Steer v. Lexleon, Inc.

MOYLAN, Judge. The appellant, Richard Gaines Steer, sued the appellee, Lexleon, Inc., in a two-count declaration, alleging 1) an invasion of privacy and 2) defamation. The appellee filed in the Circuit Court for St. Mary’s County a Motion for Summary Judgment, supported by two affidavits, a deposition, and five exhibits. Judge Joseph A. Mattingly entered the summary judgment in favor of the appellee.

This appeal timely followed. ²⁰¹ The facts are not in dispute. Lexleon, inc. is the publisher of The Enterprise, a newspaper published twice weekly in St. Mary's County. One of its regular features is entitled “Police Blotter.” The regular procedure for the preparation of the weekly “Police Blotter” involved a reporter from The Enterprise going each Monday morning to the Leonardtown Barracks of the Maryland State Police. The reporter would there pick up from Desk Sergeant Charles E. Dammann, Jr., the Criminal Section Supervisor at the Leonardtown Barracks, the weekly Press Release.

Sergeant Dammann’s duties were primarily administrative and supervisory. He reported directly to the Assistant Barracks Commander, Lieutenant James Plunkert. The preparation of the news release was one of Sergeant Dammann’s official duties. In the course of that preparation, he would review all of the reports of criminal investigations for the preceding week and briefly list those which he deemed newsworthy.

The critical Press Release in this case was issued on August 24, 1981. It was typical of the weekly practice. In two typewritten pages, it briefly reported 17 arrests or reports of crime in St. Mary’s County during the preceding week. The reports ranged in length from three typewritten lines to five typewritten lines, with four lines being the average.

The weekly “Police Blotter” generally reiterated the State Police Press Release verbatim, with the single prominent exception that it grouped the various crime reports according to the county towns or sections in which they occurred. The third item in the Press Release of August 24, 1981 was: “Richard Gaines Steer of Mechanicsville was arrested for forgery by Trooper Thomas Plealy on 8/13/81. He attempted to cash a forged check at a local bank.” The “Police Blotter” that was published two days later, on Wednesday, August 26, 1981, listed that report of arrest as its twelfth item. It followed the Press Release verbatim, except that the news story amplified the date of arrest by ²⁰² adding the word “Thursday” to the date “Aug. 13,” and provided further with respect to the putative arrestee, “He was charged with attempting to cash...” rather than using the direct words of the Press Release, “He attempted to cash.... ” In fact, Richard Gaines Steer had not been arrested for forgery.

He was rather the victim of the forgery. The Press Release had been wrong. Sergeant Dammann explained that as he organized his data for the preparation of the Press Release, he had for each summary of a crime report two boxes, one for the name of the victim and one for the name of the arrestee. On a hectic morning, interrupted by many telephone calls and other duties, he inadvertently put Mr. Steer’s name in the wrong box.

The error followed from that. When the story appeared, Mr. Steer telephoned The Enterprise and spoke to the reporter in question. The reporter promptly contacted Sergeant Dammann and confirmed the fact that a mistake had been made in the Press Release. The next edition of The Enterprise, that of Friday, August 28, 1981, included a prominently placed correction.

The correction was placed side-by-side with that day’s version of the “Police Blotter” and under a large and bold, single column headline saying “Correction.” The correction read: “In the Wednesday, Aug. 26 issue of The Enterprise it was incorrectly reported that Richard Gaines Steer of Mechanicsville was arrested for forgery. Steer was the victim of the forgery. Francis Xavier Woodland of Mechanicsville was arrested for attempting to forge Steer’s signature on one of his checks. Steer had been incorrectly listed on the Maryland State Police press release as the culprit.

The Enterprise and the Maryland State Police regret the error.” In support of its motion for summary judgment, the appellee filed the affidavits of its editor and its reporter and the deposition of Sergeant Dammann, who had prepared the ²⁰³ Press Release containing the report of Mr. Steer’s arrest. Mr. Steer did not file any counter-affidavits or other evidence in opposition to Lexleon’s motion. The affidavits included the undisputed assertions that neither the editor nor the reporter possessed any malice or ill will directed toward Mr. Steer. The issue before the court below and before this Court on the present appeal is whether the appellee, under the circumstances of this case, enjoyed a qualified or conditional privilege.

If it did, the law is now clear that the malice necessary to defeat the qualified privilege in a defamation case is “constitutional malice” within the contemplation of New York Times Co. v. Sullivan, 376 U.S. 254 , 84 S.Ct. 710 , 11 L.Ed.2d 686 (1964). In two scholarly and painstaking analyses in Jacron Sales Co. v. Sindorf, 276 Md. 580 , 350 A.2d 688 (1976), and Marchesi v. Franchino, 283 Md. 131 , 387 A.2d 1129 (1978), Judge Levine brought the Maryland law on malice and qualified privileges into line with the Supreme Court’s constitutional pronouncements in New York Times Co. v. Sullivan, supra; Curtis Publishing Co. v. Butts, 388 U.S. 130 , 87 S.Ct. 1975 , 18 L.Ed.2d 1094 (1967); Rosenbloom v. Metromedia, 403 U.S. 29 , 91 S.Ct. 1811 , 29 L.Ed.2d 296 (1971); and Gertz v. Robert Welch, Inc., 418 U.S. 323 , 94 S.Ct. 2997 , 41 L.Ed.2d 789 (1974). In Marchesi v. Franchino, supra, at 283 Md. 139 , 387 A.2d 1129 , Judge Levine concluded the analysis with the controlling holding: “We hold, therefore, that ‘knowledge of falsity or reckless disregard for truth’ is the standard by which the malice required to defeat the conditional privilege defense is to be measured in cases of private defamation. To the extent that our prior decisions are not in accord with this holding, they are disapproved.” The appellant concedes that there was no “constitutional malice” in this case.

The only issue, therefore, is whether the appellee enjoyed a qualified privilege. In that regard, the Maryland law is also well settled that “the question of whether a defamatory communication enjoys a conditional ²⁰⁴ privilege is one of law for the court.” Jacron Sales Co. v. Sindorf, supra, 276 Md. at 600 , 350 A.2d 688 ; Hanrahan v. Kelly, 269 Md. 21, 29 , 305 A.2d 151 (1973); Jump v. Barnes, 139 Md. 101, 112 , 114 A. 734 (1921); Bavington v. Robinson, 124 Md. 85, 90 , 91 A. 777 (1914); Fresh v. Cutter, 73 Md. 87, 93 , 20 A. 774 (1890). We have no difficulty in holding that the appellee enjoyed a qualified privilege. We find our decision in Koren v. Capital-Gazette Newspapers, Inc., 22 Md.App. 576 , 325 A.2d 140 (1974) to be controlling.

In that case, the FBI was investigating a serious extortion, a threat to place a bomb in a large retail store if $20,000 were not turned over to the extortionist. The FBI set a trap. The young plaintiff, by a set of bizarre and unforeseen circumstances, chanced into the trap. Although probable cause apparently existed for the FBI to arrest him and to charge him, subsequent investigation revealed his total lack of guilt and all charges against him were dropped.

The plaintiff sued the defendant newspaper for defamation, based upon a fourteen-paragraph article setting forth the arrest and charge of the plaintiff and a detailed account of the crime itself and the trap laid to ensnare the extortionist. There, as here, the newspaper and its reporter did not know and had no desire to harm the defamed plaintiff. In that case, the reporter relied upon facts furnished him by an FBI Agent over the telephone. The reporter made no independent investigation to check out the facts of the crime or to determine the existence of probable cause for himself.

He relied upon the representative of the FBI who, as a part of his official duties, received a call from the reporter and furnished the information in response to the reporter’s inquiries. In holding that the defendant newspaper enjoyed a qualified or conditional privilege in relying upon an official version of events furnished to it by a representative of a law enforcement agency, we said at 22 Md.App. 581 , 325 A.2d 140 : “Even if the underlying arrest or the underlying criminal charges turn out to be ill-founded, it is well settled that in ²⁰⁵ Maryland a newspaper enjoys a qualified privilege to publish reports of arrests and charges on which arrests are made, as well as other matters involving violation of the law. Evening News Co. v. Bowie, 154 Md. 604 , 141 A. 416 (1928); Piracci v. Hearst Corp., 263 F.Supp. 511 (D.Md. 1966) (construing Maryland law).” The public has a vital and legitimate concern in the affairs of government and in the performance of governmental officials and agencies — executive, legislative, and judicial. The designation of certain public officials, on a full-time or on a part-time basis, as public relations or press affairs officers is no mere frill or extracurricular indulgence but a recognition of the important role played by effective communication between government and the public.

We take significant notice of the fact that in this case we are not dealing with some unofficial version of events furnished by a policeman at a crime scene, with some unattributed “leak” or offhand prediction, with some characterization or interpretation of events by a prosecutor in a courtroom corridor, but rather with the authorized release of important information through an established and official channel. The State Police, operating from their Leonardtown barracks, have the major burden for all law enforcement in St. Mary’s County. Sergeant Dammann, as one of his official duties, was charged with the responsibility of preparing the weekly Press Release, reporting crimes and arrests in the Leonardtown area. His deposition recited in detail the routine he followed in performing this official duty.

The Press Releases that he prepared were typed up and duplicated and regularly made available to representatives of all of the news media. Sergeant Dammann further recited that the underlying criminal investigation reports, which he reviewed in preparing his summary, were