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REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 328 September Term, 1999

DARYL D. DAVIS

v. CAROL B. MAGEE, ET AL.

Hollander, *Thieme, Eyler, Deborah S., JJ.

Opinion by Eyler, Deborah S., J.

Filed: August 29, 2001 * Thieme, J., participated in the hearing and conference of this case while an active member of this Court; he participated in the adoption of this opinion as a

retired, specially assigned member of this Court.

The Circuit Court for Montgomery County granted summary judgment in favor of Carol B. Magee ("Magee"), the appellee, in an action in tort and for violation of state constitutional rights brought against her by Daryl D. Davis ("Davis"), the appellant. On appeal, the appellant presents three questions We have

for review, which he has subdivided into six questions.

combined, reworded, and restated the first question, including its subpart, as follows: I. Did the circuit court err in granting summary judgment on the ground that Davis's claims were barred by release?

We also shall address the appellant's second question, which we have restated as follows: II. Did the circuit court err in granting summary judgment on the ground of release because the expungement statute is unconstitutional?

For the following reasons, we answer both questions ?No," and therefore we shall affirm the judgment of the circuit court. do not reach the third question, and its subparts.[1] The questions as presented by the appellant read as follows: I. The circuit court erred in entering summary judgment in favor of office[r] Magee on grounds of the general waiver and release A. Because the general waiver and release provides without any limiting language that it is conditioned on the expungement of ?the record of my arrest, detention or confinement," the word ?record" is unambiguous and can only be construed as meaning all records maintained by any state agency. B. Assuming arguendo that the general waiver (continued...)
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We

FACTS AND BACKGROUND
At the time of the pertinent events, Magee was a police officer assigned to the Youth Services Investigation Division of the Montgomery County Police Department ("MCPD"). 1997, a fifteen-year-old girl reported to On March 11, that the

MCPD

appellant had engaged in sexual intercourse with her on January 10, 1997. Magee investigated the accusation. One week later,

on March 18, 1997, Magee applied for and obtained a statement of charges against the appellant for a third degree sexual offense and a warrant for his arrest. on March 26, 1997. The arrest warrant was executed

The appellant was held in custody for 30

hours before being released on bail.

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(...continued) and release is ambiguous, the circuit court erred in entering summary judgment for Officer Magee and instead should have submitted the release to the jury for resolution of the ambiguity., C. This Court's decision in Pantazes v. Pantazes does not compel a different result. II. Assuming arguendo that the release is enforceable as a matter of contract law, the circuit court erred in entering summary judgment because the expungement statute is unconstitutional. III. The summary judgment cannot be upheld on other grounds. A. The summary judgment cannot be upheld on grounds that Mr. Davis failed to give the notice required by the local government tort claims act. B. The summary judgment cannot be upheld on grounds of immunity. -2-

On June 27, 1997, the appellant appeared in the District Court for Montgomery County for a preliminary hearing. agreement was negotiated at that time, in which the A plea State

entered a nolle prosequi on the third degree sexual offense charge and the appellant executed a "General Waiver and

Release."

The language of the General Waiver and Release tracks

that set forth in Md. Rules Form 4-503.2, as the form read in 1997. It states:

I, Daryl Dwight Davis, hereby release and forever discharge Det. Carol Magee, and the Montgomery County Police Department, all of its officers, agents and employees and any and all other persons from any and all claims which I may have for wrongful conduct by reason of my arrest, detention or confinement on or about March 26, 1997. This General Waiver and Release is conditioned on the expungement of the record of my arrest, detention, or confinement and compliance with Section 736(c) of Article 27 of the Annotated Code of Maryland, and shall be void if these conditions are not met. WITNESS my hand and seal this 27th day of June, 1997. (Italicized type.) entries hand-written in original; remainder in

At the same time that he signed the General Waiver and

Release, the appellant filled out a "Petition For Expungement of Records (Acquittal, Dismissal, Or Nolle Prosequi)," tracking the language of Md. Rules Form 4-504.1. The petition states that

the appellant was arrested on a charge of third degree sexual

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offense, on March 26, 1997, that "[o]n or about June 27, 1997," he was "tried and acquitted, or the said charge was dismissed, or a Nolle Prosequi was entered," and that "[i]f less than three years ha[d] passed since the disposition of the charges . . . a General Waiver and Release" was attached. (Italicized entries hand written; remainder in type.) The petition and General

Waiver and Release were filed in the district court criminal case. There is no expungement order in the record before us. It

is undisputed, however, that the district court granted the appellant's petition and issued an expungement order. As an

appendix to her brief, the appellee has attached an October 15, 1997 letter from Lieutenant George C. Heinrich of the MCPD to the Honorable Cornelius J. Vaughey, of the District Court for Montgomery County, that refers to the appellant's name, his "MCP ID #," his "court case #," his date of arrest, and the charge against him, and states, "We have expunged the above referenced from our files according to your order, and notified the

Maryland State Police and FBI of this action." By letter of October 29, 1997, the Montgomery County

Department of Health and Human Services (DHHS) notified the appellant that it had investigated allegations of child abuse against him and had determined that he would remain "indicated" -4-

as a child abuser in its files.

The letter further states that

the appellant's identification as a child abuser would not be expunged. Later, the appellant learned that the Montgomery

County Department of Social Services (DSS) was maintaining his name on its Central Registry of Child Sexual Abusers as an "indicated" child abuser. On March 9, 1998, in the Circuit Court for Montgomery County, the appellant filed a complaint and request for jury trial against Magee, the MCPD, Police Chief Carol Mehrling, and Montgomery County. On May 6, 1998, he amended his complaint so The amended

as to eliminate all the defendants except Magee.

complaint set forth claims against Magee for false arrest, false imprisonment, and malicious prosecution. In a second amended

complaint, filed on October 26, 1998, the appellant added a claim alleging state constitutional from torts. All of of the the

appellant's

claims

stemmed

Magee's

handling

investigation of the child sexual abuse allegations against the appellant and her conduct in applying for a statement of charges and an arrest warrant, executing the warrant, and taking the appellant into custody. In her answers to each of Davis's complaints, Magee raised, inter alia, the defense of release.

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In the meantime, in March 1998, the Montgomery County Council scheduled a public hearing to address citizen complaints of racism against certain members of the MCPD. The appellant

appeared at that hearing to speak about his contention that in having him charged with a third degree sexual offense Magee had acted out of racial animus. Lieutenant Frank W. Young, of the

Youth Services Investigation Division of the MCPD, also appeared at that hearing, to speak in defense of Magee. Before Lt. Young

spoke, he submitted a document entitled "OIA [Office of Internal Affairs] Case Update," which was dated March 9, 1998. In the

"OIA Case Update," Lt. Young identified the appellant as a person who had filed a letter of complaint alleging that he had been improperly investigated by an officer of the MCPD. Lt.

Young explained that the OIA had looked into the complaint and had determined that the officer had had sufficient basis on which to take action against the appellant. The "OIA Case Update" was made available to members of the public who attended the Montgomery County Council hearing. Young also made an oral statement at the hearing. the statement was prepared in advance and Lt.

The text of to

disseminated

members of the public in attendance. the appellant or Magee by name.

Lt. Young did not identify

He elaborated on the details

and disposition of the charges against the appellant, however,

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saying, among other things, that his complaint had been reviewed by OIA and that it was determined that [Magee] had more than sufficient probable cause to apply for, and obtain, a warrant charging this individual with a felony sexual offense. The charges were nol-prossed by the State's Attorney's Office, because it was felt the victim would be unable to stand the rigors of a trial. On February 25, 1999, Magee filed a motion to dismiss, or in the alternative for summary judgment, on several grounds, one of which was that, as a matter of law, the appellant's claims were barred by the General Waiver and Release. filed an opposition and supporting affidavit. The appellant He argued that

the General Waiver and Release was void because not all of the records that were required to have been expunged under its terms had been expunged. The appellant did not dispute that the MCPD

had expunged the records it had of his arrest, detention, and charges. He also did not dispute that the district court had He argued, however, that the police had

expunged its records.

not expunged the OIA documents prepared by Lt. Young and that the DHHS and DSS had not expunged their records pertaining to his "indicated" status as a child abuser. He also argued that

Md. Code, Art. 27,

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