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REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 2298 September Term, 2010

JACK JOHNSON

v.

MARILYN CLARK, ET AL.

Eyler, James R., Wright, Rodowsky, Lawrence F. (Retired, specially assigned), JJ. Opinion by Eyler, James R., J.

Filed: June 2, 2011

This interlocutory appeal,1 pursuant to Maryland Rule 8-207,2 arises out of an order of the Circuit Court for Prince George's County, denying the motion to quash notice of deposition and/or motion for protective order of former County Executive Jack B. Johnson, appellant, thereby granting Marilyn Clark, Chris Furbush, and Robert White,

We note that despite the fact that discovery orders are not ordinarily appealable prior to a final judgment terminating the case in the trial court, see, e.g., Montgomery Co. v. Stevens, 337 Md. 471, 477 (1995) neither party raises or addresses the issue of appealability. Because the issue of appealability is jurisdictional, see, e.g., PSC v. Patuxent Valley Conservation League, 300 Md. 200 (1984) (providing that "finality is a matter ultimately to be determined by [the] Court.")), however, we shall acknowledge its existence, and conclude that the issue presented is appealable under the "collateral order doctrine." Id. In Patuxent Valley, the Court of Appeals observed that although ordinarily an appeal will lie only from a final judgment, the collateral order doctrine treats as final and appealable a limited class of orders which do not terminate the litigation in the trial court. Id. at 206. The doctrine generally permits an appeal from an order that satisfies four requirements: "`[T]he order must [(1) conclusively determine the disputed question, [(2)] resolve an important issue [, (3) be] completely separate from the merits of the action, and [(4)] be effectively unreviewable on appeal from a final judgment.'" Id. (other citation omitted). See also Ehrlich v. Grove, 396 Md. 550 (2007) (holding that an interlocutory appeal is appropriate under the extraordinary circumstance of a discovery order being directed to a Governor of Maryland when the collateral order doctrine's four-part test is met)); St. Joseph Medical Center, Inc. v. Cardiac Surgery Associates, P.A., 392 Md. 75 (2006) (noting that the only situations in which the Court of Appeals "has held that interlocutory discovery orders are appealable under the collateral order doctrine have involved trial court orders "permitting the depositions of high level government decision makers for the purpose of extensively probing their individual decisional thought processes.")). In the case before us, appellant makes three contentions: (1) that the requested information is not discoverable under Maryland law; (2) that the requested discovery, i.e., the deposition of a county executive, does not fit within the exceptions to the Morgan [United States v. Morgan, 313 U.S. 409 (1941)] doctrine; and, (3) that executive privilege applies. We conclude that contentions (2) and (3) satisfy the collateral order exception. Maryland Rule 8-207 (b) provides the procedures for expedited appeals when the parties so elect.
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appellees, the right to depose appellant. On appeal, appellant contends the court abused its discretion in denying his motion. We agree, and shall reverse. Factual Background Because this is an expedited appeal, pursuant to Maryland Rule 8-207 (b)(2),3 the parties have jointly filed an agreed statement of the case, including the essential facts. Thus, we shall quote directly therefrom for background. We shall supplement the facts with additional information as necessary. The claims in Clark et al. v. Kevin [sic] Washington, et al., CAL08-02332, arise from the January 24, 2007 shooting of Brandon Clark and Robert White by Keith Washington. The January 24, 2007 shooting occurred inside the home of Keith Washington at approximately 7:45 p.m. Brandon Clark and Robert White were delivering furniture for Marlo Furniture to the home of Keith Washington. A series of events transpired in the home that resulted in Keith Washington discharging his firearm five times. Brandon Clark died as a result of his injuries. Robert White survived but was maimed by the three gunshot wounds. A criminal indictment was filed against Keith Washington. A jury trial was held and Keith Washington was found guilty of involuntary manslaughter, first degree assault and use of a handgun in the commission of a felony or crime of violence. He was sentenced to 45 years. The conviction was upheld by the Maryland Court of Special Appeals and certiorari was denied by the Maryland Court of Appeals. On the date of the shooting, Keith Washington was employed as a Prince George's County Police Officer who had been detailed to the Prince George's County Department of Homeland Security (hereinafter "DHS") as a Deputy

3

See n.2, supra.
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Director. Washington was detailed to DHS on or about August 2, 2004 and during his detail assignment was paid by the Police Department, not the DHS. Washington's supervisor and the only person he reported to at DHS was the Director of DHS, Vernon Herron. Washington's duties at DHS were primarily administrative, dealing with obtaining funding and grants for the various public safety agencies of Prince George's County; his duties at DHS did not entail the use of police powers. Washington maintained his police powers in his capacity as a police officer. Washington was on duty in his capacity at DHS only during normal working hours that ended at 5:00 pm, with the exception of some occasions in which Director Herron would assign some duties such as community relations. DHS does not confer any police powers to its employees, and it is not something that DHS oversees. Neither did DHS oversee Washington's right to carry a gun, which is done pursuant to requirements of the Prince George's County Police Department and the Maryland Police Training Commission. Washington was appointed to the position at DHS by then Prince George's County Executive Jack Johnson.[4] It is unclear whether Mr. Washington interviewed for the position, whether the position was posted, or whether other applications were submitted for the position. Mr. Herron had no involvement in the process which led to the hiring of Mr. Washington. Mr. Herron's only prior knowledge of Mr. Washington was through Mr. Washington's prior detail as executive protection to the county executive, Jack Johnson.[5] Mr. Johnson was responsible for the hiring, screening and promotion of Keith Washington to his position with DHS. While Washington was detailed to DHS, he maintained

In his brief, appellant states that he served as county executive from 2002 until December 6, 2010. We can find nothing in the record to indicate when Washington was assigned to Johnson's detail.
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his police powers and his police issued gun. The gun Keith Washington used on the date of the incident of January 24, 2007, was issued to him by the Prince George's County Police Department. After the shooting of January 24, 2007, it was the Police Department, not DHS, that investigated the shooting. As a police officer, Washington's employment status, including evaluations, retention, promotions, demotions, discipline, suspension of police powers and issuance of police equipment, including firearms, was governed by the police department. Plaintiffs filed their Complaint on January 24, 2008 against the Defendants Prince George's County, Maryland and Keith Washington. Plaintiff's Complaint pled the following counts against both defendants: Count I, Assault; Count II, Battery; Count III, Intentional Infliction of Emotional Distress; County IV, False Arrest; Count V, False Imprisonment; Count VI, Negligence; Count VII, Fraud; Count VIII, Gross Negligence; Count IX, Negligent Hiring and Retention; Count X, Violations of Maryland Declaration of Rights/State Constitutional Claims; Count XI, Vicarious Liability; Count XII, Negligent Entrustment; Count XIII, Wrongful Death; and Count XIV, Survival Action. On March 10, 2008, Defendant Prince George's County, Maryland moved to dismiss and/for partial summary judgment on all Counts, except on Count X, on the basis of the Defendant County's governmental immunity for nonconstitutional torts. Additionally, Defendant County asked for dismissal of any claim of punitive damages against the Defendant County, as punitive damages are not available against governmental entities. On June 6, 2008, a motions hearing was held before Judge Sean Wallace, who granted the County's motion to dismiss, leaving only one count

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