Prince George's County v. Hartley

• Decision Date: 02 May 2003
• Docket Number: No. 2660,2660
• Citation: 822 A.2d 537,150 Md. App. 581
• Parties: PRINCE GEORGE'S COUNTY, Maryland, v. Eric HARTLEY, et al.
• Court: Court of Special Appeals of Maryland

822 A.2d 537

150 Md. App. 581

PRINCE GEORGE'S COUNTY, Maryland, v. Eric HARTLEY, et al.

No. 2660, Sept. Term, 2001.

Court of Special Appeals of Maryland.

May 2, 2003.

Eugene H. Pickett, II, Associate County Attorney (Leonard L. Lucchi, County Attorney on the brief), Palmer Park, for appellant.

Kevin Hardy (Kevin T. Baine and Williams & Connolly, LLP on the brief for appellees Castaneda and Johnson), Washington DC, Alice Neff Lucan of Washington DC, for appellee Hartley.

Argued before MURPHY, C.J., HOLLANDER, and CHARLES E. MOYLAN, JR. (Ret'd, specially assigned), JJ.

MURPHY, Chief Judge.

In the Circuit Court for Prince George's County, Ruben Castenada, Eric Hartley, and Gregory C. Johnson (collectively "appellees") filed motions to quash administrative subpoenas directing them to attend and give testimony at a police department disciplinary hearing. Appellees argued that, as newspaper reporters, they have a qualified privilege under the First Amendment and cannot be compelled to testify. The circuit court quashed the summonses and this appeal followed, in which Prince George's County, appellant, presents three questions for our review:

1. Did the Circuit Court err in granting the Appellees[`] Motion to Vacate Order and Quash Summons by finding that the Prince George's Police Department failed to show a compelling and overriding interest in the news reporters' testimony?

2. Did the Circuit Court err in its application of the Maryland Shield Law and The First Amendment?

3. Does the media have an absolute privilege from testifying?

For the reasons that follow, we hold that neither the First Amendment nor the Maryland Shield Law entitles appellees to refuse to testify at the administrative hearing. We shall therefore reverse the judgments of the circuit court.

BACKGROUND

On August 13, 2001, appellees were at the federal courthouse in Greenbelt, Maryland, covering a trial that involved allegations of misconduct by two Prince George's County Police Officers. Newspaper articles written by appellees reported that, during the lunch break, in the courtroom vestibule, Officer Brian Lott stated, "I wish I would have been there in `95. I would have shot the bastards, and we wouldn't have all this crap." The statement attributed to Officer Lott appeared in an article written by Mr. Castenada for The Washington Post, an article written by Mr. Johnson for The Gazette Newspapers, and in an article written by Mr. Hartley for The Prince George's Journal.

In response to the publications, the County initiated an investigation, and ultimately filed an administrative charge (of "unbecoming conduct") against Officer Lott. When contacted by the County's investigator, appellees refused to give statements and stated that they would not testify at the administrative hearing. Thereafter, appellant issued summonses directing that the appellees appear and give testimony at the disciplinary hearing.

Appellant obtained a court order requiring appellees to appear before the hearing board in accordance with the summonses. Subsequently, appellees filed motions to vacate the court's order and quash the summonses. At the hearing on appellees' motions, the circuit court heard argument from counsel to the parties and from counsel to Officer Lott. Appellees argued that their published articles should be relied upon as their statements. Additionally, appellee Hartley offered an affidavit as a substitute for his testimony. Appellant's counsel represented to the court that (1) an attorney, who was also present at the federal courthouse, heard only a portion of Officer Lott's statement; (2) the County's investigator had questioned everyone present at the courthouse when the statement was purportedly made; and (3) nobody else either heard the statement or is willing to admit to such.

Although Officer Lott did not file a motion to intervene or any other pleading with the circuit court, his counsel argued that if the reporters were compelled to testify, he would want to (1) examine any notes that appellees had made, and (2) conduct a very extensive cross-examination of the appellees, consisting of 150-200 questions. According to Officer Lott's counsel, if appellees testified and the court limited his right to question them, Officer Lott would be deprived of his right to constitutionally adequate cross-examination.

Ruling from the bench, the circuit court found that, although the appellees were in possession of information that is relevant to the issue of whether Officer Lott engaged in unbecoming conduct, (1) the County would be able to present evidence of Officer Lott's statement by means of an alternative, non-media source; (2) a trier of fact could find the newspaper articles to be persuasive evidence that Officer Lott made the statement in question; (3) Mr. Hartley's offer to provide an affidavit was a reasonable alternative to appellees' testimony; and (4) appellees could assert a qualified privilege that would prevent Officer Lott's counsel from conducting a "full" cross examination. Based upon those findings, the circuit court quashed the summonses, explaining:

The fact of the matter is that the Court cannot imagine fashioning a protective measure that would be respectful of the right of Officer Lott to confrontate [sic], to confront live witnesses.

Quite frankly, what I have right here is that [the] arguments [by Officer Lott's counsel] on behalf of Mr. Lott tips the scale.

The Court does believe that Officer Lott would have a right to a full cross examination of the witnesses as to bias. And bias can be reached in a number of fashions. But even beyond the bias questions there would be a right of cross examination.

The Court believes it would be unreasonable to restrict cross examination to preclude questioning of the reporters as to what investigation was conducted in relationship to hearings, what was reported to have been heard. And the Court finds that Prince George's County has not established a compelling and overriding interest in the disclosure that would be sought by allowance of the subpoenas.

And the Motion of Rubin [Ruben] Castenada and Gregory P. Johnson to Vacate and Quash Summonses and the Motion to Vacate the Motion for Order to Testify and Quash Summonses for Testimony of Eric Hartley are granted.

STANDARD OF REVIEW

An order granting a motion to alter or amend judgment is ordinarily reviewed under the abuse of discretion standard.¹ Falcinelli v. Cardascia, 339 Md. 414, 430, 663 A.2d 1256 (1995); Gallegos v. Allstate Ins. Co., 144 Md.App. 213, 235, 797 A.2d 795 (2002), cert. granted, 370 Md. 268, 805 A.2d 265 (2002); Wormwood v. Batching Sys., 124 Md.App. 695, 699, 723 A.2d 568, cert. denied, 354 Md. 113, 729 A.2d 405 (1999); see also WBAL-TV Div., Hearst Corp. v. State, 300 Md. 233 at 247, 477 A.2d 776 (1984)

(reviewing a court's order denying a motion to quash a summons under the abuse of discretion standard).² In this case, however, we are persuaded that the circuit court erred as a matter of law in arriving at the premature conclusion that the motions should be quashed on the ground that appellees would be entitled to avoid their obligation to answer questions that Officer Lott's counsel had the right to ask.

I. The First Amendment

Appellant argues that (1) appellees are eyewitnesses to a relevant event; (2) the appellees' testimony is not obtainable from alternative means; and (3) appellant has a compelling and overriding interest in presenting evidence of what occurred on the occasion at issue. According to appellant, even if appellees have a qualified privilege, it would not be applicable in this instance because neither the United States Supreme Court nor a Maryland appellate court has ever ruled that members of the press have an absolute privilege to refuse to testify. Appellees argue that, under the First Amendment and Article 40 of the Maryland Declaration of Rights,³ they have a qualified privilege that entitles them to refuse to testify in this case.

In Branzburg v. Hayes, 408 U.S. 665, 682, 92 S.Ct. 2646, 33 L.Ed.2d 626 (1972), a majority of the United States Supreme Court rejected the argument that news reporters have a testimonial privilege:

We are asked to create another [privilege] by interpreting the First Amendment to grant newsmen a testimonial privilege that other citizens do not enjoy. This we decline to do. Fair and effective law enforcement aimed at providing security for the person and property of the individual is a fundamental function of government, and the grand jury plays an important, constitutionally mandated role in this process. On the records now before us, we perceive no basis for holding that the public interest in law enforcement and in ensuring effective grand jury proceedings is insufficient to override the consequential, but uncertain, burden on news gathering that is said to result from insisting that reporters, like other citizens, respond to relevant questions put to them in the course of a valid grand jury investigation or criminal trial.

Id. at 690, 92 S.Ct. 2646 (emphasis added) (footnote omitted).

Although it did not establish a privilege,⁴ the Branzburg Court noted that

news gathering is not without its First Amendment protections, and grand jury investigations if instituted or conducted other than in good faith, would pose wholly different issues for resolution under the First Amendment. Official harassment of the press undertaken not for purposes of law enforcement but to disrupt a reporter's relationship with his news sources would have no justification. Grand juries are subject to judicial control and subpoenas to motions to quash. We do not expect courts will forget that grand juries must operate within the limits of the First Amendment as well as the Fifth.

Id. at 707-08, 92 S.Ct. 2646 (footnote omitted). In a concurring opinion, Justice Powell stated:

Indeed, if the newsman is called upon to give information bearing only a remote and tenuous...