                REPORTED

  IN THE COURT OF SPECIAL APPEALS

             OF MARYLAND

                 No. 1110

          September Term, 2014

______________________________________


        STATE OF MARYLAND

                     v.

        CYNTHIA KELLER-BEE

______________________________________

     Zarnoch,
     Hotten,
     Reed,
                  JJ.
______________________________________

          Opinion by Hotten, J.
______________________________________

     Filed: July 6, 2015
       Appellee, Cynthia Keller-Bee, was taken into custody pursuant to a body attachment

that was improperly issued by the District Court for Harford County. She brought suit in

the Circuit Court for Baltimore City against the State, alleging negligence on the part of

the courtroom clerk who presented the warrant to the District Court judge for signature.

The State moved to dismiss the lawsuit, asserting absolute judicial immunity. The circuit

court denied the motion and the State appealed, presenting one question for our review:

       Does absolute judicial immunity bar a civil suit against the State of Maryland
       arising from the performance of judicial acts, where the only injury alleged
       is the direct and proximate result of the entry of an order by a judge of the
       District Court of Maryland?

For the reasons that follow, we shall reverse the judgment of the circuit court.

                     FACTUAL AND PROCEDURAL HISTORY

       The facts of this case are undisputed. On April 16, 2010, appellee, appeared in the

District Court for Harford County pursuant to a show cause order in a civil action in which

a judgment had been obtained against her. She appeared for the hearing, but the creditor-

plaintiff did not and accordingly, the District Court dismissed the show cause order. Nine

months later, on January 20, 2011, the District Court issued a Body Attachment/Arrest

Warrant, based on a motion for contempt by the creditor-plaintiff, for appellee allegedly

failing to appear at the April 16, 2010 court date. Appellee was taken into custody on

January 27, 2011. Following an appearance before a Court Commissioner, she was

released on her own recognizance and instructed that she would receive notice regarding a

court date to address her failure to appear. On February 4, 2011, appellee went to the
District Court clerk’s office to ascertain why she was arrested. Following an investigation

by that office, it was determined that the warrant had been improperly issued.

       Appellee filed a two count lawsuit against the State of Maryland on December 27,

2013. The first count alleged negligence on the part of the unidentified employee of the

clerk’s office who presented the arrest warrant to the District Court judge. The second

count claimed violations of appellee’s constitutional rights under Article 24 of the

Maryland Declaration of Rights. In response, the State filed a motion to dismiss, asserting

absolute judicial immunity. The circuit court denied the motion to dismiss following a

hearing, expressing concern with the prolonged lapse in time between the April 16, 2010

hearing and the January 20, 2011 issuance of the warrant.

       The State noted an appeal pursuant to the collateral order doctrine. Appellee moved

to dismiss the State’s appeal, which this Court denied.1 Additional facts shall be provided,

infra, to the extent they prove relevant in addressing the issue presented.

                               STANDARD OF REVIEW

       In reviewing the denial of a motion to dismiss, “we must assume the truth of all

relevant and material facts that are well pleaded and all inferences which can be reasonably

drawn from those pleadings.” Ronald M. Sharrow, Chartered v. State Farm Mut. Auto.

Ins., 306 Md. 754, 768 (1986). The facts we may consider are limited “to the four corners

of the complaint and its incorporated supporting exhibits, if any.” Converge Servs. Grp. v.


       1
          Prior to oral argument before this Court, the State filed a Motion to Correct the
record, seeking to add an affidavit, including exhibits, of Robert Wagman, counsel of the
plaintiff-judgment creditor in the underlying civil matter. We granted the motion and have
corrected the record to include the documents.
                                            -2-
Curran, 383 Md. 462, 475 (2004). See also Amalgamated Transit Union, Local 1300 v.

Lovelace, 441 Md. 560, 564 (2015). Additionally, the party asserting judicial immunity

bears the burden of establishing the claim. Simms v. Constantine, 113 Md. App. 291, 318-

319 (1997).

                                       DISCUSSION

   a. Is the State’s appeal proper?

       Upon the State’s notice of appeal, appellee filed a motion to dismiss with this Court,

arguing that the circuit court’s denial of the State’s motion to dismiss was not an appealable

order. The State responded that its appeal was permissible pursuant to the collateral order

doctrine.

       “The collateral order doctrine is based upon a judicially created fiction, under which

certain interlocutory orders are considered to be final judgments, even though such orders

clearly are not final judgments. The justification for the fiction is a perceived necessity, in

‘a very few . . . extraordinary situations,’ for immediate appellate review.” Dawkins v.

Baltimore City Police Dep’t, 376 Md. 53, 64 (2003) (footnote omitted) (emphasis in

original). As the Court of Appeals has explained, “[t]he concept [of the collateral doctrine

rule] is narrow in scope. . . .” Cant v. Bartlett, 292 Md. 611, 615 (1982).

       In the present case, both parties rely on Dawkins, supra, in support of their

respective arguments regarding the appealability of the circuit court’s denial of the State’s

motion to dismiss. In Dawkins, the plaintiff brought a tort suit against the Mayor, Police

Commissioner and multiple police officers of the City of Baltimore, alleging negligence,

assault, and violations of her state constitutional rights. 376 Md. at 54-55. The defendants
                                             -3-
moved to dismiss, asserting sovereign, governmental, and public official immunity. Id. at

57. The circuit court denied the motions and the defendants appealed. Id. This Court held

that the orders denying the motions to dismiss were appealable under the collateral order

doctrine. The plaintiff filed for certiorari, which the Court of Appeals granted in order to

consider whether a defendant could appeal the denial of its motion to dismiss asserting

sovereign immunity. Id.

       The Court of Appeals emphasized that the collateral order doctrine was reserved for

extraordinary situations.   While the Court observed that the assertion of sovereign

immunity may not be a sufficient basis to warrant appeal under the collateral order doctrine,

the Court took the opportunity to comment on other forms of immunity. It opined:

       As a general rule, interlocutory trial court orders rejecting defenses of
       common law sovereign immunity, governmental immunity, public official
       immunity, statutory immunity, or any other type of immunity, are not
       appealable under the Maryland collateral order doctrine. Whether, and under
       what circumstances, 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, are immediately
       appealable under the collateral order doctrine will have to be determined in
       any future cases that might arise.

Id. at 65.

       We are persuaded by the State’s argument that the Court of Appeals expressly

declined to extend to judges the general rule of nonappealability of interlocutory orders

overruling immunity defenses. The Court of Appeals left open the resolution of this issue

for future consideration. Under the facts presented in the instant case, we conclude that

the circuit court’s denial of the State’s motion to dismiss was appealable under the


                                            -4-
collateral order doctrine. As will be discussed in detail infra, Maryland Courts have clearly

established that a judge is immune from tort liability for judicial acts. Appellee brought

suit against the appellant based on the activity of the clerk who presented the body

attachment to the judge. As the circuit court acknowledged, if the complaint had been filed

against the judge, the suit would have been dismissed pursuant to absolute judicial

immunity. The harm appellee alleges emanated from the judge’s issuance of the warrant.

It is this judicial function that is really the subject of appellee’s tort claim. While the Court

did not resolve the issue of judicial immunity in Dawkins, it left the decision to entertain

an appeal of a denial of a motion to dismiss asserting judicial immunity pursuant to the

collateral order doctrine to courts to “determine[] in any future cases that might arise.” 376

Md. at 65. We find that the facts of this case permit our consideration of the appeal. We

find further support for our conclusion from nearby courts. The U.S. Court of Appeals for

the District of Columbia Circuit has extended judicial immunity to courtroom clerks

because “if immunity were not extended to clerks, courts would face the ‘danger that

disappointed litigants, blocked by the doctrine of absolute immunity from suing the judge

directly [would] vent their wrath on clerks, court reporters, and other judicial adjuncts.’”

Sindram v. Suda, 986 F.2d 1459, 1461 (D.C. Cir. 1993).

       Accordingly, the State’s appeal of the circuit court’s denial of its motion to dismiss

and overruling of its assertion of absolute judicial immunity was appealable pursuant to

the collateral order doctrine. We now turn to the merits of the State’s appeal.




                                              -5-
   b. Was the State entitled to the defense of absolute judicial immunity?

       The State argues that the circuit court’s denial of its motion to dismiss should be

reversed and appellee’s complaint dismissed because Maryland law establishes that

absolute judicial immunity precludes a tort lawsuit based on an order by a judge. Appellee

maintains that the court did not err because judicial immunity does not extend to the

negligent acts of all employees in clerk’s office. The circuit court’s denial of the State’s

motion was predicated on its concern that the clerk may not have acted under the direction

of the judge because of the nine month lapse in time between the hearing and the erroneous

presentment of the arrest warrant. The circuit court appeared to understand that absolute

judicial immunity applied when a clerk acts within the scope of her or his employment at

the direction of a judge, but questioned whether the clerk was acting within those

parameters in this instance.

       We begin our discussion of the relevant case law with Parker v. State, 337 Md. 271

(1995), because the facts of that case are similar to the circumstances before us. Parker

was convicted of speeding and fined $150. Id. at 275. Following her failure to pay the

fine, an arrest warrant was issued against her. Id. Parker eventually appealed her

conviction in the circuit court and was acquitted of the speeding offense. Id. However,

following her acquittal, the Sheriff presented an arrest warrant to a circuit court judge based

on her failure to pay the original $150 fine. Id. The circuit court issued the warrant without

reviewing the case file. Id. Parker was thereafter arrested and detained until she paid the

fine. She later filed suit alleging negligence, false imprisonment and false arrest, against

the circuit court judge and the clerk. Id. The State filed a motion to dismiss asserting
                                             -6-
judicial immunity as to the counts against the circuit court judge and the circuit court

granted the motion. Id. Parker appealed to this Court, and we affirmed the court’s grant

of the motion to dismiss holding that the circuit court judge had jurisdiction to issue the

warrant and accordingly was judicially immune. Id. at 276. The Court of Appeals granted

certiorari. Id.

       The Court of Appeals began by exploring the English origins of our common law

principle of judicial immunity. Id. at 277-79. Beginning in at least the early 19th century,

American courts began to recognize absolute judicial immunity. Id. at 280 (citing Busteed

v. Parsons, 54 Ala. 393, 25 Am. Rep. 688 (1875); Phelps v. Sill, 1 Day 315 (Conn.1804);

Briggs v. Wardwell, 10 Mass. 356 (1813); Wall v. Trumbull, 16 Mich. 228 (1867); Yates v.

Lansing, 5 Johns. 282 (Ct. of Errors 1810); Hoggatt v. Bigley, 25 Tenn. 236, 6 Hum. 236

(1845)). Quoting an 1872 Supreme Court case in which a court declined to permit a civil

suit against a judge based on a ruling made from the bench, the Court of Appeals discussed

one underlying rationale for judicial immunity, which is particularly relevant to the case at

bar:

       “[I]t is a general principle of the highest importance to the proper
       administration of justice that a judicial officer, in exercising the authority
       vested in him, shall be free to act upon his own convictions, without
       apprehension of personal consequence to himself. Liability to answer to
       everyone who might feel himself aggrieved by the action of the judge, would
       be inconsistent with the possession of this freedom, and would destroy that
       independence without which no judiciary can be either respectable or
       useful.” As the Court in Bradley v. Fisher indicated, individual citizens are
       more likely to feel aggrieved and injured by judges than by other public
       officials, because judges are ultimately responsible for decisions closely
       affecting individuals’ lives. . . . “Controversies involving not merely great
       pecuniary interests, but the liberty and character of the parties and,
       consequently, exciting the deepest feelings, are being constantly determined
                                            -7-
       in [the] courts. . . . Few persons sufficiently irritated to institute an action
       against a judge for his judicial acts would hesitate to ascribe any character to
       the acts which would be essential to the maintenance of the action.”
       Furthermore, the Court pointed out that the judicial system provides other
       avenues of relief for disappointed litigants. While erroneous rulings may be
       corrected through the appellate process, judges who act “with partiality, or
       maliciously, or corruptly, or arbitrarily, or oppressively, . . . may be called to
       an account by impeachment and suspended or removed from office.”
       Accordingly, the Court concluded, no judge “can [ ] be subjected to
       responsibility for [a judicial act] in a civil action, however erroneous the act
       may have been, and however injurious in its consequences it may have
       proved to the plaintiff.”

Id. at 281-82 (internal citations omitted). The Court of Appeals observed that Maryland

has not modified the general rule of absolute judicial immunity and in fact, over the last

several decades, has reaffirmed the principle for all judicial acts.            Id. at 284-85.

Considering the above reasoning, the Court of Appeals, held that Parker could not institute

a civil action against the judge for issuing the warrant for her arrest even if issued

improperly. Id. at 287. The Court explained that issuing warrants was a judicial activity,

and therefore, by performing a judicial act, the judge was entitled to absolute judicial

immunity. Id.

       In D’Aoust v. Diamond, et al., 424 Md. 549 (2012), the Court of Appeals addressed

who may be entitled to judicial immunity. Referencing Parker, supra, the Court reviewed

the purposes of judicial immunity, then noted that judicial immunity has been extended to

officials other than judges. Id. at 597 (citing Gill v. Ripley, 352 Md. 754 (1999)). The

Court then announced that “the appropriate test for determining whether an individual is

entitled to receive the benefit of absolute judicial immunity for certain functions is whether:

(1) the act performed was by a judicial officer; and (2) the act was a judicial act.” Id. at


                                             -8-
598. The most important inquiry in determining whether an individual is entitled to judicial

immunity is what function that person performed. Id. The Court explained that the

function matters more than the identity of the person acting because the goal of judicial

immunity is to permit judicial officers to perform their duties free from fear of civil

liability. Id. The Court continued:

       The determination of [w]hether a function qualifies for absolute immunity is
       made objectively and not subjectively. The considerations relevant to
       determining whether an act by a judge is judicial relate to the nature of the
       act itself, i.e., whether it is a function normally performed by a judge, and to
       the expectations of the parties, i.e., whether they dealt with the judge in his
       judicial capacity. For example, the issuance of a warrant has been considered
       a judicial act deserving of judicial immunity, see Parker, [supra, at 287],
       while the demotion and discharge of court personnel has been treated as an
       administrative act not deserving of judicial immunity. Applying a functional
       analysis to judicial officers other than judges, this Court has held that
       individuals such as law clerks and court clerks are entitled to judicial
       immunity “when performing tasks that are integral to the judicial process[.]”

Id. at 599-600 (internal citations and quotations omitted) (emphasis added). Additionally,

although the parties did not brief the issue, the Court established that if a party was not a

judicial officer, they were not entitled to the benefits of absolute immunity. Id. at 600.

       The principle that absolute judicial immunity attaches to the function and not the

person was explored in Gill v. Ripley, 352 Md. 754, 761 (1999). Gill dealt with absolute

judicial immunity’s cousin – prosecutorial immunity2 – and the Court of Appeals’


       2
         Unlike judicial immunity, the principle of prosecutorial immunity is an American
invention. “Because the office of public prosecutor was largely unknown in England, we
did not inherit any separate doctrine of prosecutorial immunity from English common law.
That doctrine developed largely in the American courts.” Gill v. Ripley, 352 Md. 754, 764
(1999) (citing Burns v. Reed, 500 U.S. 478, 493 (1991)).


                                            -9-
extension of prosecutorial immunity to a clerical employee of a State’s Attorney office.

The underlying case was a paternity dispute between the plaintiff and her former partner.

Id. at 757. Ms. Greene, a non-attorney clerical staff member at the State’s Attorney’s office

communicated with the plaintiff, giving her advice, and performing various acts in regards

to her paternity suit. Id. at 759. The plaintiff alleged that some of these communications

and actions were negligent and following the dismissal of her paternity action, brought suit

against several prosecutors and staff members. Id. at 758. The defendants, including Ms.

Greene, filed motions to dismiss, asserting prosecutorial immunity. The circuit court

granted the motions and the plaintiff appealed.

       The Court of Appeals, granted certiorari to address the extent prosecutorial

immunity applies to actions that occur outside of a judicial proceeding. Id. at 760. The

Court turned to the context of judicial immunity and its extension to parties other than

judges such as law clerks and courtroom clerks. The Court explained that in those

instances:

       The general rule is that those individuals, when performing tasks that are
       integral to the judicial process, enjoy the same immunity that is applicable to
       the judges. Particularly in the more recent cases, the courts have applied the
       same kind of functional analysis that has been applied to judges.

Id. at 771. The Court of Appeals considered that Ms. Greene was an employee of the

State’s Attorney’s office and that at all relevant times, was acting within the scope of her

employment. Id. The Court concluded that Ms. Greene’s challenged conduct occurred

during, and in direct relation to, the prosecution of the paternity action. The Court

concluded that since judicial immunity had been extended to courtroom clerks, there was


                                           - 10 -
no principled basis to distinguish Ms. Greene when she was performing her duties in the

course of her employment. Id. at 773.

       Returning to the case at bar, in order to ascertain whether appellee may maintain an

action against the courtroom clerk, we shall apply the test articulated in D’Aoust: was the

act 1) performed by a judicial officer and 2) was it a judicial act?

       The first element requires us to determine whether the courtroom clerk was a

“judicial officer.” Gill was decided prior to D’Aoust, however, it establishes that law clerks

and courtroom clerks enjoy the same immunity as the judge for whom they work for. The

opinion focused on whether the clerical staff was performing the challenged action within

the scope of her employment. In the instant case, if the courtroom clerk presented the

warrant within the scope of her employment to the judge, then s/he would qualify as a

judicial officer for judicial immunity purposes.         The circuit court judge expressed

reservations regarding whether the clerk in the instant case was performing under the

direction of the judge, based on the time gap between the hearing and the issuance of the

order. Noting the judge’s concern, as noted in Parker, unlike other state and federal courts,

Maryland has not modified the absolute judicial immunity rule. Accordingly, any judicial

officer, acting within the scope of his/her employment and performing a judicial act is

entitled to the benefit of absolute immunity of civil suit. This principle extends to situations

involving corruption and malice, and therefore, covers what appellee alleges and the circuit

court insinuates is the case here, simple negligence. The presentment of warrants to judges

for approval and signature is a task that regularly occurs during the performance of a clerk’s



                                             - 11 -
employment. Since the clerk’s action was within the scope of his or her employment, s/he

was entitled to the benefits of absolute judicial immunity.

       The second part of the D’Aoust test is easily resolved. Appellee challenges the

clerk’s presentment of the arrest warrant for the judge’s consideration. The Court of

Appeals established that the issuance of arrest warrants is a judicial act. See D’Aoust, 424

Md. at 599 (citing Parker, 337 Md. at 287). Accordingly, we find that the second element

was met because the contested action is the issuance of an arrest warrant.

       Under the D’Aoust test, the courtroom clerk was a judicial officer and performing a

judicial act. Therefore s/he was afforded judicial immunity.


                                                    JUDGMENT OF THE CIRCUIT
                                                    COURT FOR BALTIMORE CITY IS
                                                    REVERSED. COSTS TO BE PAID
                                                    BY APPELLEE.




                                           - 12 -
