Seley-Radtke v. Hosmane

• Decision Date: 22 November 2016
• Docket Number: No. 19, Sept. Term, 2016,19, Sept. Term, 2016
• Citation: 149 A.3d 573,450 Md. 468
• Parties: Katherine Seley–Radtke v. Ramachandra S. Hosmane
• Court: Court of Special Appeals of Maryland

450 Md. 468

149 A.3d 573

Katherine Seley–Radtke

v.Ramachandra S. Hosmane

No. 19, Sept. Term, 2016

Court of Appeals of Maryland.

November 22, 2016

Erik J. Delfosse, Asst. Atty. Gen. (Brian E. Frosh, Atty. Gen., Maryland, Tomeka G. Church, Asst. Atty. Gen. and Emily Bolyard, Special Staff Atty., Baltimore, MD), on brief, for Petitioner.

Neil R. Lebowitz (Lebowitz Law Firm, Elkridge, MD), on brief, for Respondent.

ARGUED BEFORE: Barbera, C.J.; Greene, Adkins, McDonald, Watts, Hotten and Getty, JJ.

Watts, J.

This case involves a matter of first impression requiring this Court to determine the standard of proof necessary to overcome a common law conditional privilege in a purely private defamation action.¹ Purely private defamation involves a defamation action that arises "when the reputation of a private individual is tarnished by a report of a private matter not of general or public concern[.]" Jacron Sales Co. v. Sindorf, 276 Md. 580, 588, 350 A.2d 688, 693 (1976). Although this Court and the Court of Special Appeals have addressed issues concerning the standard of proof of fault in defamation cases, we have not been specifically asked to decide the standard of proof necessary to overcome a common law conditional privilege in a purely private defamation action. In addressing this matter of first impression, we are confronted with two alternative standards: proof by a preponderance of the evidence or proof by clear and convincing evidence.

Although defamation jurisprudence traces its origins to a number of seminal First Amendment cases of the United States Supreme Court, the resolution of defamation claims brought by private individuals has largely been left to the province of State courts. SeeGertz v. Robert Welch, Inc., 418 U.S. 323, 347–48, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974). In cases of purely private defamation, this Court has held that proof of fault must meet the standard of the preponderance of the evidence, the quantum of proof ordinarily required in other types of actions for negligence. SeeJacron, 276 Md. at 596–97, 350 A.2d at 697–98. Specifically, this Court has held that a "standard of negligence" as set forth in the Restatement (Second) of Torts § 580B (Am. Law Inst. 1977),² is to be applied in cases of purely private defamation. Jacron, 276 Md. at 596, 350 A.2d at 697. Under this standard, the burden of proving falsity falls upon the plaintiff, rather than the burden of proving the truth of the alleged defamatory statement falling upon the defendant. Id. at 597, 350 A.2d at 698. If the defendant asserts a common law conditional privilege, the plaintiff bears the additional burden of overcoming that privilege to prevail on the defamation claim.

It is well established that, in a defamation action, a defendant may assert a qualified or conditional privilege. SeeGohari v. Darvish, 363 Md. 42, 55, 767 A.2d 321, 327 (2001). A common law conditional privilege arises from the principle that a defendant may not be held liable for an otherwise provable defamatory statement if publication of the statement advances social interests that outweigh a plaintiff's reputational interest. SeeMarchesi v. Franchino, 283 Md. 131, 135, 387 A.2d 1129, 1131 (1978). A defendant may also assert what has been described in case law as a First Amendment conditional privilege. The Supreme Court has stated that statements pertaining to public officials and to public figures on matters of public concern merit special protection in our society; thus, such statements are subject to a conditional privilege—the First Amendment conditional privilege—that is overcome only by actual malice, i.e. , "knowledge that [the statement] was false or with reckless disregard of whether it was false or not." New York Times Co. v. Sullivan, 376 U.S. 254, 279–80, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964) ; Curtis Publ'g Co. v. Butts, 388 U.S. 130, 155, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967) ; Gertz, 418 U.S. at 335, 94 S.Ct. 2997.³

The existence of both common law and First Amendment conditional privilege is a question of law, and the defendant has the burden of proof with respect to establishing the privilege. SeePiscatelli v. Van Smith, 424 Md. 294, 307, 35 A.3d 1140, 1147 (2012). If a conditional privilege is established, a plaintiff seeking to rebut the privilege must do so by demonstrating that the defendant made the alleged statement with malice, defined as "a person's actual knowledge that his or her statement is false, coupled with his or her intent to deceive another by means of that statement." Id. at 307–08, 35 A.3d at 1148 (citations, brackets, and internal quotation marks omitted). The definition of malice—a person's actual knowledge that his or her statement is false, coupled with his or her intent to deceive another by means of the statement—does not cover the standard of proof necessary to overcome the conditional privilege. Case law demonstrates that the standard of proof that is required to overcome a First Amendment conditional privilege is clear and convincing evidence of knowledge of a statement's falsity or reckless disregard of whether the statement was false or not. SeeNew York Times, 376 U.S. at 279–80, 84 S.Ct. 710. In this case, however, it is the standard of proof that an individual must satisfy to overcome a common law conditional privilege, i.e. , to establish malice, in a purely private defamation action that is at issue. For the reasons stated below, we hold that, in a purely private defamation action, an individual asserting a defamation claim must overcome a common law conditional privilege by a preponderance of the evidence.

BACKGROUND

The facts giving rise to this purely private defamation action are as follows. Katherine Seley–Radtke ("Seley–Radtke"), Ph.D., Petitioner, and Ramachandra S. Hosmane, Ph.D. ("Hosmane"), Respondent, were colleagues in the Department of Chemistry at the University of Maryland, Baltimore County ("UMBC"). Hosmane was employed as a professor of chemistry at UMBC from 1982 until 2010, when he resigned following allegations of sexual assault of a graduate student. Based on allegations that Hosmane had sexually assaulted one of his graduate students, Brahmi Shukla ("Shukla"),⁴ UMBC officials conducted an administrative investigation and determined that Hosmane had violated UMBC's sexual harassment policy. In addition to allegations of sexual assault, UMBC investigated whether an e-mail sent to Shukla regarding the sexual assault, which Shukla characterized as threatening, had been authored by Hosmane. The e-mail was sent from a person named "Nimmy Watson," a person unknown to Shukla; Shukla testified at trial that the contents of the Watson e-mail "scared" her.

According to Hosmane, on December 10, 2009, UMBC informed him of the results of the administrative investigation and provided him with three options: (1) submit to a two-year suspension without pay; (2) avail himself of the administrative appeal process; or (3) retire without the results of the investigation being made public. Hosmane selected the third option and resigned and retired, effective January 1, 2010. As a result, UMBC did not make public the findings of its investigation, nor was Hosmane sanctioned by UMBC.

The Office of the State's Attorney for Baltimore County, however, opened a criminal case against Hosmane stemming from the alleged sexual assault, and charged him with fourth-degree sex offense and second-degree assault in the District Court of Maryland sitting for Baltimore County, but subsequently nolle prossed the charges. Hosmane and Shukla entered into a settlement agreement ("the settlement agreement") concerning the sexual assault matter, in which Hosmane was to pay Shukla $10,000 and Shukla was to withdraw any civil and criminal claims against Hosmane related to the alleged sexual assault.

On December 10, 2010, Hosmane filed in the Circuit Court for Baltimore County ("the circuit court") a complaint against UMBC and other defendants related to his resignation from UMBC ("the UMBC case"). While the UMBC case was pending, Hosmane submitted a Maryland Public Information Act ("public information") request seeking documents from UMBC. In August 2011, Hosmane received a number of documents from UMBC as a result of the public information request. As a result, on July 6, 2012, Hosmane filed in the circuit court a two-count complaint against Seley–Radtke seeking damages for defamation and false light invasion of privacy. In the complaint, Hosmane alleged "some of the numerous instances in which" Seley–Radtke had defamed him:

a. In 2009, [Seley–Radtke] told the chemistry department chair, at least one co-worker, general counsel for UMBC, and others, that [Hosmane] had keys to many offices in the chemistry department, that he had stolen private documents regarding [Seley–Radtke] out of said offices, and that he had even sold some of the documents for money. None of these assertions are true.

b. In February 2010, after [Hosmane]'s employment with UMBC had come to an end, [Seley–Radtke] wrote an email to the chemistry department chair and general counsel for UMBC in which she stated, among several defamatory statements, that [Hosmane] "is an unbalanced individual who has done some crazy and bizarre things, not to mention he's prone to sudden outbursts, and given the shootings in Alabama, I worry for my safety and for that of anyone around me ...."c. The same days she wrote the email referenced above, [Seley–Radtke] wrote another email to these same people and referred to [Hosmane] "stealing documents" and implied that [Hosmane] had falsely accused one of his students of trying to kill him. In this second email, [Seley–Radtke] also called [Hosmane] a "nutcase," and said that "it is not far-fetched that he could do something crazy at this point ...." These assertions are all demonstrably untrue.

d. [Seley–Radtke] has additionally claimed in communicating with others that [Hosmane] was banned from campus following the end of his employment

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