O'Hara v. Kovens5/8/1992
This appeal is the latest, and perhaps the final, chapter of the litigation arising out of the alleged impropriety involved in former Governor Marvin Mandel's 1971 veto of legislation to provide additional racing dates for a Maryland race track. Critical to determination of this case is resolution of the question of whether the former governor's motives for that veto can be examined by a court in a tort action against his alleged co-conspirators based on the veto. Because the separation of powers doctrine bars judicial inquiry into the former governor's motives for his veto, we affirm the order of the Circuit Court for Baltimore City (Friedman, J.) granting summary judgment to the alleged co-conspirators.
(i)
On November 22, 1978, appellants, James Francis O'Hara, III, and Michael Patrick O'Hara, individually and as guardians of the property of their mother, Josephine M. O'Hara (collectively "the O'Haras") filed a declaration against Marvin Mandel, a former governor of the State of Maryland, W. Dale Hess, Harry W. Rodgers, III, William A. Rodgers, Ernest N. Cory, Jr., Irving T. Schwartz, Eugene B. Casey, and Irvin Kovens (collectively "the defendants").
In that declaration the O'Haras alleged a claim for "common law fraud and deceit." They asserted that they were stockholders of Southern Maryland Agriculture Fair Association, Inc. ("Marlboro Race Track"), and that following indictments detailed in United States v. Mandel, 591 F.2d 1347, vacated, 602 F.2d 653 (4th Cir.1979), cert. denied, 445 U.S. 961, 100 S.Ct. 1647, 64 L.Ed.2d 236 (1988), they discovered
that "at some point between January 7, 1969 and May 28, 1971" the defendants had made representations and failed to disclose material facts in order to induce the O'Haras "to sell stock in the Marlboro Race Track at a lower price than if defendants had not made such representations or omissions." The O'Haras further allege that the defendants knowingly and intentionally, but secretly, conspired to do this and that the O'Haras relied upon the defendants' representations and omissions in determining to sell their stock.
In March 1971, House Bill 1128 was introduced in the House of Delegates for the purpose of obtaining the approval of the General Assembly for the permanent transfer of eighteen (18) racing days from Hagerstown Race Track to Marlboro Race Track. On May 28, 1971, former Governor Mandel vetoed House Bill 1128, allegedly "with the intent and the knowledge that his veto would depress the value of the stock of Marlboro Race Track and would deceive and defraud Plaintiffs and other owners of the stock of Marlboro Race Track about the value of their stock and the price that they could expect to obtain for the stock for sale on the open market."
Shortly thereafter, on June 1, 1971, defendant Schwartz "purported to buy fifteen thousand (15,000) shares of the Marlboro Race Track, at $7.00 per share" and on two subsequent occasions, purchased additional stock, buying a total of 2,000 additional shares. The O'Haras allege that on these occasions, Schwartz "acted to conceal the fact that he had no beneficial interest in the stock . . . and that the true beneficial owner was" defendant Kovens. It was further alleged that by use of the name of defendant Cory, individually and as attorney, defendants "concealed the fact that they were, during 1971, seeking to acquire" the O'Haras' interest in the race track. In December 1971, the defendants "arranged for the purchase of the controlling interest in Marlboro Race Track [from the O'Haras] in such a way as to conceal their true identities as purchasers of the stock." During 1971 and thereafter, defendants used the
name of
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