Reichardt v. Flynn

• Decision Date: 08 May 2003
• Docket Number: No. 42,42
• Citation: 823 A.2d 566,374 Md. 361
• Parties: Glenn REICHARDT, et al. v. Christopher A. FLYNN.
• Court: Maryland Court of Appeals

823 A.2d 566

374 Md. 361

Glenn REICHARDT, et al. v.Christopher A. FLYNN.

No. 42, Sept. Term, 2000.

Court of Appeals of Maryland.

May 8, 2003.

Richard E. Schimel(Budow and Noble, P.C., on brief), Bethesda, Walter H. Madden, Rockville, for petitioners.

Richard L. Swick(Swick & Shapiro, P.C., on brief), Washington, DC, for respondent.

Argued before BELL, C.J., ELDRIDGE, RAKER, WILNER, CATHELL, HARRELL and LAWRENCE F. RODOWSKY(Retired, Specially Assigned), JJ.

ELDRIDGE, J.

We granted a petition for a writ of certiorari in this case to determine whether an absolute privilege defense applies to a defamation action involving communications made by students and parents to public school authorities about the perceived misconduct of a public school teacher and coach.

I.

Christopher A. Flynn was employed in the Montgomery County public school system as a teacher since 1989 and as a high school track and cross-country coach from 1990 to 1998.From the 1994 school year, until the time of the petitioners' allegations, Flynn was Walt Whitman High School's only co-educational cross-country track team coach.Petitioners, Joanna Zuercher and Claire White-Crane, joined the cross-country track team as high school freshmen in 1995.About 2 years later, on January 12, 1998, both students and their parents met with Walt Whitman High School Principal, Dr. Jerome Marco, to express their concerns regarding Flynn's behavior as a coach.According to the girls, their primary concerns related to alleged improper sexual comments made by Flynn and their perception that Flynn was more interested in coaching the male runners than the female runners.The girls alleged that Flynn's conduct appeared contrary to the school system's written policies (titled: "Nondiscrimination;""Gender Equity;" and "Sexual Harassment") which promised gender equity and an environment free from discrimination and sexual harassment.Joanna and Claire also wrote to other officials of the Montgomery County public school system about Flynn's alleged misconduct.¹

That same afternoon, Dr. Marco met with Flynn and informed him of the allegations, which Flynn denied.Later that evening, Dr. Marco decided to place Flynn on leave with pay from both his teaching and coaching positions beginning the next day.Two days later, on January 15, 1998, Flynn was formally suspended with pay by the Montgomery County Superintendent of Schools, Paul Vance, while the school system's Department of Personnel Services conducted a confidential investigation.Flynn remained suspended until May 11, 1998, when he was placed in a non-teaching position.

During the investigation, the school system personnel interviewed and received written statements regarding Flynn's conduct from more than 20 students.Flynn was able to obtain these statements from the school system's personnel during its investigation.In addition, Flynn and his counsel were given the opportunity to respond to all statements submitted during the investigation.Neither Flynn nor his counsel chose to do so.

Upon the conclusion of the investigation in July 1998, the School Superintendent issued a written reprimand to Flynn for actions that showed different and unequal treatment of girls on the Walt Whitman High School cross-country track team.The Superintendent also denied Flynn the opportunity to coach any Montgomery County public school athletic teams for one year beginning July 1, 1998, barred Flynn from being a teacher at Walt Whitman High School, and required Flynn to participate in a gender anti-discrimination education course.Walt Whitman High School also replaced Flynn with two cross-country track coaches, one for the boys' team and one for the girls' team.

Flynn did not attempt to appeal any of the Superintendent's actions to the Montgomery County Board of Education or to the Maryland State Board of Education pursuant to Maryland Code(1978, 2001 Repl.Vol., 2002 Supp.), § 4-205(c) of the Education Article, or pursuant to regulations of the Montgomery County Board of Education.Flynn did file a grievance against the Montgomery County public school system pursuant to the collective bargaining agreement between the school system and the union representing teachers.An American Arbitration Association hearing was commenced but never completed because Flynn withdrew his grievance.

In January 1999, Flynn filed, in the Circuit Court for Montgomery County, this defamation action against the two students, Joanna Zuercher and Claire White-Crane, and their parents, Glenn Reichardt, JoAnn Zuercher, Donald Crane and Diana White-Crane.In his complaint, Flynn alleged that the students and their parents defamed him by fabricating and communicating to Dr. Marco and other public school officials false and malicious allegations of sexual abuse, sexual harassment, and sex discrimination by Flynn against female athletes on the Walt Whitman cross-country track team.Flynn asserted that the girls made these false statements in order to have Flynn removed as their coach and to obtain a separate coach for the female runners on the cross-country team.Flynn alleged that these defamatory statements led to his transfer from Walt Whitman High School and to the loss of his coaching position.In a second count, Flynn alleged tortious interference with the economic relationship between Flynn and the public school system.

In response, the petitioners moved to dismiss the complaint.The Circuit Court for Montgomery County granted the Motion to Dismiss, with prejudice, on the ground that the petitioners' communications with the public school system officials about Flynn's alleged misconduct were protected by an absolute privilege.Flynn took an appeal, challenging only the dismissal of the defamation action.He did not, on appeal, contest the dismissal of the count charging tortious interference with economic relationship.

The Court of Special Appeals reversed, holding that the statements in question were not absolutely privileged.Flynn v. Reichardt,131 Md.App. 386, 749 A.2d 197(2000).The Court of Special Appeals initially acknowledged that this Court had adopted "the common law rule of absolute privilege in which a person is protected from liability for defamation for testimony given as a witness in a judicial proceeding," and the intermediate appellate court pointed to "Maryland's broad view of the privilege, which includes administrative and other quasi-judicial proceedings."Flynn v. Reichardt, supra,131 Md.App. at 392, 749 A.2d at 201.The Court of Special Appeals stated that, under Gersh v. Ambrose,291 Md. 188, 197, 434 A.2d 547, 552(1981), the applicability of the absolute privilege in administrative proceedings depended in part upon the "adequacy of procedural safeguards which will minimize the occurrence of defamatory statements."The Court of Special Appeals then held that adequate procedural safeguards were not present in this case because, in the appellate court's view, Flynn was not entitled to a hearing and he was not entitled to any administrative appeal from the Superintendent's adverse actions.Flynn,131 Md.App. at 397-402, 749 A.2d at 203-206.²

The students and their parents filed in this Court a petition for a writ of certiorari which we granted, Reichardt v. Flynn,359 Md. 668, 755 A.2d 1139(2000).Flynn did not file a cross-petition for a writ of certiorari.

The petitioners argue that, under this Court's decisions, the Circuit Court correctly held that absolute privilege barred the action.The petitioners further argue that the Court of Special Appeals erred in holding that Flynn had no right to appeal the Superintendent's actions.Flynn defends the Court of Special Appeals' holding that he had no right to appeal the Superintendent's action.He further argues that petitioners should be entitled only to a qualified privilege.Neither side has raised any state or federal constitutional issues in this case, and neither side has argued that any of this Court's decisions should be overruled.

II.

A.

More than 100 years ago, this Court in Hunckel v. Voneiff,69 Md. 179, 14 A. 500(1888), after reviewing Maryland's history regarding the matter, numerous English cases, and cases in other states, held that an absolute privilege applies to the statements of a witness in a judicial proceeding and that no libel or slander action based upon such statements can be maintained.Judge Miller for the Court explained (69 Md. at 193, 14 A. at 504):

"A different view as to the extent of the privilege has been taken by the courts of many of the States, and it may be conceded that the weight of authority in this country is in favor of a much greater restriction upon the privilege than is sanctioned by the English decisions.But we are not controlled by any decision of our own courts, and are at liberty to settle the law for this State according to our best judgment.After a most careful consideration of the subject, we are convinced that the privilege of a witness should be as absolute as it has been decided to be by the English authorities we have cited, and we accordingly adopt the law on this subject as they have laid it down."

See alsoBartlett v. Christhilf,69 Md. 219, 223-227, 14 A. 518, 519-520(1888).

The absolute privilege for statements made in judicial proceedings has been reaffirmed by this Court on numerous occasions.In Schaub v. O'Ferrall,116 Md. 131, 81 A. 789(1911), for example, the plaintiff brought a defamation action against a witness and her lawyer in a prior divorce action, alleging that the defendants in the divorce action maliciously conspired to present perjured testimony which injured the plaintiff.In holding that a demurrer to the declaration was properly sustained on the ground of absolute privilege, Judge Pattison for the Court, 116 Md. at 138, 81 A. at 792, quotingDawkins v. Rokeby,[1873] L.R.8 Q.B. 255, explained:

"But the principle we apprehend is, that public policy requires

...