Sherrard v. Hull

• Decision Date: 02 February 1983
• Docket Number: No. 122,122
• Citation: 456 A.2d 59,53 Md.App. 553
• Parties: Warwick C. SHERRARD v. Edith M. HULL.
• Court: Court of Special Appeals of Maryland

Page 553

53 Md.App. 553

456 A.2d 59

Warwick C. SHERRARD v. Edith M. HULL.

No. 122.

Court of Special Appeals of Maryland.

Feb. 2, 1983.

Edwin B. Fockler, III and C. Thomas Brown, Elkton, for appellant.

James D. Peacock and Daniel J. Moore, Baltimore, with whom were Semmes, Bowen & Semmes, Baltimore, on brief, for appellee.

Argued before LISS, ADKINS and ALPERT, JJ.

ALPERT, Judge.

This case reaches us from a judgment for the defendant, Edith M. Hull ("Hull") in a defamation action brought by Warwick C. Sherrard ("Sherrard") in the Circuit Court for Cecil County. On appeal, Sherrard offers two assignments of error:

1. The trial court erroneously instructed the jury on the question of privilege; and

2. The trial court erred in denying the plaintiff's motion for a directed verdict.

In a cross appeal, Hull contends that the trial court erred in not finding the existence of an absolute privilege as a matter of law for the alleged defamatory statements.

The facts in this case are relatively simple. It is the application of the law of defamation to those facts that gives rise to the dispute. Edith Hull is a 66 year old woman who has in the past injected herself into a variety of local political disputes over issues including zoning disputes. Warwick Sherrard is a locally prominent businessman and occasional politician in Cecil County. On April 7, 1980 a hearing was held before the Cecil County Board of County Commissioners ("the Board") on Sherrard's application to change the zoning designation of property located near Mrs. Hull's farm. Hull testified in opposition to the proposed change, but one week later, on April 14, 1980, learned that the Board had granted the rezoning application.

The next day, April 15, 1980, Hull appeared at an open meeting of the Board and presented her views on a number of subjects. She began by discussing problems concerning property adjacent to her property, unrelated to the Sherrard rezoning. The topic then switched to issues raised under the County Code and the amount of mileage compensation the Commissioners were entitled to. Finally, she brought up the issue of the Sherrard rezoning, and in the course of her comments she asked of a County Commissioner who had voted affirmatively for the Sherrard rezoning, "I would like to know how much money it cost Warwick [Sherrard]."

The exchange was recorded in the official minutes of the Board. Sherrard learned of Hull's comments and on May 23, 1980 filed suit against her, alleging defamation. Trial was held beginning on November 10, 1981 (Mackey, J. presiding) and on November 17, 1981 a jury returned a verdict in favor of Hull. This appeal followed and presents us with novel questions regarding absolute privilege in defamation actions based upon statements made at a hearing or meeting of a local legislative body.

Within this limited factual framework, we hold that remarks made by an individual in the course of petitioning for a redress of grievances before a legislative body are absolutely privileged under the First Amendment to the United States Constitution. So long as the individual's comments are not part of a sham and are relevant to his petition and thus are uttered as a part of or in conjunction with it, he may not be held liable in damages for defamation. We further hold that the trial judge was correct in denying both parties' motion for directed verdicts. Accordingly, we shall affirm.

I. Privilege

At trial, the appellee relied upon the defense of absolute privilege because of Hull's constitutional right to petition a legislative body for redress of grievances. The common law recognizes absolute defamation privileges with respect to comments made in a judicial or legislative setting. We do not concern ourselves with these privileges, for the petitioning for redress of grievances privilege is an independent and distinct privilege embodied in the First Amendment. To the extent that petitioning for a redress of grievances before a legislative body may fall under the umbrella of a legislative privilege, we acknowledge the potential overlap. Nevertheless, it is important to note that there does exist a distinction between the two privileges and what might constitute protected speech under one privilege may not necessarily be protected under the other.

A. Judicial Privilege

The Court of Appeals has recognized that an absolute witness privilege exists in this State for defamations made in a judicial setting. ¹ The absolute privilege defeats any defamation action resulting from witness testimony in a judicial proceeding. Korb v. Kowaleviocz, 285 Md. 699, 402 A.2d 897 (1979). This absolute privilege protects the person publishing the defamatory statement from liability even if his purpose or motive was malicious, he knew that the statement was false, or his conduct was otherwise unreasonable. Maulsby v. Reifsnider, 9 Md. 143, 14 A. 505 (1888). In Korb, the Court of Appeals reaffirmed Maryland's minority English Rule which makes the privilege unconditional as to witness testimony and rejected the American Rule which would restrict the privilege to instances where 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. Korb, supra, 285 Md. at 704, 402 A.2d at 899. See generally, Prosser, Law of Torts § 114 (4th ed. 1971); 50 Am.Jur.2d, Libel and Slander § 231 (1970).

The absolute privilege has been held inapplicable to a "quasi-judicial proceeding," Schoenfield v. Mayor and City Council of Baltimore, 399 F.Supp. 1068, 1091 (D.Md.1975), aff'd without opinion, 544 F.2d 515 (4th Cir.1976) (applying Maryland law).

The Court of Appeals, in Gersh v. Ambrose, 291 Md. 188, 434 A.2d 547 (1981) addressed for the first time a claim of absolute witness privilege in a forum other than a courtroom. In that case Howard Gersh, an Assistant State's Attorney for Baltimore City, was sued for slanderously accusing Lance Ambrose, a staff member of the Baltimore City Community Relations Commission, of having committed the criminal offenses of obstruction of justice and subornation of perjury. Gersh had made the accusation at a public hearing of the Commission while testifying as a witness. The Court refused to grant an absolute witness immunity to Gersh. It observed that:

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.

291 Md. at 192, 434 A.2d at 549.

The Court of Appeals continued:

Among the cases which have declined to extend absolute immunity in administrative settings, two types of reasons have emerged. Either the record failed to establish that the involved agency, while possessed of certain judicial or quasi-judicial duties, was engaged in such activities at the time the alleged injury took place, or certain elementary safeguards simply were not present.

Id. at 194, 434 A.2d at 550 (footnotes omitted). See, Tatro v. Esham, 335 A.2d 623 (Del.Super.1975). The Gersh court found insufficient judicial safeguards which create the freespeaking atmosphere that witness immunity is designed to provide and which is present in judicial proceedings. It thus refused to extend absolute witness immunity to this particular Commission hearing. Since Hull was petitioning to a legislative body, its reasoning is neither pertinent nor persuasive in the case sub judice.

Since it is clear that the Cecil County Board of County Commissioners was not exercising judicial functions, Hull would not enjoy an absolute immunity based on judicial privilege.

B. Legislative Privilege

The courts of this State have also recognized that official participants in legislative proceedings enjoy an absolute immunity from defamation actions; see, Brush-Moore Newspapers, Inc. v. Pillott, 220 Md. 132, 151 A.2d 530 (1959); Walker v. D'Alesandro, 212 Md. 163, 129 A.2d 148 (1957); Maurice v. Worden, 54 Md. 233 (1880). This immunity, like that of judicial immunity, is based upon public policy. In order for a democratic government to govern democratically, it is necessary that an atmosphere be created whereby facts may be freely presented to the governing legislative body. Without such a freespeaking environment, individuals might be discouraged from addressing their government. However, while recognizing the existence of a legislative privilege, no Maryland case has ever squarely addressed the contours of the privilege in a particular factual situation. Because of the view which we take with regard to the "petitioning privilege," we need not decide the question of whether a legislative privilege is applicable in the instant appeal. ²

C. Petitioning Privilege

The jury could properly have found the existence of an absolute privilege for Hull based upon the constitutional right to petition for redress of grievances. In this regard, Judge Mackey instructed the jury:

A general rule of law when a person is petitioning a legislature and for our purpose the County Commissioners meeting in regular session as they were in this instance, are considered to be and come under the definition of a legislature. They do pass laws and ordinances for us, and otherwise defined by the law as legislature. That when a person petitions County Commissioners meeting in regular session as they were in this instance, that person who's petitioning County Commissioners is immune from legal liability from defaming anyone. What they say before the County Commissioners is under an absolute privilege. And the reasoning behind this is that the people should be allowed in particular a democracy to freely communicate with their legislators and if we are going to stifle them from doing so because they might make some mistake in...