467 A.2d 483 (Md. 1983), 18, Sigma Reproductive Health Center v. State

Docket Nº:18 (Adv.)
Citation:467 A.2d 483, 297 Md. 660
Opinion Judge:[10] Smith
Attorney:[7] Alison D. Kohler, with whom were G. Stewart Webb, Jr., Venable, Baetjer & Howard, Arthur B. Spitzer and Elizabeth Symonds on the brief, for appellant.
Case Date:November 22, 1983
Court:Court of Appeals of Maryland

Page 483

467 A.2d 483 (Md. 1983)

297 Md. 660



STATE of Maryland et al.

No. 18 (Adv.)

Court of Appeals of Maryland.

November 22, 1983

[297 Md. 662] Alison D. Kohler, Baltimore (G. Stewart Webb, Jr. and Venable, Baetjer & Howard, Baltimore, Arthur B. Spitzer and Elizabeth Symonds, of Washington, D.C., on the brief), for appellant.

Daniel J. Hurson, Washington, D.C. (Hundley & Cacheris, P.C., Washington, D.C., on the brief), for appellee, Debra Braun.

No brief filed on behalf of appellee, State of Md. [297 Md. 661]


SMITH, Judge.

We shall be obliged to dismiss this appeal because it is not from a final judgment. However, we shall give reasons for our view that the defense of necessity is not available to a trespasser at an abortion clinic.

Page 484


Appellant Sigma Reproductive Health Center is an unincorporated subsidiary of SIGMA Centers of America, Inc. The former operates a family planning and reproductive health clinic in Montgomery County. It offers a variety of health care services, including first trimester abortions. Physicians licensed by the State of Maryland perform these abortions in accordance with Maryland law.

Appellee Debra Braun participated in a demonstration against abortion held at Connecticut Belair Medical Park where Sigma leases office space. She and other trespassers were requested to leave Sigma's reception area. She refused. As a result she was arrested and charged with two counts of trespass. On September 7, 1982, she was tried and convicted of trespass in the District Court of Maryland. She appealed that conviction to the Circuit Court for Montgomery County. That trial has not yet been held.

On December 2, 1982, Braun served a subpoena duces tecum on Sigma in which she sought production, prior to trial, of: "records of all abortion patients processed at the Sigma Reproductive Health Center insofar as these pertain to the performance of abortions, and patient follow-up and patient outcomes for the three-month period up through and [297 Md. 663] including August 7, 1982" with the provision that patients' names might be deleted from the files; "a list of all patients who have sued the clinic or any doctor who performed any abortions upon them therein, or both, together with any other party or parties, for medical malpractice, or whose estates or survivors have so sued such clinic, doctor, or other party or parties"; "copies of all releases required by such clinic to be signed by any patient seeking an abortion with the patients' names deleted therefrom"; and "copies of all documents or other materials used to explain the risks present inevitably in the performance of any abortion to the clients of such clinic together with a written explanation (if any is now in existence) of how such risk explanatory documents are used and when they are so used." Braun advised the court that, in connection with her motion for the subpoena, she would "raise the legal doctrine of necessity as a complete defense to her actions in committing the alleged act of trespassing." She submitted a detailed memorandum to that effect. Both the State and Sigma moved to quash the subpoena, arguing, among other things, that "[a]s a matter of law, Defendant cannot assert the defense of necessity on the facts of this case."

At the hearing on the motion to quash, Braun argued that her trespass was justified because she wished both "to save the life of unborn fetuses" and "to protect the health and well-being of the women who were going into the Clinic that day for abortions." She further argued that she,

"need[ed] these records ... to prove the objective fact, or corroborate the objective fact that there was negligence, that there had been inadequate counseling, that there had been sloppy preparation, that there had been other injuries that may not have resulted in law suits that would be on the public record."

In denying the motion to quash the circuit court judge declined to address the issue of necessity. She ordered that the subpoena duces tecum be issued but she modified the [297 Md. 664] time period relevant to the documents to be produced, limiting it to the two-week period prior to the arrest. No similar time limitation was placed on the other items requested. Sigma promptly appealed to the Court of Special Appeals. The proceedings have been stayed pending appeal. On our own motion we issued a writ of certiorari prior to argument in the Court of Special Appeals in order that we might address the important public question here presented.


We first consider whether there is a right of appeal in this case.

Page 485

As in the federal system, with certain limited exceptions not applicable to this case, appeals from circuit courts in this State are limited by Maryland Code (1974) § 12-301, Courts and Judicial Proceedings Article, to those from final judgments. In Stewart v. State, 282 Md. 557, 571, 386 A.2d 1206 (1978), we said there was no substantive difference between 28 U.S.C. § 1291 and the Maryland statute. Further we have stated that it is elementary that parties may not confer appellate jurisdiction by consent upon this Court or the Court of Special Appeals. East v. Gilchrist, 293 Md. 453, 458, 445 A.2d 343 (1982); Pappas v. Pappas, 287 Md. 455, 466, 413 A.2d 549 (1980); Price v. Hobbs, 47 Md. 359, 378-79 (1877).

The right to appeal is statutory, based upon the law we have previously cited, rather than constitutional. See Peat & Co. v. Los Angeles Rams, 284 Md. 86, 90, 394 A.2d 801 (1978); Neal v. State, 272 Md. 323, 324, 322 A.2d 887 (1974); State v. Haas, 188 Md. 63, 67, 51 A.2d 647 (1947). Although the General Assembly has stated that appeals may be heard only from final judgments, it is for the courts to define and give content to the meaning of the term "final judgment." Peat & Co., 284 Md. at 90-91, 394 A.2d 801; Warren v. State, 281 Md. 179, 182-83, 377 A.2d 1169 (1977).

The rule that an appeal will lie only from a final judgment and not from an interlocutory judgment is firmly established [297 Md. 665] in our legal system. The primary rationale is to prevent piecemeal appeals and to prevent the interruption of ongoing judicial proceedings. See United States v. Nixon, 418 U.S. 683, 690, 94 S.Ct. 3090, 3098, 41 L.Ed.2d 1039 (1974); Peat & Co., 284 Md. at 91, 394 A.2d 801; Warren v. State, 281 Md. at 183, 377 A.2d 1169; Neal, 272 Md. at 324-25, 322 A.2d 887 (quoting Lee v. State ); and Lee v. State, 161 Md. 430, 432, 157 A. 723 (1931). Thus, the rule is designed to promote judicial efficiency and economy. Although the rule appears to be simple enough, as this Court has noted the determination of whether a judgment is final is not always easy. See, e.g., Peat & Co., 284 Md. at 91, 394 A.2d 801; United States Fire Ins. Co. v. Schwartz, 280 Md. 518, 521, 374 A.2d 896 (1977) (dicta). Because of the difficulty in determining whether an issue before an appellate court arises from a final judgment, this Court has formulated a definition: "[T]he judgment must be so final as to determine and conclude rights involved, or deny the appellant means of further prosecuting or defending his rights and interests in the subject matter of the proceeding. In re Buckler Trusts, 144 Md. 424, 427, 125 A. 177 (1924)." Schwartz, 280 Md. at 521, 374 A.2d 896 (1977) (dicta). See also In re Special Investigation No. 231, 295 Md. 366, 370, 455 A.2d 442 (1983); Peat & Co., 284 Md. at 91, 394 A.2d 801 (quoting Schwartz ); Warren v. State, 281 Md. at 183, 377 A.2d 1169 ("[T]o be final a judgment must actually settle the rights of the parties ... or it must finally settle some disputed right or interest of the parties ...."). Notwithstanding the development of the collateral order doctrine in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949) and its progeny, see infra, the federal courts and this Court, with relatively few exceptions, have strictly adhered to the final judgment rule.

As we have noted previously, a final judgment exists when the rights of litigants have been established conclusively at the trial level. The general rule in criminal cases is that no final judgment exists until after conviction and sentence has been determined, or, in other words, when only the execution of the judgment remains. See, e.g., Parr v. United States, 351 U.S. 513, 518, 76 S.Ct. 912, 916, 100 L.Ed. 1377 [297 Md. 666] (1956); State v. Powell, 186 Conn. 547, 442 A.2d 939, 943, cert. denied, 459 U.S. 838, 103 S.Ct. 85, 74 L.Ed.2d 80 (1982); Warren, 281 Md. at 185-86, 377 A.2d 1169; Pearlman v. State, 226 Md. 67, 70, 172 A.2d 395 (1961); Lee, 161 Md. at 432, 157 A. 723. Ordinarily, therefore, an appeal from a pretrial or trial order will not be heard where there are pending proceedings in which issues

Page 486

on the merits of the case remain to be decided. Such orders are interlocutory, not final, and nonappealable until after entry of a final judgment. See, e.g., Grinnell Corp. v. Hackett, 519 F.2d 595 (1st Cir.), cert. denied, 423 U.S. 1033, 96 S.Ct. 566, 46 L.Ed.2d 407 (1975); United States v. Moore, 368 F.2d 990 (9th Cir.1966); Alexander v. State, 260 Ark. 785, 545 S.W.2d 606 (1976); People v. Ealy, 49 Ill.App.3d 922, 7 Ill.Dec. 864, 365 N.E.2d 149 (1977); Warren, 281 Md. 179, 377 A.2d 1169; Commonwealth v. Washington, 428 Pa. 131, 236 A.2d 772 (1968).

Despite this prevailing policy, courts have carved out some exceptions. Most of these exceptions in criminal cases concern the constitutional or other rights of criminal defendants and thus are not directly applicable here. The rationale of the courts in permitting appeals from certain pretrial or trial orders is that the rights of the defendant would be...

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