Sherrard v. Hull

Alpert, J., delivered the opinion of the Court. 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 plaintiffs 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 lav/ 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 ⁵⁵⁵ 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 ⁵⁵⁶ 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, 69 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,” Schoonfield v. Mayor and City ⁵⁵⁷ 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 ⁵⁵⁸ 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. 2 ⁵⁵⁹ 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 ⁵⁶⁰ their legislators and if we are going to stifle them from doing so because they might make some mistake in what they say, then this prevents this exchange, this giving of information on which the legislators base their action. This would be harmful to not only our way of life, but our way of legislating; our way of getting information. And this way of obtaining information, that’s the reason for absolute privilege when you’re petitioning legislative bodies. He then told the jury that they would have to decide whether the facts, as presented in evidence, constituted "petitioning”: So if one is petitioning, what he or she says is absolutely privileged.

What constitutes petitioning is not clearly defined. It would appear to embrace more than the literal definition of the term, that is, bringing in a petition with a lot of signatures on it and handing it to the County Commissioners. It might be certainly any position taken on an issue or matter before the Commissioners prior to the time the decision was made. Whether what Mrs. Hull was doing after the decision had been made and whether this would be absolute privilege, would amount to a petition, we will leave for you Ladies and Gentlemen to decide, based upon what I have told you.

We find no error in this instruction. The privilege is derived from the First Amendment to the United States Constitution, which provides, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peacefully to assemble, and to petition the government for a redress of grievances.” (emphasis supplied). This provision has been made applicable to the individual states through the Fourteenth Amendment. Hague v. Committee for Industrial Organization, 307 U.S. 496, 512-13 (1939); DeJonge v. Oregon, 299 U.S. 353, 364 (1937). ⁵⁶¹ The Supreme Court has stated that "the rights to assemble peacefully and to petition for redress of grievances are among the most precious of the liberties safeguarded by the Bill of Rights,” United Mine Workers of America v. Illinois State Bar Ass’n, 389 U.S. 217, 222 (1967) and has called the right "a sanctity and a sanction not permitting dubious intrusions.” Thomas v. Collins, 323 U.S. 516, 530 (1945).

The right to petition for redress of grievances can be traced back to 1215 when King John of England signed the Magna Carta. See, Nowak, Rotunda, and Young, Constitutional Law, ch. 18 §XVI at 838 (1978). In a trilogy of cases, the Supreme Court has held that the right to petition protects the freedom to seek redress from all three coordinate branches of government. In Eastern R.R. Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127 (1961), a group of trucking companies instituted suit against a group of railroads to obtain damages and restrain them from an alleged conspiracy to monopolize the long distance freight business in violation of the antitrust laws.

The trucking companies’ complaint alleged that the railroads had engaged a public relations firm to conduct a publicity campaign against the truckers which was designed to foster the adoption and retention of laws and law enforcement practices destructive to the trucking industry. One of the charges was that the railroads had succeeded in persuading the Governor of Pennsylvania to veto a measure known as the Fair Truck Bill which would have permitted truckers to carry heavier loads over Pennsylvania roads. The Supreme Court held that the Sherman Act could not be used to impose civil sanctions for a publicity campaign aimed at influencing the legislature, even where the campaign was designed to stifle competition from the trucking industry. Speaking for the Court, Justice Black observed: [S]uch a holding [that the Sherman Act forbids associations for the purpose of influencing the passage or enforcement of laws] would substantially impair the power of government to ⁵⁶² take actions through its legislature and executive that operate to restrain trade.

In a representative democracy such as this, these branches of government act on behalf of the people and, to a very large extent, the whole concept of representation depends upon the ability of the people to make their wishes known to their representatives. To hold that the government retains the power to act in this representative capacity and yet hold, at the same time, that the people cannot freely inform the government of their wishes would impute to the Sherman Act a purpose to regulate, not business activity, but political activity, a purpose that would have no basis whatever in the legislative history of that Act. Secondly, and of at least equal significance, such a construction of the Sherman Act would raise important constitutional questions. The right of petition is one of the freedoms protected by the Bill of Rights, and we cannot, of course, lightly impute to Congress an intent to evade these freedoms. . . . [W]e think it clear that the Sherman Act does not apply to the activities of the railroads at least insofar as those activities comprised mere solicitation of governmental action with respect to the passage and enforcement of laws, (emphasis supplied).

Id. at 137-38 (footnotes omitted). Justice Black further commented: "The right of the people to inform their representatives in government of their desires with respect to passage or enforcement of laws cannot properly be made to depend upon their intent in doing so.” Id. at 139 . In United Mine Workers of America v. Pennington, 381 U.S. 657 (1965), a suit was brought against the United Mine Workers and certain coal companies alleging that the defendants had lobbied the Secretary of Labor to obtain adjustments to the Tennessee Valley Authority coal purchasing policy in order to drive small coal companies out ⁵⁶³ of business. The Supreme Court held that concerted efforts to influence the conduct of executive officials are privileged, even if undertaken with an anticompetitive purpose.

In Pennington , the Court took the opportunity to discuss the scope of Noerr and stated that, 'Noerr shields from the Sherman Act a concerted effort to influence public officials regardless of intent or purpose.” Id. at 670 . The defendants had set up a trust fund to finance opposition to all applications the plaintiff would need to make to the agencies involved in regulating trucking in California Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508 (1972). The complaint alleged a concerted action by the defendants to institute state and federal proceedings to resist and defeat applications by the plaintiffs to acquire operating rights or to transfer or register those rights. These activities, it was alleged, extended to rehearings and to reviews or appeals from agency or court decisions on these matters.

The Supreme Court held that the right to petition encompasses attempts to obtain redress through the institution of administrative and judicial proceedings. However, the Court observed, the petitioning privilege would not protect against antitrust liability where the alleged conspiracy "is a mere sham to cover what is actually nothing more than an attempt to interfere directly with the business relationships of a competitor.” Id. at 511 (quoting Noerr, supra). For other cases where a particular petitioning activity to public officials has been afforded First Amendment protection, despite allegations of malicious intent, ulterior motivation, or knowing falsity, see City of Long Beach v. Bozek, 31 Cal. 3d 527 , 183 Cal. Rptr. 86 , 645 P.2d 137 (1982) (bringing of suits against the government is an absolutely privileged form of petitioning and therefore governmental entities may not maintain actions for malicious prosecution against those who have previously sued such entities unsuccessfully); Gorman Towers, Inc. v. Bogoslavsky, 626 F.2d 607 (8th Cir. 1980) (private citizens absolutely privileged to petition for zoning amendment, despite ⁵⁶⁴ consequential harm to plaintiff); Missouri v. National Organization for Women, Inc., 620 F.2d 1301 (8th Cir. 1980) (NOW’s boycott of Missouri determined to be absolutely privileged under the right to petition); Weiss v. Willow Tree Civic Ass’n, 467 F.Supp. 803 (S.D.N.Y. 1979) (lobbying town officials and filing complaints to oppose zoning permits was absolutely privileged).

In Streif v. Bovinette, 88 Ill. App. 3d 1079 , 411 N.E.2d 341 (1980), the Appellate Court of Illinois recognized the expansion which had occurred in the right to petition, noting that it now "comprehends demands for an exercise by the Government of its powers in furtherance of the interest and prosperity of the petitioners . . .” 411 N.E.2d at 344 (quoting The Constitution of the United States of America: Analysis and Interpretation 915 (6th Ed. 1964)), "A citizen’s right to communicate and to address his government in matters which he dee.ms to be important cannot be lightly subjected to restraint.” Streif, supra, 411 N.E.2d at 345 . The right to petition has been held to provide a defense of absolute privilege to common law tortious business interference. See, Sierra Club v. Butz, 349 F.Supp. 934, 936 (N.D. Calif. 1972).

Sierra Club involved a counterclaim for intentional interference with advantageous relationship and for fraudulent misrepresentation against an environmental group which had been asserting administrative appeals and filing written and oral complaints to persuade the Federal government to preserve wilderness areas and reduce timber sales. In dismissing the claims, the court held that the privilege created by the First Amendment, guaranteeing the right of people to petition government for redress of grievances, protected the Sierra Club from common law tort liability. In Webb v. Fury, 282 S.E.2d 28 (W.Va. 1981), a coal company brought a defamation suit against two private environmental groups. The environmental groups had published a newsletter concerning water pollution from the coal corporation’s mining activities.

Additionally, the environmental groups had requested the Office of Surface ⁵⁶⁵ Mining to inspect the coal company’s mining operations and had requested the Environmental Protection Agency to conduct a hearing to reconsider the Agency’s decision to grant the coal company’s water pollution control permits. The Supreme Court of Appeals of West Virginia held that the environmental groups’ communications with the Office of Surface Mining and the Environmental Protection Agency were petitioning activities and thus absolutely privileged. The court further held that statements published in the newsletter which sought to exhort the public to demonstrate concern for rapidly expanding surface mining and the resulting pollution of the area’s waters were also an absolutely privileged form of petitioning. The court reasoned that "the right to petition includes, among other things, activity designed to influence public sentiment concerning the passage and enforcement of laws as w°ll as appeals for redress made directly to the government.” Id. at 42 .

There is one major exception to the petitioning privilege, however. The so-called "sham exception” removes otherwise valid petitioning activities from the protection of the Noerr-Pennington doctrine. In Noerr, supra, the Supreme Court suggested that a sham use of the petitioning process might not fall within the privilege. The exception was given explicit recognition in California Motor Transport Co. v. Trucking Unlimited, supra.

In that case the Supreme Court distinguished between the influencing of public officials and the effective barring of competitors from meaningful access to government bodies through manipulation. Describing the contours of the sham exception vis a vis antitrust regulation, the United States District Court for the District of Columbia recently stated that"... the exception also applied when the relevant activities were intended not to secure governmental action but to harm others through deliberate abuse of the governmental process.” United States v. American Tel. and Tel. Co., 524 F.Supp. 1336, 1362 (D.D.C. 1981). The court continued "[t]o be a sham, the representation must go beyond the normal and legitimate exercises of the right to petition; it must amount to a ⁵⁶⁶ subversion of the integrity of the process.” Id. at 1364 .

Quoting Israel v. Baxter Laboratories, Inc., 466 F.2d 272, 278 (D.C. Cir. 1972), the court observed, "the sham exception reflects a basic concern for the integrity of the regulatory process, and for that reason 'no actions which impair the fair and impartial functioning of administrative agency should be able to hide behind the cloak of an antitrust exemption.’ ” United States v. American Tel. and Tel. Co., supra, 524 F.Supp. at 1362 . See generally, Federal Prescription Service, Inc. v. American Pharmaceutical Ass’n, 662 F.2d 253 (D.C. Cir. 1981). Webster’s New Twentieth Century Dictionary (Unabridged) (2nd Ed. 1977) has defined the word "sham” as 1. formerly, a trick or fraud, 2. an imitation that is meant to deceive; a counterfeit; a deception; a fake, 3. a person who falsely affects a certain character...

In the instant case, the sham exception would be inapplicable. There was not the slightest suggestion that Hull, as a competitor, was attempting to interfere with the business relationships of Sherrard. As such, a jury instruction covering the sham exception even if it had been requested, would have been inapplicable and thus, was properly omitted by the trial judge. In practical effect, the jury by being instructed to determine whether Hull was petitioning was being asked to decide whether she was deceptively using the Board hearing not to secure governmental action but merely to harm Sherrard.

So long as Hull’s principal purpose of petitioning was to obtain some favorable governmental action, any consequential injury to Sherrard being merely incidental thereto, no defamation action may lie for exercising her right to petition her local legislative body. Sierra Club v. Butz, supra, 349 F.Supp. at 938-39 . Further, while there is some authority for the proposition that the privilege should be qualified by a malice standard, ⁵⁶⁷ we believe those authorities to be inapposite. The most recent, better reasoned cases hold the privilege to be absolute, and we believe that in order to give the breathing space which First Amendment rights need to survive, a malice standard should not be imposed under the circumstances of this case.

In weighing the right of freedom from tortious conduct (in this case defamation) against the need for a legislative body to receive information enabling it to function, 3 the latter must prevail. The extension of the petitioning doctrine from antitrust cases to defamation cases is not an illogical one. Antitrust violations, while statutory, can be traced to the common law actions limiting restraints of trade and proscribing monopoly power and middlemen profits. The economic harm caused by antitrust violations can be as devastating as injury caused by damaging one’s reputation through defamatory speech.

An intriguing observation was made by the commentator in Note, "Maryland’s Summary Judgment Procedure in New York Times Defamation Cases — Berkey v. Delia," 40 Md. L. Rev. 638 , 664 (1981), where it was suggested that special importance should be placed upon the "right” to petition for redress of grievances, for linguistically, it is one of only two "rights” found in the language of the First Amendment. Because free speech is not set forth as a "right,” but rather as a freedom, it was felt that arguably this designation by the founding fathers of the right to petition for a redress of grievances as a "right” may have been intentional. As such, this right to petition may be a more important form of speech than that protected by the freedom of speech clause. Id. 4 ⁵⁶⁸ However, c.f., Thomas v. Collins, supra, 323 U.S. at 530 .

As early as 1845, the Supreme Court recognized that a petitioning privilege might exist in defamation actions. In White v. Nicholls, 44 U.S. (3 How.) 266 (1845), the Court was faced with a defamation action brought as a result of communications and resolutions sent to the President and Secretary of the Treasury, urging the removal of an allegedly unfit customs collector. The Court rejected the application of an absolute privilege, however, based upon the English case of Lake v. King, 1 Saund. 120 (1966). It held that: [Mjalice may be proved, although alleged to have existed in the proceedings before a court, or legislative body, or any other tribunal or authority, although such court, legislative body or other tribunal may have been the appropriate authority for redressing the grievance represented to it; and that proof of express malice in any written publication, petition or proceeding addressed to such tribunal will render that publication, petition, or proceeding, libelous in character, and actionable, and will subject the author and publisher thereof to all the consequences of libel. 44 U.S. (3 How.) at 291 .

This case was decided before judicial and legislative privileges were held absolute and before the decisions in Noerr-Pennington. Thus, its applicability to the instant appeal is questionable at best. While the question of whether the petitioning privilege should be absolute or qualified has resulted in a split of ⁵⁶⁹ authority, a number of states which have decided the precise issue have found the privilege to be absolute. See, Lininger v. Knight, 123 Colo. 213 , 226 P.2d 809 (1951) (petition presented to Board of County Commissioners for revocation of plaintiffs liquor license, alleging that the club "is a hideout for people who want to drink and carry on in a manner objectionable to the established morals of this community” held absolutely privileged); Yancey v. Commonwealth, 135 Ky. 207 , 122 S.W. 123 (1909) (petition by judge seeking impeachment of county attorney for misconduct and corruption which had been sent to legislators held absolutely privileged assuming good faith belief that attorneys’ conduct warranted removal); Werner v. Ascher, 86 Wis. 349 , 56 N.W. 869 (1893) (absolute privilege would exist if petition to local Board of Supervisors seeking revocation of plaintiff s liquor license were published only to Board and not to public); see also, Campo v. Rega, 79 A.D.2d 626 , 433 N.Y.S.2d 630, 631 (1980) (absolute privilege for citizen complaint regarding policeman’s conduct); Rusack v. Harsha, 470 F. Supp. 285, 297 (M.D.Pa. 1978) (absolute privilege to report possible criminal violations to appropriate officials); Wieman v. Mabee, 45 Mich. 484 , 8 N.W. 71 (1881) (communication made to superintendent of schools in affidavit alleged bad moral character and unfitness of teacher to teach held "fully privileged” where made by persons interested in the school, to the person qualified to receive and act on the petition, for an honest purpose, .and with an honest belief in the justice of their action).

Compare, however, Arlington Heights Nat'l Bank v. Arlington Heights Fed. Savings and Loan Assoc., 37 Ill.2d 546 , 229 N.E.2d 514 (1967) (qualified privilege for citizen to petition his local legislative body in tort action based upon intentional inducement to breach contract); State v.