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Jackson v. Hogan

United States District Court, D. Maryland

November 14, 2016



          Paula Xinis United States District Judge

         Pending is Defendant Governor Lawrence Hogan's motion to dismiss (ECF No. 10). The issues are fully briefed and the Court now rules pursuant to Local Rule 105.6 because no hearing is necessary. For the following reasons, the motion is granted.

         I. Background[1]

         The Prince George's County Board of License Commissioners (the “Board”) oversees the county's local rules regarding the sale of alcoholic beverages and helps enforce Maryland's alcoholic beverage laws. Plaintiff Franklin D. Jackson (“Jackson”) was first appointed to the Board in 1996 for a three-year term by then-Governor Parris Glendening. He was reappointed seven consecutive times over the next eighteen years, with each gubernatorial appointment receiving approval from the Maryland Senate. Jackson served as the Board's Chairman for the last fourteen years of his tenure. ECF No. 1 at 2.

         In 2011, then-Governor Martin O'Malley reappointed Jackson to a three-year term as the Board's Chairman. Jackson's term began on June 1, 2011 and the Maryland Senate confirmed his appointment on March 1, 2012. In February 2014, Governor O'Malley again reappointed Jackson to Chairman of the Board. His new term began on June 1, 2014 and was expected to end on May 31, 2017. While Jackson assumed his position as Chair, his appointment was not confirmed by the Senate during the 2014 legislative session.

         On February 20, 2015, the newly-elected Governor, Defendant Lawrence Hogan (“Governor Hogan”), submitted for Senate confirmation a list of 331 “Green Bag” appointments to a variety of state and local offices.[2] ECF No. 10-1 at 8-9. Included on that list was Governor Hogan's nomination of Charles Wickliff Caldwell, III (“Caldwell”) to serve as the Chairman of the Board-the position then occupied by Jackson. The Senate took no action on Jackson's appointment during the 2015 legislative session, but confirmed Caldwell's appointment on March 6, 2015. ECF No. 10-5 at 3. Jackson was removed from his Chairman position and as a member of the Board shortly thereafter, with two years and two months left in his three-year term. ECF No. 1 at 4.

         Jackson alleges that he was never notified of Governor Hogan's intention to replace him and was not provided written evidence of Caldwell's new designation. Id. at 4-5. In fact, it was not until March 18, 2015 that Governor Hogan's office contacted Jackson to inform him that Caldwell was the new Chair of the Board and that Jackson's tenure was over. Id. at 5.

         Naturally, a dispute arose between Jackson and Caldwell, who both claimed to be the rightful Chairman of the Board. Jackson refused to acknowledge Caldwell as the Chairman and attempted to continue to exercise control over the Board. On March 9, 2015, Jackson, still acting as the Board's Chairman, delivered a letter to Governor Hogan informing the Governor that Jackson was legally entitled to serve as the Chairman for a three-year term ending May 31, 2017 pursuant to Governor O'Malley's appointment. ECF No. 1 at 3.

         Jackson acknowledges that his appointment was never confirmed by the Maryland Senate, but argues that confirmation is unnecessary. See ECF No. 15 at 13-19. At all relevant times, a Governor's authority to make appointments to the Boards of License Commissioners derived from former § 15-101 of Article 2B of the Maryland Code. ECF No. 15 at 15. Subsection (r) of § 15-101 specified the procedures the Governor had to follow in making appointments to the Prince George's County Board of Commissioners. According to Jackson, subsection (r) only required that the Governor appoint members of the Board from a group selected by the central committees of the county's two dominant political parties and did not require that such appointments are subject to Senate confirmation. Jackson was nominated by the Democratic Central Committee and appointed by Governor O'Malley in 2014. ECF No. 1 at 2; ECF No. 15 at 2-3. Accordingly, Jackson argues that his 2014 appointment satisfied the statute's requirements, placing the burden on Governor Hogan to show cause before replacing Jackson on the Board.

         On March 23, 2015, the Board filed suit against Jackson, alleging that Jackson was not confirmed by the Senate for a new term, and so was properly replaced by Governor Hogan's confirmed appointment of Caldwell. See Bd. of License Comm'rs for Prince George's County v. Jackson, No. CAL15-04881 (P.G. Cir. Ct. filed Mar. 23, 2015); ECF No. 10-4 at 50-54. In its complaint, the Board sought to enjoin Jackson from attempting to exercise any power as Chairman of the Board. It also sought a writ of mandamus ordering Jackson to “relinquish his gavel and cede all Chairman power to the rightful Chairman, Charles W. Caldwell, III.” ECF No. 10-4 at 53-54. On March 23, 2015, the circuit court granted the Board's temporary restraining order and set in a full hearing for April 1, 2015. On April 23, 2015, the parties entered into a consent order stating Jackson is no longer the Chair or a member of the Board of License Commissioners from that point forward. Bd. of License Comm'rs for Prince George's County, No. CAL15-0488.

         Jackson then filed a complaint with the Department of Budget and Management (“DBM”) under the Maryland Whistleblower Law, Md. Code. Ann., State Pers. & Pens. § 5-301 et. seq., arguing that Governor Hogan improperly terminated Jackson as Chairman because Jackson had lodged a formal complaint to Governor O'Malley about a former Democratic member of the Board. See Jackson v. Bd. of License Comm'rs (Md. Office of Admin. Hearings, Feb. 29, 2016); ECF No. 10-4 at 14-36. Jackson's complaint was dismissed and he appealed the DBM's decision to the Maryland Office of Administrative Hearings (“OAH”). The Administrative Law Judge concluded that Jackson, as a Board Commissioner, was not an executive branch employee covered by the Maryland Whistleblower Law. Because Jackson was not an executive branch employee, DBM did not have jurisdiction to hear Jackson's Whistleblower complaint, and thus OAH did not have jurisdiction to hear the appeal. Jackson did not appeal the ALJ's decision to the Prince George's County Circuit Court.

         On March 14, 2016, Jackson filed the instant Complaint pursuant to 42 U.S.C. § 1983. Jackson alleges that Governor O'Malley's February 2014 appointment vested him with a protected property interest in his employment on the Board through May 2017. Governor Hogan deprived Jackson of this property interest when he appointed Caldwell to Board Chairman without providing Jackson notice or an opportunity to be heard in violation of Jackson's Fourteenth Amendment right to procedural due process as guaranteed by the United States Constitution.

         II. Standard of Review

         Governor Hogan has moved to dismiss Jackson's complaint for failure to state a claim under Fed.R.Civ.P. 12(b)(6). When ruling on a motion under Rule 12(b)(6), the court must “accept the well-pled allegations of the complaint as true, ” and “construe the facts and reasonable inferences derived therefrom in the light most favorable to the plaintiff.” Ibarra v. United States, 120 F.3d 472, 474 (4th Cir. 1997). “The mere recital of elements of a cause of action, supported only by conclusory statements, is not sufficient to survive a motion made pursuant to Rule 12(b)(6).” Walters v. McMahen, 684 F.3d 435, 439 (4th Cir. 2012) (citing Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). To survive a motion to dismiss, a complaint's factual allegations “must be enough to raise a right to relief above the speculative level on the assumption that all the allegations in the complaint are true (even if doubtful in fact).” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal citations omitted).

         A motion to dismiss tests the sufficiency of a complaint, and thus the Court is generally limited to a review of the allegations in the complaint itself. See Goines v. Valley Cmty. Servs. Bd., 822 F.3d 159, 165 (4th Cir. 2016) (citations and internal quotation marks omitted). A court, however, may properly take “judicial notice of matters of public record” and consider those documents in reviewing a Rule 12(b)(6) motion without converting the motion into one for summary judgment. Philips v. Pitt County Mem'l Hosp., 572 F.3d 176, 180 (4th Cir. 2009) (citing Hall v. Virginia, 385 F.3d 421, 424 (4th Cir. 2004)). This Court will therefore rely on the legislative history and court documents related to Jackson's appointments and eventual termination without converting Governor Hogan's motion into one for summary judgment.

         III. ...

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