Can We Appeal Now? (Continued from page 31)


tort;98 denial of motion to dismiss claims based on absolute


legislative immunity;99 denial of the motion of the Public Service Commission to quash depositions of the Commissioners who participated in a decision granting a certificate for construction of electrical transmission lines;100


granting of an order which effectively


stayed County’s condemnation action indefinitely and pre- cluded the exercise by the County Commissioners of the power of eminent domain.101 The proposed application of the collateral order doctrine


has been rejected in connection with the following orders or rulings: denial of state’s motion to dismiss tort claim under Maryland Tort Claims Act;102 ance and for judicial recusal;103


98Mandel v. O’Hara, 320 Md. 103, 134 (1990).


99City of District Heights v. Denny, 123 Md. App. 508 (1998). 100Public Service Commission, supra, 300 Md. at 206-210.


101


County Commissioners, supra, 320 Md. at 207-14. Ordinarily orders re- lated to continuances are not immediately appealable. Id. at 213. Where the stay is tantamount to a refusal to adjudicate, such orders have been held appealable under the collateral order doctrine. Cone Memorial Hospital v. Mercury Construction Co., 460 U.S. 1, 12 (1983); Idlewild Bon Voyage Liquor Corp. v. Epstein, 370 U.S. 713, 715 n. 2 (1962).


102


State v. Jett, 316 Md. 248 (1989). The applicability of the collateral order doctrine to denials of motions to dismiss and/or for summary judgment on the basis of claimed immunity has been the subject of numerous decisions in recent years. The Court of Appeals clarified when the doc- trine will and will not apply in cases where immunity of a qualified na- ture is claimed in Shoemaker v. Smith, 353 Md. 143 (1999) and by its express adoption of the reasoning of the Court of Special Appeals in Artis v. Cyphers, 100 Md. App. 633 (1994), aff’d, mem., 336 Md. 561 (1994). In Artis, a suit against private and Baltimore City Medic Unit medics for negligent emergency treatment of a motorist, the Court of Special Ap- peals dismissed as premature an appeal by one City Medic of the trial court’s denial of his motion for summary judgment based on the quali- fied defense of Good Samaritan immunity, under Sections 5-309 and 5- 309.1 of the Courts Article, and qualified public official immunity. Id. at 652-653. The Court established the following parameters respecting the immediate appeal of orders denying motions to dismiss based on quali- fied immunity defenses: (1) In a Section 1983 action, an immediate appeal will lie from an order denying a motion to dismiss based on the defense of public official immunity as stated in Harlow v. Fitzgerald, 457 U.S. 800 (1982), that is, where it may be determined, as a matter of law, whether the defendant’s conduct violated “clearly established statutory or constitutional rights of which a reasonable person would have known”; (2) when other forms of common law or statutory qualified immunity are raised, an immediate appeal will not lie when the question of whether the immunity attaches depends for its resolution on disputed material facts on matters such as the existence of gross negligence or malice; (3) a ruling rejecting a qualified immunity defense will be immediately ap- pealable when the factual issues can be resolved by the trial court, as when the parties permit the court to resolve those disputes under Rule 2- 502. In applying those principles to the appeal before it, the Court of Special Appeals determined to dismiss the appeal because the question whether the defendant medic was entitled to Good Samaritan or public official immunity turned on issues of fact for the trier of fact to deter- mine. Id. at 653-54.


103


Breuer, supra, 64 Md. App. at 416 n. 2. See also Blanton, supra, 61 Md. App. at 164-65.


32 Trial Reporter Summer 2000


denial of motion for continu- order disqualifying counsel104


(Continued on page 34)


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