Sigma Reproductive Health Center v. State

Smith, J., delivered the opinion of the Court. We shall be obliged to dismiss this appeal because it is not from a final judgment. However, we shall give reasons for our view that the defense of necessity is not available to a trespasser at an abortion clinic. I Appellant Sigma Reproductive Health Center is an unincorporated subsidiary of SIGMA Centers of America, Inc. The former operates a family planning and reproductive health clinic in Montgomery County.

It' offers a variety of health care services, including first trimester abortions. Physicians licensed by the State of Maryland perform these abortions in accordance with Maryland law. Appellee Debra Braun participated in a demonstration against abortion held at Connecticut Belair Medical Park where Sigma leases office space. She and other trespassers were requested to leave Sigma’s reception area.

She refused. As a result she was arrested and charged with two counts of trespass. On September 7,1982, she was tried and convicted of trespass in the District Court of Maryland. She appealed that conviction to the Circuit Court for Montgomery County.

That trial has not yet been held. On December 2, 1982, Braun served a subpoena duces tecum on Sigma in which she sought production, prior to trial, of: "records of all abortion patients processed at the Sigma Reproductive Health Center insofar as these pertain to the performance of abortions, and patient follow-up and patient outcomes for the three-month period up through and ⁶⁶³ including August 7, 1982” with the provision that patients’ names might be deleted from the files; "a list of all patients who have sued the clinic or any doctor who performed any abortions upon them therein, or both, together with any other party or parties, for medical malpractice, or whose estates or survivors have so sued such clinic, doctor, or other party or parties”; "copies of all releases required by such clinic to be signed by any patient seeking an abortion with the patients’ names deleted therefrom”; and "copies of all documents or other materials used to explain the risks present inevitably in the performance of any abortion to the clients of such clinic together with a written explanation (if any is now in existence) of how such risk explanatory documents are used and when they are so used.” Braun advised the court that, in connection with her motion for the subpoena, she would "raise the legal doctrine of necessity as a complete defense to her actions in committing the alleged act of trespassing.” She submitted a detailed memorandum to that effect. Both the State and Sigma moved to quash the subpoena, arguing, among other things, that "[a]s a matter of law, Defendant cannot assert the defense of necessity on the facts of this case.” At the hearing on the motion to quash, Braun argued that her trespass was justified because she wished both "to save the life of unborn fetuses” and "to protect the health and well-being of the women who were going into the Clinic that day for abortions.” She further argued that she, "needled] these records ... to prove the objective fact, or corroborate the objective fact that there was negligence, that there had been inadequate counseling, that there had been sloppy preparation, that there had been other injuries that may not have resulted in law suits that would be on the public record.” In denying the motion to quash the circuit court judge declined to address the issue of necessity. She ordered that the subpoena duces tecum be issued but she modified the ⁶⁶⁴ time period relevant to the documents to be produced, limiting it to the two-week period prior to the arrest.

No similar time limitation was placed on the other items requested. Sigma promptly appealed to the Court of Special Appeals. The proceedings have been stayed pending appeal. On our own motion we issued a writ of certiorari prior to argument in the Court of Special Appeals in order that we might address the important public question here presented.

II We first consider whether there is a right of appeal in this case. As in the federal system, with certain limited exceptions not applicable to this case, appeals from circuit courts in this State are limited by Maryland Code (1974) § 12-301, Courts and Judicial Proceedings Article, to those from final judgments. In Stewart v. State, 282 Md. 557, 571 , 386 A.2d 1206 (1978), we said there was no substantive difference between 28 U.S.C. § 1291 and the Maryland statute. Further we have stated that it is elementary that parties may not confer appellate jurisdiction by consent upon this Court or the Court of Special Appeals.

East v. Gilchrist, 293 Md. 453, 458 , 445 A.2d 343 (1982); Pappas v. Pappas, 287 Md. 455, 466 , 413 A.2d 549 (1980); Price v. Hobbs, 47 Md. 359, 378-79 (1877). The right to appeal is statutory, based upon the law we have previously cited, rather than constitutional. See Peat & Co. v. Los Angeles Rams, 284 Md. 86, 90 , 394 A.2d 801 (1978); Neal v. State, 272 Md. 323, 324 , 322 A.2d 887 (1974); State v. Haas, 188 Md. 63, 67 , 51 A.2d 647 (1947). Although the General Assembly has stated that appeals may be heard only from final judgments, it is for the courts to define and give content to the meaning of the term "final judgment.” Peat & Co., 284 Md. at 90-91 ; Warren v. State, 281 Md. 179, 182-83 , 377 A.2d 1169 (1977).

The rule that an appeal will lie only from a final judgment and not from an interlocutory judgment is firmly established ⁶⁶⁵ in our legal system. The primary rationale is to prevent piecemeal appeals and to prevent the interruption of ongoing judicial proceedings. See United States v. Nixon, 418 U.S. 683, 690 , 94 S. Ct. 3090 , 41 L. Ed. 2d 1039 (1974); Peat & Co., 284 Md. at 91 ; Warren, 281 Md. at 183 ; Neal, 272 Md. at 324 -25 (quoting Lee v. State); and Lee v. State, 161 Md. 430, 432 , 157 A. 723 (1931). Thus, the rule is designed to promote judicial efficiency and economy.

Although the rule appears to be simple enough, as this Court has noted the determination of whether a judgment is final is not always easy. See, e.g., Peat & Co., 284 Md. at 91 ; United States Fire Ins. Co. v. Schwartz, 280 Md. 518, 521 , 374 A.2d 896 (1977) (dicta). Because of the difficulty in determining whether an issue before an appellate court arises from a final judgment, this Court has formulated a definition: "[T]he judgment must be so final as to determine and conclude rights involved, or deny the appellant means of further prosecuting or defending his rights and interests in the subject matter of the proceeding.

In re Buckler Trusts, 144 Md. 424, 427 , 125 A. 177 (1924).” Schwartz, 280 Md. at 521 (dicta). See also In re Special Investigation No. 231, 295 Md. 366, 370 , 455 A.2d 442 (1983); Peat & Co., 284 Md. at 91 (quoting Schwartz); Warren, 281 Md. at 183 ("[T]o be final a judgment must actually settle the rights of the parties ... or it must finally settle some disputed right or interest of the parties . .. .”). Notwithstanding the development of the collateral order doctrine in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541 , 69 S. Ct. 1221 , 93 L. Ed. 1528 (1949) and its progeny, see infra, the federal courts and this Court, with relatively few exceptions, have strictly adhered to the final judgment rule. As we have noted previously, a final judgment exists when the rights of litigants have been established conclusively at the trial level.

The general rale in criminal cases is that no final judgment exists until after conviction and sentence has been determined, or, in other words, when only the execution of the judgment remains. See, e.g., Parr v. United States, 351 U.S. 513, 518 ; 76 S. Ct. 912 , 100 L. Ed. 1377 ⁶⁶⁶ (1956); State v. Powell, 186 Conn. 547 , 442 A.2d 939, 943 , cert. denied, 103 S. Ct. 85 (1982); Warren, 281 Md. at 185-86 ; Pearlman v. State, 226 Md. 67, 70 , 172 A.2d 395 (1961); Lee, 161 Md. at 432 . Ordinarily, therefore, an appeal from a pretrial or trial order will not be heard where there are pending proceedings in which issues on the merits of the case remain to be decided. Such orders are interlocutory, not final, and nonappealable until after entry of a final judgment.

See, e.g., Grinnell Corp. v. Hackett, 519 F.2d 595 (1st Cir.), cert. denied, 423 U.S. 1033 (1975); United States v. Moore, 368 F. 2d 990 (9th Cir. 1966); Alexander v. State, 260 Ark. 785 , 545 S.W.2d 606 (1976); People v. Ealy, 49 Ill. App. 3d 922 , 365 N.E.2d 149 (1977); Warren, 281 Md. 179 ; Commonwealth v. Washington, 428 Pa. 131 , 236 A.2d 772 (1968). Despite this prevailing policy, courts have carved out some exceptions. Most of these exceptions in criminal cases concern the constitutional or other rights of criminal defendants and thus are not directly applicable here.

The rationale of the courts in permitting appeals from certain pretrial or trial orders is that the rights of the defendant would be lost or irreparably harmed if an appeal was not allowed until after trial. Thus, the pretrial or trial order’s determination of the defendant’s rights is considered to be separate from the merits of the case and immediately appealable. As the Supreme Court of Iowa stated: "If an order decides an issue merely as a step toward final disposition of a prosecution, it is interlocutory; however, if it disposes of a separable branch of the case, it is an appealable final judgment.” State v. Lekin, 271 N.W. 2d 697, 700 (Iowa 1978). Those orders which courts have held that the defendant can immediately appeal include those involving: his right not to be subjected to double jeopardy, see Abney v. United States, 431 U.S. 651 , 97 S. Ct. 2034 , 52 L. Ed. 2d 651 (1977); Powers v. United States, 412 A.2d 1205 (D.C. 1980); Neal, 272 Md. at 326 ; State v. Thomas, 61 Ohio St. 2d 254 , 400 ⁶⁶⁷ N.E. 2d 897, cert. denied, 449 U.S. 852 (1980); his right to file an in forma pauperis petition or to allege his right to bring a case as an indigent, see Roberts v. United States District Court, 339 U.S. 844 , 70 S. Ct. 954 , 94 L. Ed. 1326 (1950); Pearlman, 226 Md. 67 ; and his right to be adjudged competent to stand trial, see Jolley v. State, 282 Md. 353 , 384 A.2d 91 (1978).

Trial court orders that have been determined to be interlocutory and nonappealable include those involving the denial of: defendant’s motion to dismiss the indictment because his right to a speedy trial had been violated, see United States v. MacDonald, 435 U.S. 850 , 98 S. Ct. 1547 , 56 L. Ed. 2d 18 (1978); Stewart, 282 Md. 557 ; defendant’s motion concerning pretrial discovery orders, see Dow Chemical Co. v. Taylor, 519 F. 2d 352 (6th Cir.), cert. denied, 423 U.S. 1033 (1975); Kardy v. Shook, 237 Md. 524 , 207 A.2d 83 (1965); defendant’s motion to suppress evidence, see State v. Cooley, 430 A.2d 789 (Del. 1981); defendant’s motion for a new trial because of the trial court’s selection of venue after defendant’s exercise of his right to removal, see Lee, 161 Md. 430 ; and defendant’s motion for new trial, see State v. Asherman, 180 Conn. 141 , 429 A.2d 810 (1980). Accord Warren, 281 Md. 179 (appeal from an order for probation without judgment); State v. Powell, 186 Conn. 547 (appeal from a motion to disqualify the prosecutor because of a personal interest in the outcome of the litigation). In its motion to advance this case for oral argument in the Court of Special Appeals, Sigma relied upon Cohen, 337 U.S. 541 , among other cases, which laid down the collateral order doctrine that numerous litigants have relied upon — most often unsuccessfully — because it constitutes an exception to the final judgment rule. Cohen involved a shareholder derivative suit which was in federal court because of diversity of citizenship.

The trial court denied the corporate defendant’s motion to compel plaintiff to give security for costs pursuant to an applicable state statute. The corporation appealed. In holding that the order was appealable, the Court noted that 28 U.S.C. § 1291 generally does not "permit appeals even from fully consummated decisions, ⁶⁶⁸ where they are but steps towards final judgment in which they will merge. The purpose is to combine in one review all stages of the proceeding that effectively may be reviewed and corrected if and when final judgment results.” 337 U.S. at 546 .

In Cohen the district court order neither involved a step toward final disposition of the merits nor did it represent an aspect of the case that would be merged in a final judgment. Id. The Court concluded: "This decision appears to fall in that small class which finally determine claims of right separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated.... "We hold this order appealable because it is a final disposition of a claimed right which is not an ingredient of the cause of action and does not require consideration with it.

But we do not mean that every order fixing security is subject to appeal. Here it is the right to security that presents a serious and unsettled question. If the right were admitted or clear and the order involved only an exercise of discretion as to the amount of security, a matter the statute makes subject to reconsideration from time to time, appealability would present a different question.” 337 U.S. at 546-47 . Since the Cohen decision the Supreme Court has refined the collateral order doctrine, but has applied it only to a relatively few issues of law.

For example, in Coopers & Lybrand v. Livesay, 437 U.S. 463 , 98 S. Ct. 2454 , 57 L. Ed. 2d 351 (1978), the Court stated that to come within the collateral order doctrine, "the order must conclusively determine the disputed question, resolve an important issue completely separate from the merits of the action, and be effectively unreviewable on appeal from a final judgment.” ⁶⁶⁹ 437 U.S. at 468 (footnote omitted). In that case the Court held that the collateral order doctrine did not apply to a trial court’s determination that the suit could not be maintained as a class action: the determination of whether a class existed was not only closely intertwined with the facts and legal issues of the case, but also was subject to effective review after final judgment. As noted in MacDonald, 435 U.S. at 854 , the Court has applied the collateral order doctrine in only two criminal cases. First, in Stack v. Boyle, 342 U.S. 1 , 72 S. Ct. 1 , 96 L. Ed. 3 (1951), the Court held that an order denying a motion to reduce bail is appealable as a final decision: the order conclusively determined the bail issue; the order involved an important issue that was separable from the merits of the case; and "unless it can be reviewed before sentence, it never can be reviewed at all.” 342 U.S. at 12 (Jackson, J., concurring).

Second, in Abney, 431 U.S. 651 , the Court held that a pretrial order denying a motion to dismiss an indictment on double jeopardy grounds fell within the Cohen collateral order doctrine: the order was a complete and final rejection of the defendant’s double jeopardy claim; the nature of the double jeopardy allegation was separable from the central issue of guilt or innocence; and the rights of the defendant would be undermined severely if he were required to defer appeal until the trial was terminated. 431 U.S. at 659-62 . In MacDonald the Court refused to apply the collateral order doctrine to the denial of a motion to dismiss because of an alleged violation of the Sixth Amendment right to a speedy trial: such an order lacked finality because it was not a complete and final rejection of the defendant’s claim; there was no separation of the prejudice to the defendant in conducting his defense due to delay and the central issue of guilt or innocence at trial; and no important right to review would be lost on appeal after trial because the right to a speedy trial goes to delay before the trial and not the trial itself. 435 U.S. at 857-61 . The three prongs of the Cohen collateral order doctrine, in the context of a criminal proceeding, were clearly enunci ⁶⁷⁰ ated in United States v. Yellow Freight System, Inc., 637 F.2d 1248 (9th Cir. 1980), cert. denied, 454 U.S. 815 (1981): "As applied to criminal pretrial orders, [the Cohen] rationale confers appellate jurisdiction when: 1. The pretrial order fully disposed of the appellants’ claim; 2.

The appellants’ claim is collateral to, and separable from, the principal issue of guilt or innocence; and 3. The order involves an important right that would be lost if review had to await final judgment.” 637 F.2d at 1250-51 . Accord United States v. Rey, 641 F.2d 222 (5th Cir.), cert. denied, 454 U.S. 861 (1981); United States v. Harrod, 428 A.2d 30 (D.C. 1981) (en banc); Jolley, 282 Md. at 357 . As another federal court has stated, the three elements of the collateral order doctrine are separability, importance, and urgency.

See Grinnell v. Hackett, 519 F.2d at 596. Although state and federal courts háve taken steps to clarify the three elements of the collateral order doctrine, they have been reluctant to apply the Cohen rationale in a broad fashion. Indeed, courts have applied the collateral order doctrine only sparingly to both civil and criminal proceedings. One of the areas in which courts have demonstrated a high degree of unwillingness to apply the collateral order doctrine, or for that matter to allow an appeal on another basis, is to petitions filed by third parties who seek reversal of trial or pretrial orders in criminal proceedings.

To fit within the collateral order doctrine, an appellant must convince the Court that a case satisfies all three elements of the Cohen test. In applying that doctrine to the facts in the case at bar it would appear that the denial of the motion to quash is not appealable. First, the order to produce documents pursuant to the subpoena duces tecum is not com ⁶⁷¹ pletely separable from the merits of the criminal proceedings. As noted in Nixon, 418 U.S. 683 , "Enforcement of a pretrial subpoena duces tecum must necessarily be committed to the sound discretion of the trial court since the necessity for the subpoena most often turns upon a determination of factual issues.” 418 U.S. at 702 .

Second, the order to produce does not finally and conclusively determine Sigma’s claim. Rather, if Sigma had failed to comply with the order and had been cited for contempt, then there would have been a final order. See infra. The denial of a motion to quash itself was not a final disposition.

Third, although the order involved an important right — the privacy rights of Sigma and its patients — the right would not have been lost on appeal if Sigma had been cited for contempt. Distinct from these cases that have applied the collateral order doctrine are several cases that have confronted the issue of whether a person who is not a party to a criminal proceeding may appeal from the denial of a motion to quash a subpoena duces tecum. Although the facts and circumstances are distinguishable, the rationale underlying these cases would seem applicable here. In general, the courts have held that in order to appeal the denial of a motion to quash a subpoena duces tecum, the third party must be cited for contempt.

In other words, only an appeal from a contempt order, as opposed to an order to produce documents pursuant to the subpoena, is final enough and separable enough from the merits to confer the power of review on an appellate court. The Supreme Court dealt with this issue in Alexander v. United States, 201 U.S. 117 , 26 S. Ct. 356 , 50 L. Ed. 686 (1906). There the Government sued several corporations under the Sherman Antitrust Act. A special examiner had been appointed to hear and take testimony.

He served a subpoena duces tecum on the appellants as officers of various companies and as individuals. They appeared at the hearing but did not produce the requested documents. The trial court ordered production. The officers appealed.

The Court, in holding that the order was not appealable, stated: ⁶⁷² "In a certain sense finality can be asserted of the orders under review, so, in a certain sense, finality can be asserted of any order of a court. And such an order may coerce a witness, leaving to him no alternative but to obey or be punished. It may have the effect and the same characteristic of finality as the orders under review, but from such a ruling it will not be contended there is an appeal. Let the court go further and punish the witness for contempt of its order, then arrives a right of review, and this is adequate for his protection without unduly impeding the progress of the case.. ..

This power to punish being exercised the matter becomes personal to the witness and a judgment as to him. Prior to that the proceedings are interlocutory in the original suit.” 201 U.S. at 121-22 . The Court considered the issue again in Perlman v. United States, 247 U.S. 7 , 38 S. Ct. 417 , 62 L. Ed. 950 (1918). This is one of only two cases in which the Supreme Court has determined that a person need not be cited for contempt to appeal an order to produce documents.

In Perlman , appellant had turned documents over to the court for an investigation involving a potential patent infringement. These documents proved to be material to a subsequent grand jury proceeding and the district court ordered the clerk of the court to release the materials to the United States Attorney. Perlman appealed the order. The Supreme Court found the matter appealable because "Perlman was powerless to avert the mischief of the order” and was unable to "seek a remedy at some other time and in some other way.” 247 U.S. at 13 .

Thus, the Court created an exception to the rule that a third party must be cited for contempt where the documents subject to the subpoena duces tecum were being held in custody by someone other than the owner; in Perlman , the clerk of the court could not have been expected to subject himself to a contempt order on Perlman’s behalf. The other case in which the Supreme Court held that the witness need not subject himself to a contempt citation ⁶⁷³ before bringing an appeal from an order to produce documents pursuant to a subpoena duces tecum is Nixon, 418 U.S. 683 . The Court in Nixon allowed the appeal because of "the unique posture of the case”: it clearly had no desire to require that the President subject himself to contempt, thus necessitating a determination of the question as to whether the trial court had the power to issue a contempt order against the President. 418 U.S. at 691-92 . On the issue of whether a pretrial order pursuant to a subpoena is appealable, Judge Friendly said for the court in Kaufman v. Edelstein, 539 F. 2d 811 (2d Cir. 1976): "One would have supposed it to be beyond argument that, despite Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 546-47 , 69 S. Ct. 1221, 1225-1226 , 93 L. Ed. 1528, 1536-1537 (1949), 'An order compelling testimony ... in an ordinary civil or criminal action is neither a final order [under § 1291] nor an interlocutory order granting an injunction [under § 1292(a)(1)] and it is not appealable.

This is the oft-cited rule of Alexander v. United States [ 201 U.S. 117 , 26 S. Ct. 356 , 50 L. Ed. 686 (1906)].’ 9 Moore, Federal Practice ¶ 110.13[2] at 153-54 (Ward ed. 1975). The remedy of the party witness wishing to appeal is to refuse to answer and subject himself to criminal contempt; that of the non-party witness is to refuse to answer and subject himself to civil or criminal contempt. Id. at ¶ 110.13 [4] at 165-66. We have applied this rule in many cases of non-party witnesses, in one of which, United States v. Fried, 386 F.2d 691, 694 (2 Cir. 1967), we specifically rejected a contrary view expressed in Covey Oil Co. v. Continental Oil Co., 340 F.2d 993 , 996-97 (10 Cir.), cert. denied, 380 U.S. 964 , 85 S. Ct. 1110 , 14 L. Ed. 2d 155 (1965) — as four other circuits have done, Ryan v. CIR, 517 F.2d 13, 18-20 (7 Cir.), cert. denied, 423 U.S. 892 , 96 S. Ct. 190 , 46 L. Ed. 2d 124 (1975); Gialde v. Time, Inc., 480 F.2d 1295, 1300-01 (8 Cir. 1973); United ⁶⁷⁴ States v. Anderson, 150 U.S. App. D.C. 336 , 464 F.2d 1390 (D.C. Cir. 1972); Borden Co. v. Sylk, 410 F. 2d 843, 846 (3 Cir. 1969).

The doctrine has since been reaffirmed by a unanimous Court in United States v. Ryan, 402 U.S. 530 , 91 S. Ct. 1580 , 29 L. Ed. 2d 85 (1971), and was again recognized in United States v. Nixon, 418 U.S. 683, 690-92 , 94 S. Ct. 3090, 3098-99 , 41 L. Ed. 2d 1039, 1053-54 (1974), although the Court, for reasons stated in its opinion which are wholly inapplicable here, made an exception where the subpoena was directed to the President of the United States.” 539 F.2d at 813-14 (bracketed material in the original). Judge Friendly went on in footnote 3 to explain the reasons for the rule: "3. Although it is hardly necessary to adduce reasons for such a well-settled rule, it may be worthwhile to state the most important ones. To allow immediate review on the denial of a motion to quash a subpoena may produce an appeal that otherwise would not occur, since the case may be settled, or the party proposing to call the witness or the witness himself may have second thoughts.

Also, as illustrated by this case, postponing the appeal until the witness had placed himself in contempt would normally provide the appellate court with a record of just what questions the witness had been asked and refused to answer which is generally unavailable on the denial of a motion to quash.” 539 F.2d at 814 -15 n.3. Our recent Maryland cases of In re Special Investigation No. 244, 296 Md. 80 , 459 A.2d 1111 (1983); In re Special Investigation No. 231, 295 Md. 366 , 455 A.2d 442 (1983); and In re Special Investigation No. 185, 293 Md. 652 , 446 A.2d 1151 (1982), all are distinguishable from the case at bar. In the procedural posture of those cases the only matter before the trial court was the motion to quash. In each of those ⁶⁷⁵ cases the motion to quash was a separate proceeding.

None of those motions was filed in the proceeding out of which the subpoena emanated. No criminal case was then extant. The only case pending was the motion to dismiss. The other cases upon which Sigma relies, News American v. State, 294 Md. 30 , 447 A.2d 1264 (1982), and Randall Book Corp. v. State, 49 Md. App. 131 , 430 A.2d 624 , cert. denied, 291 Md. 780 (1981), are distinguishable on their facts.

We hold that ordinarily an order denying a motion to quash a subpoena duces tecum in a pending case is not an appealable final order. Hence, it follows that the appeal here must be dismissed. Ill Despite the fact that we conclude that this appeal must be dismissed, we shall address the issue presented. We do this in the interest of judicial economy.

Precedent for our so doing exists. See, e.g., In re Special Investigation No. 244, 296 Md. at 83 ; Equitable Tr. Co. v. State Comm’n, 287 Md. 80, 89 , 411 A.2d 86 (1980); Kardy, 237 Md. at 534-35 ; Lee, 161 Md. at 434 . The nature of the defense of necessity is explained by W. LaFave & A. Scott, Jr., Criminal Law § 50 (1972): "One who, under the pressure of circumstances, commits what would otherwise be a crime may be justified by 'necessity’ in doing as he did and so not be guilty of the crime in question.

With the defense of necessity, the pressure must come from the physical forces of nature (storms, privations) rather than from other human beings. (When the pressure is from human beings, the defense, if applicable, is called duress rather than necessity.) Also, the pressure must operate upon the mind of the