Prince George's County v. Hartley

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 ⁵⁸⁴ 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 ⁵⁸⁵ 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 confróntate [sic], to confront live witnesses. ⁵⁸⁶ 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 405 ⁵⁸⁷ (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 ⁵⁸⁸ 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 ⁵⁸⁹ 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 relationship to the subject of the investigation, or if he has some other reason to believe that his testimony implicates confidential source relationships without a legitimate need of law enforcement, he will have access to the court on a motion to quash and an appropriate protective order may be entered. The asserted claim to privilege should be judged on its facts by the striking of a proper balance between freedom of the press and the obligation of all citizens to give relevant testimony with respect to criminal conduct.

The balance of these vital constitutional and societal interests on a case-by-case basis accords with the tried and traditional way of adjudicating such questions. Id. at 710 , 92 S.Ct. 2646 . The Branzburg dissent advocated a rule that would require the government to prove three elements before a news reporter could be compelled to testify before a grand jury: (1) “there is probable cause to believe that the newsman has information that is clearly relevant to a specific probable violation of law;” (2) “the information sought cannot be obtained by alternative means less destructive of First Amendment rights;” and (3) the government has “a compelling and overriding interest in the information.” Id. at 743 , 92 S.Ct. 2646 . In Tofani v. State, 297 Md. 165 , 465 A.2d 413 (1983), the Court of Appeals made it “clear that Branzburg expressly declined to create any testimonial privilege, absolute or conditional.” Id. at 185, 465 A.2d 413 .

Noting that a number of ⁵⁹⁰ jurisdictions have recognized a qualified “newsgatherers’ privilege” under the First Amendment, 5 and/or provided some protections to “a non-party journalist ... called as a witness,” the Tofani Court concluded that “[a]t most, these [type of] cases establish the principle that when an important interest, such as the First Amendment right to gather news conflicts with other important constitutional interests, courts must carefully consider and balance the competing interests in resolving the controversy.” Tofani, 297 Md. at 188 , 465 A.2d 413 . In WBAL-TV Div., Hearst Corp. v. State, supra, the Court of Appeals noted that “[t]here is no specific set of criteria applied uniformly by all courts to determine whether the privilege precludes disclosure in a particular case.” 300 Md. at 242-243 , 477 A.2d 776 . That case involved the issue of whether the circuit court had properly denied a motion to quash a summons requiring a television station to produce “outtakes” of an interview with a criminal defendant that the State wanted to use as evidence at trial. Id. at 235 , 477 A.2d ⁵⁹¹ 776.

WBAL argued that it had a qualified privilege to refuse to release the outtakes, 6 and that the three part test discussed in the Branzburg dissent was applicable to the summons. Id. at 243-44, 477 A.2d 776 . Without adopting the three part test urged by WBAL, the Court of Appeals concluded that — even if a qualified privilege existed — the State met its burden. Id. at 247 , 477 A.2d 776 .

Therefore, the Court affirmed the decision of the trial court to deny WBAL’s motion to quash the summons. Id. at 247 , 477 A.2d 776 . The defendant’s videotaped statements related to the murders for which he had been charged, and were obviously relevant to the State’s case. Id. at 244 , 477 A.2d 776 .

The statements were highly relevant as they went to the ultimate question of the defendant’s guilt or innocence and were voluntary admissions of the defendant. Id. The statements on the outtakes were admissions by a party opponent that could not be duplicated or obtained from any alternative source. WBAL was the sole possessor of the videotaped statements.

The three persons who heard or made the statements — the defendant, the reporter, and the cameraman— were not likely to provide a verbatim account of what had been said. It was most unlikely that the defendant would voluntarily incriminate himself. The State had an overriding and compelling interest in the disclosure of the statements, which had such a high “degree of relevance” and “probative value.” Id. at 244-45 , 477 A.2d 776 . In Delaney v. Superior Court (Kopetman), 50 Cal.3d 785 , 268 Cal.Rptr.753, 789 P.2d 934 (1990), the Supreme Court of California held that newspersons who observed an arrest were required to testify on the issue of whether the defendant had consented to a search of his jacket, even though the newspersons had not published any accounts of their observations.

Although a majority of the court applied a “balancing” test, Justice Mosk explained why the “alternative source” issue is ⁵⁹² of no consequence when the reporter is an eyewitness to the event at issue: I concur, nonetheless, in the court’s judgment because I find that the alternative source rule is inapplicable when the information sought is the reporter’s own observations as a percipient witness of a transitory event.- The alternative source rule arose in cases, such as those cited ante, in which the information in question had been gathered from documents, interviews, public meetings,'and the like. In such cases the content of the information existed in some objective and stable form, capable of independent verification — the documents could be independently inspected, the interviewees could be contacted, etc. What the defendants in those cases were primarily interested in was not the reporters’ perceptions but the content of these independent information sources. In the case of eyewitnessed transitory events, however, no such independent, stable information source exists. Equally significant is the well-established fact that there are often major discrepancies between different eyewitness accounts of the same event, owing to distortions and biases in both perception and memory.

(See People v. McDonald (1984) 87 Cal.3d 351 , 363-365 [ 208 Cal.Rptr. 236 , 690 P.2d 709 , 46 A.L.R.4th 1011 ], and authorities cited; Note, Did Your Eyes Deceive You: Expert Psychological Testimony on the Unreliability of Eyewitness Identification (1977) 29 Stan.L.Rev. 969, 971-989.) Thus, two percipient witnesses of the same event are not in any sense fungible. And unlike the document or the interview, the transitory unrecorded event is not subject to subsequent independent verification. Accordingly, the reporter as a percipient witness is not an “exception” to the alternative-source rule. Rather, in such situations the rule simply does not apply: in a real sense, two eyewitnesses to the same event are not alternative sources of the same information, but sources of different information. ⁵⁹³ In the present case, defendant was able to show a reasonable possibility that the information would assist in ascertaining the truth.

Because the information he seeks from the reporters is their contemporaneous observations of a transitory event, he has met the second threshold by showing that no real alternative source of the information exists. He is therefore entitled to the reporters’ testimony. Id. at 957-58. We agree with that analysis, which comports with the general rule dating to “1742 that ‘the public has a right to every man’s evidence.’ ” Ashford v. State, 147 Md. App. 1, 61 , 807 A.2d 732 (2002) (quoting Kastigar v. United States, 406 U.S. 441, 443 , 92 S.Ct. 1653 , 32 L.Ed.2d 212 (1972); Branzburg v. Hayes, 408 U.S. 665, 688 , 92 S.Ct. 2646 , 33 L.Ed.2d 626 (1972)).

Our conclusion is consistent with the following cases: State v. Turner, 550 N.W.2d 622, 628 (Minn.1996) (holding that a news reporter had no privilege to avoid testifying about alleged criminal activity that the reporter personally observed); State v. Knutson, 523 N.W.2d 909, 913 (Minn.Ct.App. 1994) (holding that a news reporter does not have a privilege to refuse to testify about an alleged assault that the reporter personally observed); Dillon v. San Francisco, 748 F.Supp. 722, 726 (N.D.Cal.1990) (holding that a cameraman cannot refuse to testify about an incident that the cameraman personally observed while filming a different story); Bartlett v. Superior Court, 150 Ariz. 178 , 722 P.2d 346, 350 (Ct.App.1986) (holding that, because it does not implicate any confidential source or information, a news reporter could not refuse to produce the reporter’s videotape of an automobile accident); Bell v. Des Moines, 412 N.W.2d 585, 588 (Iowa 1987) (noting that a reporter may not avoid testifying about observations made as an eyewitness); In re Ziegler, 550 F.Supp. 530, 532 (W.D.N.Y.1982) (holding that a news reporter cannot avoid testifying about events that the reporter personally observed outside of a courtroom); Alexander v. Chicago Park District, 548 F.Supp. 277, 278 (N.D.Ill.1982) (holding that news report ⁵⁹⁴ ers held no privilege to avoid testifying about events that they personally observed during an investigation). It is beyond dispute that the appellees are eyewitnesses to a relevant event and, despite their contentions to the contrary, Officer Lott’s statements are not obtainable from an alternative source. Appellees claim that the newspaper articles themselves, and the affidavit offered by Mr. Hartley, 7 will ⁵⁹⁵ suffice to prove the charges made against Officer Lott. It is obvious that the newspaper articles and the affidavit are hearsay evidence. 8 [I]t is well settled that the procedure followed in administrative agencies usually is not as formal and strict as that of the courts.

As such, the rules of evidence are generally relaxed in administrative proceedings. Stated differently, that which is inadmissible in a judicial proceeding is not per se inadmissible in an administrative proceeding. It follows, therefore, that hearsay evidence that is inadmissible in a judicial proceeding is not necessarily inadmissible in an administrative proceeding. Travers v. Baltimore Police Dep’t, 115 Md.App. 395 , 693 A.2d 378 (1997).

(citations omitted). It is also well settled that, while administrative agencies are not constrained by technical rales of evidence, they must observe basic rules of fairness as to the parties appearing before them so as to comport with the requirements of procedural due process afforded by the Fourteenth Amendment. The Court has remained steadfast in reminding agencies that to be admissible in an adjudicative proceeding, hearsay evidence must demonstrate sufficient reliability and probative value to satisfy the requirements of procedural due process. ⁵⁹⁶ Travers, 115 Md.App. at 411 , 693 A.2d 378 (citations omitted). Statements that are (1) sworn under oath, (2) made close in time to the incident, or (3) corroborated are presumed to be more reliable than other statements.

Id. at 413 , 693 A.2d 378 . The affidavit offered by Mr. Hartley would be given under penalty of perjury. The newspaper articles corroborate one another. Each article quotes Lott as saying, “I wish I would have been there in '95.1 would have shot the bastards, and we wouldn’t have all this crap.” Each article was published close in time to the incident at issue. 9 »In Travers , the person whose allegations served as the basis for the departmental charges against Officer Travers was also the “victim” in the case. ' Id.

We concluded that there was some force “behind ... [Travers’] argument that, in a hearing to determine whether he would be permitted to retain his livelihood, due process requires that he be accorded the opportunity to cross-examine a complaining witness.” Id. Unfortunately for Travers, because he did not exercise his right to subpoena the alleged victim, he waived his right to complain that he would be denied the opportunity to cross-examine her. We also noted that “concerns are less weighty when hearsay statements come into evidence through a disinterested witness because they tend to be more reliable than statements introduced through a witness who has an interest in the subject matter underlying the controversy.” Id. at 417-18 , 693 A.2d 378 (citing Dembeck v. Bethlehem Shipbuilding Corp., 166 Md. 21, 28 , 170 A. 158 (1934); Bethlehem Steel Co. v. Traylor, 158 Md. 116 , 148 A. 246 (1930)). The Law Enforcement Officers’ Bill of Rights (“LEOBR”), Md.Code (1957,1996 Repl.Vol.), Art. 27, §§ 727-734D is applicable to Officer Lott’s administrative hearing.

Section 730 of the LEOBR, in pertinent part, states: ⁵⁹⁷ (e) Evidence. — Evidence which possesses probative value commonly accepted by reasonable and prudent men in the conduct of their affairs shall be admissible and shall be given probative effect. The hearing board conducting the hearing shall give effect to the rules of privilege recognized by law, and shall exclude incompetent, irrelevant, immaterial, and unduly repetitious evidence. Officer Lott has a right to cross-examine witnesses who testify against him. LEOBR at § 730(f); Travers, 115 Md. App. at 417 , 693 A.2d 378 (citing American Radio-Telephone Service, Inc. v. Public Service Com., 33 Md.App. 423, 434 , 365 A.2d 314 (1976) (a “basic tenet of fairness in administrative adjudications is the requirement of an opportunity for reasonable cross-examination”)).

If the affidavit or the newspaper articles were admitted into evidence, Lott would be deprived of his fundamental right to cross-examine the appellees. While the appellees’ articles constitute the basis for appellant’s complaint against Officer Lott, and appellees are not “victims” whose statements might well be unreliable, it cannot be said that the appellees are “disinterested” witnesses. Under these circumstances, due process mandates that Officer Lott be granted the fundamental right to cross-examine the appellees. At the hearing, appellant’s counsel represented to the circuit court that the internal affairs investigator questioned everyone at the courthouse who might have heard the statement.

Other than the appellees, only one person acknowledged hearing anything, and this person heard only a portion of Lott’s statement. Appellant is not obligated to depose every person present within earshot on the day in question to determine if someone has not been forthcoming. Appellant, therefore, has no other reasonable alternative to putting the appellees on the stand. 10 ⁵⁹⁸ Appellant has a compelling and