Smith v. Danielczyk

WILNER, J. The principal issues in this case are what, if any, privilege or immunity police officers have (1) for making allegedly false defamatory statements in an application for a search warrant, and (2) for voluntarily disclosing those statements to the news media. 1 We shall hold that, to the extent they may apply under the particular factual circumstances, police officers have the common law qualified immunity enjoyed generally by public officials and the statutory protection afforded by the State Tort Claims Act or the Local Government Tort Claims Act, but that they do not enjoy any absolute privilege or immunity. BACKGROUND On May 5, 2006, appellants, Robert Smith and Vicki Mengel, filed in the Circuit Court for Baltimore City a one-count complaint for defamation against Scott Danielczyk and John Jendrek, appellees. That complaint was dismissed on motion, with prejudice. Ordinarily, in reviewing the dismissal of a complaint on motion, we look only to the allegations in the ¹⁰⁴ complaint and any exhibits incorporated in it and “assume the truth of all well-pled facts in the complaint as well as the reasonable inferences that may be drawn from those relevant and material facts.” Ricketts v. Ricketts, 393 Md. 479, 491-92 , 903 A.2d 857, 864 (2006), quoting from Porterfield v. Mascari II, Inc., 374 Md. 402, 414 , 823 A.2d 590, 597 (2003); see also Debbas v. Nelson, 389 Md. 364, 372 , 885 A.2d 802, 807 (2005).

Maryland Rule 2-322(c) provides, however, that if, on a motion to dismiss for failure of the complaint to state a claim upon which relief can be granted, “matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 2-501 [which governs motions for summary judgment].” Rule 2-322(e) adds that, in that event, the parties “shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 2-501.” Three defenses were raised in the motion to dismiss, but they all fit, at least in a general way, within the ambit of an assertion that the complaint failed to state a claim upon which relief could be granted. 2 Although no extraneous material was attached to either the complaint or the motion to dismiss in this case, appellees made certain factual averments in the memorandum they filed in support of their motion and attached as exhibits to that memorandum copies of applications for certain search warrants, the warrants themselves, and an undated and unsigned document that purports to be a return identifying material seized pursuant to one of the warrants. In their response to the motion, appellants alleged additional facts that were not mentioned in the complaint. Because the court dismissed the complaint without explanation, it is not clear whether any of that material was, in ¹⁰⁵ fact, considered. The record does not indicate that the extraneous documents or averments were “excluded” by the court, however, so we must assume that they were considered.

Ordinarily, therefore, we would be obliged to treat the court’s ruling as the grant of summary judgment for appellees and review it in that light. Under Maryland Rule 2—501(f), summary judgment may properly be entered only if “the motion and response show that there is no genuine dispute as to any material fact and that the party in whose favor judgment is entered is entitled to judgment as a matter of law.” In making that determination, all facts set before the court and all inferences that may fairly be drawn from those facts must be considered in the light most favorable to the non-moving party, in this case the appellants. See United Servs. Auto Ass’n v. Riley, 393 Md. 55, 66-67 , 899 A.2d 819, 825-26 (2006); Haas v. Lockheed Martin, Corp., 396 Md. 469, 478-79 , 914 A.2d 735, 740-41 (2007).

Regrettably, some of the relevant facts are not presented with the greatest clarity or even in the proper manner. 3 Because there seems to be no dispute regarding the extraneous material appended to appellees’ motion to dismiss and none of the relevant factual averments by appellees in their memorandum or made by appellants in response to the motion were controverted, we shall regard the exhibits and the additional averments as simply supplementing the allegations in the complaint and consider the relevant facts pled in the complaint, as so supplemented. See Pension Ben. Guar. Corp. v. White Consol.

Ind., 998 F.2d 1192, 1196 (3rd Cir.1993). ¹⁰⁶ Appellants Robert Smith and Vicki Mengel were Baltimore City police officers assigned to a seven-member “Flex Squad” in the Southwest District. Smith, a sergeant, was the supervisor of the squad. Mengel was an investigator. The Flex Squad came under scrutiny when a woman claimed that she had been raped by a police officer in the Flex Squad office. 4 On December 29, 2005, in furtherance of an investigation into the rape charge and pursuant to applications made by appellees, who were police officers assigned to that investigation, warrants were issued to search the office of the Flex Squad and certain lockers located in the office.

In the execution of those warrants, which occurred at about 2:00 that same afternoon, controlled dangerous substances were discovered in a duffel bag under one officer’s desk, in a second officer’s desk drawer, and in a third officer’s jacket pocket. On the wall of the office, a vial with white residue was discovered. No contraband was discovered from Smith or Mengel, who were not present at the office that day, or, apparently, from their desks, lockers, or other property. Promptly after the search was conducted, appellees prepared an application for another warrant to search the Flex Squad office and various lockers and containers located there.

It is the affidavit accompanying the application for that warrant that forms the basis of this lawsuit. In their affidavit, appellees recited the execution of the initial warrants, described the contraband that was discovered, and stated that the office was used by the entire Flex Squad, including Officers Smith and Mengel. They expressed the belief that probable cause existed that the narcotics laws of the State “have been violated by each of the above named officers, and that it is reasonable that additional contraband may be concealed within their individual lockers.” (Emphasis added). The affiants noted that, “[a]s of now,” only the lockers belonging to Officers Hatley, Jones, Nagovich, and Ali “have been identified.” They added, however, that “[ajffiant Danielczyk ¹⁰⁷ also has prior knowledge that Officers Jones and Mengel have been implicated in the theft of cellular phones belonging to arrestees” and that “allegations against Officers Jones and Mengel have been made as to the planting of controlled dangerous substances on citizens in an effort to knowingly make false arrests.” The affidavit gives no details with respect to the allegations regarding the theft of cell phones or the planting of CDS on citizens, or as to the basis of Danielczyk’s “prior knowledge.” Upon those allegations, appellees stated that there was probable cause to believe that all seven officers, including Smith and Mengel, were violating the controlled dangerous substance laws and were using the Southwest District Flex Office and the lockers of Officers Hatley, Jones, Nagovick, and Ali “to facilitate their illegal activity.” Curiously, although the affidavit clearly alleged, and, indeed, was largely based on, information discovered as a result of the search conducted earlier that afternoon, on December 29, 2005, the judge to whom it was presented stated that it was “[sjworn to before me and subscribed in my presence this 27th day of September, 2005.” (Emphasis added).

There is no explanation in this record of why the affidavit is dated more than two months before most of the information on which it is based was received. Appellees attached as an exhibit to their motion to dismiss an unsigned, undated, unwitnessed, unattested Return, indicating that a warrant was issued and was executed at or about 5:00 p.m. on December 29, 2005, and listing the items allegedly seized from “the office described in the warrant.” Among those items were ziploc bags containing pills, white powder, and green leafy substance, cellular phones, electric scales, counterfeit CDs and DVDs, and pornographic magazines. The purported return does not indicate whether any of that material was discovered in the desk, locker, or other property of Smith or Mengel. In their complaint, appellants alleged, in relevant part, that: ¹⁰⁸ (1) prior to December 29, 2005, they had not observed any member of the Flex Squad unlawfully possessing or distributing any controlled dangerous substances and were no t, themselves, involved in such activity, (2) appellees “acted in reckless disregard of the truth and falsely accused the Plaintiffs of committing crimes while employed as Baltimore City Police Officers,” (3) appellees falsely stated, on the “scant evidence set forth in the affidavit,” that they believed there was sufficient probable cause to believe that Smith was violating the CDS laws and was using the Flex Office to facilitate illegal activity, (4) they falsely stated that Mengel had been implicated in the theft of cell phones and had planted CDS on citizens in order to knowingly make false arrests, (5) they knew or should have known that Smith and Mengel were providing loyal service to the Department and were not engaged in any illegal activity, (6) the false statements, including the false statement that appellees honestly believed that Smith and Mengel were involved in drug crimes, were “set forth for the malicious purpose of embarrassing [Smith and Mengel] and causing, them to be subject to public ridicule, scorn, dishonor, and embarrassment and to ruin their careers as Baltimore City Police Officers,” (7) the false statements “were leaked by the Defendants to members of the media for the express purpose of causing publication of the false statements,” and (8) as a direct result of appellees’ “malicious defamation” Smith’s police powers were suspended on January 13, 2006, and they both have suffered great emotional trauma and other damage, including the “ruination” of their police careers. 5 ¹⁰⁹ Appellees moved to dismiss the complaint on the grounds that appellants had failed to comply with the mandatory notice provisions of the Local Government Tort Claims Act (LGTCA), that “as writers of a criminal warrant,” they were immune from a defamation suit by absolute and qualified privilege, and that the complaint failed to allege a prima facie case of defamation upon which relief could be granted.

Those defenses were explicated in some greater detail in an accompanying memorandum. As to the notice requirement, appellees pointed out that Maryland Code, § 5-304(b) of the Cts. & Jud. Proc. Article (CJP), which is part of the LGTCA, prohibits an action for unliquidated damages against a local government or its employees unless notice of the claim is given within 180 days after the injury.

The notice, they added, must be in writing and state the time, place, and cause of the injury. The defense of absolute immunity was based on a line of Maryland cases holding that persons participating in the judicial process enjoy an absolute immunity from liability for making defamatory statements in the course of judicial proceedings. The judicial system, they contended, could not function without absolute immunity to protect officers from civil liability for statements made in applications for search warrants. In addition to this absolute immunity, appellees asserted a qualified immunity for discretionary acts committed by police officers without actual malice, i.e., “an evil or rancorous motive influenced by hate, the purpose being to deliberately and willfully injure the plaintiff.” The complaint, they urged, was “bereft of any facts that support a claim of evil or rancorous motive.” Finally, urging that appellants were public figures or public officials, appellees contended that, under New York Times v. Sullivan, 376 U.S. 254 , 84 S.Ct. 710 , 11 L.Ed.2d 686 (1964) and its progeny, appellants were required to show that appellees also acted with what may be called “Constitutional malice,” that is, that they had actual knowledge that their statements ¹¹⁰ were false or acted in reckless disregard of whether the statements were true or false, and that appellants had not done so.

Appellees contended, as well, that, under common law principles, appellants had not pled that there had been a “publication” for purposes of a defamation suit—that the issuance of a search warrant does not constitute publication, that they had not shown that the statements complained of were false, and that they had failed to allege actual damages. It does not appear that any of the parties requested a hearing on the motion. On August 3, 2006, the court granted the motion, without a hearing, without any explanation or assignment of reasons, but with prejudice, and this appeal ensued. Appellants obviously believe that the court dismissed their complaint on the ground of absolute immunity, for that is the only issue raised or addressed in their initial brief in the Court of Special Appeals.

We granted certiorari on our own initiative, prior to proceedings in the Court of Special Appeals, to consider whether police officers do, indeed, possess absolute immunity for defamatory statements made in an application for a search warrant. It is evident, now that we have the record and the appellees’ responsive brief, that other issues may also be in the case, although we may quickly dispose of them. DISCUSSION Statutory Notice As we have observed, CJP § 5-304(b) provides that an action for unliquidated damages may not be brought against a local government or its employees unless “notice of the claim required by this section is given within 180 days after the injury.” The notice must be in writing and must state the time, place, and cause of the injury, and, in Baltimore City, it must be given to the City Solicitor. 6 See § 5-304(c). Section ¹¹¹ 5-304(d) provides, however, that, “unless the defendant can affirmatively show that its defense has been prejudiced by lack of required notice, upon motion and for good cause shown the court may entertain the suit even though the required notice was not given.” Although appellees claimed in their motion to dismiss and accompanying memorandum that appellants had failed to comply with that requirement, they offered no facts in support of that argument.

It was, indeed, a bald, unsupported allegation. In response, appellants pointed out that they had filed suit against appellees within six months of the tortious act, that the City Solicitor had accepted service of the complaint, and that, in any event, they sent notice to the City on June 23, 2006, which, they claimed, was also within six months. They did not attach a copy of the notice to their response. A fair reading of the complaint indicates that two acts of defamation were alleged—the making of false statements in the application for the search warrant and the voluntary disclosure of those statements by appellees to the news media.

Notwithstanding the obviously incorrect date given by the judge on the affidavit, it is evident that the first of those events occurred on December 29, 2005, when all parties agree the application was, in fact, made. The second, at least inferentially, occurred some time later, although when is not alleged. The complaint was filed May 5, 2006. When appellees complained that the City, which was not sued, had not received a separate notice of the claim, such a notice was sent to the City on June 23, 2006.

Apart from the information supplied in the complaint, which set forth everything that would be required in a separate notice, the separate notice itself was given within 180 days after December 29, 2005, and would therefore be timely. ¹¹² Appellees’ argument, as set forth in their brief, is that the giving of timely notice is a condition precedent to filing suit, that compliance with that condition must be alleged in the complaint, and, as the notice was not given prior to the filing of suit and the complaint therefore did not and could not alleged compliance, the complaint must be dismissed. For that proposition, appellees cite Neuenschwander v. Washington Suburban Sanitary Commission, 187 Md. 67 , 48 A.2d 593 (1946) and Rios v. Montgomery County, 386 Md. 104 , 872 A.2d 1 (2005). Those cases, and others, do, indeed, regard the notice requirement as a condition precedent to the ability to maintain an action against a local government or, under the LGTCA, against its employees, and we do not depart from that precept here. In those cases, however, and in the others in which we have similarly enforced the notice requirement, timely and sufficient notice was not given at all and the lawsuit was filed after the period for giving the notice had expired.

That is not the case here. Not only was a separate notice given within the time allowed, prior to the dismissal of the complaint, but the complaint, itself, was filed within the 180-day period allowed and provided all of the information required to be contained in the notice. As we have long made clear, the purpose of the notice requirement is to apprise local governments of possible liability at a time when they can conduct their own investigation into the relevant facts, while evidence and the recollection of witnesses are still fresh. See Faulk v. Ewing, 371 Md. 284, 298-99 , 808 A.2d 1262, 1272 (2002); Rios v. Montgomery County, supra, 386 Md. at 126-27 , 872 A.2d at 14 .

That purpose has clearly been served here, so the fact that the complaint was filed prior to the sending of the notice does not constitute a ground for dismissing the complaint. Even if, in a purely technical sense, the notice should precede the complaint, appellees have failed to allege, much less affirmatively ¹¹³ show, that they were prejudiced. If the Circuit Court dismissed the complaint on this ground, it erred. 7 Sufficiency of Allegations The gravamen of the complaint consisted of the statements by appellees that appellants were violating the controlled dangerous substance laws of the State, that they were using the police office and lockers to facilitate their illegal activity, and that Mengel had been implicated in the theft of cellular phones and had planted controlled dangerous substances on citizens in an effort to knowingly make false arrests. Those statements are obviously accusations of criminal activity on the part of appellants.

The complaint alleges that those statements were false and that appellees “knew or should have known” that they were false. It alleges that, in making those statements, appellees “acted in reckless disregard of the truth” and that they were made “for the malicious purpose of embarrassing [appellants] and causing them to be subject to public ridicule, scorn, dishonor, and embarrassment and to ruin their careers as Baltimore City Police Officers.” The false statements, the complaint adds, were leaked by appellees to members of the news media “for the express purpose of causing publication of the false statements.” As a “direct result” of the “malicious defamation,” Smith’s police powers were suspended on January 13, 2006, and both plaintiffs “have suffered great emotion ¹¹⁴ al trauma and other damage, including the ruination of their police careers.” Appellees raise three objections with respect to those allegations. First, they contend that, as police officers, appellants are public officials subject to the more rigorous standards of New York Times v. Sullivan, and that they may not recover for defamation unless they plead and show that appellees had actual knowledge that their statements were false or acted with reckless disregard of whether those statements were true or false. The allegations of the complaint, they aver, fail to satisfy that exacting standard.

They regard the allegations that they acted with malice and reckless disregard of truth as mere “buzz words.” Although this Court does not seem to have ruled directly on the matter, it appears to be well-settled, in part from opinions of the U.S. District Court for Maryland, that police officers, from patrol officers to chiefs, are regarded for New York Times purposes as public officials. 8 To recover, therefore, appellants will have to prove, by clear and convincing evidence, that appellees acted with what has been termed “Constitutional malice,” i.e., that they either knew their state ¹¹⁵ ments were false or acted with reckless disregard of whether they were true or false. The complaint alleges that the statements charging criminal behavior on the part of appellants were false and were made with reckless disregard of truth or falsity. The complaint is very thin with respect to facts supporting the averment of reckless disregard, and it may well be that appellees have a right to further detail. There is enough there, however, to preclude, on a first motion to dismiss, a dismissal with prejudice.

If the court regarded the allegations as merely conclusory and insufficient, it should have permitted appellants to amend their complaint, if they properly can, to provide a greater factual basis. Thus, if the court’s dismissal with prejudice was based on the insufficiency of the allegations to withstand a New York Times defense, it abused its discretion. That is true as well with respect to appellees’ argument that the complaint failed to allege the elements of the common law tort of defamation. To present a prima facie common law case for defamation, a plaintiff must plead and prove four things: “that the defendant made a defamatory statement to a third person; that the statement was false; that the defendant was legally at fault in making the statement; and that the plaintiff thereby suffered harm.” Gohari v. Darvish, 363 Md. 42, 54 , 767 A.2d 321, 327 (2001), quoting from Rosenberg v. Helinski, 328 Md. 664, 675 , 616 A.2d 866, 871 (1992).

Words that falsely impute criminal conduct to a plaintiff are defamatory. A.S. Abell Co. v. Barnes, 258 Md. 56 , 265 A.2d 207 (1970), cert. denied, 403 U.S. 921 , 91 S.Ct. 2224 , 29 L.Ed.2d 700 (1971). That the complaint was sufficient to allege the false imputation of criminal conduct to appellants does not seem to be contested by appellees and, in any event, is clear. Appellees make the curious argument that the complaint does not allege that the false statements were ever published or communicated to a third party.

In making that argument, they ignore entirely the allegation that the state ¹¹⁶ ments were leaked to the news media and, instead, rely on Picone v. Talbott, 29 Md.App. 536, 546 , 349 A.2d 615, 620-21 (1975) and Bartlett v. Christhilf, 69 Md. 219, 224 , 14 A. 518, 519-20 (1888) for the proposition that statements made in an application for a warrant are not published. Those cases do not, in any way, support that proposition. Bartlett , as we shall see, did not involve and had nothing to do with a warrant. Picone , misconstruing some language in Bartlett , did hold that statements made in an application for arrest warrant were privileged, but it did not hold that such statements are not published.

Whether a person has a privilege to make defamatory statements in a warrant application has nothing to do with whether the statements are published. Appellees’ argument regarding falsity is even more peculiar. They claim that “[n]o where in the complaint do Appellants allege that these statements have been proved false, and therefore, they utterly fail to satisfy an element of the tort of defamation.” (Emphasis added). A plaintiff does not have to allege that defamatory statements have already, previously been proved false, but only that they are so.

Falsity will have to be proved at trial. We have already addressed appellees’ contention that the complaint fails to sufficiently allege reckless disregard of truth and need not repeat that discussion. Finally, appellees argue that the complaint fails to allege actual damages. That argument seems to be based on the fact that the plaintiffs “neither lost their jobs nor were charged with a crime in relation to the execution of the search warrant.” Appellees overlook the allegation that appellees’ conduct caused appellants to have their police powers suspended, which would seem, by fair inference, to have precluded them from fulfilling the duties of a police officer and thus adversely affect their employment.

Privilege/Immunity The crux of this case is whether appellees enjoyed either an absolute or qualified privilege to make the statements they ¹¹⁷ made in their application for the search warrant and then voluntarily to share those statements with the news media. Although we have done this before, it would be helpful at the outset to define and distinguish these two kinds of privileges, or immunities. In Di Blasio v. Kolodner, 233 Md. 512, 522 , 197 A.2d 245 , (1964), we explained: “An absolute privilege is distinguished from a qualified privilege in that the former provides immunity regardless of the purpose or motive of the defendant, or the reasonableness of his conduct, while the latter is conditioned upon the absence of malice and is forfeited if it is abused.” See also Miner v. Novotny, 304 Md. 164, 167 , 498 A.2d 269, 270 (1985). Appellees maintain that they have an absolute privilege with respect to statements made in an application for search warrant because such an application is part of the judicial process and this Court has long recognized that statements made in the course of the judicial process are protected by an absolute privilege that is not defeated even if the statements are made maliciously.

Appellants contend that an application for a search warrant is not part of the judicial process and therefore defamatory statements in such an application are not absolutely privileged. The starting point for our analysis is a trilogy of cases decided on the same day in June, 1888. The first of those cases, Maulsby v. Reifsnider, 69 Md. 143 , 14 A. 505 (1888) involved whether statements made by an attorney in the course of a judicial proceeding were subject to an absolute or qualified privilege. The court defined the practical difference in terms of whether the statements were relevant to the proceeding.

If the privilege is absolute, relevance or irrelevance is immaterial; the only issue is whether they were made in the course of a judicial proceeding. If the privilege is qualified, the statements would not be protected unless they were relevant. Rejecting English precedent, which afforded an absolute privilege to attorneys’ statements, the Court opted for the qualified privilege, holding that “if counsel in the trial ¹¹⁸ of a cause maliciously slanders a party, or witness or any other person in regard to a matter that has no reference or relation to, or connection with, the case before the Court, he is and ought to be answerable in an action by the party injured.” Id. at 162 , 14 A. at 510. (Emphasis in original).

As we shall explain, the Court later modified that view somewhat. The second case, Hunckel v. Voneiff, 69 Md. 179 , 14 A. 500 (1888) concerned the nature of the privilege possessed by a witness, and in contrast to the position taken in Maulsby with respect to an attorney, the Court concluded that a witness had an absolute privilege, explaining: “The case now before us is not that of an advocate but of a witness, and in our opinion it is of the greatest importance to the administration of justice that witnesses should go upon the stand with their minds absolutely free from apprehension that they may subject themselves to an action of slander for what they may say while giving their testimony.” Id. at 187 , 14 A. at 501. (Emphasis in original). In reaching that conclusion, and in contrast to what it had done in Maulsby , the Court decided to follow the English approach, which provided an absolute privilege for witnesses, notwithstanding that the weight of then-existing American cases was in favor of a more limited privilege.

The Court adopted not just the English decisions, but “the law on this subject as they have laid it down,” Id. at 193 , 14 A. at 504, including the rationale for those decisions. For that, the Court turned in particular to two cases—the judges’ response to the House of Lords in Dawkins v. Rokeby, Law Rep. 7 H.L., 744, and Chief Judge Cockburn’s opinion in Seaman v. Netherclift, Law Rep., 2 C.P. Div., 53. It is clear from both of those cases that the absolute privilege afforded to witnesses under English law was limited to “what he says or writes in giving evidence before a Court of justice,” Hunckel , at 189, 14 A. at 502, quoting from Dawkins, “to the extent of what he says in course of his examination,” Hunckel, at 189, 14 A. at 502, quoting from Seaman. The Court noted Chief Judge Cockburn’s caveat that “what he ¹¹⁹ says before he enters or after he has left the witness-box is not privileged.” Hunckel, 69 Md. at 190 , 14 A. at 502 .

The rationale for the rule, as articulated in Dawkins, was that “public policy requires that witnesses should give their testimony free from any fear of being harassed by an action on an allegation, whether true or false, that they acted from malice.” Hunckel , at 189, 14 A. at 502, quoting from Dawkins. The third case, Bartlett v. Christhilf, 69 Md. 219 , 14 A. 518 (1888) concerned the privilege to be accorded statements made by parties to a lawsuit in their pleadings and motions. In a way, it is the most relevant of the three cases because it was subsequently misconstrued by the Court of Special Appeals in Picone v. Talbott, 29 Md.App. 536 , 349 A.2d 615 (1975) and has been misconstrued by appellees. In the course of a lawsuit brought by Muir against Whiting and Bartlett in the equity court in Baltimore, Bartlett and Christhilf were appointed by the court as co-receivers of the firm that apparently was the subject of that litigation.

Several weeks later, Christhilf filed a petition in the underlying case alleging that Bartlett was unlawfully withholding assets from the receivership, obstructing collection of the firm’s assets, and acting in contempt of the court’s authority, and that he had embezzled money belonging to the firm. Bartlett answered the petition, but before any hearing could be held, the litigation that had produced the receivership was settled and dismissed. Bartlett then sued Christhilf for libel and malicious abuse of process. The issue presented, with respect to the libel count, was whether the statements in Christhilf s petition, filed in the equity case, were absolutely privileged.

Adopting the approach taken in Hunckel , the Court held that those statements were protected by an absolute privilege. In that regard, the Court stated: “It is stated in a work of high authority that an action for defamation will not lie for anything sworn or stated in the course of a judicial proceeding before a Court of competent jurisdiction, such as defamatory bills or proceedings filed in chancery, or in the ecclesiastical Courts, or affidavits con- ¹²⁰ taming false and scandalous assertions against others. Therefore, if a man goes before a justice of the peace and exhibits articles against the plaintiff containing divers false and scandalous charges concerning him, the plaintiff cannot have an action for a libel in respect of any matter contained in such articles, for the party preferring them has pursued the ordinary course of justice in such a case; and if actions should be permitted in such cases, those who have just cause for complaint would not dare to complain, for fear of infinite vexation.” Id. at 223-24 , 14 A. at 518, quoting in part from 2 Addison on Torts, § 1092 (Wood’s Ed.) (Emphasis added). The Court observed that there was “a large collection of cases where parties have from time to time attempted to get damages for slanderous and malicious charges contained in affidavits made in the course of a judicial proceeding ” but that “in no one instance has the action been held to be maintainable.” Bartlett , at 224, 14 A. at 519 (Emphasis added).

More recently, the Court has revised some of the semantic distinctions, come to view the privilege possessed by counsel, witnesses, and parties as essentially the same and therefore as applying to both evidentiary and non-evidentiary statements, and to extend the absolute privilege to documents and reports prepared for use in judicial proceedings, even if not actually filed in the proceeding. Some of those revisions were announced in Kennedy v. Cannon, 229 Md. 92, 96-97 , 182 A.2d 54, 57 (1962) where, after quoting at length from Maulsby (dealing with the privilege enjoyed by attorneys), the Court explained that “[w]hat was characterized in that case as a qualified privilege for communications, conditioned on their being pertinent or relevant to a judicial proceeding, without regard to the motive of the speaker, is referred to by modern text writers and in case law as an absolute privilege.” The Court continued: “This absolute immunity extends to the judge as well as witnesses and parties to the litigation, for defamatory state ¹²¹ ments uttered in the course of a trial or contained in pleadings, affidavits, depositions, and other documents directly related to the case, (citation omitted). An absolute privilege is distinguished from a qualified privilege in that the former provides immunity regardless of the purpose or motive of the defendant, or the reasonableness of his conduct, while the latter is conditioned upon the absence of malice and is forfeited if it is abused.” Kennedy, 229 Md. at 97 , 182 A.2d at 57 . The extension of the privilege to reports prepared for use in judicial proceedings was announced in Adams v. Peck, 288 Md. 1 , 415 A.2d 292 (1980).

Those cases involved actual judicial proceedings—testimony, argument of counsel, and pleadings and documents prepared for, filed, or presented in court. In several cases—Gersh v. Ambrose, 291 Md. 188 , 434 A.2d 547 (1981), Odyniec v. Schneider, 322 Md. 520, 526-28 , 588 A.2d 786, 788-90 (1991), and Reichardt v. Flynn, 374 Md. 361 , 823