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Wholey v. Sears Roebuck6/19/2002
s do not "create new public policy." Rather, we look to a clear mandate of public policy that necessitates the adoption of an exception to the at-will employment doctrine. See Makovi v. Sherwin-Williams Co., 316 Md. 603, 561 A.2d 179 (1989). This Court should not be creating public policy to justify an exception to the at will employment doctrine. See Magee v. O'Neill, 19 S.C. 170, 185 (S.C. 1883) (stating that " he subjects in which the court undertakes to make the law by mere declaration of public policy should not be increased in number without the clearest reasons and the most pressing necessity."). This is particularly true in a case where, even if the tort did exist, the facts do not fit the tort.
The plurality's opinion is also out of synch with our precedent regarding wrongful discharge. We have stated that this Court is not confined to legislative enactments, prior judicial decisions or administrative regulations when determining the public policy of this State. Adler, 291 Md. at 45, 432 A.2d at 472. Recognition of an otherwise undeclared public policy, however, involves "the application of a very nebulous concept to the facts of a given case." Id. Therefore, "absent a statute expressing a clear mandate of public policy, there ordinarily is no violation of public policy by an employer's discharging an at will employee." See Molesworth v. Brandon, 341 Md. 621, 630, 672 A.2d 608, 613 (1996) (quoting Watson v. Peoples Ins. Co., 332 Md. 467, 588 A.2d 760 (1991)); Felder v. Butler, 292 Md. 174, 184, 438 A.2d 494, 499 (1981) (noting that " n determining the public policy of the State, courts consider, as a primary source, statutory or constitutional provisions.").
The plurality opinion points to Article 27, § 762 in an effort to find statutory support for its conclusion that there is a clear public policy mandate protecting employees who report suspected criminal activity to law enforcement officials. See ante at 18. That statute, however, does not place any duty upon an employee and is not an expression of clearly mandated public policy that would support the exception created today. Moreover, the plurality's reading of the statute expands the class of people protected under § 762, which only protects a "victim or witness" who gives testimony or reports a crime. Under the plurality opinion, the protection of the statute applies to any employee who reports suspected criminal activity to the appropriate law enforcement officials, irrespective of whether there is a duty to report, or whether the employee was a testifying victim or witness.
Many courts have commented on dangers inherent in judicial involvement in the formation of public policy. Judge Levine, writing for Court in Maryland-Nat'l Capital Park and Planning Comm'n v. Washington Nat'l Arena, 282 Md. 588, 386 A.2d 1216 (1978), discussed the meaning of public policy as follows:
"Nearly 150 years ago Lord Truro set forth what has become the classical formulation of the public policy doctrine -- that to which we adhere in Maryland:
`Public policy is that principle of the law which holds that no subject can lawfully do that which has a tendency to be injurious to the public, or against the public good, which may be termed, as it sometimes has been, the policy of the law, or public policy in relation to the administration of the law.'
But beyond this relatively indeterminate description of the doctrine, jurists to this day have been unable to fashion a truly workable definition of public policy. Not being restricted to the conventional sources of positive law (constitutions, statutes and judicial decisions), judges are frequently called upon to discern the dictates of sound social polic
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