Higginbotham v. Public Service Commission , 412 Md. 112 ( 2009 )

MURPHY, Judge.

In this appeal from the Circuit Court for Baltimore City, Robert M. Higginbotham, II, Appellant,¹ presented the Court of Special Appeals with a single question:

Does Maryland State Government Article § 12—106(b)(3), which requires that an action under the Maryland Tort Claims Act be filed within three years after the cause of action arises, create a uniform three-year statute of limitations for all tort actions brought pursuant to the Act, including defamation claims that otherwise would be subject to the one-year statute of limitations in Maryland Courts & Judicial Proceedings Article § 5-105?

Prior to argument before a panel of the Court of Special Appeals, this Court issued a writ of certiorari on its own initiative. 406 Md. 743, 962 A.2d 370 (2008). For the reasons that follow, we hold that the answer to this question is “yes” as to the defamation action asserted against the Public Service Commission, but “no” as to the defamation action asserted against Appellee Kenneth D. Schisler, the former Chair of the Public Service Commission, who was not sued within one year from the date that he allegedly defamed Appellant.

Procedural History

Because the factual disputes between the parties is of no consequence to the issue presented in the case at bar, while it does no harm to point out that the parties have previously been before the Court of Special Appeals, which resolved some of their disputes in Higginbotham v. PSC, 171 Md.App. 254, 909 A.2d 1087 (2006), it would serve no useful purpose to set forth a detailed factual background. Suffice it to say that according to Appellant, in the words of his brief:

On April 15, 2004, large photographs of five Public Service Commission employees, including of Appellant Robert M. Higginbotham, II, were prominently posted in the lobby of the William Donald Schaefer Tower at the direction of then-Chairman Kenneth Schisler. These photographs were on display to the public through at least April 21, 2004. It as undisputed, and the Circuit Court determined, that [Appellant] was not on notice of the photographs for statute of limitations purposes until April 19, 2004.

On September 10, 2004, [Appellant] presented a claim to the Treasurer for defamation and other torts. The Treasurer denied the claim on October 19, 2004. On January 6, 2005, [Appellant] filed this action in the Circuit Court for Baltimore City ... alleging a number of claims; including, in Court V, defamation.

On April 16, 2007, [Appellant] filed another ... Amended Complaint, which was captioned Corrected Amended Complaint.

On the February 20, 2008 hearing on [Appellees’] renewed motion for summary judgment, the Circuit Court held that the one-year statute of limitations generally applicable to defamation actions under Courts & Judicial Proceedings § 5-105 applied over the three-year statute of limitations applicable to tort claims filed under the MTCA pursuant to State Government § 12-106. The Circuit Court ruled that the Amended Complaint arose from separate and distinct facts and allegations than those alleged in the original complaint filed on January 6, 2005 and did not relate back for purposes of limitations. The Circuit Court then held that [Appellant] “knew or should have known on April 19th [2004] of the existing defamatory action” and, therefore, granted summary judgment in favor of [Appellees] because the Amended Complaint was filed more than one year (although less than three years) after April 19, 2004.

(Footnotes omitted).

Appellant’s “Corrected Amended Complaint” added Mr. Schisler as an “individual capacity” defendant, and included a WHEREFORE clause seeking an award of money damages for which Mr. Schisler would be “personally” responsible. In the words of Appellant’s Amended Complaint, “[Appellee] Schisler acted with malice, committed conscious and deliberate wrongs and also acted with an evil motive, as well as ill will and spite[.]”

According to Appellees, in the words of their brief:

While [Appellant] filed a notice of claim arising out of his termination with the State Treasurer in September 2004 and a lawsuit in January 2005, neither included a claim for the posting of the photograph. That claim first appeared in his Amended Complaint, filed on April [16], 2007, nearly three years later. [Appellant’s] claim for defamatory posting of his photograph is thus barred by the one-year State of Limitations for defamation. The Maryland Tort Claims Act’s (“MTCA”) outer limit of three years for filing an action against the State, one of three conditions precedent to MTCA actions, does not save [Appellant] from the consequences of waiting two years past the expiration of the statute of limitations to file a claim based on the posting of the photograph.

The issue before us is one of statutory interpretation.

Discussion

I.

In WCI v. Geiger, 371 Md. 125, 807 A.2d 32 (2002), this Court stated:

Repeatedly, we have emphasized that “the paramount object of statutory construction is the ascertainment and effectuation of the real intention of the Legislature.” Whiting-Turner Contracting Co. v. Fitzpatrick, 366 Md. 295, 301, 783 A.2d 667, 670 (2001). See Robinson v. State, 353 Md. 683, 694, 728 A.2d 698, 703 (1999); Degren v. State, 352 Md. 400, 417, 722 A.2d 887, 895 (1999); Wesley Chapel v. Baltimore, 347 Md. 125, 137, 699 A.2d 434, 440 (1997); Oaks v. Connors, 339 Md. 24, 35, 660 A.2d 423, 429 (1995). In seeking to ascertain legislative intent, we first look to the words of the statute, see Mayor and City Council of Baltimore v. Chase, 360 Md. 121, 126, 756 A.2d 987, 990 (2000); Harris v. State, 353 Md. 596, 606, 728 A.2d 180, 184 (1999); Lewis v. State, 348 Md. 648, 653, 705 A.2d 1128, 1131 (1998); Marriott Employees Fed. Credit Union v. Motor Vehicle Admin., 346 Md. 437, 444-45, 697 A.2d 455, 458 (1997); Stanford v. Maryland Police Training & Correctional Comm’n, 346 Md. 374, 380, 697 A.2d 424, 427 (1997) (quoting Tidewater v. Mayor of Havre de Grace, 337 Md. 338, 344, 653 A.2d 468, 472 (1995)), viewing them “in ordinary terms, in their natural meaning, in the manner in which they are most commonly understood.” Derry v. State, 358 Md. 325, 335, 748 A.2d 478, 484 (2000); see also Sacchet v. Blan, 353 Md. 87, 92, 724 A.2d 667, 669 (1999); Whack v. State, 338 Md. 665, 672, 659 A.2d 1347, 1350 (1995). “Where the statutory language is plain and free from ambiguity, and expresses a definite and simple meaning, courts do not normally look beyond the words of the statute itself to determine legislative intent.” Degren, 352 Md. at 417, 722 A.2d at 895 (citing Marriott Employees, 346 Md. at 444-45, 697 A.2d at 458); Kaczorowski v. Mayor of Baltimore, 309 Md. 505, 515, 525 A.2d 628, 633 (1987); Hunt v. Montgomery County, 248 Md. 403, 414, 237 A.2d 35, 41 (1968). Nor may a court under those circumstances add or delete language so as to “reflect an intent not evidenced in that language,” Condon v. State, 332 Md. 481, 491, 632 A.2d 753, 755 (1993), or construe the statute with “ ‘forced or subtle interpretations’ that limit or extend its application.” Id. (quoting Tucker v. Fireman’s Fund Insurance Co., 308 Md. 69, 73, 517 A.2d 730, 732 (1986)).

We have acknowledged that in determining a statute’s meaning, courts may consider the context in which a statute appears, including related statutes and, even when a statute is clear, its legislative history. See Morris v. Prince George’s County, 319 Md. 597, 604, 573 A.2d 1346, 1349 (1990); see also Kaczorowski v. Mayor and City Council of Baltimore, 309 Md. 505, 515, 525 A.2d 628, 633 (1987). We have cautioned, however, that this inquiry is “in the interest of completeness,” Harris [v. State, 331 Md. 137, 146, 626 A.2d 946, 950 (1993)], “to look at the purpose of the statute and compare the result obtained by use of its plain language with that which results when the purpose of the statute is taken into account.” Id. That inquiry, in other words, we emphasized in Chase, “is a confirmatory process; it is not undertaken to contradict the plain meaning of the statute.” Chase, supra, 360 Md. at 131, 756 A.2d at 993; see also Coleman v. State, 281 Md. 538, 546, 380 A.2d 49, 54 (1977) (“a court may not as a general rule surmise a legislative intention contrary to the plain language of a statute or insert exceptions not made by the legislature.”).

Id. at 140-43, 807 A.2d at 41-42.

The Maryland Tort Claims Act (MTCA) is presently codified in Subtitle 1 of Title 12 of the State Government Article (SG). Since October 1, 1995, SG § 12-106 has, in pertinent part, provided:

(b) A claimant may not institute an action under this subtitle unless:

(1) the claimant submits a written claim to the Treasurer or a designee of the Treasurer within 1 year after the injury to person or property that is the basis of the claim;

(2) the Treasurer or designee denies the claim finally; and

(3) the action is filed within 3 years after the cause of action arises.

This statute is neither unclear nor ambiguous. Appellees argue, however, that a defamation action filed pursuant to the MTCA must also comply with § 5-105 of the Courts and Judicial Proceedings Article (CJ 5-105), which requires that a defamation action “be filed within one year from the date it accrues.” In Walzer v. Osborne, 395 Md. 563, 911 A.2d 427 (2006), this Court stated:

[T]he Legislature is presumed to have meant what it said and said what it meant. When the statutory language is clear, we need not look beyond the statutory language to determine the Legislature’s intent.

If the language of the statute is ambiguous, however, then “courts consider not only the literal or usual meaning of the words, but their meaning and effect in light of the setting, objectives and purpose of [the] enactment [under consideration].”

When a statute can be interpreted in more than one way, “ ‘the job of this Court is to resolve that ambiguity in light of the legislative intent, using all resources and tools of statutory construction at our disposal.’ ” [Chow v. State 393 Md. 431, 444, 903 A.2d 388, 395 (2006)].

If the true legislative intent cannot readily be determined from the statutory language alone, however, we may, and often must, resort to other recognized indicia—among other things, the structure of the statute, including its title; how the statute relates to other laws; the legislative history, including the derivation of the statute, comments and explanations regarding it by authoritative sources during the legislative process, and amendments proposed or added to it; the general purpose behind the statute; and the relative rationality and legal effect of various competing constructions.

Witte [v. Azarian], 369 Md. [518] at 525-26, 801 A.2d [160] at 165 [(2002)]. In construing a statute, “[w]e avoid a construction of the statute that is unreasonable, illogical, or inconsistent with common sense.” Blake v. State, 395 Md. 213[, 224] 909 A.2d 1020[, 1026] (2006).

Id. at 572-73, 911 A.2d at 432.

A “look beyond the statutory language to determine the Legislature’s intent” compels the conclusion that there is no merit in Appellees’ argument. When we consider the context in which this statute appears, and its legislative history, we are persuaded that—although it initially intended that all MTCA actions were required to be filed within “the applicable statute of limitations”—the General Assembly “meant what it said and said what it meant” in 1994, when an amendment to SG § 12-106 imposed the requirement that all MTCA actions be “filed within 3 years after the cause of action arises.”

When the Maryland Tort Claims Act was enacted in 1981, it was codified in Subtitle 4 of Title 5 of the Courts & Judicial Proceedings Article. Effective June 1, 1981, CJ 5-406(a), in pertinent part, provided:

(1) ... [A]n action may not be instituted pursuant to this subtitle unless the claimant has first presented the claim in writing to the State Treasurer or his designee and the claim has been denied in writing sent to the claimant by certified or registered mail. The failure of the State to make final disposition of a claim within 6 months of receipt shall, at the option of the claimant, be deemed a final denial of the claim for purposes of this section.

(3) The filing of a claim tolls the applicable statute of limitations for a period of 60 days following a final denial if the claim was made within the applicable period of limitations.

(Emphasis added). Although CJ 5-406 was amended in 1982, no change was made to § (a)(3).

In 1984, the General Assembly enacted the State Government Article, re-codified the Maryland Tort Claims Act in Subtitle 1 of Title 12 of that article, and amended the procedure for instituting MTCA actions. As of June 1, 1984, Sections 12-105 and 12-107 of the State Government Article, in pertinent part, provided:

12-105. Restrictions on Actions.

(B) Claim and denial required.

A claimant may not institute an action under this subtitle unless:

(1) The claimant submits a written claim to the Treasurer or a designee of the Treasurer; and

(2) The Treasurer or designee denies the claim finally.

12-107. Actions

(A) Statute of Limitations.

If a claim under this subtitle is filed within the applicable period of limitations, the filing tolls the statute of limitations until 60 days after a final denial of the claim.

(Emphasis added).

The “applicable period of limitations” restriction was eliminated when the MTCA was amended in 1985. As of July 1, 1985, Section 12-106 of the State Government Article, in pertinent part, provided:

(b) A claimant may not institute an action under this subtitle unless:

(1) the claimant submits a written claim to the Treasurer or a designee of the Treasurer within 180 days after the injury to person or property that is the basis of the claim;

(2) the Treasurer or designee denies the claim finally; and

(3) the action is filed within 1 year after the claim is denied finally or 3 years after the cause of action arises, whichever is later.

(Emphasis added).

Senator John C. Coolahan of Baltimore County, a lawyer/legislator who later served with distinction on the District Court of Maryland for Baltimore County, was the sponsor of Senate Bill 380, which was “Reported FAVORABLY WITH AMENDMENTS by the Committee on Judicial Proceedings on [March 15, 1985].” The SUMMARY OF COMMITTEE REPORT for that bill, prepared by the Department of Legislative Reference, included the following information:

CURRENT LAW—STATUTE OF LIMITATIONS

If a tort claim is filed, the statute of limitations stops running until 60 days after the State Treasurer renders a final denial of the claim.

CHANGES MADE BY THE BILL—STATUTE OF LIMITATIONS

S.B. 380 repeals this provision! ] and establishes a requirement that a tort action against the State must be filed within 1 year after the State Treasurer finally denies the claim.

LEGISLATIVE INTENT:

The purpose of this bill is to clarify the legal tmcertainty in the present law covering tort claims against the State.

The 1985 amendments did not clarify every uncertainty in the law. For example, in Johnson v. Maryland State Police, 331 Md. 285, 628 A.2d 162 (1993), this Court answered “no” to the question of whether “Maryland’s general tolling statute for minors, § 5-201 of the Courts and Judicial Proceedings Article, should be applied to the 180-day requirement for filing a claim under the Maryland Torts Claims Act.” Id. at 290, 628 A.2d at 164. In that case, although the plaintiffs filed their damage actions in the Circuit Court for Allegany County well within both CJ 5-101 and then existing SG § 12—106(b)(3),² this Court held that the plaintiffs’ failure to comply with “the 180-day administrative claim requirement” (then found in SG § 12—106(b)(1)) prohibited them from maintaining actions under the Maryland Tort Claims Act. In doing so, this Court stated:

Contrary to the plaintiffs’ argument, the Tort Claims Act’s administrative claim requirement is not a statute of limitations. Instead, it is “a condition precedent to the initiation of an action under the Act.” Simpson v. Moore,

supra, 328 Md. [215] at 219, 592 A.2d [1090] at 1092 [(1991)]. Id. at 290, 628 A.2d at 164.

Thereafter, in Condon v. State of Maryland-University of Maryland, 332 Md. 481, 632 A.2d 753 (1993), this Court rejected the argument “that § 12-106(b)(3), which [then provided] that a claimant must file an action within one year after a claim is finally denied or three years after a cause of action arose, whichever is later, cannot be reconciled with § 12-107(d)(2)[, which then provided] that a claim is finally denied six months after it is filed if no written denial is received.” Id. at 494-95, 632 A.2d at 759. In that case, the plaintiff complied with the then existing 180-day administrative claim requirement, and never did receive a “written notice” that his claim had been denied, but the Circuit Court for Prince George’s County dismissed his complaint on the ground that it had been filed “more than three years and eleven months after the cause of action arose.” Id. at 489, 632 A.2d at 756. While affirming the dismissal on the ground that SG § 12-107(d)(2) then provided that a claim is “finally” denied “if the Treasurer or designee fails to give notice of a final decision within 6 months after the filing of the claim[,]” this Court stated:

In this case, we are asked not to apply the broad construction mandate to derive legislative intent where intent is not clear from the language of the statute, but instead to infer an intent where the legislature has clearly indicated the contrary. We are asked, in effect, to apply a provision which the legislature expressly deleted from the MTCA in its 1985 amendments, that is, the provision allowing the claimant the option of when to consider the claim finally denied.

Id. at 497, 632 A.2d at 760.

SG § 12-106 was amended again in 1994. As of October 1, 1994, that statute, in pertinent part, provided:

(b) A claimant may not institute an action under this subtitle unless:

(1) the claimant submits a written claim to the Treasurer or a designee of the Treasurer within 180 days after the injury to person or property that is the basis of the claim;

(2) the Treasurer or designee denies the claim finally; and

(3) the action is filed within 3 years after the cause of action arises.

(Emphasis added).

The Department of Legislative Reference’s 1994 SESSION REVIEW included the following synopsis:

Limitations Period

House Bill 472 (passed) changes the limitations period for instituting an action under the Maryland Tort Claims Act so that a claimant is required to file suit within 3 years after the cause of action arises, regardless of when the Office of the Treasurer finally denies the claim.

This bill clarifies the limitations provision of the Maryland Tort Claims Act (MTCA), which provides the time frame for a claimant to file suit in court after a final denial of the claim by the Treasurer’s Office. The existing law uses a dual standard which requires the claimant to file suit within the later of 1 year after a final denial of the claim by the Office of the Treasurer or 3 years after the cause of action arises.

This bill was introduced in response to the recent decision of the Court of Appeals in Condon v. State of Maryland-University of Maryland, 382 Md. 481, 632 A.2d 753 (1993). The bill is intended to eliminate confusion regarding the current law and to make the MTCA limitations consistent with the general statute of limitations under § 5-101 of the Courts Article, which requires that a civil action be filed within 3 years from the date the cause of action arises.

(Emphasis added).

SG § 12-106 was amended again in 1995, but no change was made to § (b)(3). The 1995 SESSION REVIEW prepared by the Department of Legislative Reference includes the following synopsis:

MARYLAND TORT CLAIMS ACT

Senate Bill 115 (passed) increases from 180 days to one year the period of time within which a claimant under the Maryland Tort Claims Act is required to submit a written claim.

Under current law, a party, before instituting an action under the Maryland Tort Claims Act, must first submit a written claim to the Treasurer or a designee of the Treasurer within 180 days after the injury to person or property that is the basis of the claim. If the claim is denied, the claimant must institute an action in court within 3 years after the cause of action arises.

Both the location of SG § 12-106 in Subtitle 1 of Title 12 of the State Government Article, and a review of the MTCA’s legislative history, reinforce the presumption that the General Assembly “meant what it said and said what it meant” when it repealed the “applicable period of limitations” restriction and enacted the requirement that an action under the MTCA be “filed within 3 years after the cause of action arises.” According to Appellees, however, SG § 12-106(b)(3) is not a statute of limitations, but is merely a condition precedent to the State’s waiver of sovereign immunity. If we agreed with that argument, which finds no support whatsoever in the legislative history, we would be adopting a construction of SG § 12-106(b)(3) that is “unreasonable, illogical [and] inconsistent with common sense.” Condon, supra, 332 Md. at 492, 632 A.2d. at 758.

In State v. Sharafeldin, 382 Md. 129, 854 A.2d 1208 (2004), this Court was presented with the question of whether “the General Assembly [intended] the requirement that an action subject to [SG] § 12-201 be filed within one year to be a condition to the waiver of sovereign immunity and thus a condition to the action itself, or merely a shorter statute of limitations that would otherwise apply to a breach of contract action?” Id. at 138, 854 A.2d at 1212. While answering “yes,” to that question, this Court noted that statutes of limitations provide protections that can be waived, but sovereign immunity cannot:

[W]e have regarded limitations as not “denying the plaintiffs right of action, but only the exercise of the right,” Foos v. Steinberg, 247 Md. 35, 38, 230 A.2d 79, 80 (1967). Accordingly, we have held that limitations is an affirmative defense that can be waived and that is waived unless raised in the defendant’s answer. See Maryland Rule 2—323(g); Foos, supra; Brooks v. State, 85 Md.App. 355, 365, 584 A.2d 82, 87 (1991) (Opinion by Bell, J.).

In contrast, SG § 12-202 states that a claim under the subtitle “is barred” unless suit is filed within one year. That, we believe, was intended to preserve the effect of sovereign immunity itself, which barred the action entirely. In using that language, the Legislature could not have intended to permit subordinate agencies, or counsel for those agencies, to be able to permit an action that the Legislature expressly declared “barred” to proceed nonetheless, by simply omitting to raise the defense. That would effectively allow sovereign immunity to be waived by subordinate agencies or the attorneys who represent them which, as noted, we have consistently held they are not empowered to do.

Id. at 141, 854 A.2d at 1214.

In Sharafeldin, after quoting from Blocher v. Harlow, 268 Md. 571, 581, 303 A.2d 395, 400 (1973), which noted that “[tjhere is a substantial body of law to the effect that where a limitation period is stipulated in a statute creating a cause of action it is not to be considered as an ordinary statute of limitations, but is to be considered as a limitation upon the right as well as the remedy[,]” this Court stated:

The 1976 law, now codified in SG §§ 12-201 and 12-202, was intended as a conditional waiver of the State’s sovereign immunity in contract actions, which was to be accomplished by precluding the State and its agencies from raising that defense if the action was founded on a written contract executed by an authorized official or employee and the action was brought within the one-year period. If the action was not brought within that period, however, it was “barred.” The sovereign immunity that the State enjoyed remained in effect; it could not be waived by subordinate agencies or their attorneys, and thus the agencies were required by law to raise the defense. We hold, therefore, that § 12-202 is not a mere statute of limitations but sets forth a condition to the action itself. The waiver of the State’s immunity vanishes at the end of the one-year period, and an action filed thereafter is subject to the same fate it would have suffered prior to the enactment of the 1976 legislation.

Id. at 148-49, 854 A.2d at 1219.

The above quoted legislative history of SG § 12-106 is entirely consistent with the holding in Sharafeldin. We therefore hold that, like SG § 12-202, SG § 12-106(b)(3) is not a “mere” or “ordinary” statute of limitations, but is both a statute of limitations and—along with SG § 12—106(b)(1)—a condition precedent to the waiver of sovereign immunity. A holding that CJ 5-105 has remained applicable to MTCA assault and defamation claims asserted in full compliance with both SG § 12—106(b)(1) and § 12-106(b)(3) would (1) require that the plaintiff comply with both CJ 5-105 and SG § 12-106(b)(1) within the same period of time, and (2) permit a subordinate State agency to waive the affirmative defense of limitations with respect to claims asserted in compliance with SG § 12-106 but filed in court more than one year after the cause of action arises. In light of the 1985 amendments to the MTCA that removed the “applicable period of limitations” restriction, such a holding would be unreasonable, illogical, and inconsistent with common sense, as well as totally inconsistent with the above quoted legislative history. As was the case in Condon, supra, we decline “to apply a provision which the legislature expressly deleted from the MTCA in its 1985 amendments[.]” 332 Md. at 497, 632 A.2d at 760.

We therefore (1) hold that the Circuit Court erred in its ruling that the defamation action asserted by Appellant on April 16, 2007 was “barred” by CJ 5-105 as to all Appellees, (2) vacate the judgments entered in favor of the Public Service Commission, and (3) remand for further proceedings not inconsistent with this opinion.

II.

We shall affirm the judgments entered in favor of all of the other Appellees. Because the State has, subject to money limits that are of no consequence in the case at bar, granted immunity from liability in tort to tortious acts or omissions committed by its employees (1) within the scope of their employment, and (2) without malice or gross negligence, for reasons stated in Larsen v. Chinwuba, 377 Md. 92, 94-5 n. 1, 832 A.2d 193, 194 n. 1 (2003), and Lee v. Cline, 384 Md. 245, 261-62, 863 A.2d 297, 306-07 (2004), we hold that the present members of the Public Service Commission are entitled to immunity from suit. We also hold that the Circuit Court was correct in its ruling that CJ 5-105 does apply to the defamation action asserted against Mr. Schisler, the former Chair of the Public Service Commission, which sought an award of damages that Mr. Schisler would be “personally” responsible to pay. These holdings are in no way based upon the fact that the present members were sued in their “representative” capacity or that Mr. Schisler was sued in his “individual” capacity.

In Ritchie v. Donnelly, 324 Md. 344, 597 A.2d 432 (1991), this Court held “that the particular and confusing [official/individual capacity] dichotomy developed in [42 USC] § 1988 cases has no application to actions against individual government officials for money damages based on violations of Maryland constitutional rights.” Id. at 373-74, 597 A.2d at 446-47. That holding is equally applicable to intentional tort actions asserted against Maryland public officials. In such actions, it is of no consequence whether the Maryland public official is sued in his or her “official” capacity or “individual” capacity. What is of consequence is the question of whether the State or the public official will be responsible for the payment of any judgment. The answer to that question depends upon the findings made by the trier of fact on the issues of whether the public official (1) committed the alleged tort, (2) did so within the scope of his or her employment,³ and (3) did so with actual malice towards the plaintiff.

In Lee v. Cline, 384 Md. 245, 863 A.2d 297 (2004), this Court reaffirmed the conclusion “that Maryland common law qualified immunity in tort suits, for public officials performing discretionary acts, has no application in tort actions ... based upon most so called ‘intentional torts’ [because the] Maryland public official immunity doctrine is quite limited and is generally applicable only in negligence actions or defamation actions based on allegedly negligent conduct.” Id. at 258, 863 A.2d at 305. Because the case at bar involves a defamation action based on allegedly intentional conduct, although that alleged conduct was incident to Mr. Schisler’s duties as Chair of the Public Service Commission, he would not have been entitled to public official immunity. The Maryland Tort Claims Act, however, provides statutory immunity “to insulate State employees generally from tort liability if their actions are within the scope of employment and without malice or gross negligence.” Lee, supra, 384 Md. at 261, 863 A.2d at 307. In Lee, this Court also held “that the immunity under the Maryland Tort Claims Act, if otherwise applicable, encompasses constitutional torts and intentional torts.” Id. at 266, 863 A.2d at 310. Therefore, as stated above, whether the State will be responsible to pay any judgment will depend upon the findings made by the trier of fact.

If the trier of fact ultimately answers “yes” to the question of whether Appellant was defamed by Mr. Schisler, but answers “no” to the question of whether Mr. Schisler acted with actual malice towards Appellant, the Circuit Court will enter a judgment against the State in the amount of whatever damages are awarded to Appellant. On the other hand, if the trier of fact ultimately answers “yes” to the question of whether Appellant was defamed by Mr. Schisler, and “yes” to the question of whether Mr. Schisler acted with malice towards Appellant, the Circuit Court will enter a judgment in favor of the State—which has never waived sovereign immunity for actions of State employees that were (1) malicious, (2) grossly negligent, or (3)outside the scope of employment.

JUDGMENTS OF THE CIRCUIT COURT FOR BALTIMORE CITY AFFIRMED IN PART AND VACATED IN PART; JUDGMENTS IN FAVOR OF PRESENT AND FORMER MEMBERS OF THE PUBLIC SERVICE COMMISSION AFFIRMED; JUDGMENT IN FAVOR OF THE PUBLIC SERVICE COMMISSION OF MARYLAND VACATED; CASE REMANDED TO THE CIRCUIT COURT FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION; APPELLANT TO PAY 20% OF THE COSTS; 80% OF THE COSTS TO BE PAID BY THE PUBLIC SERVICE COMMISSION.

1 . Because no prior appellate decision has been rendered in the case at bar, the designation of the parties is controlled by Md. Rule 8-111(a)(1).

2 . Under then existing SG § 12—106(b)(3), a claimant who had complied with the "180-day administrative claim requirement” was required to file the action "within 1 year after the claim is denied finally or the 3 years after the cause of action arises, whichever is later.”

3 . In Larsen v. Chinwuba, 377 Md. 92, 832 A.2d 193 (2003), this Court stated that, in determining scope of employment, the "key” question is whether the act at issue " ‘was incident to the performance of the duties entrusted to him by the [employer]!.]’ ” (Quoting from Wood on Master and Servant § 279 (1877)). Id. at 106, 832 A.2d at 202. Under this test, if Mr. Schisler did commit the tort alleged, he did so within the scope of his employment.