B. [§ 3.212] Article 24—Loss of Liberty Or Property Without Due Process

• Jurisdiction: Maryland

B. [§ 3.212] Article 24—Loss of Liberty or Property without Due Process

Article 24 of the Maryland Declaration of Rights explicitly provides that no one shall be deprived of life, liberty or property without due process, and implicitly, it guarantees equal protection. The Court of Appeals recognizes a private action for damages if a plaintiff is deprived of a liberty or property interest in violation of Article 24. Ashton v. Brown, 339 Md. 70, 660 A.2d 447 (1995); Widgeon v. E. Shore Hosp. Ctr., 300 Md. 520, 479 A.2d 921 (1984). See generally Dua v. Comcast Cable of Md., Inc., 370 Md. 604, 805 A.2d 1061 (2002).

Article 24 of the Maryland Declaration of Rights, entitled "Due Process," states:

No man ought to be taken or imprisoned or disseized of his freehold, liberties or privileges, or outlawed, or exiled, or, in any manner, destroyed, or deprived of his life, liberty or property, but by the judgment of his peers, or by the Law of the land.

The purpose of Article 24 of the Declaration of Rights was to codify pre-existing rights established by usage and settled law. Lanasa v. State, 109 Md. 602, 71 A. 1058 (1909). The phrase "by the Law of the land," copied from the Magna Carta, is equivalent to the words "due process of law" as used in the Fourteenth Amendment to the United States Constitution. Pickett v. Sears, Roebuck & Co., 365 Md. 67, 775 A.2d 1218 (2001) (U.S. Supreme Court interpretations of the Due Process Clause of the Fourteenth Amendment serve as persuasive authority for Article 24 cases); Clark v. State, 364 Md. 611, 774 A.2d 1136 (2001) (same); In re Easton, 214 Md. 176, 133 A.2d 441 (1957); Dua, 370 Md. 604, 805 A.2d 1061; see also Lawrence v. State, 51 Md. App. 575, 444 A.2d 478 (1982), aff'd, 295 Md. 557, 457 A.2d 1127 (1983) (the words "by the Law of the land" mean "due process of law according to the course and usage of the common-law right").

Citing this Treatise, among other things, Judge Battaglia, writing for the Court of Appeals in Dehn Motor Sales, LLC v. Schultz, 439 Md. 460, 486, 96 A.3d 221, 237 (2014), set out what a plaintiff must allege and prove in order to prevail on a claimed violation for right protected under the Maryland Constitution:

To prevail under any claim alleging violations of Maryland constitutional rights, however, proof must be adduced:

1) That the defendant-officer engaged in activity that violated a right protected under the Maryland Constitution; and
2) The defendant-officer engaged in such activity with actual malice toward the plaintiff.

Paul Mark Sandler and James K. Archibald, Pleading Causes of Action in Maryland 538 (5th ed. 2013). Specifically, under Article 24 of the Maryland Declaration of Rights, "a plaintiff must demonstrate that he or she (1) had a protected property interest, (2) was deprived of that interest by the state, and (3) was afforded less procedure than was due." Id. at 533. A violation of Article 26 occurs, inter alia, when the state engages in an unreasonable search or seizure of a person's property. See Liichow v. State, 288 Md. 502, 509 n. 1, 419 A.2d 1041, 1044 n. 1 (1980).

Dehn Motor Sales, LLC, 439 Md. at 486, 96 A.3d at 237.

A claim for violation of Article 24 of the Maryland Declaration of Rights can be based on a violation of due process or equal protection. See Beall v. Holloway-Johnson, 446 Md. 48, 68, 130 A.3d 406, 417-18 (2016), where the Court explained:

Article 24 is Maryland's equivalent due process provision, determined to "have the same meaning and effect in reference to an exaction of property, and that the decisions of the Supreme Court on the Fourteenth Amendment are practically direct authorities." Bureau of Mines of Maryland v. George's Creek Coal & Land Co., 272 Md. 143, 156, 321 A.2d 748, 755 (1974). The analysis for an Article 24 violation follows the analysis used for claims under the Fourteenth Amendment to the United States Constitution and, as a result, "all claims that law enforcement officers have used excessive force—deadly or not—in the course of an arrest, . . . should be analyzed under the Fourth Amendment['s] 'reasonableness' standard." Okwa v. Harper, 360 Md. 161, 204, 757 A.2d 118, 141 (2000) (quoting Graham v. Connor, 490 U.S. 386, 395, 109 S. Ct. 1865, 1871, 104 L. Ed. 2d 443 (1989)).

The test for determining a denial of due process is the totality of the circumstances. Wagner v. Wagner, 109 Md. App. 1, 674 A.2d 1 (1996). Due process does not require that parties be given an opportunity to present argument, but merely assures that procedural safeguards are provided that are appropriate to a fair determination. Id., 674 A.2d 1; see also Litzenberg v. Litzenberg, 57 Md. App. 303, 469 A.2d 1279 (1984), rev'd on other grounds, 307 Md. 408, 514 A.2d 476 (1986) (formality of judicial proceedings must be commensurate with complexity of dispute to comport with due process).

Identifying the specific dictates of due process generally requires consideration of three factors: (1) the private interest that will be affected by the official action; (2) the risk of an erroneous deprivation of such interest through the procedures used and the probable value, if any, of additional or substitute procedural safeguards; and (3) the government's interest, including the function involved and the fiscal and administrative burdens that the additional or...