*1 S.Ct. at meaning and intent Constitution.” 1917. AND REVERSED IN PART AFFIRMED
JUDGMENT THE CIRCUIT COURT PART. REMANDED TO IN CASE AN ENTRY OF OR- WASHINGTON COUNTY FOR FOR DER CONSISTENT THIS OPINION. WITH BY APPEL- BE PAID THREE-FOURTHS
COSTS TO BY AND APPELLEES. LANT ONE-FOURTH Harry L. LAWS v. THOMPSON,
Gregory et al. 783, Sept. Term,
No. 1988. Special Appeals Maryland. Court of
March 1989. Concurring Opinion April *3 Schulman, Howard J. Baltimore, for appellant. Burch, (Eric Francis B. Miller, Jr. B. Piper & on Marbury, brief), Baltimore, for appellees, Stiller & Bern- stein, Conaway & Goldman. (Robert Nead,
Gilbert A. Hoffman K. Nead, O’Doherty, Hoffman, Baltimore, and Towson, William A. Saltysiak, on brief), for appellees, Thompson & Met.
(J. Joseph Curran, Jr., Gen., Atty. Levitan, and Ronald M. Gen., brief), Asst. on Atty. Baltimore, for appellee, Howard B. Gersh.
Argued BISHOP, before B., ROSALYN BELL and FISCHER, JJ. *4 BELL,
ROSALYN B. Judge. In a suit claiming defamation, false imprisonment, mali- cious prosecution and of process, abuse the Circuit Court for Baltimore City granted summary judgments for defen- dants Gregory Thompson, Metropolitan International, Inc., Stiller, Shale D. Bernstein, and Conaway & Gold- man, against L. Harry Laws. appealed Laws has both from the summary judgments and the quashing of a subpoena sought he Attorney assistant whom against an State’s the court erred whether appeal The on are depose. issues defendants as —granting summary judgment deliberately they evidence that there was police information to false gave faith” im- “good entitled hence munity; for all because summary defendants
—granting judgment facts, and no of material dispute there was entered as a should have been judgment law; matter served on quash subpoena motiоn to
—granting the on execu- Attorney State’s based the assistant privilege. tive reverse and remand.
We depending on who recounts them. The facts vary widely, Indeed, precisely this factual which made disparity it provide a set- We must summary judgment inappropriate. however, specifics. we view the We ting, against which background, iden- general forth factual begin setting Laws’s We then narrate persons involved. tifying his to his arrest and to subse- leading of the facts version suit; with some refer- interspersed civil this will be quent Metropolitan, Thompson, of defendants ence to account Stiller, Frank, Bernstein. Corpora- Fund Deposit
The Insurance Maryland State Loan, (MDIF), Savings and tion Receiver for Old Court partner, firm in he is a retained Stiller and the law which Frank, Bernstein, MDIF a judgment as counsel. obtained June 1986.1 City in the Circuit for Baltimore on Court (Galleria), Ltd. against Maryland, Galleria Enterprises store located operated formerly which owned and Gucci City. Redwood Street Baltimore $400,000; interest, charges, judgment late 1. The was in the amount of to be and costs assessed. *5 Stiller sought on levy Galleria’s property to satisfy judgment, 26, MDIF’s and on June he filed Request Execution, a Writ of asking the sheriff to seize the property, including inventory. During weeks, the next few MDIF employees received reports that merchandise was being removed from the Redwood Street store.2 At a meeting held on either July 14 or 15 at Bernstein’s offices, and attended by Stiller and MDIF employees, it was decided to hire a security guard service, Metropolitan, to protect the during merchandise the hours the store was July closed. On Metropolitan dispatched its em- ployee, Gregory Thompson, to the store. Thompson’s in- one, structions were that no including owners and employ- ees, enter the store after it was closed.
At p.m. about 8:00 Laws, same day, an employee of Galleria, was electronically paged by two of Galleria’s own- ers.3 The owners asked Laws to come to the Gucci store. Accompanied by girlfriend, Zina, his Laws drove his own car to the store. car, Zina remained but reminded Laws not to forget to picture retrieve a of their daughter, which he kept his store office. Laws looked for the owners outside store, the front entrance of the but no one was there. Because the front entrance on Redwood Street was barricaded a metal cage, roll-down Laws entered the building Street, from Calvert through walked building’s lobby, staircase, went down a using the basement door to gain entry the store.4 building’s night The custodian 2. Laws contends that this information was unverified and false. primarily being Laws’s duties night consisted of watchman and running errands. 4. The Gucci store was situated on the northwest corner of Redwood building Calvert Streets in an office which also housed a bank. Gucci's had showroom floors at the Redwood Street level and in the building. Street; basement of the the basement The front entrance was on Redwood level, showroom, in addition to a contained the store's Street, entrance, offices. On Calvert the bank was a door to the building’slobby; private there was a entrance to the Gucci store at the lobby. rear of the lobby Also located at the rear of the was a The Galleria entry. observed Law’s in the lobby store; in- they for Laws inside waiting owners were *6 store Laws tank of a van. up gas him to fill the structed Laws van, it to the owners. left, and returned refueled the when he the store with the owners on his out of way was daughter’s picture his get Zina’s admonition remembered he retrieve it. When the store alone to —he went back into Thompson. outside, security guard he encountered got back Thompson of the tale is different. Thompson’s version guard him as he was approached that had maintained Laws the if he would “look store, him offering money the ing re Thompson the store. Laws entered way” other while thereafter, he bribe, was shortly and alleged fused the windows, he saw into the Gucci store shining flashlight his lurking Thompson inside. checked with figure masculine a custodian, having Laws as been who identified night the outside Laws building. Thompson apprehended inside the store, City Baltimore Police police. and called the the Foster, others, to the call. among responded Innes Officer Stiller, he evening p.m., at about 10:00 According to that agent. Metropoli- phone Metropolitan a call from a received guard reported the had security tan told Stiller that and to break into the store bribe attempted someone had ducking was seen behind guard, subsequently police also told the in the closed store. Stiller was counter him. at the scene and would contact hired to told Foster that he had been Thompson Officer entering. from prevent anyone store and to guard Gucci security had hired the precisely In order to ascertain who supervisor called at Met- guard, Thompson’s Officer Foster their verify that he wanted to ropolitan, telling Metropolitan letting for not control over the store and the reason legal stairway, in the Gucci basement. There which led to another door were, therefore, ways get into the Gucci store. three identify deposition, Thompson could not or de 5. In stated that he man, down, say figure person "I of a that’s scribe the he saw duck all I can recall.” the owners and employees go Metropolitan into the store. gave Officer Foster Stiller’s telephone number. Foster Stiller, informing called him a man named Laws Harry had been Stiller him he apprehended. told that was MDIF’s attorney, and he had seized all records and merchandise of store, had issued the order that one no was to enter. Stiller, According to he did not know that Laws an was employee, store, or that he was authorized to nor did he ask who was. Laws Officer Foster’s recollection differs—he he stated that did tell Stiller thаt Laws employee. Gucci Officer Foster asked Stiller whether he wanted Laws arrested. Stiller asked the officer what was cases; usually done similar responded the officer that if legal store, Stiller and MDIF had control and «/Laws there, had no legitimate purpose then Laws could be *7 charged According with burglary. Foster, to Officer Stiller responded, “Well, then, do, let’s do just normally what you up.” and we will lock him
Laws arrest, was arrested. At the of time his he had in possession stub, his his employee a 5" 7" payroll picture X store, of his daughter, keys his to the and approximately Laws had no Gucci $10.00. merchandise. Based on the i.e., information that provided, Stiller MDIF had con- legal store, of provided i.e., trol the by Thompson, that that Thompson store, seen had Laws inside the Officer Foster complaint. swore out a Laws charged was with storehouse n 27, breaking, (1957, in violation of Art. 31B Repl. § Vol.), a misdemeanor punishable up to six months impris- onment, or fine $500, a of to or up both. Laws spent in he night jail; was released in the early morning July of 17. A trial date was for August scheduled 18,
On July writ, sheriff officially taking executed possession premises store and merchandise. That Richards, samе day, Linda a associate, Bernstein called Deborah Chasanow the Attorney General’s office because:
“Debbie is Chasanow a friend of I mine. admire her abilities in criminal law much so I very gave her a call to her ask going on was her we believed tell what my I that what a crime. believe was this whether I who it was Debbie her was. believe calling purpose and what we justice it be obstruction that could said to see whether not some research need to do would Kenny and Mr. like Mrs. inventory debtors taking justice.”6 constituted obstruction Burbage subsequently assigned offense was misdemeanor Laws’s at the circuit Gersh, felony prosecutor senior to Howard office. Attorney’s State’s City Baltimore level of the court August met with Gersh.7 On Stiller July On call, advising her that telephone Richard’s returned Gersh against Laws. burglary charge pursue not he could show that with Gersh of her conversation Richard's notes any offense” “figure he out could stated Gersh charges against The charged. could be which Laws with nolle prossed. Laws were filed, for sought counsel Laws civil suit was
After Laws’s some notes Gersh made and to obtain depose Gersh subpoena The with Stiller. regard meeting to his summary judgment granted trial court and the quashed This followed. appeal the defendants. all THE SUMMARY JUDGMENT of how to evaluate the familiar arena again We enter provides, perti- Rule 2-501 summary motion. judgment part, nent *8 against in of or judgment shall enter favor court
“[t]he answers to depositions, if moving pleadings, the party the admissions, and affidavits show that interrogatories, to material and dispute any there is no as genuine fact is is entered party judgment in whose that the favor deposition; making the excerpt she admitted from Richard’s 6. This is provided explanation. call and this meeting regard to of this information in the substance We have little meeting, specifics of the had no recollection because Stiller privilege. prevailed prosecutor his claim of executive Gersh on 674
entitled, to judgment as a matter law.” (Emphasis of added.) purpose
The
of the summary judgment procedure is to
dispose
genuine
of cases
there
where
is no
factual contro-
Harris v.
Corp., 26 Md.App.
versy.
213, 218,
Stefanowicz
(1975).
not,
337 A.2d
Summary judgment
however,
is
as a
designed
trial,
substitute for
but a hearing to deter-
mine whether a trial is necessary. Brown Dart
v.
Drug
487, 491,
Corp.,
Md.App.
(1989).
A.2d 132
“The
critical
for the trial
on
question
court
for sum-
mоtion
mary judgment
genuine dispute
whether there exists a
as
and,
not,
to
if
a material fact
the ruling
what
of law should
Brown,
those
upon
undisputed
facts.”
Md.App.
493,
In resolving whether a material fact dispute, remains in must great court accord deference to opposing the party judgment. Even summary where the underlying facts are if undisputed, those are susceptible facts of more than one court, inference, permissible the trial is obliged make to inference favor of the party opposing summary judg- Co., Liscombe ment. v. Potomac Edison 303 Md. The court should never attempt
resolve issues of fact credibility witnesses —these matters must be left for the jury.
All four respective defendants based their summary judg- (1) ment motions on they contentions that because were at all relevant times acting good agents MDIF, faith they were therefore qualified (2) entitled to immunity; and that there no genuine dispute any as to fact material they judgment entitled as a matter of law. We will consider the qualified first. immunity Because we hold qualified immunity involved the instant case should not have resulted entry judgment summary defendants, we later look undisputed to the material facts if to see summary judgment was appropriate even immunity. absent (appellant’s) Each Laws’s causes of *9 ele- prima facie separately, handled be will action course, differ.8 will each, of ments IMMUNITY QUALIFIED Special First Acts of the 6 of the Chapter 9 of Section as amended of Assembly of the General Session Assem- of the General 12 of the Acts 2 Chapter of Section 1374) provides:9 Bill (House of 1986 bly “SECTION 9. AND BE IT ENACTED, FURTHER no claim of nature any whatsoever shall against, arise and no liability imposed upon, shall be the Fund Director officer, director, any agent, or or of employee ... [MDIF] for any statement made or actions taken in good faith exercise of the powers granted and duties imposed under Act____” this
The judgment trial court’s summary favor all defen- dants was based on 9. The trial judge found that it § operated complete director, as a to any against bar action agent, MDIF; employee he based this decision on what he viewed as insufficient evidence of bad faith on the part defendants. We hold that the trial court erred in this interpretation, explain.
The general purpose of the Act was to clarify powers MDIF; preamble the Act’s states that one such clarifica- needed, tion which is embodied was “granting quali- § fied immunity agents the Fund under certain circum- appellant malicious may helpful: made recap of the claims 8. A defamation, against all imprisonment claims and false prosecution, defendants; only Bernstein Stiller and appellant sued four of defamation claim Appellant made an additional process. abuse Frank, Bernstein, subsequently on a letter based against Stiller and bribery. allegation of Thompson’s repeating by Stiller written Ann.; 10 of Md.Fin.Instit.Code in Title 9 is not codified Section however, One appear in Title 10. do parts Bill of House other possible give Title 10 9 a§ did not explanation House Bill 1374 is that emergency house- entire bill designation (perhaps because therefore, publisher, Mi- Code’s did the neither keeping legislation); entirety Note in the Editor’s appear in its Section 9 does chie. law, case, albeit indeed is that it any we are satisfied 10-101. In § to locate. difficult *10 10 providing exceptions.” stances and certain in (Emphasis original.) the
According Bialek, to of Ben testimony Legisla- Chief Officer, tive testifying Savings before the Loan and Indus- try Committee, Committeе the Economics Matters “the Chapter grants amendment to 9 of 6 qualified immunity § agents to of MDIF. The proposed amendment is necessary qualified private to assure that sector con- individuals will agents tract with MDIF as to a conservatorship administer or receivership added.) estate.” (Emphasis
Appellant argues legislative history of House Bill 1374 indicates that qualified immunity was intended only for contract actions and not for torts. He refers us to no legislative such history directly this supporting conclu sion, did any nor we locate independently. plain The words of Act the state that “no claim of any nature is whatsoever” included. failWe to see the meaning how could any plainer and qualified hold the immunity extends to tort actions as well as to other claims.
It is undisputed Frank, that Stiller and Bernstein general acted as counsel to MDIF as Receiver Old Court Loan, Savings and Inc. As for MDIF attorneys acting within the of scope representation, their Frank, Stiller and Bernstein agents. were MDIF’s See, e.g., Salisbury Beau ty Schools v. State Bd. Cosmetologists, 268 Md. of 300 (1973). Therefore, A.2d 367 qualified the immunity applies good faith activities of Stiller and Bern stein. Appellees Thompsоn and Metropolitan are entitled to the qualified same as immunity agents of MDIF.11 They were following the orders of MDIF’s attorney insofar as the security the store was concerned. case, however, operative term in the “quali-
The instant is fied the in immunity;” this is term used the preamble House Bill 1374. The as immunity is described further § “qualified in the we referred immunity” legislative history earlier, i.e., testimony Ben Bialek before Savings Industry and Loan is a Committee. There distinc- original, Underlining, indicates amendments to HB 10. employee, liability predicated on its Metropolitan’s is that of 11. Since purposes. separate Thompson, for discussion we need not them immunity. and absolute immunity qualified tion between context, is the distinction in a defamation example, For faith, good performed those acts only protects the former malicious. acts, no how matter all the latter shields while 551, 554, 729 Mathis, 151 Ariz. v. See, Chamberlain e.g., at a suit defeats immunity” “Absolute P.2d within actions were as the official’s outset, long very an official with however, the fate of immunity; scope the circumstances depends upon immunity” “qualified evidence actions, as established of his motivations (5th 1256, 1262 Cir. F.2d v. Curry, Slavin trial. See course, case, instant 1978). qualification The if from this suit are immune faith, defendants i.e., the good *11 acting good they show that undisputed facts the faith. good presents
A
“almost
an
question
always”
faith
trial,
of fact
County Depart
issue
Freed v. Worcester
Services,
456, 518
Md.App. 447,
69
A.2d 159
ment
Social
(1986),
denied,
47,
(1987);
309
cert.
Md.
“[W]hen intent, in grant- tion of courts must be cautious especially issue ing summary judgment, since resolution witnesses, credibility so much on the depends which can best be determined the trier of facts after by during of the demeanor of the observation witnesses (Citations omitted.) and direct cross-examination.” Co., 139, (4th 601 Morrison v. Nissan Motor F.2d 141 Cir.1979);12 324-26, 287 Md. 413 A.2d accord Berkey, Maryland summary judgment 12. The rules derived are from courts, Maryland Rules Federal therefore, of Practice and Procedure. The interpretation persuasive consider the rules federal concerning Fund, Maryland Metropolitan Mtg. Rules. Inc. v. Basiliko, 25, 27, (1980). 288 Md. 415 A.2d 582 678
170, quoting
Goldwater v.
Ginzburg,
784,
261
F.Supp.
788
aff'd,
(S.D.N.Y.1966),
324,
(2d
414
cert.
Cir.1969),
F.2d
337
denied,
1049,
701,
90
S.Ct.
U.S.
L.Ed.2d 695
Intent is “peculiarly inappropriate” for decision by summa
ry judgment
it “can rarely
because
be established
direct
evidence,
must
proved
and
often be
circumstantially
Zilg
Prentice-Hall,
Inc.,
v.
inference.”
515 F.Supp.
(S.D.N.Y.1981);
Berkey,
accord
305-06,
287 Md. at
Cardin,
324-26,
170;
A.2d
The of good faith, definition course, depends on the context, i.e., particular statute or other rule of law which it is used. We are bereft of a precise definition of good faith as it is used as there no statutory § definition and no construing cases the term.
“Good faith” is concept frequently encountered in the law; therefore, we turn to the term it has been defined in similar contexts. Good faith is an intangible quality, *12 with precise no meaning. technical It encompasses, inter alia, an belief, honest the absence of any malice or of any design to seek an advantage; unconscionable an individual’s good faith is conceptualized within his or her own mind and inner spirit and, therefore, not may be conclusively estab- lished his or her protestations Gordon, alone. Doyle v. 158 N.Y.S.2d (N.Y.1954). 259-60 Good faith requires an honest effort to ascertain the facts on which an exercise power of rests, and an honest determination from these facts. Colket v. St. Louis Co., Union Trust 52 F.2d (8th Cir.1931). 391 distinguish appellees only
13. We four will between the when neces- sary purposes. for discussion summary Stiller, supporting in his affidavit Appellee defense, asserting qualified immunity and judgment § But, as good under- he had acted faith. we stated that cases, profes- review of the mere in our previously lined Ber- persuasive not evidence. good of faith are See sions problem A.2d 170. The that Stiller Md. key, in his affidavit was Officer supporting overcome could not conflicted Stil- statements —statements which with Foster's Frank, and, if version of events be- and Bernstein’s ler’s of faith defense on the lieved, negate good part could and Bernstein. Stiller charges against appel- example, in his statement of
For lant, Officer Foster stated: Stiller, attorney Maryland Deposit
“I with Shale spoke Mr. stated that Gucci’s was Insurance Fund. Stiller this date them as a result of the indictment closed office had all Jerome Cardin his seized against [and] of the store and had hired the records and merchandise given security company He had security company. one, including employees, no orders that owners it enter the store after was closed.” to deposition: Foster
Officer testified things I sure of. If want to hear them. you “Several am One, Mr. me that MDIF had taken Stiller told control date, to guard on and had hired that they that store store. keep employees out the owners particular of it. ... was purpose point That was That night, or if it wasn’t to important important me that me, Laws, up I wouldn’t have locked Mr. because it was concerned, I me, am some- important as far unless Gucci’s, control have no to lock body you has reason store, up. employee goes He is an he Mr. Laws If key. the store has the owners Gucci [sic] Gucci’s, in control there is no crime.” still then affidavit, In that he did make simply his Stiller states Foster, these statements to Officer and denied that Officer him an employee. Foster told appellant Thus, unquestiona facts undisputed we do not have Frank, Bernstein bly showing *13 Stiller and appellees in good acted Rather, faith. we are faced squarely with an issue of credibility. Summary judgment is just procedure by which credibility If evaluated. a jury were to Foster, believe Officer Stiller told the officer that he had legal In control. reality, Stiller did not legal have control over the store merchandise until later, two days when the sheriff executed the Thus, writ. the jury could infer bad faith because Stiller told appellee Metropolitan not to let anyone store, into the although (and Stiller he Frank, knew Bernstein) did not have this right. Additionally, jury could infer bad faith from the fact that Stiller encouraged appellant’s arrest, knowing he had no legal right to lock an out of employee Moreover, the building. jury could infer continued appellees bad faith on Frank, Stiller’s and Bern- stein’s part because of Stiller’s pursuit of appellant’s prose- cution even after Frank, Stiller and Bernstein knew the entire state of Indeed, affairs. a jury could also infer from Richards’ deposition testimony regard to the call her to friend at the Attorney General’s office that she had been assigned to the case for the express purpose of discovering a creative criminal charge which would “stick” appellant. all, After it was not MDIF’s mission prosecute criminally employees of Galleria—that simply not one of MDIF’s functions. We hold that appellees Stiller and Bern- stein failed to establish that there genuine was no issue whether their actions were taken in good faith.
As far as security guard Thompson and his employer Metropolitan concerned, analogous an situation exists which should prevented have entry summary judg ment on their 9 qualified immunity is, defense. § That appellant asserts that he at no time attempted to bribe Thompson. Thompson insists otherwise. If a jury were to believe appellant, Thompson would have been acting in bad indeed, extremely because, bad faith if appellant is to faith — believed, Thompson’s account is a fabrication, total per haps concocted to cover a less than vigilant observation of premises. store Therefore, we hold that appellees Thompson and Metropolitan failed to establish that there genuinе was no issue whether they were entitled to the qualified immunity 9.§
681 MALICIOUS PROSECUTION To maintain an action for malicious prosecution, plain- a tiff must show:
“(a)
proceeding
a criminal
instituted or continued
by
against
(b)
defendant
the plaintiff,
termination of the
proceeding
accused, (c)
favor
absence of proba-
(d)
ble cause for the proceeding,
‘malice,’
pri-
a
mary purpose
instituting the
other than
proceeding
bringing
that of
an offender to justice.”
Corp., Md.App.
Brown v. Dart
487,
Drug
491,
77
551 A.2d
(1989),
Corp.
Exxon
v.
132
Kelly,
citing
689, 693,
281 Md.
(1978).
Appellant
no
would have
difficulty establishing the first
ie.,
elements,
two elements. We look then to the last
two
malice,
absence of
cause and
probable
whether,
to see
viewing the
in the light
facts
most
appellant,
favorable to
prima facie case
supported.
could be
Probable cause is a
suspicion supported
“reasonable
strong
circumstances
enough to warrant an
ordinary
person’s
cautious
belief
that the accused is guilty.”
Salmon,
K-Mart
v.
Corp.
568,
Md.App.
577,
(1988).
(1956). “The presumption malice resulting from the probable want of cause prima only and may be facie rebutted the circumstances under which the defendant acted.” Safeway, 210 Md. A.2d
Stiller and Bernstein argue that “it is undisputed that Stiller had no technical knowledge of the criminal law and that he relied on the police to determine to pro- how ceed.” This is not necessarily undisputed for several rea- sons—Stiller is an attorney and, while he may have in-depth knowledge law, criminal he can charged with somewhat more sophistication than a nonlawyer. Second, appellant does dispute Stiller’s assertion that Stiller relied on the police. In Brown, we rejected defendant Dart Drug’s similar argument to the effect it was not responsible as a matter of law a mistaken criminal *15 charge because the police brought the criminal action based on their independent own investigation:
“It is settled law that a civil defendant
may
avoid
liability for
prosecution
malicious
by relying on the inde-
pendent judgment
prosecutor
of a
or attorney unless that
defendant has made a full disclosure of all material facts
relative to the charges
(Citations
being made.”
omitted.)
Brown,
Appellant, in deposition, stated that he overheard much of what Officer Foster said to Stiller on telephone. Appel- lant allegedly heard Officer Foster Stiller, ask “Do you to go want that route? fine, ... Okay, then go we’ll that route.” We are thus left inference, with an which must be resolved in appellant’s favor for purposes of a motion for summary judgment, that was, Stiller to use the colloquial, calling the shots. affidavit,
In his Stiller did not state that he inadvert gave legal or information that MDIF had ently mistakenly Rather, control of the store to Officer Foster. Stiller denies Frank, (on that Bernstein that he ever told Officer Foster MDIF) had premises legal had seized the and behalf store, and he appellant control over the that was told that If a employee. jury was a Galleria were believe Officer Foster, then could established lack of appellant proba have malice. Officer Foster stated that he cause and would ble alleged arrested in appellant repre not have absence as to control made Stiller. said he did sentations Stiller credibility them. This is a and obviously question not make Moreover, of the jury. the focus province is within evaluating probable to, cause is on those when facts known the one genuinely by, initiating continuing and believed prosecution. Exactly what a in defendant a malicious knew, case and when he or she it is prosecution knew K-Mart, See question jury. Md.App. for the patently A.2d 1069. hold that trial in judge We erred on granting summary judgment appellant’s prose- malicious Frank, against cution and Bernstein. claim Stiller Turning to and appellees Thompson Metropolitan, conclude if jury probable could a lack cause and malice it account, were to disbelieve Thompson’s bribery which significant appellant’s arrest. hold that trial We on judge granting summary judgment appellant’s erred against prosecution Thompson malicious count and Metro politan.
DEFAMATION Appellees Stiller argue Bernstein that the trial judge did not err in granting their summary judgment appellant’s motion on (1) defamation count because Stiller statements, (2) did, made no if defamatory but he they privileged. Appellant maintained that Stiller had told police (and Metropolitan) Thompson appellant had broken into the store to steal papers Galleria business which actuality belonged to MDIF. Appellant also contended *16 appellees and Stiller Bernstein him in defamed a 17,1986, letter dated July stating appellant that had offered Thompson a bribe. Consequently, appellant, repu- avers his damaged. tation was Appellant’s defamation claim against appellees Thompson and Metropolitan centered around claim Thompson’s of and bribery alleged his sighting a malе figure fitting appellant’s description lurking about inside the store after the alleged bribe.
The elements of a prima facie case for defamation are as
First,
follows.
the alleged defamatory statement must
expose
hatred,
person
“public scorn,
a
ridi
contempt or
cule,” and therefore
injured
have
his
her reputation.
Embrey Holly, Md.App.
v.
571, 579,
48
cert.
251,
429 A.2d
granted,
(1981),
684
Embrey,
48
from the words themselves.14
apparent
plainly
Second,
579,
alleged
“the
defam
at
429 A.2d
Md.App.
party,
to a third
and
publicized
must be
atory publication
publication
understand the
to be
reasonably
must
party
that
580,
at
At first
element, i.e., damages, might
Appel
seem insufficient.
that,
as a result of
complaint alleges
amended
lant’s
defamation,
“humiliation” and “loss ...
his
he suffered
claims
reputation.” Appellant
professional
personal
Generally
punitive damages.
as well as
compensatory
must
a basis
alleging
libel
show
speaking,
pleading
See
Wine
suffered actual
injury.
believing
plaintiff
443, 449,
Corp.,
Electric
Md.App.
Westinghouse
holt v.
denied, 301 Md.
354, 483
cert.
A.2d
476 A.2d
put on notice
may
so that the defendant
required
This is
Wine
manner,
extent of the injury.
nature and
as to
449,
hadWe
in Hanlon. Without
covering the same
for defamation
*17
defamatory
slandеr)
(or
per quod if the
is defamation
14. The libel
connect-
readily
but must be
ascertainable
quality of the words is
defamatory.
become
for the words to
bit of information
ed to another
579,
Md.App.
A.2d 251.
Embrey,
at
429
ground
Judge
that
Alpert covered so well and so thorough-
ly,
briefly
we
state that at common law a defamatory
statement
se
per
carried a presumption of damage to a
plaintiffs reputation.
“Thus, the plaintiff in such a def-
amation action could recover ‘presumed’
‘general’
dam-
ages
injury
for
to reputation without proof of such injury.”
Hanlon, 76 Md.App.
351,
at
In the instant unless were held to be public figure, presumed punitive a he could recover without damages showing constitutional malice. Even is, using a that if for some reason public figure analysis, appellant as a for the public figure purposes were viewed case, this there are corresponding sufficient facts and alle gations indicating appellees that made the statements either false, knowing disregard or with reckless they or not. hold they whether were true We therefore the trial erred judge by granting summary judgment for on the defamation appellees counts.
FALSE IMPRISONMENT appellant enough Did have competent evidence false imprisonment summary to survive a motion? judgment hold that We there was indeed sufficient evidence to make prima out a facie case of false imprisonment. explain. We In to prove imprisoned, order that he or she was falsely plaintiff must him deprived show that the defendant or her
686
liberty
consent,
of
without
legal
without
justification.15
Atlantic &
Tea
Paul,
Co. v.
256
643,
Md.
Great
Pacific
654-58,
(1970);
ABUSE
PROCESS
Frank, Bernstein
Appellant
appellees
contends
Stiller and
as a threat
to induce the
prosecution
intended to use the
of the
and to facilitate the execution
payment
judgments
on the assets of the Galleria.
process
civil
process
party
“The tort of
occurs when a
has
abuse
it has issued
process
misused criminal or civil
after
wilfully
a result not
law.”
contemplated by
an order to obtain
549, 555,
(1975);
White, 275 Md.
THE SUBPOENA An link important in establishing malice is the allegedly unusual amount of activity and interest which appellee Stiller in had prosecuting appellant. Appellant points also to the caliber and experience of personnel in the State’s Attorney’s office who were interested in the case. Howard Gersh,17a senior felony prosecutor level, i.е., the felony level, circuit court was directed then by State’s Attorney Kurt L. Schmoke to investigate the relating circumstances to appellant’s arrest. Gersh was instructed to decide what if charges, any, against should be filed appellant. Appellant
16. process against appellees did not assert an abuse of count Thompson Metropolitan. and party 17. Gersh not a suit. to this
In of his investigation, spoke the course Gersh allegedly to Stiller to obtain information that could helpful making charging charges decision. The filed against appellant ultimately prossed. were nolle
Appellant filed his suit in July During civil (in subsequent discovery, deposition) Stiller could recall he said to present what Gersh. Gersh had no recollection of Therefore, in meeting with Stiller. February appel- deposition. lant noted Gersh’s He a subpoena served re- questing appear personally bring Gersh with him: writings,
“All records and documents in possession his Stiller, or referring relating meetings with Shale D. Esquire July August, 198[6].
“His entire file concerning Harry Laws and Criminal Case No. 0101-109484B4.” quash subpoena protective
Gersh moved and for a ground order on the documents “[a]ny contemplatеd by subpoena gathered this Mr. obtained Gersh investigation furtherance of a criminal Office of the In Attorney City.” opposing State’s Baltimore Gersh’s motion, asked for the appellant following information: Gersh, (2) Mr.
“(1) Mr. met with the date on which Stiller *20 Gersh, (3) Mr. Gersh to Mr. what Mr. Stiller said what Stiller, (4) place to take meeting how the came said to Mr. Mr. Gersh’s (5) Mr. file came within how Law’s [sic] purview.”
Appellant requested also access to relating information to telephone conversation between Gersh and Rich- Linda ards.
In his reply memorandum support his motion to quash, Gersh stated that his file contained the following documents:
“1. Memo from Kane, Howard Gersh to Thomas R. 31, 1986, Assistant State’s Attorney, July dated concern- ing disposition charges.
2. Memo from Palenscar, Howard Gersh Alexander Deputy Attorney, 30, 1986, State’s dated July summariz- ing investigation, evidence, his analyzing and recom- mending disposition. Meacham,
3. Memo from Detective a Baltimore City Police assigned officer to the Office of the State’s Attor- Schmoke, ney, Kurt L. Attorney State’s for Balti- 22, 1986, more City, July dated concerning interview of Harry Laws.
4. 17,1986, Memo from Shale D. Stiller to July file dated 16, concerning July events of 1986. 16,1986
5. Police Report dated July preparеd Officer Foster, of the Baltimore City Department. Police 22, Howard Gersh’s notes from July through 5, August his summarizing conversations with other members of the Office of the police State’s Attorney, officers, and members of the Office of the Attorney General, Stiller, Shale Esquire, and others.” The memo from Stiller to the 17, 1986, file dated July concerning 16, 1986, events of July above, and the police above, report, 5 were made available to appellant. Gersh however, claimed that the information, balance of this i.e., 1, 2, above, 3 and 6 protected privilege executive product and the work privilege.18
In May, hearing was held at which the motion was argued. The judge trial granted Gersh’s motion to quash based on privilege; executive the judge made no explicit finding in regard to whether requested material attorney work-product.
Before turning to an analysis of privilege in the instant case, we note briefly the scope of review of discovery decisions. Generally, party may obtain re- discovery “[a] garding any matter, not privileged____” 2-402(a) Rule (emphasis added). The Maryland rules discovery were de- liberately designed to be broad comprehеnsive; their purpose is to assure that no party go to trial in a confused or muddled state of mind regarding the facts giving rise to the litigation. Weissman, Rubin v. 59 Md.App. *21 behalf, privilege
18. Gersh claimed the on his own as well as for the Attorney City. Office of the State’s for Baltimore The Office of the Attorney represented Attorney’s General Gersh and the State’s office at summary judgment hearing, appeal. as well as on this Appellant argues that he was entitled to notes of any Stiller, pertaining Gersh’s well as the other items in file, only Gersh’s because of necessity, but because allegations there are of misconduct involving State’s Office. The Attorney’s meeting Stiller/Gersh and the Attorney’s investigative process State’s are therefore opera- facts in this case. tive
Appellant urges strong public also that there are policy against applying privilege reasons executive in this particu- lar Specifically, appellant case. contends that the fact that firm members Stiller’s contributed to Schmoke’s mayoral campaign suggests may Stiller access and have influ- ence on the Attorney’s beyond State’s office that of ordi- citizens. nary Invoking privilege, argues executive appel- lant, suggests an effort suppress well-connected to not, from those are permits. evidence who Stiller an unfair of the fact advantage light that Stiller claims not to recall what he said to Gersh. onset, point
At the we out that are not we convinced that privilege, executive as it has been traditionally interpreted defined, covers the situation at hand. privi- Executive lege is sometimes referred to as the privilege “govern- Evidence, (3d mental secrets.” McCormick on 106-113 § 1984). ed. Verdow, 544, 553, See also Hamilton v. 287 Md. n. The “governmental secrets” privilege, i.e., privilege, executive encompasses several dif- ferent situations. We set them out in order to provide background for subsequent analysis. which privilege sort of executive
First, there is the classic
See,
secrets.
Totten
diplomatic
e.g.,
military
applied
(1875) (action by
691 deleterious to national or defense international relations. obviously We are not faced with such a in situation the instant case.
The second of type privilege executive is the one estab- Nixon, 683, lished in 705-06, United States v. 418 U.S. 94 3090, 3106-3107, 41 S.Ct. 1039 (1974),recognizing L.Ed.2d protecting constitutional privilege confidential communica- tions between the President and his or her advisors. The so-called presidential constitutional privilege absolute, is however, and is subordinate the to demonstrable need for in relevant evidence a criminal proceeding. Nixon, 418 U.S. 713, at at 94 S.Ct. 3110. The rationale this privilege behind protection is the processes deliberative and mental decision-makers; the the Court said: “Human experience expect teaches that those public who dissemination of their remarks may temper well candor with a concern for appearances and for their own inter- ests to the detriment of decisionmaking the process.” Nixon, 705, 418 94 U.S. at 3106. S.Ct.
Another executive is type рrivilege sometimes extend- to investigative ed law enforcement files. These files are might disclosure the protected compromise because identity sources, of confidential or nature of reveal exact case, prosecution’s making thus the task a criminal defendant an preparing effective defense much easier. Another rationale such a privilege “prevent is to casting of unnecessary suspicion upon persons ultimately investigative process.” McCormick, exonerated su- at 267. This pra, privilege expires when the specific inves- tigation or governmental undertaking ends, see Franken- 59 Rizzo, (E.D.Pa.1973), hauser v. F.R.D. 339 and will not government attach at all unless the makes an initial demon- specific stration that “some detriment of types sought to be will ensue avoided from disclosure matter sought McCormick, protected.” at 267. supra, We are aware of no Maryland case which applies an executive such this to privilege
executive
Maryland
ernmental
advisory and deliberative
communications.
Hamilton,
562,
19. There
statutes
types
certain
example,
records. For
information contained in State tax returns
may
only pursuant
exceptions
be disclosed
contained in Md.Tax-
Gen.Code Ann.
13-203
§
рatient
Florida;
20.
there,
The
parents
went to visit his
in
while
he
young boy.
killed a
personal representative
The
of the Florida victim
brought
diversity
against
action
Superintendent
Spring
Hamilton,
psychiatrists.
244,
Grove and two staff
693
that an in
The
held
camera
ultimately
Court
inspection
required. Hamilton,
report
569,
287 Md. at
A.2d 914. That
the federal
way,
trial court could
sever
i.e., separate the execu-
feasible,
material if
truly privileged
and legislative opinions
tive
contained therein from any
Hamilton,
purely
factual material.
287 Md. at
A.2d
Hamilton,
What was
in
explicitly
established
how-
ever, was that the doctrine of executive privilege should
routinely be extended to a particular State’s Attorney’s
investigation or
office,
a State’s Attorney’s
in
particularly
situation such as this where the internal workings of that
Indeed,
office are an issue.
observed Hamil-
the Court
ton,
563-64,
Md. at
that,
A.2d
even where the
privileged,
material is
the executive privilege claim may be
rejected because the litigant’s need for disclosure outweighs
any interest
the government
may have
confidеntiality,
i.e., where
allegations
there are
government
miscon-
duct.22 The Stiller/Gersh meeting and the State’s Attor-
ney’s investigative process are
operative facts
the instant
case. That appellant has a legitimate need for existing
evidence, i.e., that he is not engaged in a “fishing expedi-
*24
tion,” is reflected
the fact
by
that Gersh’s file does contain
items that may include
help
evidence to
support his claims.
appellant’s
Part of
allegations
governmental
include
miscon-
duct, i.e., that the State’s Attorney’s office was particularly
responsive to
firm,
Stiller and his law
and that
it was
unusual for a senior felony
such
attorney
as Gersh to be so
concerned with a misdemeanor. Additionally, what Stiller
stated to Gersh involves factual data important to appel-
lant’s case. It is factual evidence which is unavailable from
sources,
other
considering that neither Gersh nor Stiller
recall the substance of their meeting. Gersh’s
pros
nolle
the criminal charge against appellant suggests at least the
possibility of lack
probable cause,
an element necessary
to maintain appellant’s malicious prоsecution charge. Ap-
22. Other
litigant’s
situations where the
may outweigh
need
govern-
the
ment’s interest
is
privilege
where the
is
potential
asserted for
evidence
trial,
Nixon,
at a criminal
711-13,
see
3109-3110,
pellant to survive a verdict, directed present evidence why as to the charge was dropped. There appears to be evidence in possession Gersh’s showing that he dropped the charge appellant because right had a on premises. be the 4-247(a) Rule requires that statement of the reasons “[a] for entering a nolle prosequi shall be made a part of the record.” Certainly, it is appellant’s responsibility to look first to this source. If the State’s reason for the pros nolle is not detailed enough, ifor there grounds are to believe complete was reason put on record, appel- lant will need Gersh’s notes. information is sought by appellant
We hold that the holding upon out our point discoverable. We based no need and do not the facts to this case—we have peculiar govern no allegations reach a situation where there are agree appellant to the extent ment misconduct. We with privilege protecting an the infor that to establish executive the mere assertion the State that sought upon mation privileged appearance materials are could create the All construed privileges strictly are “cover-up.” may exclude what otherwise be relevant they because State, 324-27, Ellison v. 65 Md.App. reliable evidence. supported by Riggins Maryland, v. holding Our also is (1915), the Court held that not all 125 Md. where to a by prosecution prosecuting statements made witness are attorney privileged: prosecu-
“In other cases of malicious jurisdictions, arrests, has prosecuting attorney tions and false been to state in had objection, under evidence what permitted, defendant, him prosecut- communicated to been witness, of a investigation prosecution ing such communication charge, criminal where preceding omitted.) (Citations formed the basis of the civil suit.” *25 brief, argues In that his notes were appellee his Gersh Although rule. Gersh did protected by work-product hearing, at the nor was the work- argument not rаise this in rule mentioned motion to product specifically Gersh’s in supporting he did make reference to it his memo- quash, question, the trial did not reach the judge randum. Since work-product issue of whether not reach the we will This is an notes. Rule 8-131. to Gersh’s apply rule would remand.23 to consider on may the trial court wish issue REVERSED AND REMANDED FOR FURTHER PRO- IN ACCORDANCE WITH THIS OPINION. CEEDINGS BE PAID BY COSTS TO APPELLEES.
FISCHER, J., concurring: holding summary
I concur in the
of the
that
majority
In
appellees
inappropriate.
of the
favor
judgment
officer
police
of the
recollections of the
conflicting
view
(Foster)
Stiller,
dispute
it is clear that a factual
exists
Officer Fos-
appellant’s
as to the circumstances of
arrest.
him
MDIF had control of
ter testified that Stiller told
the store on
1986 and that Foster would
have
July
MDIF did not
arrested Laws had Foster known that
have
officer
telling
control of the store. Stiller denies
conflicting
MDIF controlled the store. From this
testimo-
remand,
question
product
23. If the
of work
is raised on
we remind the
proceeding
trial court that the
issue
method
when the
is raised was
Administration,
clearly delineated in Kelch v. Mass Transit
287 Md.
question
adversary
The first
is whether the
possession
sought.
has in its
or under its
or
control the item items
Then
“(a)
respondent
the event the motion
that it
[i]n
answers
has no
item,
that,
knowledge as to the existence of such demanded
or
while
existence,
possession
it knows of the item’s
it is neither within its
control,
demanding party
factually
nor
the burden is on the
show
evidence;
contrary by preponderance
to the
a
of the
however,
(b)
responding party,
acknowledging
if the
while
either
item,
possession
says
or control of the demanded
it is not discover-
exception provision
able
‘prepared
virtue of Rule 400 d’s
that the item was
(or
anticipation
litigation
any
or for trial’
other
reason),
proper
upon
responding party
burden
to substan-
evidence;
non-discovery
by preponderance
tiate its
and
assertion
if,
(c)
hand,
demanding party,
recognizing
on the other
while
requested
‘prepared
anticipation
litigation
that the
item was
adversary,
discovery
exception
for trial’
authorized in Rule 400 d
his
claims
under the
(i)(ii)
(iii)
the burden of so establish-
ing by
preponderance
exception
of the evidence rests on the
claimant."
Kelch,
change
Ironically, Stiller’s recollection of the events been the Foster, same as that of Officer and had Laws’ arrest resulted Stiller because error as his to control of the store, opinion, in my Stiller would protected his qualified immunity. respect
I do the majority’s not share view with Stiller’s “pursuit appellant’s nothing prosecution.” We know Gersh, of the with content Stiller’s conversation efforts, according Linda Richards’ to her testimony, were I appellant. not directed at am not that persuaded placement particular of Richards’ memo file is suffi- unequivocal testimony. cient to at issue her To put end, admissibility opinion regarding of Stiller’s import placement particular memo in file is highly questionable.
Further, I do not it concur that “was not MDIF’s mission to prosecute criminally employees of Galleria.” It seems apparent duty that Stiller had a to take all reasonable steps to preserve assets over MDIF which had taken control. A proper aspect those efforts could entail bringing of charges criminal necessary. when Finally, I do believe that there are to support facts an inference that Stiller and Bernstein brought about the arrest of Laws in order collect judgments. There is no suggest evidence to Stiller made any attempt to use Laws’ as a situation collection lever. charge That seems to me to be a allegation bald any evidentiary without support. notes documents State’s Indeed, Attorney’s file. aside from the privilege against self-incrimination, Maryland general has no rule making reports Andre- required returns lawby privileged. See sen v. Bar County, Association Montgomery Md. 313, 322-330, denied, 1065, 94 cert. 305 A.2d U.S. S.Ct. (1973).19 L.Ed.2d 470 Verdow, Hamilton v. In (1980), 287 Md. Appeals held, the Court of pursuant question a certified Court, from the United States District that the doctrine of privilege recognized intra-gov-