United States District Court, D. Maryland
FRANKLIN D. JACKSON Plaintiff,
LAWRENCE HOGAN, JR., Defendant.
Xinis United States District Judge
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.
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.
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
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. 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.
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.
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.
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
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.
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.
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.
Standard of Review
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).
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