Gersh v. Ambrose

• Decision Date: 09 September 1981
• Docket Number: No. 69,69
• Citation: 434 A.2d 547,291 Md. 188
• Parties: Howard GERSH v. Lance V. AMBROSE.
• Court: Maryland Court of Appeals

Page 188

291 Md. 188

434 A.2d 547

Howard GERSH v. Lance V. AMBROSE.

No. 69.

Court of Appeals of Maryland.

Sept. 9, 1981.

Glenn W. Bell, Asst. Atty. Gen., Baltimore (Stephen H. Sachs, Atty. Gen., Baltimore, on the brief), for appellant.

Barry C. Steel, Baltimore (Glen M. Fallin, Baltimore, on the brief), for appellee.

Argued before MURPHY, C. J., and SMITH, DIGGES, ELDRIDGE, COLE, DAVIDSON and RODOWSKY, JJ.

COLE, Judge.

In 1978 appellee, Lance V. Ambrose, a staff member of the Baltimore City Community Relations Commission (the "Commission") filed a defamation suit against appellant, Howard Gersh, an Assistant State's Attorney for Baltimore City, alleging that at a public hearing before the Community Relations Commission Gersh had slanderously accused Ambrose of having committed the criminal offenses of obstruction of justice and subornation of perjury. Gersh demurred to an amended declaration on grounds (1) that Ambrose failed to set forth, haec verba, the alleged defamatory words, but merely appended a partial transcript of the proceedings giving rise to appellant's case; (2) that Gersh was acting within the scope of his employment as an Assistant State's Attorney and was therefore absolutely immune from suit; and (3) that in any event the communication complained of was absolutely privileged, it being undisputed that Gersh was speaking as a witness at a public hearing and that his statements were made in response to questions asked him at this hearing. The trial court sustained the demurrer without leave to amend on the second and third grounds. A timely appeal followed and the Court of Special Appeals reversed, Ambrose v. Gersh, 46 Md.App. 71, 415 A.2d 644 (1980), on the grounds that the two immunities claimed in Gersh's demurrer were not supported by the allegations in Ambrose's declaration. We granted certiorari to consider the immunity questions presented.

Gersh maintains that he is entitled to absolute immunity either as a prosecutor or a witness called to testify at the Commission's hearing. If he is entitled to either, such immunity would completely bar suit. We have never considered the extent to which a prosecutor may be entitled to absolute immunity outside of a judicial proceeding, nor have we considered the immunity of a witness before a non-judicial body.

The most recent case from the Supreme Court addressing the subject of prosecutorial immunity is Imbler v. Pachtman, 424 U.S. 409, 430, 96 S.Ct. 984, 994, 47 L.Ed.2d 128 (1976). In Imbler, the Supreme Court held that immunity extends only to the activities of a prosecutor "in initiating a prosecution and in presenting the State's case," which are those activities "intimately associated with the judicial phase of the criminal process." 424 U.S. at 430, 96 S.Ct. at 995. However, Imbler specifically declined to consider whether absolute immunity would extend to "those aspects of the prosecutor's responsibility that cast him in the role of an administrator or investigative officer rather than that of an advocate," Id., n. 33, apparently because of the difficulties of deciding such a question in the abstract. Here, appellant's claim of immunity is similarly abstract. The declaration specifically alleges that Gersh was not acting within the scope of his employment and hence the facts alleged could not support a claim of immunity based upon his activities as Assistant State's Attorney. It is thus unnecessary for us to determine the precise scope of prosecutorial immunity under Maryland law. We hold only that it was error for the trial court to have sustained appellant's demurrer on this ground.

Gersh's second claim of immunity is based upon the undisputed fact that he was testifying as a witness before the Baltimore City Community Relations Commission at the time the allegedly defamatory statements were made. To date, this Court has never addressed the issue of whether a witness testifying in a forum other than a courtroom is absolutely immune for statements made from the witness stand. Korb v. Kowaleviocz, 285 Md. 699, 402 A.2d 897 (1979), held only that defamatory statements made by a witness while testifying in a judicial proceeding are unconditionally privileged and therefore not actionable for defamation. In that case we followed the minority English rule:

In general, defamatory statements made by a witness while testifying in a judicial proceedings are privileged. See 1 F. Harper & F. James, The Law of Torts, §§ 5.21, 5.22 (1956); Veeder, Absolute Immunity in Defamation: Judicial Proceedings, 9 Colum.L.Rev. 463 (1909); Note, Developments in the law Defamation, 69 Harv.L.Rev. 875, 917-24 (1956). There are two versions of this privilege, however. The "English rule" affords a witness an unconditional privilege regarding his testimony. The "American rule" also extends such protection to a witness provided, however, that the witness' testimony is relevant or pertinent to a proceeding or is given in response to a proper question by counsel or by the court. The vast majority of jurisdictions in this country follow the American rule... (citations omitted). In Maryland, however, the English rule was endorsed in an early case which has not been modified or overruled. See Hunckel v. Voneiff, 69 Md. 179, 14 A. 500 (1888), followed in Schaub v. O'Ferrall, 116 Md. 131, 81 A. 789 (1911). (285 Md. at 701-2, 402 A.2d 897.)

We quoted approvingly, and at length, from Hunckel v. Voneiff, supra, at 198-99, 14 A. 500, which explained why, in this State, we would grant the unconditional English privilege to a witness while maintaining the conditional, relevance-based American rule with respect to attorneys:

The great importance to the administration of justice that witnesses should testify with minds absolutely free from the apprehension of being annoyed by civil actions for any thing they may say as witnesses, has already been pointed out. They are commonly untrained in legal learning, and often timid and uneducated. They are brought into court by the mandate of the law, and compelled to testify, usually for the benefit of others. On the other hand lawyers practice their profession voluntarily and for their own emolument. By their professional training they are taught, and it is their business to know, what is pertinent or relevant to the trial of a case. (285 Md. at 702-3, 402 A.2d 897.)

We thus made it clear that the purpose of granting an unconditional, absolute privilege was not merely to protect the witness from ultimate liability, but to protect him from the annoyance of suit itself. This is the same reason the privilege granted is absolute, rather than qualified, i. e., defeasible by malice, for all protected participants in the judicial proceeding. See, e. g., Butz v. Economou, 438 U.S. 478, 512, 98 S.Ct. 2894, 2913, 57 L.Ed.2d 895 (1978), on remand 466 F.Supp. 1351 (S.D.N.Y.1979), aff'd mem. sub nom. Economou v. U. S. Dept. of Agriculture, 633 F.2d 203 (2d Cir. 1980) (absolute immunity is "necessary to assure that judges, advocates, and witnesses can perform their respective functions without harassment or intimidation"); Blakeslee & Sons v. Carroll, 64 Conn. 223, 232-33, 29 A. 473 (1894) (to the same effect); see also Restatement (Second) of Torts, § 588, comment a (1977); 1 F. Harper & F. James, The Law of Torts, § 5.21 (1956). See generally V. Veeder, Absolute Immunity in Defamation: Judicial Proceedings, 9 Colum.L.Rev. 465 (1909).

Most American courts which have extended absolute immunity to witnesses testifying in other than strictly judicial, in-court settings have first assured themselves that in such settings there are sufficient judicial safeguards so as to minimize the likelihood of harm to potentially defamed (or otherwise injured) individuals who would have no legal remedy. For example, the Supreme Court in Butz v. Economou, supra, extended absolute immunity to adjudication before a federal administrative agency because it

shares enough of the characteristics of the judicial process that those who participate in such adjudication should also be immune from suits for damages.... Moreover, federal administrative law requires that agency adjudication contain many of the same safeguards as are available in the judicial process. The proceedings are adversary in nature.

See 5 U.S.C. § 555(b) (1976 ed.). They are conducted before a trier of fact insulated from political influence. See § 554(d). A party is entitled to present his case by oral or documentary evidence, § 556(d), and the transcript of testimony and exhibits together with the pleadings constitute the exclusive record for decision. § 556(e). The parties are entitled to know the findings and conclusions on all of the issues of fact, law, or discretion presented on the record. § 557(c).

There can be little doubt that the role of the modern federal hearing examiner or administrative law judge within this framework is "functionally comparable" to that of a judge. His powers are often, if not generally, comparable to those of a trial judge: He may issue subpoenas, rule on proffers of evidence, regulate the course of the hearing, and make or recommend decisions. See § 556(c). More importantly, the process of agency adjudication is currently structured so as to assure that the hearing examiner exercises his independent judgment on the evidence before him, free from pressures by the parties or other officials within the agency. (438 U.S. at 513-14, 98 S.Ct. at 2914.)

In short, the protections afforded in an adjudicatory hearing before a federal administrative law judge are such that the immunity available in court trials could safely be extended.

State cases extending absolute immunity to complainants and witnesses before administrative bodies have not, for the most part, required strict adherence to the safeguards outlined in Butz. Instead, they have answered in general terms that the immunity would extend to proceedings which are in essence "quasi-judicial", a term which...