St. Luke Evangelical Lutheran Church, Inc. v. Smith

GARRITY, Judge. This appeal arises out of a church employee’s defamation and invasion of privacy suit, which was tried before a jury in the Circuit Court for Montgomery County (Judge Stanley Frosh presiding). Upon finding that an assistant pastor of the church had acted with malice while acting within the scope of his employment, the jury returned a verdict on both counts against the church and its assistant pastor for compensatory and punitive damages. 1 Appellant St. Luke Evangelical Lutheran Church, Inc. (St. Luke) raised only one issue which we will need to review in this appeal: Whether the trial court committed reversible error in granting plaintiff eight peremptory strikes. Appellant Rev. David M. Buchenroth (Pastor Buchenroth) posits the following issues: 1.

Whether the trial court erred in instructing the jury that Ms. Smith was not a public figure. 2. Whether the trial court committed reversible error in failing to instruct properly on the attachment of and burden of proof as to a qualified privilege. 3. Whether, as a matter of law, Pastor Buchenroth acted with malice. ³⁵⁶ FACTS Shortly after graduating from the University of Maryland in 1983, Ms. Ginny Ann Smith (Ms. Smith) was hired as the Associate Director of Youth Ministry at St. Luke’s. She had been an active member of the church since childhood and had participated in many church-sponsored activities.

At the time Ms. Smith was hired, St. Luke had three pastors, Senior Pastor Raymond Shaheen, Associate Pastor David R. Shaheen (Pastor Shaheen) and Assistant Pastor David Buchenroth (Pastor Buchenroth). As part of her responsibilities, Ms. Smith worked alongside Pastor Shaheen as Administrative Assistant for Crossroads, a conference of church youth from throughout the Maryland Synod of the Lutheran Church, and Tent Troupe, a drama group sponsored by St. Luke which traveled four months a year. Ms. Smith had been highlighted in the St. Luke Messenger, a weekly journal, on two occasions for her continuing contributions to the church. In February, 1984, Ms. Smith went on a church-sponsored trip to the Holy Land with other members of the church, including Pastor David Shaheen and one of his sons.

In Ms. Smith’s absence, Pastor Buchenroth had occasion to go into her office in search of a file regarding an upcoming church event. While searching, he discovered a file marked “DRS-GAS” which contained personal correspondence from Pastor Shaheen to Ms. Smith. He removed the file and went through its contents as he “was curious as to what the correspondence was.” After examining the letters and notes contained in the file, Pastor Buchenroth concluded that they confirmed his suspicion that Ms. Smith and Pastor Shaheen were involved in a sexual relationship. While seeking advice from a trusted co-worker, Mrs. Joan Patton, Pastor Buchenroth allowed her to examine the file.

Mrs. Patton confided to Pastor Buchenroth that she had recently come upon Pastor Shaheen and Ms. Smith as they were engaged in an embrace. She thought it best to tell Pastor Shaheen’s wife, Ellen, of the developing situation as evidenced by the nature of the notes and letters. ³⁵⁷ Shortly thereafter, Pastor Buchenroth advised both Pastor Shaheen’s wife and Mrs. Virginia Smith (Ms. Smith’s mother) that he believed that Pastor Shaheen and Ms. Smith were having an affair. He explained to Mrs. Smith that by an “affair,” he meant that they were “sleeping together.” As he had provided Mrs. Shaheen with the background of his belief, Pastor Buchenroth provided Mrs. Smith with specific times and places where he thought the liaisons had been taking place. He further offered his belief that Pastor Shaheen and Ms. Smith might not return from the trip.

After Ms. Smith and Pastor Shaheen returned from the Holy Land, they were asked to attend several “counseling sessions” which had been arranged by the senior pastor in an effort to promote a “healing process.” In addition to Senior Pastor Raymond Shaheen and his son Pastor David and Ms. Smith, other persons in attendance included Ellen Shaheen, Virginia Smith, Dr. Cheryl Wilhoyte (Chairperson of St. Luke’s Committee on Staff) and Rosemarie Rhyne (St. Luke’s Director of Counseling Ministry). The group discussed the letters that had been found and the accusations which had been made. Mrs. Shaheen had reviewed the correspondence earlier and had thoroughly discussed the situation with her husband. Based primarily on Mrs. Shaheen’s belief that the “affair” between her husband and Ms. Smith was not of a sexual nature, Pastor Buchenroth acknowledged to the group that he no longer believed the affair to have been sexually oriented.

He further apologized to Ms. Smith and to Pastor Shaheen for “any pain that might have been caused” by his accusations. In an effort to avoid having the charges leaked to the congregation, everyone in the group, including Pastor Buchenroth, vowed to keep the entire matter confidential. Because of the obvious discordant working relationship that developed following his accusations, Pastor Buchenroth made an appointment to see the Bishop of the Maryland Synod to request a transfer. Before meeting with the Bishop, however, Pastor Buchenroth visited the home of his ³⁵⁸ personal friends, Mr. and Mrs. Rupert, both of whom were active members of the St. Luke congregation.

Mr. Rupert also served as an officer in the church. After explaining that he was breaking a vow of confidentiality, Pastor Buchenroth divulged to the Ruperts that he had come across a file of letters written by Pastor Shaheen to Ms. Smith and what had taken place in the aftermath of his discovery. In essence, Pastor Buchenroth “bared his soul” to the Ruperts and “described to them how we got in the predicament we were in.” Contrary'to his representation earlier that he had made to the Committee on Staff that he no longer believed the relationship to have been of a sexual nature, however, he related specific instances in which Ms. Smith and Pastor Shaheen had opportunities to be alone while traveling. He then postulated that such a relationship was inappropriate between a married pastor and a staff member.

Pastor Buchenroth further related to the Ruperts that he was dissatisfied with the lack of progress that the Committee on Staff was making in resolving the situation and that he did not want to be the “fall guy.” As a result of his conversation with Pastor Buchenroth, Mr. Rupert contacted Mrs. Patton, Senior Pastor Shaheen, Dr. Wilhoyte, and Stanley Benning, a member of the Committee on Staff who also served with Mr. Rupert on the Board of Governors for Hallowood. 2 Mr. Rupert warned Mr. Benning that unless some action were taken to prevent Pastor Shaheen and Ms. Smith from both participating in Tent Troupe, he would contact the parents of the children who participated in the drama group and tell them what Pastor Buchenroth had alleged. Due to Mr. Rupert’s threat, beginning in late May, 1984, the Committee on Staff began to conduct a long series of meetings addressing the issue. At several of these meetings, each of the persons involved, was required to answer questions posed by members of the Committee. Pastor ³⁵⁹ Buchenroth appeared and told the Committee why he believed that there was an affair between Ms. Smith and Pastor David.

He reported to the Committee, as he had to Virginia Smith and the Ruperts, the specific times and places where he thought the affair had been taking place. When asked to relate her perception as to what Pastor Buchenroth had described regarding the nature of the relationship between Ms. Smith and Pastor Shaheen, the chairperson of the Committee on Staff, Dr. Wilhoyte, testified: Based on the reference to the October Philadelphia trip, 3 to an incident that occurred in Hunt Valley, 4 to the amount of time spent together, and to his decision to go to Mrs. Shaheen with the letters and indicate what he believed about the relationship, I felt that all of that from Pastor Buchenroth had led him to believe that there was an affair between Pastor David Shaheen and Ginny Ann Smith. After the Committee met several times, a proposal that Ms. Smith be placed on administrative leave, because of the charges Pastor Buchenroth had made, was adopted and then deferred until the next meeting. On June 18, 1984, Ms. Smith appeared before the Committee on Staff and was requested by Senior Pastor Shaheen to relinquish her responsibilities voluntarily.

Although continuing to express that the “charges” against her were false, Ms. Smith advised the group that she would voluntarily resign but would continue to serve as a member of the Tent Troupe staff. She then left the meeting and returned to Hallowood to rejoin Tent Troupe. Later that evening, Dr. Wilhoyte went to Hallowood and advised Ms. Smith that the Committee would not accept her offer of resignation. ³⁶⁰ The Tent Troupe staff was then made aware of the charges that had been made and the Ruperts’ pending threat to tell all Tent Troupe parents about Pastor Buchenroth’s allegations unless Ms. Smith were prevented from going on the tour to New England. The next day, a statement was read by the Tent Troupe staff which described the allegations that had been made of “an affair” and reported the actions which had been taken by the Committee on Staff against Ms. Smith and Pastor Shaheen.

After the statement was read, it was decided that the drama group would go on tour with its entire staff, including Pastor Shaheen and Ms. Smith. After Ms. Smith returned from the tour in late July, the Church Council advised her by letter that it would accept her resignation which the Committee on Staff had rejected. When this attempt to oust Ms. Smith failed, the church formed a Special Committee, without the knowledge of the chairperson of the Committee on Staff, and recommended that Ms. Smith’s position be abolished immediately. The recommendation was adopted and approved by the Church Council.

I. PEREMPTORY CHALLENGES Co-defendant/appellant St. Luke challenges the authority of the trial judge to have awarded the plaintiff/appellee eight peremptory challenges rather than four. There is no question that in Maryland each party to a civil action is permitted four peremptory challenges to the venire of prospective jurors. Md.Cts. & Jud.Proc.Code Ann. § 8-301(d) (1987 Supp.). Similarly, Md.Rule 2-512(h) provides: Each party is permitted four peremptory challenges plus one peremptory challenge for each group of three or less alternate jurors to be impanelled.

For purposes of this section, several plaintiffs or several defendants shall be considered as a single party unless the court determines that adverse or hostile interests between plaintiffs or between defendants justify allowing to each of them ³⁶¹ separate peremptory challenges not exceeding the number available to a single party____ (emphasis added). In the case at bar, therefore, as party plaintiff, Ms. Smith was permitted four peremptory challenges and each co-defendant was initially entitled to share four peremptory challenges. On motion by the co-defendants, however, the trial judge ruled that their interests were sufficiently adverse to justify the award to each of four separate peremptory challenges. The trial judge then awarded sua sponte, over objection of co-defendant St. Luke, four additional peremptory challenges to the plaintiff.

Thus, the end result was that each side, rather than each adverse party, had a total of eight peremptory challenges. In explaining his decision to also award additional strikes to the party plaintiff, the trial judge stated: The reason I suggested that we add another four strikes to [the party plaintiff] is that we have plenty of jurors and in an effort to make sure that everybody gets a fair shake, if they want to strike eight, I do not see any problem with it. If you [co-defendants] want to strike eight, you take your four and four and you get eight to make sure everybody feels comfortable with the jury. Thereafter, the following colloquy took place between counsel for St. Luke and the trial court.

MR. DONOHUE: I understand the Court’s comment, but I would object to that for the record because I think there should be four allotted per interest. THE COURT: It normally would be, but I see a conflict between two of you, and I do not want to impose your having to agree with a potential of conflict on only four, and I feel the only fair thing to do is to give them another four as well. Okay.

MR. DONOHUE: Thank you, Your Honor. Appellant St. Luke argues, in essence, that as Ms. Smith, an adversarial party, “had twice as much to say about who would not sit on the panel as any other party,” it was not ³⁶² assured a fair trial decided solely on the basis of the evidence. Ms. Smith admits that the effect of the court’s ruling was to allow her “to have twice as much to say about who sat on the jury than either defendant.” She explains, however, that this is always the case under Rule 2-512(h) where, as here, there are twice as many defendants as plaintiffs unless the court determines that adverse or hostile interests justify allowing separate peremptory challenges to each party.

Ms. Smith concludes, therefore, that she would still have had twice as much to say about who sat on the jury than either St. Luke or Pastor Buchenroth even if the court had followed the rule to the letter and awarded four strikes to each side. 5 The Court of Appeals was faced with a somewhat similar problem in King v. State Roads Commission, 284 Md. 368 , 396 A.2d 267 (1979). In that case, the plaintiff and defendant each received four peremptory challenges. After the challenges were exercised, 17 veniremen remained. The trial judge then struck five additional names to obtain a panel of 12 jurors.

In remanding the case to determine if an objection had been timely noted, the Court of Appeals observed: [T]his selection method impaired the effectiveness of these parties’ peremptory challenges to the extent that the trial judge, with five strikes, had more to say about who would not sit on the panel than either of the parties. In our view, unless waived, the only adequate remedy for ³⁶³ such a clear violation of Rule 543 is a new trial before a correctly selected jury. 6 Id. at 372 , 396 A.2d 267 . Writing on behalf of the Court in King , Judge Digges stated: No citation of authority is needed to support the proposition, which is intrinsic to the American concept of justice, that when a jury trial is authorized, the panel should be composed of fair and impartial individuals selected from among one’s peers. In insuring that such an impartial jury is chosen, a reasonable peremptory challenge right plays a vital role because it permits a party to eliminate a prospective juror with personal traits or predilections that, although not challengeable for cause, will, in the opinion of the litigant, impel that individual to decide the case on a basis other than the evidence presented____ Further, the importance of the peremptory challenge requires that any significant deviation from the prescribed procedure that impairs or denies the privilege’s full exercise is error that, unless waived, ordinarily will require reversal without the necessity of showing prejudice.

Swain v. Alabama, 380 U.S. 202, 219 , 85 S.Ct. 824, 835 , 13 L.Ed.2d 759 (1965). Id. at 370-71 , 396 A.2d 267 . Rule 2-512(h) clearly limits each party to a maximum of four initial peremptory challenges. In a matter involving multiple litigants the Rule permits the trial court to grant additional peremptory challenges if it “determines that adverse or hostile interests between plaintiffs or between defendants justify allowing to each of them separate peremptory challenges----” In order to do so, the court must make a factual finding of adverse or hostile interests.

It is then totally within the court’s discretion as to whether that interest justifies allowing the additional challenges. Kloetzli v. Kalmbacher, 65 Md.App. 595 , 501 A.2d 499 ³⁶⁴ (1985). In the event the court determines the interests to be sufficiently diverse as to justify the award of additional strikes, the Rule provides that they may not exceed “the number available to a single party.” In other words, if adverse interests justify additional strikes, as was found to be the case in the matter sub judice, each co-defendant is to be treated as a single party for purposes of awarding peremptory challenges. 7 In his well-intentioned effort “to make sure that everybody gets a fair shake” the trial judge decided to deviate from the established peremptory procedure and award twice as many strikes as that given to each co-defendant who were now entitled to be treated as individual parties. Our task is to determine whether the deviation was so significant as to impair the peremptory privilege on behalf of St. Luke’s.

As cogently expressed by Judge Liss on our behalf in Vaccaro v. Caple, 33 Md.App. 413, 416 , 365 A.2d 47 (1976), “the function of the peremptory challenge is to eliminate extremes of partiality and to assure the parties that the case is decided solely on the basis of the evidence.” Judge Moylan outlined the historical importance of the peremptory challenge in Spencer v. State, 20 Md.App. 201, 203-4 , 314 A.2d 727 (1974): The accepted use of the peremptory challenge, as an incident to the right of trial by jury, came to the Maryland Colony with the first settlement. Its history in this State, and statutory vicissitudes, is well traced in Turpin ³⁶⁵ v. State, 55 Md. 462 . See also Parker v. State, 227 Md. 468, 470-471 , 177 A.2d 426 [1962], and Brice v. State, 264 Md. 352, 365-367 , 286 A.2d 132 [1972], Judge Gilbert discussed and analyzed in great depth the nature of the peremptory challenge in Pearson v. State, 15 Md.App. 462 , 291 A.2d 167 [1972]. See also Bever v. State, 4 Md.App. 436, 439-440 , 243 A.2d 634 [1968], and Johnson v. State, 9 Md.App. 143, 148-151 , 262 A.2d 792 [1970].

The Supreme Court recognized the value of the right in Lewis v. United States, 146 U.S. 370 , 13 S.Ct. 136 , 36 L.Ed. 1011 (1892). See also 47 Am.Jur.2d, Jury, §§ 233-264; 50 C.J.S., Juries, §§ 279-285. In Swain v. Alabama, 380 U.S. 202 , 85 S.Ct. 824 , 13 L.Ed.2d 759 (1965), the Supreme Court discussed the nature of the challenge at 380 U.S. 220 -221: “The essential nature of the peremptory challenge is that it is one exercised without a reason stated, without inquiry and without being subject to the court’s control ____ While challenges for cause permit rejection of jurors on a narrowly specified, provable and legally cognizable basis of partiality, the peremptory permits rejection for a real or imagined partiality that is less easily designated or demonstrable____ It is often exercised upon the ‘sudden impressions and unaccountable prejudices we are apt to conceive upon the bare looks and gestures of another,’ ... upon a juror’s ‘habits and associations,’ ... or upon the feeling that ‘the bare question [of a juror’s] indifference may sometimes provoke a resentment,’ ... It is no less frequently exercised on grounds normally thought irrelevant to legal proceedings or official action, namely, the race, religion, nationality, occupation or affiliations of people summoned for jury duty.

For the question a prosecutor or defense counsel must decide is not whether a juror of a particular race or nationality is in fact partial, but whether one from a different group is less likely to be.” (Citations omitted). ³⁶⁶ We hold that in the case at bar, once the trial court properly determined that the interests of the two defendants were sufficiently adverse to warrant additional strikes, the court significantly deviated from the prescribed procedure and impaired the peremptory privilege of each co-defendant to be treated as a single party when it awarded twice as many peremptory challenges to the party plaintiff. As to St. Luke, therefore, the case is reversed and remanded. As Pastor Buchenroth failed to preserve the peremptory challenge issue for our review, however, we shall need to discuss the remaining issues raised by him.

II

DENIAL OF PUBLIC FIGURE INSTRUCTION During the hearing on proposed instructions, appellant’s counsel proposed that the jury be advised that Ms. Smith was classified, for purposes of defamation litigation, as either a “general” or “limited” public figure. As such she would need to prove, by clear and convincing evidence, that Rev. Buchenroth had made the defamatory statements with malice. The trial judge denied the requested instruction on the ground that Ms. Smith, as a matter of law, was not a public figure. We agree.

The concept of a “public figure” was explicated by the Supreme Court in Gertz v. Robert Welch, Inc., 418 U.S. 323 , 94 S.Ct. 2997 , 41 L.Ed.2d 789 (1974). The Court held that, in an action for defamation of character, a plaintiff who is a public figure must prove, by clear and convincing evidence, that the defendant had made the defamatory statement with malice. 8 The Court further observed that: [the] designation of a person as a public figure may rest on either of two alternative bases. In some instances an individual may achieve such pervasive fame or notoriety that he becomes a public figure for all purposes and in all ³⁶⁷ concepts. More commonly, an individual voluntarily injects himself or is drawn into a particular public controversy and thereby becomes a public figure for a limited range of issues.

In either case such persons assume special prominence in the resolution of public questions. Id. at 351 , 94 S.Ct. at 3012-13 . Pastor Buchenroth argues that Ms. Smith’s activities were “inextricably intertwined with the fitness of Pastor Shaheen for his position as Associate Pastor.” By that means, he contends, she thrust herself into the forefront