Gov’t Liability Issues Loom Large As Lawyers, Judges Reflect on Recent Cases

A Daily Record article (2016-06-16) highlighted a panel discussion on recent Maryland Court of Appeal holdings that had particular relevance for the state and local governments. The discussion was part of the Maryland State Bar Association’s annual meeting and was titled “Has suing the government become our national pastime?” The panelists included attorney Tim Maloney from Joseph, Greenwald & Laake; attorney Kevin Karpinski of Karpinski, Colaresi & Karp PA; Court of Appeals Judge Robert McDonald; and retired Judge Glenn Harrell. The key case under discussion was the case of Espnia v. Jackson, which held that the Local Government Tort Claims Act (LGTCA) damage caps applied to all claims, including constitutional violations. The panelists agreed that Espina would likely result in more constitutional claims being brought in federal as opposed to state court. From the article:

“I think [constitutional claims] are effectively federalized,” said Maloney…who represented the family of Prince George’s County man killed by an off-duty police officer which won an $11 million jury verdict. “It would be malpractice to bring it under a state constitutional tort.”

“If you think you’ve got a blockbuster of a case, you have to file a 1983 claim in federal court,” added Karpinski…whose firm represented the county, which won on appeal a reduction of the verdict to $400,000. “I think we’ll see a lot more of these cases being filed in federal court.” …

Harrell said he and his colleagues “were not concerned with strategy and tactics” when reaching their decision but acknowledged Maloney and Karpinski were probably on to something.

The article also discussed the panel’s analysis of two other Court of Appeals cases: (1) Litz v. Maryland Department of the Environment, which dealt with inverse condemnation; and (2) Fraternal Order of Police v. Montgomery County, which allowed county elected officials to use public funds and employees to advocate on policy issues. Maloney was critical of the Fraternal Order decision:

Maloney, a former state legislator, said the whole concept of his tax dollars being used by the county to print bumper stickers telling him how to vote “really stuck up his craw.” But he admitted the court’s opinion was well-developed.

His larger concern, however, was the fact that political candidates have to report all of their spending while a county government can spend what it wants without having to disclose anything.

“Something’s wrong with that picture,” he said.

Useful Links

Maryland State Bar Association Website

Espina Case

Litz Case

Fraternal Order of Police Case