# Prince George's County v. Fitzhugh

> Court of Appeals of Maryland · January 28, 1987 · 308 Md. 384

URL: https://www.frixlaw.com/law-library/cases/9645600

## Case

- **Full name:** PRINCE GEORGE’S COUNTY, Maryland Et Al. v. Beverly FITZHUGH Et Al.
- **Court:** Court of Appeals of Maryland
- **Decided:** January 28, 1987
- **Citations:** 308 Md. 384; 519 A.2d 1285; 1987 Md. LEXIS 174
- **Precedential status:** Published
- **Opinion:** Dissent by Murphy
- **Judges:** Murphy, Eldridge, Cole, Rodowsky, Couch, McAuliffe, Adkins
- **Cited by:** 26 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9645600

## How later opinions describe it (automated extraction)

- holding that § 1013 constituted a full waiver of governmental immunity because a purported limitation of the scope of the immunity embodied in a 1982 charter amendment was not authorized by the Express Powers Act

## Opinion text

MURPHY, Chief Judge,
dissenting.
I agree with the Court that a charter county must operate within the confines of the Express Powers Act, Maryland Code (1981 Repl. Vol.) Art. 25A, § 5. I do not agree, however, that the restricted waiver of governmental immunity intended by the voters in the 1982 amendment to § 1013 of the Prince George’s County Charter is invalid as violative of § 5(CC) of the Express Powers Act.
The Home Rule Amendment, Art. XI-A of the Maryland Constitution, allocates powers between the state and those counties which choose to adopt a charter form of government. Cheeks v. Cedlair Corp., 287 Md. 595 , 415 A.2d 255 (1980); Ritchmount Partnership v. Board, 283 Md. 48 , 388 A.2d 523 (1978). The constitutional provision affords char *396 ter counties “the power of self-government and freedom from interference, by the Legislature, in the exercise of that power.” City of Baltimore v. Sitnick & Firey, 254 Md. 303, 811 , 255 A.2d 376 (1969). Section 2 of the Home Rule Amendment requires the General Assembly to enact a public general law providing a grant of express powers which “shall not be enlarged or extended” other than by the legislature. In enacting the Express Powers Act to implement the Home Rule Amendment, the General Assembly intended that, within the enumerated powers expressly so granted, charter counties would be permitted to adopt local laws and charter amendments to govern their own affairs. Scull v. Montgomery Citizens, 249 Md. 271 , 239 A.2d 92 (1968).
Neither the Home Rule Amendment nor the Express Powers Act explicitly requires charter counties to exercise granted powers to the maximum extent permitted by law. The Constitution prohibits only an expansion or enlargement of the powers granted to a charter county by the Express Powers Act. Implicitly, the Home Rule Amendment and the Express Powers Act permit charter counties to limit their exercise of any particular granted power. Such a necessary implication is as much a part of the statute as its express provisions. See Soper v. Montgomery County, 294 Md. 331, 335 , 449 A.2d 1158 (1982); Guardian Life Ins. v. Ins. Comm’r, 293 Md. 629, 643 , 446 A.2d 1140 (1982).
It makes no sense to me to hold, as does the majority, that when a charter county elects to waive governmental immunity under § 5(CC), it must do so without limitation or not at all. Such an “all or nothing” interpretation is, in my view, both illogical and unwarranted by the verbiage of § 5(CC); most assuredly, this interpretation will inhibit other charter counties from waiving governmental immunity and particularly so in light of Prince George’s County’s experience. See Bradshaw v. Prince George’s County, 284 Md. 294 , 396 A.2d 255 (1979) and James v. Prince George’s County, 288 Md. 315 , 418 A.2d 1173 (1980).
*397 I would hold that § 5(CC) does not prevent a charter county from adopting an immunity waiver less broad than that described by the first sentence of § 5(CC). I would, therefore, answer the first certified question in the affirmative, i.e., that the voters of Prince George’s County, in the 1982 amendment to § 1013, had the power to limit the county’s waiver of its governmental immunity.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9645600. Public record. Not legal advice.