Marlboro track lawsuit voided Suit, stemming from 1971 sale, voided by judge.

April 03, 1991|By Raymond L. Sanchez | Raymond L. Sanchez,Evening Sun Staff

A Baltimore Circuit Court judge has ruled in favor of the defendants in a 13-year-old civil suit stemming from the 1971 sale of the old Marlboro Racetrack.

Judge Kathleen O'Ferrall Friedman, during a motions hearing Monday, granted a summary judgment in favor of the defendants, including the late Irvin Kovens.

The ruling throws out the $15 million suit brought in 1978 by two former part-owners of the track -- James F. O'Hara 3rd and Michael P. O'Hara.

The suit said that then-Gov. Marvin Mandel in 1971 vetoed legislation that would have doubled to 36 the number of racing days at the Prince George's County track. The O'Haras claimed the governor's action depressed the value of their holdings by millions of dollars.

After the sale of the track to the governor's friends, the General Assembly overrode the veto at the urging of the governor and the stock rose to its former value, the suit said.

The suit charged that Mandel and several of his political cronies used deceit to lower the price of the track before buying the O'Hara brothers' 14 percent share. Mandel said he vetoed the legislation, House Bill 1128, on constitutional grounds.

The Maryland Court of Appeals last July ruled that the former governor could not be sued for his actions. The court noted that under long-established common law a veto -- as part of the legislative process -- has absolute immunity from civil liability.

The case against the remaining defendants -- Ernest N. Cory Jr., W. Dale Hess, brothers Harry W. Rodgers 3rd and William A. Rodgers, Irving T. "Tubby" Schwartz and the estates of Kovens and Eugene Casey -- was remanded to the city Circuit Court.

In a motions hearing Monday, William F. Gately, a lawyer for the Kovens' estate, asked the court for summary judgment. His argument flowed from last summer's appellate court decision.

Gately said an inquiry by a court or jury into the motive behind a valid legislative act of the governor violated the separation of powers doctrine in Article 8 of the Maryland Declaration of Rights.

The suit was predicated on an allegation that Mandel's motive for vetoing the racing legislation was corrupt.

Friedman agreed. "The issue of the governor's motive was inherent in the issue of the deceit," she said yesterday. "And a jury would have to hear evidence and past judgment on governor's motive."

She added, "The jury would be asked to make a determination about the truth of the governor's motive and that's what you can't have."

Gately said the ruling ends years of "tremendous strain" for the defendants in the case, which came before the Court of Appeals twice in 13 years. "We're very happy to see the light at the end of the tunnel," he said.

Roy L. Mason, the lawyer for the O'Haras, did not return several phone calls to his office. Sources familiar with the case said Friedman's decision is expected to be appealed.

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