Marchesi v. Franchino

Levine, J., delivered the opinion of the Court. We granted certiorari here to reexamine the definition of “malice," as that term is applied to defeat a conditional privilege defense in cases of private defamation. This issue arose in an action for slander brought by appellee against appellant in the Superior Court of Baltimore City. Following removal to the Baltimore City Court, a jury returned a verdict of $500 compensatory and $20,000 punitive damages.

The Court of Special Appeals upheld the award in an unreported opinion, Kim Marchesi, et al. v. Margaret Franchino, No. 122, September term, 1977, decided December 6, 1977. 1 We now reverse. In 1971 and 1972, Marchesi and Franchino were employed as probation officers by the Maryland Department of Juvenile Services. During the latter stages of that period, Marchesi informed Rex C. Smith, their supervisor, that Franchino had made homosexual overtures toward her and had .also harassed her to the point of causing Marchesi to be concerned for her personal safety. Moreover, she related to Smith, Franchino had admitted to an altercation arising out of a sexual relationship with a female co-worker while previously employed in the State of New Jersey, that episode having ¹³³ allegedly resulted in a criminal conviction against Franchino.

On reporting the entire matter to Smith, Marchesi turned over to him certain notes of a suggestive nature which she had received from Franchino. Claiming that it was Marchesi, not she, who had sought the intimate relationship, Franchino, on being confronted by the allegations, nevertheless did not deny having had a romantic interest in Mrs. Marchesi. Concerned not only for Marchesi’s safety, on the strength of her allegations, but also for the proper administration and discharge of his department’s responsibilities, Smith dispatched two other employees to New Jersey to determine whether the report of the prior criminal conviction was accurate. This investigation revealed that Franchino had been arrested on a minor assault charge instituted by a co-worker and, on being convicted, had been fined $25 plus court costs.

After receiving this information and interviewing Marchesi and Franchino separately, Smith directed to the State Medical Adviser a written summary of these various developments together with a request that Franchino receive an appropriate medical examination, including the possibility of “psychiatric consultation.” Marchesi was subsequently transferred at her own request to another office of the Department in a nearby county. Meanwhile, Franchino, who not only remained at the Baltimore office but was apparently promoted, commenced this action for defamation. At the conclusion of the evidence at trial, the court submitted to the jury not only the question whether the plaintiff had been falsely defamed, but, having determined as a matter of law that the defendants were protected by a conditional privilege “because of their employee/employer relationship,” also instructed the jury to decide whether the defendants had acted with malice. 2 Malice, the court stated, ¹³⁴ did not mean “hatred or spite but rather a reckless disregard of truth, the use of unnecessarily abusive language or other circumstances which would support a conclusion that either or both of the defendants acted in an ill-tempered manner or were motivated by ill will.” 3 Whether this instruction provided the jury with a proper definition of the malice required to defeat the conditional privilege asserted in the trial court is the dispositive issue on this appeal. We begin our consideration of the question presented here by recognizing that the disputed instruction was a direct quotation of our statement in Stevenson v. Baltimore Club, 250 Md. 482, 486-87 , 243 A. 2d 533 (1968), which has since been echoed in several of this Court’s opinions. 4 Nevertheless, there are indications in those very same opinions that we implicitly recognized the difficulties inherent in the definition of malice set forth in Stevenson .

Quoting the Stevenson formulation in Jacron Sales Co. v. Sindorf, 276 Md. 580, 599-600 , 350 A. 2d 688 (1976), we italicized the words “reckless disregard of truth” and to impart further emphasis also added there that “the reckless disregard standard now appears to be firmly established in Maryland as a test, albeit not the exclusive test, for abuse of a conditional privilege.” And just this term, in IBEW, Local 1805 v. Mayo, 281 Md. 475, 479-81 , 379 A. 2d 1223 (1977), we reiterated our preference for a more stringent standard of malice, stating that ¹³⁵ “reckless disregard as to truth or falsity is necessary to defeat a qualified privilege.” Accord, General Motors Corp. v. Piskor (I), 277 Md. 165, 172-73 , 352 A. 2d 810 (1976). 5 Even though our reference to the Stevenson definition of malice in recent cases has consistently emphasized reckless disregard of truth as a requirement for defeasance of a conditional privilege, it has now become apparent that still further refinement of the rule is necessary if confusion is to be averted. The need for such clarification is particularly evident in this case, where the trial judge erroneously permitted the jury to render a verdict for punitive damages based solely upon Stevenson's less demanding standard of malice, despite our holding in Jarron Sales Co. v. Sindorf 276 Md. at 601 , that an award of punitive damages in cases of private defamation cannot be sustained absent proof of knowing falsity or reckless disregard for truth. See New York Times Co. v. Sullivan, 376 U. S. 254, 279-80 , 84 S. Ct. 710 , 11 L.Ed.2d 686 (1964). The common law conditional privileges rest upon the notion that a defendant may escape liability for an otherwise actionable defamatory statement, if publication of the utterance advances social policies of greater importance than the vindication of a plaintiffs reputational interest.

See Stevenson v. Baltimore Club, 250 Md. at 486 ; and see Note, Developments in the Law [of] Defamation, 69 Harv. L. Rev. 875 , 917 (1956); W. Prosser, Law of Torts § 114 (4th ed. 1971); see also Hanrahan v. Kelly, 269 Md. 21, 28-29 , 305 A. 2d 151 , 62 A.L.R.3d 1187 (1973); Murnaghan, Ave Defamation, Atque Vale Libel and Slander, 6 U. Balt. L. Rev. 27 , 42 n.52 (1976). Specifically, the common law recognized that a person ought to be shielded against civil liability for defamation where, in good faith, he publishes a statement in furtherance of his own legitimate interests, or those shared in common with the ¹³⁶ recipient or third parties, or where his declaration would be of interest to the public in general.

Were it not for this safeguard, “information that should be given or received would not be communicated because of [the] fear of ... persons capable of giving it that they would be held liable in an action of defamation if their statements were untrue.” Restatement (Second) of Torts, Scope Note preceding § 593 (1977). Accordingly, because of the traditional importance of this defense and its retention today in the trial of defamation cases, we believe it desirable here to delineate more precisely the standard of malice required for defeasance of the conditional privilege. Several reasons argue for a reformulation of the Stevenson version of malice. First, the definition itself appears to be a contradiction in terms.

While abjuring “hatred or spite” as definitional components of malice, it nevertheless couples “reckless disregard of truth” with “the use of unnecessarily abusive language, or other circumstances which would support a conclusion that the defendant acted in an ill-tempered manner or was motivated by ill-will.” Stevenson v. Baltimore Club, 250 Md. at 486-87 (emphasis added). Thus, it seeks to harmonize discordant and irreconcilable conceptions of malice by instructing juries to measure that standard, not in terms of “hatred or spite,” but by manifestations of “ill-will.” As appellant cogently observes, only “a lexicographer could reasonably draw such distinctions.” Wholly apart from the linguistic infirmities inherent in the Stevenson definition, “spite” and “ill-will,” at least in this context, are but variations of a single theme. As we stated in Jacron Sales Co. v. Sindorf, 276 Md. at 599 , the terms “express malice” or “actual malice” required to overcome conditional privilege were “variously defined in [earlier] cases as a lack of good faith, ill-will, hostility, or hatred.” (emphasis added). See, e.g., Evening News Co. v. Bowie, 154 Md. 604, 611 , 141 A. 416 (1928) (no evidence that publisher of defamatory statement “was moved by any hostility, hatred, or ill will toward the [plaintiff]”).

Thus, by its own terms, the malice standard announced in Stevenson invites confusion ¹³⁷ whenever the defeasibility of a conditional privilege becomes an issue in a defamation case, and perhaps demonstrates why “[t]he word ‘malice’ ... has plagued the law of defamation from the beginning.” W. Prosser, supra § 115. A second shortcoming in the Stevenson definition derives from the obvious incongruity between the ill-will element there and the New York Times malice of knowing falsity or reckless disregard for truth, which is the test to be applied for any form of recovery in defamation cases brought by