Id. at 1010-11. The Eighth Circuit reasoned that, “[t]o the extent that the board

weighed evidence, made factual determinations, determined sanctions, and issued written

decisions,” the duties performed by the board were “functionally comparable to the duties

performed by courts.” Id. at 1011.

At a minimum, the decision to order a person to cease and desist from the

unlicensed practice of medicine requires: some factual determination that the person is

engaging in a particular activity, a legal conclusion that the activity constitutes the

58

unlicensed practice of medicine, and a choice that ordering the person to cease and desist

is an appropriate course of action. The Medical Practice Act entrusted these matters to

the Board’s discretion. Among its other express grants of power, it stated: “The Board

may issue a cease and desist order or obtain injunctive relief for practicing medicine

without a license.” HO § 14-206(e) (emphasis added). More generally, the Act

authorized the Board to “[t]ake any appropriate and immediate action as necessary” after

a preliminary investigation. HO § 14-401(c)(1)(ii). As the Court of Appeals observed:

“The General Assembly clearly intended to afford [Board members] considerable

discretion in carrying out their duties under the Health Occupations Article, including the

express authority to issue cease and desist orders.” Geier II, 451 Md. at 569-70.

The governing regulations further demonstrate that the Board’s decision to issue a

cease-and-desist order occurs alongside decisions to issue formal charges or sanctions.

COMAR 10.32.02.03(C)(1) listed the “determination to . . . [i]ssue a cease and desist

order” as one of several options for the Board to take “[a]fter reviewing the completed

investigatory information and reports[.]” Other options included charging the respondent

with a violation of the Act or dismissing the matter altogether. Id. Another regulation

stated that, “[d]uring the course of the investigation of [a] complaint” of the unauthorized

practice of medicine, “the Board may issue a nonpublic cease and desist order.” COMAR

10.32.02.06(B)(2) (emphasis added). It specified: “At the conclusion of an evidentiary

hearing, the administrative law judge may recommend a public cease and desist order in

addition to a penalty.” Id.

The Geiers have consistently argued that the Board violated these regulations by

59

issuing the cease-and-desist order as a public document during an ongoing investigation.

They also assert that the inclusion of patient prescription information in the order violated

Maryland law protecting the confidentiality of medical records. On those bases, they

contend that “the publication of the document was illegal” and, in their view, the type of

“ministerial act” that is undeserving of absolute immunity. Their argument misconceives

the concept of a ministerial act.

Examples of ministerial acts include: a medical board’s response to an out-of-state

inquiry regarding a physician’s standing to practice medicine (Mishler v. Clift, 191 F.3d

998, 1001, 1008 (9th Cir. 1999)); and a medical board’s issuance of a billing statement

for a public records request (Olsen v. Idaho State Bd. of Medicine, 363 F.3d 916, 928 (9th

Cir. 2004)). A discretionary decision does not become a non-discretionary one if the

discretion is exercised in less-than-full compliance with all legal requirements. See

Mishler v. Clift, 191 F.3d at 1006 (“acts of the [medical board] are no less judicial or

prosecutorial because they may have been committed in error”). If the law were

otherwise, any plaintiff could overcome absolute immunity simply by alleging the

violation of a statute or regulation.

Yet only a showing that adjudicators were “not acting in [their] judicial

capacit[ies] or that [they] acted in the complete absence of all jurisdiction can overcome

[their] absolute immunity.” Guttman v. Khalsa, 446 F.3d 1027, 1034 (10th Cir. 2006)

(citing Mireles v. Waco, 502 U.S. 9, 12 (1991) (per curiam)). A regulation restricting the

Board’s authority to make its orders public or a statute protecting patient confidentiality,

however important it may be, does not limit the Board’s jurisdiction over the unlicensed

60

practice of medicine. Notwithstanding any arguments about the propriety of the order,

“there can be absolutely no question of the board’s jurisdiction” to issue the order, and as

long as judicial officers have jurisdiction over the subject matter before them, they are

“‘absolutely immune from liability for [their] judicial acts even if [their] exercise of

authority is flawed by the commission of grave procedural errors.’” Watts v. Burkhart,

978 F.2d at 277 (quoting Stump v. Sparkman, 435 U.S. 349, 359 (1978)).

The regulations in effect when the Board issued the cease-and-desist order

provided Dr. Geier with “ample opportunity to challenge the legality” (Butz v.

Economou, 438 U.S. 478, 515 (1978)) of the order. The order itself informed Dr. Geier

of his right to challenge the order under the Board’s regulations. COMAR 10.32.02.09

provided: “When the Board issues a cease and desist order as a result of an investigation

by the Board, and the respondent either challenges this order or violates the order, the

matter is adjudicated according to Regulation .03 of this chapter.” The cross-referenced

regulation set forth the procedures for the adjudication of formal disciplinary charges. It

outlined the rights to have representation by counsel, to request an evidentiary hearing

governed by the Administrative Procedure Act, to take discovery, to take exceptions with

the Board, and to seek judicial review of the final decision. See COMAR

10.32.02.03(D)-(H). Because these regulations required a challenge to a cease-and-desist

order to be heard under the Administrative Procedure Act, the challenge would qualify as

a “contested case” under that Act. See SG § 10-202(d).

The Geiers take no issue with the assertion that Dr. Geier “had adequate due

process protection available to him in the administrative proceedings, including the right

61

to file appeals.” They argue that none of the available procedures “would have prevented

the harm” that resulted from the Board’s decision to include confidential patient

information in a public document. In particular, they argue that the procedures available

to Dr. Geier would not have protected the interests of his patients, David Geier and Anne

Geier.19 Their point is well-taken. Yet any number of plaintiffs denied recovery under

the doctrine of quasi-judicial immunity (such as the business owner targeted by federal

regulators in Butz v. Economou) might identify harms that were fully realized before

those plaintiffs had the opportunity for redress.

To establish absolute quasi-judicial immunity, a defendant need not show that a

specific procedure would have prevented all types of harm or the particular harm that the

plaintiff alleges to have suffered. The doctrine rests on generalizations that “safeguards

built into the judicial process tend to reduce the need for private damages actions” (Butz

v. Economou, 438 U.S. at 512), and that certain agency proceedings share “enough of the

characteristics of the judicial process” (id. at 513) that “the importance of preserving the

independent judgment” of agency officials outweighs “the risk of an unconstitutional act”

by an official. Id. at 514. The “correctability of error on appeal” is one factor in this

analysis (Cleavinger v. Saxner, 474 U.S. 193, 202 (1985)), but the preventability of the

19

It is not necessarily true that a patient harmed by a decision of the Board lacks

any procedural rights. In a hearing of the Office of Administrative Hearings, “a person

may be permitted to intervene . . . when the person . . . [c]laims an interest relating to the

subject matter of the hearing that is: [] [a]dversely affected; and [] [n]ot adequately

represented by existing parties.” COMAR 28.02.01.15(a)(2). In addition, the circuit

court may permit an interested person to intervene in an action for judicial review. SG §

10-222(d)(1).

62

alleged harm is not. “What matters for our purposes is that judicial review [was]

available.” Buckwalter v. Nevada Bd. of Med. Examiners, 678 F.3d at 744-45. The

absence of a procedure to intercept an erroneous cease-and-desist order before it is issued

“makes the consequences of an error by the Board more severe, but it has no bearing on

whether the error [was] ultimately correctable.” Id. at 744.

The Geiers have identified no feature of this case to set it apart from the many

others in which absolute immunity protected members of a state medical board from a

suit for damages under 42 U.S.C. § 1983.

F. Absolute Immunity of Others Participating in the Board’s Decision

The Geiers also named persons who were not Board members as defendants, but

they make no separate argument about the immunity of those defendants. In any event,

the immunity of those defendants largely rises and falls with the immunity of the Board

members. Because absolute immunity attaches to functions rather than offices, it reaches

not only medical board members but also support staff who perform functions closely

related to the medical disciplinary process. See Olsen v. Idaho State Bd. of Medicine, 363

F.3d 916, 926 (9th Cir. 2004) (extending absolute immunity of board members to

professional staff and counsel engaged in either adjudicative or prosecutorial functions);

O’Neal v. Mississippi Bd. of Nursing, 113 F.3d 62, 66-67 (5th Cir. 1997) (same for

executive director engaged in adjudicative functions); Wang v. New Hampshire Bd. of

Registration in Medicine, 55 F.3d 698, 701 (1st Cir. 1995) (same for board counsel

engaged in prosecutorial functions).

Here, the Geiers sued two directors and two staff members based on conduct

63

identical to that of the Board members. The complaint treated those defendants and the

Board members “collectively” for pleading purposes. The complaint further alleged that

one of those staff members (Mr. Schafer) “aided” and “participated” in the Board’s

decisions. To the extent that these defendants participated in the Board’s decision, these

defendants share the absolute immunity of the Board members. See Bettencourt v. Bd. of

Registration in Medicine of Commonwealth of Massachusetts, 904 F.2d 772, 784-85 (1st

Cir. 1990) (holding that staff members have absolute immunity for roles in assisting with

the drafting of an order or in advising the board to impose sanctions).

The Geiers also sued the administrative prosecutor (Ms. Pepper) for her role in the

“creation” of the order and the decision to make the order public. Even though a cease-

and-desist order falls short of formal charges, an attorney also has absolute immunity

with respect to preparatory steps needed to prosecute administrative charges. See Pfeiffer

v. Hartford Fire Ins. Co., 929 F.2d 1484, 1490-91 (10th Cir. 1991). Under the applicable

regulations, a cease-and-desist order could be issued in lieu of charges or as a preliminary

step before issuing formal charges. See COMAR 10.32.02.03(C)(1). Thus, an

administrative prosecutor who advocates for the issuance of a cease-and-desist order

“performs a function analogous to a prosecutor reviewing evidence to determine whether

charges should be brought.” Ostrzenski v. Seigel, 177 F.3d 245, 251 (4th Cir. 1999).20

Moreover, unlike a prosecutor who disseminates information to the press outside of

20

It is no coincidence that the January 2012 order directing Dr. Geier to cease and

desist from the unlicensed practice of medicine was nearly identical to the formal charges

issued in June 2012 upon the completion of the investigation.

64

agency proceedings (cf. Pfeiffer v. Hartford Ins. Co., 929 F.2d at 1493), an administrative

prosecutor acts within the role of an advocate by asking an agency to include a provision

in an order.

Under federal law, all persons named as defendants in Count One enjoy absolute

immunity from the claim under 42 U.S.C. § 1983. This immunity shields them from any

liability for attorneys’ fees under 42 U.S.C. § 1988. See Supreme Court of Virginia v.

Consumers Union of U.S., Inc., 446 U.S. 719, 738 (1980).

III. Maryland Tort Claim Against Board Personnel and the Board

Thus far, this opinion has exclusively applied federal law to the claims for

damages under 42 U.S.C. § 1983 and for attorneys’ fees under 42 U.S.C. § 1988. The

Geiers also prevailed on the tort claim for invasion of privacy through unreasonable

publicity given to private life. Maryland law governs the issue of whether the defendants

have immunity from that tort claim.

The parties offer irreconcilable interpretations of the governing law. The

defendants contend that Maryland common law fully recognizes absolute immunity for

agency officials who perform certain functions in administrative proceedings. The Geiers

contend that both Maryland common law and Maryland statutes afford the defendants no

more than a qualified immunity for actions taken without malice.

A. Absolute Judicial (and Quasi-Judicial) Privilege Under Maryland Law

The defendants assert that the Court of Appeals has already granted absolute

immunity in tort actions to officials who perform “adjudicatory or prosecutorial

functions” in administrative proceedings. The defendants’ argument relies on cases

65

concerning the testimonial privilege against claims of defamation. In so doing, the

argument conflates doctrines that are closely related (“privilege” and “immunity”), but

that remain conceptually distinct.

“For reasons of public policy, the law of defamation recognizes certain

communications as privileged, and thereby affords those who publish such

communications immunity from liability.” Miner v. Novotny, 304 Md. 164, 167 (1985).

Since 1888, the Court of Appeals has granted witnesses in judicial proceedings an

absolute privilege to make defamatory statements in the course of litigation. Keys v.

Chrysler Credit Corp., 303 Md. 397, 403-04 (1985) (citing Hunckel v. Voneiff, 69 Md.

179 (1888); Bartlett v. Christhilf, 69 Md. 219 (1888)). This privilege is “absolute” in the

sense that it defeats a defamation suit even if the defendant’s “purpose or motive was

malicious,” even if the defendant “knew that the statement was false,” and even if the

defendant’s “conduct was otherwise unreasonable.” Adams v. Peck, 288 Md. 1, 3 (1980).

The justification for this absolute privilege is that, for the judicial fact-finding process “to

function effectively, those who participate must be able to do so without being hampered

by the fear of private suits for defamation.” Id. at 5. The holder of this privilege enjoys

“complete immunity from suit” for a defamation claim based on the privileged statement.

Offen v. Brenner, 402 Md. 191, 199 (2007).21

21

“Maryland law is not settled” on the extent to which absolute privilege results in

immunity outside of defamation cases. Mixter v. Farmer, 215 Md. App. 536, 547 (2013).

The Court of Appeals recently applied the absolute litigation privilege to a claim for

breach of a non-disparagement clause in a contract. See O’Brien & Gere Engineers, Inc.

v. City of Salisbury, 447 Md. 394, 414 (2016).

66

Consistent with the Court’s “‘broad view’ of the scope of th[is] privilege,” the

Court has extended it to statements made in connection with “administrative and other

quasi-judicial proceedings.” Imperial v. Drapeau, 351 Md. 38, 45 (1998) (quoting Keys

v. Chrysler Credit Corp., 303 Md. at 404). The authoritative Maryland precedent on

absolute privilege outside of court proceedings is Gersh v. Ambrose, 291 Md. 188 (1981).

In that case, the plaintiff sued an Assistant State’s Attorney for making slanderous

statements while testifying at a public hearing of the Baltimore City Community

Relations Commission. Gersh v. Ambrose, 291 Md. at 189. Chiefly, the Court followed

the reasoning of an English defamation case, Trapp v. Mackie, 1 All E.R. 489 (1979), 1

W.L.R. 377 (H.L. 1978), which extended the absolute privilege to a witness in an

administrative proceeding based on the rationale that the “cumulative effect of the

safeguards which attended the proceedings was such that the public interest sought to be

advanced by providing the immunity clearly outweighed the harm of subjecting the

[defamed] individual to possible legal injury without remedy.” Gersh v. Ambrose, 291

Md. at 196. On the record before it, by contrast, the Court determined that the public

benefit from testimony at the hearing of the Community Relations Commission was “not

sufficiently compelling to outweigh the possible damage to individual reputations to

warrant absolute witness immunity.” Id.

Going forward, the Court announced: “whether absolute witness immunity will be

extended to any administrative proceeding will have to be decided on a case-by-case

basis and will in large part turn on two factors: (1) the nature of the public function of the

proceeding and (2) the adequacy of procedural safeguards which will minimize the

67

occurrence of defamatory statements.” Gersh v. Ambrose, 291 Md. at 197 (emphasis

added). These two factors remain the definitive standard for deciding whether statements

made in connection with a quasi-judicial proceeding are absolutely privileged under

Maryland law. See generally Norman v. Borison, 418 Md. 630, 652-60 (2011).

The defendants assert that in Odyniec v. Schneider, 322 Md. 520, 528-29 (1991),

“the Court of Appeals . . . held that where . . . an administrative scheme affords

procedural safeguards, officials performing adjudicatory or prosecutorial functions . . .

are ‘immune from suits for damages.’” The actual holding of that case is that certain

statements made to a patient, by an expert witness in a health claims arbitration

proceeding, during a medical examination in preparation for the witness’s participation in

the proceeding, were absolutely privileged in a defamation action. Odyniec v. Schneider,

322 Md. at 534-35. The relevant portions of the Gersh and Odyniec opinions concern a

defendant’s privilege as a witness, not whether a defendant was engaged in a protected

adjudicatory or prosecutorial function. The sentence quoted by the defendants merely

recounts that the Gersh opinion cited Butz v. Economou “[b]y way of example” (Odyniec

v. Schneider, 322 Md. at 528), before explaining the Supreme Court’s holding from that

case.

The defendants ask this Court to follow one case that appears to have held that

Maryland recognizes the doctrine of “absolute quasi-judicial immunity.” As discussed

previously, in Ostrzenski v. Seigel, 177 F.3d 245 (4th Cir. 1999), a surgeon sued a peer

reviewer who prepared a report at the behest of the Board. In addition to the § 1983

claim (for which the peer reviewer had absolute immunity under federal law), the surgeon

68

raised a Maryland tort claim for false-light invasion of privacy, alleging that the peer

reviewer knowingly reported false information to the Board. Id. at 248. The Fourth

Circuit concluded that the peer reviewer was “entitled to absolute quasi-judicial

immunity under Maryland law from [the] false light claim[,]” for the same reasons that

the peer reviewer was “absolutely immune from liability for damages under § 1983[.]”

Id. at 253. The Fourth Circuit stated: “Maryland law recognizes absolute immunity in

quasi-judicial administrative proceedings when the nature of the public function of the

proceedings is sufficiently compelling and procedural safeguards are adequate to

minimize the potential for injury at the hands of the immunized official.” Id. (citing

Odyniec v. Schneider, 322 Md. at 528-29; Gersh v. Ambrose, 291 Md. at 196-97).

Although we might agree with the outcome reached by the Fourth Circuit, we are

unpersuaded by any suggestion that the “immunity” discussed in Gersh v. Ambrose is

identical to the immunity established by Butz v. Economou. The use of shared

terminology can be a source of confusion. As the Court of Appeals has noted, “the terms

‘privilege’ and ‘immunity’ are often used interchangeably[,]” because “[t]o the extent

there is a privilege, immunity from liability tends to follow.” Smith v. Danielczyk, 400

Md. 98, 103 n.1 (2007). Despite this overlap, the decisions that immunize persons for

privileged statements have remained distinct from the decisions that immunize officials

for their performance of protected functions. See Gill v. Ripley, 352 Md. 754, 761-63

(1999) (comparing the various forms of immunity and privilege for participants in the

judicial process). The Gersh opinion underscored this distinction by analyzing the

defendant’s “claim of immunity based upon his activities as Assistant State’s Attorney”

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apart from his second claim “based upon the undisputed fact that he was testifying as a

witness before the Baltimore City Community Relations Commission[.]” Gersh v.

Ambrose, 291 Md. at 190.

Quite overtly, the discussion of “procedural safeguards” in Butz v. Economou, 438

U.S. at 512, influenced the Court of Appeals’ adoption of a similar factor in Gersh v.

Ambrose, 291 Md. at 192-93. The two cases, however, do not employ the same

balancing inquiry. The Supreme Court examined whether, “[i]n light of th[e] safeguards”

available in an agency proceeding, the “importance of preserving the independent

judgment” of the officials outweighs the “risk of an unconstitutional act” by an official.

Butz v. Economou, 438 U.S. at 514. The Gersh factors seek to determine “from the

nature and conduct of the proceeding” whether “society’s benefit from unfettered speech

during the proceeding” outweighs “the interests of an individual who might be defamed

during that proceeding.” Odyniec v. Schneider, 322 Md. at 531. In short, one doctrine

immunizes officials for their acts, while the other immunizes all participants for their

words.

The defendants seem to have arrived at a late realization that the “immunity”

discussed in Gersh v. Ambrose, resulting from an absolute privilege to make defamatory

statements, is distinct from the immunity established by Butz v. Economou.22 Near the

end of the immunity argument from their brief, they stated: “Additionally, there is an

absolute privilege for statements made during judicial and quasi-judicial proceedings, . . .

22

Counsel for the defendants acknowledged this distinction at oral argument.

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[and] [a]ccordingly, statements in the order cannot serve as the basis for this lawsuit.”

Even if the defendants did the bare minimum needed to raise the issue of absolute

privilege in their appellate brief, nothing in their brief indicates that they raised the issue

of absolute privilege in the circuit court or that the court ever decided that issue. The

motion to dismiss did not mention absolute privilege. The summary judgment motion

cited Gersh v. Ambrose and Odyniec v. Schneider, but only in support of an argument

about the “quasi-judicial” nature of the Board’s proceedings. Neither the Geiers nor the

circuit court could reasonably have been expected to treat that motion as anything other

than what it purported to be: a motion for summary judgment on the ground of “absolute

quasi-judicial immunity.” Under the circumstances, we will not consider the defendants’

additional argument that statements published in the cease-and-desist order might qualify

for the absolute privilege under Gersh v. Ambrose.

We will consider the argument that the defendants made throughout the case: that

they have absolute immunity from suits based on their performance of adjudicatory and

prosecutorial functions, under the principles of Butz v. Economou. The remaining

question is whether Maryland law recognizes those same principles.

B. Absolute Immunity for Government Officials Under Maryland Law

As legislatures increasingly delegated judicial functions to administrative agencies

throughout the twentieth century, those agencies “have come to . . . adjudicate more than

courts” in “‘contested cases affecting in varied ways the lives, health, fortunes, safety,

labor, and the business of millions of citizens.’” State Ins. Comm’r v. Nat’l Bureau of

Cas. Underwriters, 248 Md. 292, 299 (1967) (quoting 1 Frank E. Cooper, State

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Administrative Law 1-2 (1965)). More than a decade before Butz v. Economou, the Court

of Appeals declined to decide whether some state agency officials should have absolute

immunity from tort claims based on their roles in administrative hearings. That issue

remains undecided.

In Eliason v. Funk, 233 Md. 351 (1964), a former state employee accused two

agency officials of wrongfully removing him from the state classified service. Id. at 353-

54. One official initiated charges against the employee; another official heard the charges

and decided to discharge him from employment. Id. at 354-55. At the administrative

hearing, the employee “was represented by counsel of his own choosing, witnesses were

regularly summoned, sworn and cross-examined, and the decision was appealed” in a

trial court. Id. at 355. The officials argued that they were immunized by an “absolute

privilege” for their acts. Id. at 354.23

The Court of Appeals noted that “judges have an absolute privilege from suits

arising out of their judicial acts[,]” and that “[p]rosecutors in judicial hearings are

afforded the same privilege.” Eliason v. Funk, 233 Md. at 356. The Court observed that

some courts had extended this privilege “to minor tribunals and to officers exercising

discretionary or quasi-judicial functions,” while other courts had “extend[ed] the

23

Older Maryland cases often use the term “privilege” in contexts where a court

today would use the term “immunity.” The Court of Appeals has explained that

“‘immunity’ is the more descriptive term” when the issue is whether an official “may be

held civilly liable for damages for conduct that is allegedly wrongful—conduct which, if

committed by someone else, would subject the person to such liability.” Gill v. Ripley,

352 Md. 754, 760 n.3 (1999). “It is not really a ‘privilege’ to commit the wrongful

conduct that the law recognizes, but rather an exemption from civil liability founded upon

broader principles of public policy.” Id.

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privilege only to actions taken in good faith, indicating that malicious actions would not

be protected.” Id. (citations omitted). The Court commented that “Maryland cases

seem[ed] to indicate that discretionary action [would] be protected only in the absence of

malice[,]” but added that the case before the Court was “much closer factually to the

cases dealing with judicial actions, where there is a right to review, than to the

discretionary acts of law enforcement officers.” Id. It was unnecessary, however, for the

Court to “hold that the privilege [was] absolute” in the case before it, because the plaintiff

had failed to make sufficient allegations of malice. Id. at 357.

The Geiers appear to argue that Maryland common law completely forbids any

immunity for malicious conduct by government officials. They quote language from

cases involving alleged torts by firefighters and police officers. E.g. James v. Prince

George’s County, 288 Md. 315, 323-24 (1980) (“[o]nce it is established that the

individual is a public official and the tort was committed while performing a duty which

involves the exercise of discretion, a qualified immunity attaches; namely, in the absence

of malice, the individual involved is free from liability”); Robinson v. Bd. of County

Comm’rs for Prince George’s County, 262 Md. 342, 347 (1971) (“when acting in a

discretionary capacity public officials, to enjoy immunity, must act without malice”).

Although absence of malice is still a requirement for “qualified public official

immunity” (see, e.g., D’Aoust v. Diamond, 424 Md. 549, 585-86 (2012)), it is no longer a

requirement for all forms of immunity under Maryland tort law. In recent years, the

Court has confirmed that “‘there are some officials whose special functions require a full

exemption from liability.’” Mandel v. O’Hara, 320 Md. 103, 119-20 (1990) (emphasis in

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original) (quoting Butz v. Economou, 438 U.S. 478, 508 (1978)).

In Mandel v. O’Hara, 320 Md. at 104-05, the Court held, as a matter of Maryland

common law, that officials are absolutely immune from civil liability for non-

constitutional torts based on the performance of legislative functions. In that case, former

Governor Marvin Mandel contended that he was entitled to absolute immunity in an

action for common-law deceit based on the allegation that he vetoed a bill as part of a

conspiracy to depress a stock price for the benefit of his alleged co-conspirators. Id. at

106-07. The Court explained that, unlike the qualified immunity available to most public

officials, an “absolute immunity from tort liability ‘stands even if the official acts in bad

faith, or with malice or corrupt motives.’” Id. at 107 (quoting Prosser & Keeton on Torts

§ 132, at 1057 (5th ed. 1984)).

The purpose of affording an absolute immunity “‘is to free the officer from the

necessity of submitting [the officer’s] purposes, motives[,] and beliefs to the uncertain

appraisal of juries or even judges.’” Mandel v. O’Hara, 320 Md. at 107 (quoting

Restatement (Second) of Torts § 895D, cmt. c (1977)). To describe the policy more

fully, the Court quoted the following, frequently cited passage:

“‘It does indeed go without saying that an official, who is in fact

guilty of using his powers to vent his spleen upon others, or for any other

personal motive not connected with the public good, should not escape

liability for the injuries he may so cause; and, if it were possible in practice

to confine such complaints to the guilty, it would be monstrous to deny

recovery. The justification for doing so is that it is impossible to know

whether the claim is well founded until the case has been tried, and that to

submit all officials, the innocent as well as the guilty, to the burden of a

trial and to the inevitable danger of its outcome, would dampen the ardor of

all but the most resolute, or the most irresponsible, in the unflinching

discharge of their duties. Again and again the public interest calls for

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action which may turn out to be founded on a mistake, in the face of which

an official may later find himself hard put to it to satisfy a jury of his good

faith. There must indeed be means of punishing public officers who have

been truant to their duties; but that is quite another matter from exposing

such as have been honestly mistaken to suit by anyone who has suffered

from their errors. As is so often the case, the answer must be found in a

balance between the evils inevitable in either alternative. In this instance it

has been thought in the end better to leave unredressed the wrongs done by

dishonest officers than to subject those who try to do their duty to the

constant dread of retaliation . . . .

Mandel v. O’Hara, 320 Md. at 115 (quoting Barr v. Matteo, 360 U.S. 564, 571-72 (1959)

(plurality opinion) (quoting Gregoire v. Biddle, 177 F.2d 579, 581 (2d Cir. 1949) (per L.

Hand, C.J.))).

The Court of Appeals observed that its prior decisions on the immunity of public

officials “neither compel[led] nor foreclose[d] the conclusion” that the former governor

possessed absolute immunity. Mandel v. O’Hara, 320 Md. at 108. For guidance, the

Court looked to Supreme Court decisions on absolute immunity in § 1983 cases, which

are intended to be “‘in harmony with general principles of tort immunities and defenses

rather than in derogation of them.’” Id. at 113 (quoting Imbler v. Pachtman, 424 U.S.

409, 418 (1976)). The Court reasoned that cases addressing the immunity of state or

federal officials, in suits for alleged violations of the federal constitution under § 1983 or

Bivens, “may be persuasive authority as to the Maryland common law of public official

immunity in a state law, nonconstitutional tort action against a state official[.]” Mandel

v. O’Hara, 320 Md. at 113.

From those cases, the Court derived the principles that “[j]udges, when performing

judicial functions, and legislators, when performing legislative functions” enjoy absolute

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immunity from federal claims, while officials in the executive department might enjoy

absolute immunity depending on “the function which gives rise to the federal law

claim.” Mandel v. O’Hara, 320 Md. at 113. Employing the functional approach, the

Court of Appeals concluded that a governor, even as the head of the executive branch,

performs a legislative function in exercising the power to veto or approve legislation. Id.

at 133-34. Thus, the former governor was entitled to the same absolute immunity based

on his veto decision that members of state legislatures traditionally enjoyed for their

votes for or against a bill. Id. at 134-35.

While the holding of Mandel v. O’Hara concerned legislative immunity, the

reasoning of the opinion strongly suggested that judicial immunity is also a feature of

Maryland law. The Court of Appeals fully embraced the doctrine of absolute judicial

immunity when it decided Parker v. State, 337 Md. 271 (1995). The plaintiff, Parker,

had been arrested for failing to pay a fine despite being acquitted of the traffic offense on

which the fine was based. Id. at 274. She sued a circuit court judge under § 1983 for

erroneously issuing the arrest warrant; she also sued the State, through the Maryland Tort

Claims Act, based on the judge’s conduct. Id. at 275. The Court of Appeals held that the

doctrine of absolute judicial immunity required the dismissal of the claims “under either

state or federal law, for issuing the warrant for Parker’s arrest.” Id. at 290-91.

The Court grounded its holding both in precedent and in policy. The Court

explained that, “by the seventeenth and eighteenth centuries, a broad concept of absolute

civil immunity for judicial acts had been firmly established” in the common law of

England (Parker v. State, 337 Md. at 279), and that American courts “likewise

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recognized the same broad principle” during the nineteenth century. Id. at 280. The

Court observed that the “common law principle of absolute judicial immunity . . . has

neither been abrogated nor been modified in Maryland.” Id. at 283. The Court endorsed

two main justifications for this principle: the need “to forestall endless collateral attacks

on judgments through civil actions against the judges themselves”; and the availability of

other “well-developed, institutionalized mechanisms . . . within the judicial system for

correcting erroneous decisions made by judges.” Id. at 287.

The Court held that, because the judge who issued the warrant for Parker’s arrest

performed a judicial act within the general scope of the court’s jurisdiction, the judge was

absolutely immune from Maryland tort claims based on that act. Parker v. State, 337

Md. at 287. Parker had conceded that she could not hold the State liable for the judge’s

actions if the judge was immune from suit. Id. at 277. The Court agreed, explaining that

“a suit that is barred by judicial immunity cannot form the basis of a recovery against the

State under the Tort Claims Act.” Id. at 286. Observing that the Supreme Court

continues to adhere to “traditional form” of judicial immunity in its § 1983 cases, the

Court of Appeals further concluded that the judge was entitled to absolute immunity from

the § 1983 claim. Id. at 289-90.

The Court of Appeals again employed the functional approach when it recognized

absolute immunity for prosecutors and support staff in Gill v. Ripley, 352 Md. 754

(1999). The Court described the doctrine of prosecutorial immunity as a “relative

latecomer” in American common law, which “arose initially as an adjunct” to the “more

ancient” doctrine of judicial immunity. Id. at 760. The Court explained that judicial

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immunity first covered judges, but

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