Higginbotham v. Public Service Commission

Concurring and Dissenting Opinion by HARRELL, Judge, which RAKER, J., Joins.

I agree with the Majority opinion’s reasoning and affirmance of the trial court’s dismissal of Higginbotham’s claims against the individual members of the Public Service Commis*132sion (“PSC”). I dissent, however, from the reversal of the judgment of dismissal as to the PSC. According to the Majority opinion’s interpretation of Maryland Code, State Government Article1 § 12-106(b)(3),2 part of the Maryland Tort Claims Act (“MTCA”),3 the State of Maryland enjoys considerably less protection from the initiation against it of untimely defamation actions than does any other potential defendant, exposing it to an additional two-year “window.” The Majority opinion reaches this conclusion based primarily on the location of SG § 12-106(b)(3) within the SG Article and its review of the MTCA’s legislative history. I disagree with that conclusion. Based on principles of sound statutory interpretation, sovereign immunity, and common sense, I would hold that the one-year statute of limitations generally applicable to defamation actions, contained in Maryland Code, Courts & Judicial Proceedings Article4 § 5-105,5 applies to bar Appellant’s action against Appellee, the Public Service Commission, in addition to barring his action against Appellee Schisler and the other members of the PSC.

*133I. STATUTORY INTERPRETATION

Condon v. State of Maryland-University of Maryland, 332 Md. 481, 632 A.2d 753 (1993), is one of many cases where we describe the basic principles of statutory interpretation, including the importance of harmonizing seemingly contradictory statutes and avoiding nonsensical constructions:

The cardinal rule of statutory construction is to ascertain and carry out the true intentions of the legislature. In searching for legislative intention, a court looks for the general purpose, aim, or policy behind that statute. We first look to the plain meaning of the language of the statute to discern legislative intent. Where the language is clear and unambiguous, a court may not add or delete words to make a statute reflect an intent not evidenced in that language to avoid a harsh result. A clearly worded statute must be construed without ‘forced or subtle interpretations’ that limit or extend its application. The language must be examined in the context in which it was adopted. All parts of a statute are to be read together to determine intent, and reconciled and harmonized to the extent possible. If reasonably possible, a statute should be read so that no part of it is rendered nugatory or superfluous. Where a statute may be susceptible of more than one meaning, the court may consider the consequences of each meaning and adopt that construction which avoids a result that is unreasonable, illogical or inconsistent with common sense. If it often necessary to look at the development of a statute to discern legislative intent that may not be as clear upon initial examination of the current language of the statute.

Id. at 491-92, 632 A.2d at 757-58 (internal citations omitted) (emphasis added).

We also follow the admonition that “[w]here statutes relate to the same subject matter, and are not inconsistent with each other, they should be construed together and harmonized where consistent with their general object and scope.” Gwin v. Motor Vehicle Admin., 385 Md. 440, 462, 869 A.2d 822, 834 (2005). It is our “duty to read and construe overlapping *134statutes together and in harmony.” Magnetti v. University of Maryland, 402 Md. 548, 571, 937 A.2d 219, 233 (2007). We “presume that the legislature intended that both enactments operate together as a consistent and harmonious body of law....” State v. Harris, 327 Md. 32, 39, 607 A.2d 552, 555 (1992). “[W]henever reasonably possible, they must be construed to avoid repeal by implication of the earlier statute.” Id.

When courts engage in statutory interpretation, a statute “must be given a reasonable interpretation, ‘not one that is illogical or incompatible with common sense.’ ” Smack v. Dep’t of Health and Mental Hygiene, 378 Md. 298, 305, 835 A.2d 1175, 1179 (2003). Whenever possible, “an interpretation should be given to the statutory provisions which does not lead to absurd consequences.” Barbre v. Pope, 402 Md. 157, 172, 935 A.2d 699, 708 (2007). In determining such an interpretation, we may consider “the relative rationality and legal effect of various competing constructions.” Baltimore County v. RTKL Assocs. Inc., 380 Md. 670, 678, 846 A.2d 433, 438 (2004).

II. SOVEREIGN IMMUNITY AND THE MTCA

The doctrine of sovereign immunity “bars individuals from bringing actions against the State, thus protecting it from interference with governmental functions and preserving its control over its agencies and funds.” Condon, 332 Md. at 492, 632 A.2d at 758. The doctrine “is applicable to the State’s agencies and instrumentalities, unless the legislature has explicitly or by implication waived governmental immunity.” Id. When a governmental agency or actor is cloaked with and invokes the doctrine of sovereign immunity, “no contract or tort suit can be maintained thereafter against it unless the General Assembly has specifically waived the doctrine.” Magnetti, 402 Md. at 557, 937 A.2d at 224. We have held that “immunity from suit is ‘one of the highest attributes of sovereignty,’ and that any waiver of that immunity must come from the Legislature.” State v. Sharafeldin, 382 Md. 129, 140, 854 A.2d 1208, 1214 (2004). This Court “read[s] and ‘eonstrue[s] legislative dilution of governmental immunity narrowly in or*135der to avoid weakening the doctrine of sovereign immunity by judicial fiat.’ ” Magnetti, 402 Md. at 565, 937 A.2d at 229.

With enactment of the MTCA, the General Assembly generally “waived the State’s immunity from liability in tort in a number of specified court actions, to the extent and in the amount that the State is covered by a program of insurance established by the State Treasurer----” Harris, 327 Md. at 34, 607 A.2d at 553. This waiver is limited, however, in that it applies only to certain categories of tort actions, does not cover certain kinds and levels of damages, and is “subject to certain conditions.” Gardner v. State, 77 Md.App. 237, 239, 549 A.2d 1171, 1172 (1988); Simpson v. Moore, 323 Md. 215, 230-31, 592 A.2d 1090, 1097 (1991) (noting that under the MTCA, the “State waived its immunity, but imposed certain procedural requirements for the successful maintenance of a claim or action against it”). Section 12-106(b) of the SG Article, entitled “Restrictions on actions,” provides those conditions which must be satisfied before the State’s immunity from suit is waived:

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

Md.Code Ann. (1984, 2004 RepLVol.), SG Article § 12-106(b). In order to sue the State in tort, a plaintiff must demonstrate compliance with those conditions; if those conditions have not been fulfilled, the State retains its sovereign immunity.

III. HOW THE FOREGOING PRINCIPLES OUGHT TO APPLY TO THE PRESENT CASE

Section 12-106(b)(3) of the SG Article states generally that a claim against the State will be barred unless “the action is *136filed within 3 years after the cause of action arises.” The Majority opinion reasons that this provision creates a uniform three-year statute of limitations for all tort claims brought against the State. I disagree and would hold instead that the plain language of § 12-106(b)(3) operates merely as a condition precedent to the State’s waiver of sovereign immunity, rather than as a statute of limitations applicable to all claims brought against the State.

A condition precedent is a “condition attached to the right to sue at all” and “operates as a limitation of the liability itself as created, and not of the remedy alone.” Rios v. Montgomery County, 386 Md. 104, 127, 872 A.2d 1, 14 (2005). “[Wjhere 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.” Waddell v. Kirkpatrick, 331 Md. 52, 60, 626 A.2d 353, 357 (1993); Sharafeldin, 382 Md. at 148, 854 A.2d at 1219. Unlike a statute of limitations, a “condition precedent cannot be waived under the common law and a failure to satisfy it can be raised at any time because the action itself is fatally flawed if the condition is not satisfied.” Rios, 386 Md. at 127, 872 A.2d at 14.

We consistently have found that SG § 12-202,6 the equivalent of SG § 12-106(b)(3) applicable to contract suits against the State, “is not a mere statute of limitations [which can be waived] but sets forth a condition to the action itself.” Magnetti, 402 Md. at 565, 568, 937 A.2d at 229, 231 (noting that § 12-202 is the “applicable condition precedent” to the bringing of a contract-based cause of action against the State). If the condition is not fulfilled because a claimant fails to bring his or her action within the specified period of time, the State’s sovereign immunity is not waived and the plaintiff *137loses his or her right to maintain a claim against the State. Id. at 565, 937 A.2d at 229.

In Sharafeldin, we noted that SG § 12-202 “is not worded like the traditional statutes of limitation, which normally state only that an action ‘shall be filed within’ the allowable period.” Sharafeldin, 382 Md. at 140, 854 A.2d at 1214. The traditional statutes of limitation, such as CJ §§ 5-101 and 5-105, generally “say nothing about an untimely action being ‘barred’ ” and are subject to waiver if not raised by a defendant as an affirmative defense. Id. at 141, 854 A.2d at 1214. We reasoned that:

[i]n 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. As such, we concluded that SG § 12-202 is not a mere statute of limitations, but instead is a condition to the action itself. Id. at 148, 854 A.2d at 1219.

Similarly, Maryland’s appellate courts repeatedly have opined that the “notice-of-claim” requirement contained in SG § 12-106(b)(1) is “a condition precedent to filing suit, i.e., an act that must be fulfilled for immunity from suit to be waived, and thereby creating an otherwise non-existent right to sue, not a statute of limitations that places a time-bar on an already-existing right to sue.” State v. Copes, 175 Md.App. 351, 372, 927 A.2d 426, 438 (2007); Johnson v. Maryland State Police, 331 Md. 285, 290, 628 A.2d 162, 164 (1993) (finding that “the Tort Claims Act’s administrative claim requirement is not a statute of limitations” but rather “a condition precedent to *138the initiation of an action under the -Act”); Harris, 327 Md. at 41, 607 A.2d at 556-57 (finding the MTCA’s notice of claim requirement to be “a condition precedent to the waiver of the State’s sovereign immunity”).

I submit that SG § 12-106(b)(3), like its counterpart in SG § 12-202, is a condition precedent to bringing suit against the State, rather than a statute of limitations.7 The MTCA created both the right to sue the State in tort and the potential remedy of a damage award against the State. As declaimed in Waddell and Sharafeldin; where a statute containing a limitation period creates both the right and the remedy, the limitation period constitutes a condition precedent to maintaining suit, not merely a statute of limitations subject to waiver if not raised by the defendant as an affirmative defense. As such, SG § 12-106(b)(3) mandates that a failure to bring suit against the State within three years eliminates both the right to sue and the remedy for the injury caused. It is not subject to waiver, and a failure to fulfill the condition precedent may be raised by the State at any time. In this manner, SG § 12-106(b)(3) constitutes a condition precedent to the waiver of the State’s sovereign immunity, distinct from any statute of limitations governing the asserted claims.

In addition, SG § 12-106(b)(3) uses similar language to that of SG § 12-202, stating that a claimant “may not institute an action under this subtitle” unless the conditions are fulfilled. As observed in Sharafeldin, this type of language differs significantly from that of standard statutes of limitation, such as CJ § 5-105, which generally provide only that an action “shall” be filed within a certain period of time. This linguistic difference signals a condition precedent, not a statute of limitations. Based on this distinction, SG § 12-106(b)(3) is a condition precedent, rather than a statute of limitations, and *139provides an additional limitation on the right to sue the State. The condition precedent of SG § 12-106(b)(3) works in concert with the statute of limitations period for defamation suits contained in CJ § 5-105, rather than supplanting it entirely.

It is our duty, noted supra, to harmonize seemingly contradictory provisions and avoid illogical or absurd results. We must recall the importance of the State’s sovereign immunity and prevent the dilution of the doctrine “by judicial fiat.” Under the Majority opinion’s interpretation of SG § 12-106(b)(3), a plaintiff asserting a defamation claim may sue the State at any point within a three-year period, whereas that same plaintiff bringing the same cause of action against a private defendant must do so within one year. Such a result is contrary to common sense and undermines significantly the State’s sovereign immunity.

By understanding SG § 12-106(b)(3) as a condition precedent to the State’s waiver of sovereign immunity, rather than a uniform statute of limitations for all claims brought against the State, SG § 12—106(b)(3) and CJ § 5-105 may be harmonized, thus avoiding dilution of the State’s sovereign immunity protection. Under this interpretation, SG § 12-106(b) provides three conditions precedent that must be fulfilled by a plaintiff before the State consents to waive its sovereign immunity. A prospective plaintiff must demonstrate fulfillment of those conditions before he or she may maintain an action against the State. If he or she meets those conditions, the claim remains subject to the statutes of limitations contained in CJ § 5-101, et seq., including the one-year statute of limitations for defamation actions provided by CJ § 5-105. This reading allows both the conditions precedent of SG § 12-106(b) and the statutes of limitation contained in CJ § 5-101, et seq., to exist together harmoniously and provide separate restrictions on defamation actions against the State. Additionally, this reading recognizes the important protections of sovereign immunity because, unlike a plaintiff suing a private party in defamation, a plaintiff seeking to sue the State in defamation must face the additional hurdle of demonstrating compliance with the conditions of SG § 12-106(b) before the *140State may be said to have waived sovereign immunity. Otherwise, under the Majority opinion, the State enjoys less protection from defamation suits than a private defendant, a conclusion that undermines significantly the doctrine of sovereign immunity and, I submit, defies common sense. Therefore, I decline to read SG § 12-106(b)(3) to reach such a strange and facially illogical result, absent clearer evidence of a legislative intent to abrogate the one-year statute of limitations on defamation actions contained in CJ § 5-105 and replace it with a longer three-year statute of limitations for actions brought only against the State.

IV. CONCLUSION

Under my reading of SG § 12—106(b)(3), when a defamation suit is brought against the State (here, the PSC), a plaintiff must file suit within the applicable statute of limitations found in CJ § 5-105 and additionally demonstrate that the conditions precedent contained in SG § 12-106(b)(3) have been fulfilled. Contrary to the Majority’s view, I maintain that SG § 12-106(b)(3) does not replace the statute of limitations applicable to all defamation suits against defendants and instead acts merely as a condition precedent to the State’s waiver of sovereign immunity. For this reason, Appellant’s . failure to bring suit within the one-year statute of limitations provided by CJ § 5-105 bars his defamation claim against the State, despite his timely compliance with the conditions precedent demanded by SG § 12-106(b)(3). Accordingly, I would affirm entirely the judgment of the Circuit Court for Baltimore City, which dismissed Higginbotham’s complaint against all of the defendants.

Judge RAKER authorizes me to state that she joins this concurring and dissenting opinion.

. For the sake of consistency of citation format with the Majority opinion, the State Government Article hereafter will be abbreviated in the text as “SG.”

. Section 12-106(b), entitled “Restrictions on actions,” provides:

(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 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. Md.Code Ann. (1984, 2004 Repl.Vol.), State Gov’t § 12-106(b).

. Md.Code Ann. (1984, 2004 Repl.Vol.), State Gov’t § 12-101, etseq.

. The Courts & Judicial Proceedings Article will be abbreviated in the text as "CJ.”

. Section 5-105, entitled "Assault, libel, or slander,” provides:

An action for assault, libel, or slander shall be filed within one year from the date it accrues.

Md.Code Ann. (1974, 2006 Repl.Vol.), Cts & Jud. Proc. § 5-105.

. Section § 12-202, entitled "Limitation on claims," provides:

A claim under this subtitle is barred unless the claimant files suit within 1 year after the latter of:
(1) the date on which the claim arose; or
(2) the completion of the contract that gives rise to the claim. Md.Code Ann. (1984, 2004 Repl.Vol.), State Gov't § 12-202.

. Although the Legislature, through staff-created records of the various legislative proceedings, may have referred from time to time in its legislative history to SG § 12-106(b)(3) as a statute of limitation, we held that such casual references do not establish conclusively that a particular provision is á technical statute of limitations, rather than a condition precedent. See, e.g., Waddell, 331 Md. at 61, 626 A.2d at 357.