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Full Opinion
CALDOR, INC. ET AL.
v.
SAMUEL DAVID BOWDEN, AN INFANT.
Court of Appeals of Maryland.
Patricia M. Thornton (McCarthy, Bacon & Costello, both on brief), Landover, for appellant.
Allan J. Rabineau, Baltimore, for appellee.
Argued before MURPHY, C.J., ELDRIDGE, RODOWSKY, McAULIFFE, CHASANOW, KARWACKI and ROBERT M. BELL, JJ.
CHASANOW, Judge.
In the instant case Samuel Bowden brought suit against his employer Caldor, Inc. (Caldor) and three Caldor employees alleging false imprisonment, wrongful discharge, malicious prosecution, defamation, and intentional infliction of emotional distress. Bowden succeeded on the merits of his case and the jury awarded compensatory damages separately for each of the five counts. In addition, the jury found that punitive damages were warranted. After a separate hearing, the jury granted a punitive damages award apparently based on all five tort counts, but it did not allocate the portion of the punitive damages award attributable to each count. At a post-trial hearing, the circuit court granted a motion for judgment not withstanding the verdict (J.N.W.V.) setting aside the judgment on two of the counts but leaving the entire punitive damages award intact. We granted certiorari to consider the circuit court's rulings on the motion for J.N.W.V., as well as whether a new trial on the issue of punitive damages is required when a trial court grants a J.N.W.V. for some of the compensatory counts that form the basis for a general punitive damages award in a multiple count suit. We hold that in this case a new trial to recalculate punitive damages is necessary.
I.
In reviewing the circuit court's decision to both grant in part and deny in part the defendant's motion for J.N.W.V., we must "view the evidence in the light most favorable to the plaintiff and resolve all conflicts in the plaintiff's favor." Kentucky Fried Chicken Nat'l Management Co. v. Weathersby, 326 Md. 663, 666, 607 A.2d 8, 9 (1992); Lehman v. Baltimore Transit Co., 227 Md. 537, 540, 177 A.2d 855, 857 (1962). Therefore, we present the facts of this case from Bowden's point of view.
In March 1988, the respondent Samuel Bowden was sixteen years old when he applied for a position with Caldor, Inc., a national retail store. Caldor hired Bowden as a customer service representative and assigned him to its hardware department. In the early evening of June 15, 1988, Bowden arrived at Caldor to report for his 5:45 p.m. shift. Bowden went to punch in his time card and discovered that his time card was missing. He went to the acting store manager, Ms. Baldwin, to inquire about its absence. Baldwin, without further explanation, simply instructed Bowden to report to his normal post in the hardware department.
At approximately 6:45 p.m., Baldwin paged Bowden and instructed him to meet her at the upstairs customer service desk. Bowden ascended the escalator and met Baldwin at the customer service desk as instructed. Baldwin told Bowden that she needed his assistance and then led Bowden to a 10' X 10' windowless office on the upper level of the store.
Once inside, Bowden found Mr. Hedrick and Mr. Hodum, two of Caldor's loss prevention personnel, standing in the room. Bowden had not met either man before. The small office contained only a desk, two chairs, and a telephone. Hedrick greeted Bowden, instructed Bowden to sit down, and then closed the door, leaving Bowden alone with the two strangers.
Bowden was unaware why he was summoned to the upper-office. He asked Hedrick how long he would be there. According to Bowden, Hedrick replied "I don't think you'll be leaving anytime soon." Hedrick then sat down behind the desk and Hodum stood behind Bowden, blocking Bowden's potential egress from the small room. Hedrick asked Bowden a few casual questions about his personal life. Growing tired of the small talk and feeling the pressure of his surroundings, Bowden "bluntly" asked "what was my purpose for being in this room?" Hedrick replied that there had been some missing money and merchandise which had been traced back to Bowden.
Bowden denied this accusation and attempted to leave, but found Hodum blocking the door. Hedrick then stated "sit down or we'll help you sit down." Fearing reprisal, Bowden sat back down. When Bowden attempted to use the phone to contact his parents, his attempt was met by a similar, more emphatic, warning Hedrick ordered Bowden "to put the damn phone down or [I'll] help [you] do it." On several occasions, Bowden could hear himself paged over the store's PA system. Bowden explained that his mother might be trying to contact him at the store and would be worried if she could not find him. Hedrick did not permit Bowden to respond and told Bowden that, if his mother called, they would tell her that Bowden was not in the store. This further disturbed Bowden.
Hedrick began interrogating Bowden. According to Bowden, Hedrick "kept drilling" him about the missing money. The series of accusations and denials went back and forth. The men forced Bowden to empty his pockets and reveal the contents of his wallet. Hedrick told Bowden that they had videotapes showing him stealing money from the registers and that he would not be permitted to leave until he cooperated.[1]
The interrogation continued until approximately 8:00 p.m., when Hedrick placed a blank "voluntary statement" form in front of Bowden. Hedrick then told Bowden that he wanted a written statement from him admitting that he had taken amounts of money on a number of occasions. He told Bowden that if he signed the form, made restitution, and did not involve his parents that Caldor would not contact the police. Out of fear, Bowden gave in to Hedrick's demand. On the first side of the form, Hedrick dictated the terms of Bowden's "admission," specifying the dates and amounts of money. Bowden finally signed the first side at 9:35 p.m. After Bowden completed the first side of the page, Hedrick left the room for thirty or forty minutes. Upon Hedrick's return, Bowden realized that the store was closed and all of the store lights were off. Hedrick then dictated the terms of the second side of the form, which Bowden signed. Hedrick told Bowden to return the next day and repay the money. Around 11:00 p.m., over four hours after Bowden was first summoned to the upstairs office, Hedrick allowed Bowden to leave the store.
Bowden arrived home at 11:30 p.m., an hour later than usual. Bowden's mother met him at the door and demanded an explanation for his tardiness. Bowden told his mother what had happened and denied stealing any money.
Bowden and his mother returned to Caldor the next afternoon. They went to the upstairs manager's office and asked to talk with Hedrick. Mrs. Bowden was informed that Hedrick had left the store. Instead, Mrs. Bowden spoke with Mr. Mehan, the store's security manager, and Mr. Forrester, another store manager, to inquire about the prior night's activities and to attempt "to get to the bottom of things." An argument ensued and, according to Bowden, Forrester barked "You people you nigger boys make me sick, but you're going to burn for this, you sucker." Bowden further testified that Mehan's only response to the exchange was "sort of a smirk" indicating his agreement with the remark.
Bowden and his mother left the store and returned to their car. Mehan followed them into the parking lot, approached them, and told Bowden that he could not leave. Mehan then seized Bowden's arm and forced him to return to the store through the rear employee entrance. Mehan led Bowden back to his office on the ground floor.
Mrs. Bowden followed Mehan and her son back to Mehan's office, where she called her husband, Reverend Horace Bowden. Rev. Bowden and Mehan discussed the events on the telephone, and Mehan demanded restitution. When Rev. Bowden asked to see the videotapes before making restitution, Mehan refused and stated that he had no other choice but to arrest Bowden and then hung up. Mehan handcuffed Bowden and called the Baltimore County Police. Mehan then escorted the handcuffed Bowden across the lower level of the store, up the escalators, and led him from the back of the upper level to the front door. Bowden remained in handcuffs in public view until the police arrived.
On December 16, 1988, a juvenile proceeding was held before Master Richard J. Gilbert. Bowden had filed a motion to suppress his written statement, but after hearing the testimony of Hedrick, Hodum, and Bowden on the circumstances surrounding Bowden's written statement, Master Gilbert denied Bowden's motion to suppress. Following the denial of Bowden's motion, a juvenile adjudicatory hearing was held. The State called Hedrick and Mehan and introduced Bowden's written statement. At the close of the State's case, Bowden moved to dismiss the charges. Master Gilbert denied the motion. When defense counsel indicated he was prepared to call witnesses, Master Gilbert responded "that's up to you." Apparently taking this as a favorable sign, defense counsel indicated that, although he was prepared to call Bowden and his mother, he now decided to submit and waive argument. The State also waived argument and submitted, whereupon, Master Gilbert found that there was insufficient evidence to convince him beyond a reasonable doubt that Bowden committed a theft.
Bowden then filed a civil suit in the Circuit Court for Baltimore City, naming Caldor, Hedrick, Hodum, and Mehan as defendants. The complaint alleged counts of false imprisonment, malicious prosecution, defamation, wrongful discharge, and intentional infliction of emotional distress. The case was tried before a jury, and on August 20, 1991, the jury rendered a decision in favor of Bowden. The jury awarded a total of $110,000 in compensatory damages. The verdict sheet asked the jury to itemize the damages attributable to each tort count. They awarded $10,000 for false imprisonment, $25,000 for defamation, $25,000 for malicious prosecution, $25,000 for wrongful discharge, and $25,000 for intentional infliction of emotional distress.
In addition to the compensatory awards, the jury found that Bowden had proven, by a preponderance of the evidence, that he was entitled to punitive damages. Thereafter, Bowden presented evidence of the defendants' financial means, the court instructed the jury, and both sides gave closing arguments on the issue of punitive damages. On August 21, 1991, the jury awarded Bowden a total of $357,500 in punitive damages against the defendants: $350,000 against Caldor, $3,000 against Hedrick, $3,000 against Hodum, and $1,500 against Mehan. The punitive damages award against the defendants did not indicate how the award was to be allocated among the five causes of action presented.
The defendants filed a motion for judgment not withstanding the verdict/remittitur and/or for a new trial. The circuit court granted the motion for J.N.W.V. on the wrongful discharge and intentional infliction of emotional distress counts, but denied the motion for J.N.W.V. on the other three counts and denied the motion for remittitur and for a new trial. The circuit court left the punitive damages award intact, despite the grant of J.N.W.V. on two of the underlying causes of action. Bowden and the defendants appealed and we granted certiorari prior to the appeal being argued in the intermediate appellate court.
II.
The parties have raised several issues on appeal. We first review the circuit court's partial grant and partial denial of J.N.W.V. on the tort claims, and we affirm the decision. Next, we review the circuit court's refusal to grant a new hearing on punitive damages, and we reverse that decision.
A. Intentional Infliction of Emotional Distress
In 1977, this Court recognized the tort of intentional infliction of emotional distress in Harris v. Jones, 281 Md. 560, 380 A.2d 611 (1977). In Harris, we identified the "four elements which must coalesce to impose liability for intentional infliction of emotional distress." Id. at 566, 380 A.2d at 614. We stated:
"(1) The conduct must be intentional or reckless;
(2) The conduct must be extreme and outrageous;
(3) There must be a causal connection between the wrongful conduct and the emotional distress;
(4) The emotional distress must be severe."
Id. Harris cautioned that courts must assure that each of the four elements of the tort are established by legally adequate proof. Harris and our subsequent cases have also noted "two problems which are inherent in recognizing a tort of this character ... (1) distinguishing the true from the false claim, and (2) distinguishing the trifling annoyance from the serious wrong." Id.; Figueiredo-Torres v. Nickel, 321 Md. 642, 653, 584 A.2d 69, 75 (1991); Young v. Hartford Accident & Indem. Co., 303 Md. 182, 197, 492 A.2d 1270, 1277 (1985). In addition, we have made it clear that liability for the tort of intentional infliction of emotional distress should be imposed sparingly, and "`its balm reserved for those wounds that are truly severe and incapable of healing themselves.'" Figueiredo-Torres, 321 Md. at 653, 584 A.2d at 75 (quoting Hamilton v. Ford Motor Credit Co., 66 Md. App. 46, 61, 502 A.2d 1057, 1065, cert. denied, 306 Md. 118, 507 A.2d 631 (1986)).
At the trial, Bowden testified about the mental and psychological effects he experienced after the incident. According to Bowden's testimony, he was distraught and worried; he "was hurt a lot" and felt ashamed because his peers saw him being removed from Caldor in handcuffs. Bowden also testified that he tended not to socialize as much as before, kept to himself, and did not trust others very readily. He stated that he was able, however, to continue his normal activities. He further testified that the incident did not affect his schoolwork; he continued playing baseball for his high school team and obtained other employment soon thereafter. In short, Bowden continued doing the same things that he did prior to the incident but just had "a different outlook." Bowden's "sadness" and insecurity continued for more than a year and as a result he paid one visit to a psychologist in the winter of 1990. At trial Bowden only introduced the psychologist's intake form and did not call the psychologist as a witness. In the intake form Bowden complained of weight loss over the past four months and reported that he felt "sad," "confused," and "bad about himself." The intake form did not contain any of the psychologist's conclusions; it only reported Bowden's own complaints. Bowden testified that he visited the psychologist only once because of his time commitments to both school and extracurricular activities. Bowden presented no expert testimony about his emotional distress.
At the hearing on the defendants' motion for J.N.W.V., the defendants argued that Bowden failed to establish the four elements of the intentional infliction of emotional distress cause of action. Specifically, the defendants focused on the severity of distress element and asserted that "the Plaintiff failed to establish the type of severe emotional distress necessary to establish a prima facie case of intentional infliction...." Bowden's only response was that "I can't think of anything that ... could [be] ... as severe as the basic personality of a person being changed." The circuit court disagreed with Bowden and granted the defendants' motion for J.N.W.V. on this count. The circuit court found that "from the circumstances here ... the emotional distress that was suffered, ... was not the kind that the Court of Appeals contemplates to meet the standards of this tort." We agree.[2]
Harris focused on the same issue as the case at bar. There we said that the fourth element of the tort "requires the plaintiff to show that he suffered a severely disabling emotional response to the defendant's conduct. The severity of the emotional distress is not only relevant to the amount of recovery, but is a necessary element to any recovery." Harris, 281 Md. at 570, 380 A.2d at 616 (emphasis in original). For emotional distress to be severe, it must be so acute that "`no reasonable man could be expected to endure it.'" Id. at 571, 380 A.2d at 616 (quoting Restatement (Second) of Torts § 46 cmt. j (1965)). We measure such severity by the intensity of the response as well as its duration. Id.
Although there is no clearly defined bright-line test for severe emotional distress, the trial judge did not err in concluding that there was legally insufficient evidence at trial from which a jury could properly have concluded that Bowden suffered the sort of emotional harm required in Harris and our subsequent line of cases. Bowden may have been "upset," "embarrassed," and "confused," and may have "felt bad about himself"; and this type of emotional distress may have been uncomfortable. None of these effects, however, indicate that Bowden had the severely disabling emotional response that hindered his ability to carry out his daily activities or the severe emotional distress this cause of action requires. Compare Harris, 281 Md. at 572, 380 A.2d at 617 (holding that evidence of aggravation of plaintiff's pre-existing nervous and speech condition was vague and did not establish severity element) and Moniodis v. Cook, 64 Md. App. 1, 15-16, 494 A.2d 212, 219, cert. denied, 304 Md. 631, 500 A.2d 649 (1985) (plaintiffs' testimony that they were upset, increased smoking, lost sleep, and experienced hives failed to present legally sufficient evidence to establish severe emotional distress) with Figueiredo-Torres, 321 Md. at 656, 584 A.2d at 76 (allegations in complaint that plaintiff experienced systemic hypertension, loss of visual acuity, and required psychiatric hospitalization were sufficient to survive defendant's motion for summary judgment) and B.N. v. K.K., 312 Md. 135, 144-45, 538 A.2d 1175, 1180 (1988) (finding that the emotional distress caused by the transmission of herpes, including the fact that the plaintiff felt extremely distressed by the limitations on her normal sexual activity, marriage prospects, and childbearing, fulfilled requirement of severe emotional injury). As we noted in Harris, the phrase "emotional distress" might conceivably include
"`all highly unpleasant mental reactions, such as fright, horror, grief, shame, humiliation, embarrassment, anger, chagrin, disappointment, worry, and nausea. It is only where it is extreme that the liability arises....'" (Emphasis added).
Harris, 281 Md. at 570-71, 380 A.2d at 616 (quoting Restatement (Second) of Torts § 46 cmt. j (1965)). The evidence may have shown that Bowden was distressed, but it failed to establish the level of severe or extreme emotional injury that is needed to trigger liability for this tort. Not only did Bowden continue his normal activities, but he did not seek psychological assistance until his single visit on the eve of litigation. Bowden presented no expert testimony as to any emotional distress and his own description of his discomfort was insufficient to establish severe emotional distress. As a result, we affirm the circuit court's grant of J.N.W.V. on the count of intentional infliction of emotional distress.
B. Wrongful Discharge
The parties also dispute whether the circuit court was correct in granting J.N.W.V. with respect to Bowden's wrongful discharge claim. Maryland follows the common law rule that generally an at-will employment relationship can be legally terminated at the pleasure of either party at any time. Adler v. American Standard Corp., 291 Md. 31, 35, 432 A.2d 464, 467 (1981); State Comm'n on Human Relations v. Amecon Div., 278 Md. 120, 126, 360 A.2d 1, 5 (1976); see generally Annotation, Modern Status of Rule That Employer May Discharge At-Will Employee for Any Reason, 12 A.L.R.4th 544 (1982). The common law rule may be abrogated, however, by express legislative enactments regulating the terms of employment or by judicial exception. Adler, 291 Md. at 35, 42-43, 432 A.2d at 467, 471; see Makovi v. Sherwin-Williams Co., 316 Md. 603, 609-10, 561 A.2d 179, 182 (1989). In instances where neither legislative nor judicial exceptions apply, the common law rule controls.
In response to the defendants' motion for J.N.W.V., the circuit court stated that Bowden failed to provide a "specific public policy here other than what's covered by other torts such as false imprisonment and defamation." On appeal Bowden asserted that a clear public policy existed in this case to support his cause of action for wrongful discharge. According to Bowden an employee has a fundamental right to be free from coercion; Bowden therefore reasons it is contrary to public policy for an employer to coerce a statement from an employee and then use that statement, together with the belief that the employee stole money and property, as a grounds for discharge. In response, the defendants argue that Bowden was terminated for security reasons, and that Bowden failed to reveal any improper motive underlying his discharge.
In Adler v. American Standard Corp., this Court for the first time recognized a judicial exception to the common law at-will employee rule. There we adopted "a cause of action for abusive discharge by an employer of an at will employee when the motivation for the discharge contravenes some clear mandate of public policy...." Adler, 291 Md. at 47, 432 A.2d at 473 (emphasis added). Implicit in our recognition of this cause of action is a reservation of an employer's right to discharge an at-will employee where the motivation for the discharge is not impermissibly tainted.[3]
The evidence in this case shows the defendants treated Bowden in a harsh and reprehensible manner. The evidence, even in a light most favorable to Bowden, however, does not show the defendants were driven by an improper motive when they discharged Bowden. At most, the evidence indicates that Bowden was discharged because he was suspected of store theft. The fact that the defendants used improper means to attempt to confirm their suspicions of Bowden's theft of money and property does not mean they are liable for wrongful discharge because they discharged him based on those mere suspicions. In fact, when faced with a motion for judgment at the end of his case-in-chief, Bowden did not identify any facts that indicated the existence of an improper motive for his termination. Bowden merely stated that the defendants' act of taking the coerced statement and using it as a basis for his discharge was a violation of public policy. That act may have been improper but, nevertheless, it is clear from the record that the reason for Bowden's discharge was the defendants' suspicion that Bowden stole money and merchandise. While such a suspicion may have been misplaced and Bowden's termination based on a factually incorrect premise, the defendants' mere suspicion of theft can serve as the basis for discharging an at-will employee. We therefore affirm the circuit court's grant of J.N.W.V. for the count of wrongful discharge.
C. Defamation
The defendants also contend that the circuit court erred in refusing to grant J.N.W.V. on the defamation count. They argue that the verdict must have been based on their communications with the Baltimore County police and that their communications were entitled to an absolute privilege and thus could not be a basis for a defamation suit. According to Bowden, the accusation of theft made to law enforcement officers was only entitled to a conditional privilege, a privilege that was negated upon the jury's finding that the defendants acted with malice. See Marchesi v. Franchino, 283 Md. 131, 139, 387 A.2d 1129, 1133 (1978) (describing standard of malice necessary to defeat conditional privilege). Further, Bowden contends that the defendants committed defamatory acts other than their statements to the police. Addressing first the defamatory statements made to the police, we decline to extend an absolute privilege to defamatory communications volunteered to police prior to the commencement of any official investigation.
Maryland has long recognized the existence of an absolute privilege for defamatory utterances made during the course of judicial proceedings or contained in documents directly related to such proceedings. Odyniec v. Schneider, 322 Md. 520, 526-27, 588 A.2d 786, 789 (1991); Keys v. Chrysler Credit Corp., 303 Md. 397, 403-04, 494 A.2d 200, 203 (1985) (citing Hunckel v. Voneiff, 69 Md. 179, 14 A. 500 (1888) and Bartlett v. Christhilf, 69 Md. 219, 14 A. 518 (1888)). This privilege protects the judge, the witnesses, the parties, and, to a more limited degree, the attorneys involved in the judicial proceeding in which the defamatory statement occurs. Keys, 303 Md. at 404, 494 A.2d at 203; Odyniec, 322 Md. at 526, 588 A.2d at 789. Where the absolute privilege applies, it protects persons publishing the defamatory statement from liability even where their motives are malicious and made with the knowledge of the statement's falsity. Odyniec, 322 Md. at 527, 588 A.2d at 789.
In Adams v. Peck, 288 Md. 1, 415 A.2d 292 (1980), we extended the scope of the absolute privilege for judicial proceedings to include documents related to pending judicial proceedings regardless of whether they had actually been filed in those proceedings. In Adams, two parents were involved in a contested divorce proceeding. The parents entered into a separation agreement which granted the mother custody and the father visitation rights. Several months later, while the divorce litigation was pending, the mother sought to have the father's visitation rights modified. In connection with this attempt, the mother's attorney referred the mother and children to a psychiatrist for an evaluation. The psychiatrist sent a written report to the mother's attorney which accused the father of abusing one of the children. On the basis of the report, the mother filed a Petition for Modification of Visitation Rights. Although the mother did not file the report in the pending divorce proceedings, the father apparently obtained a copy and sued the psychiatrist for defaming him in the report. We held that the report was entitled to an absolute privilege despite the fact that it was not actually filed in the proceedings. Id. at 8-9, 415 A.2d at 296. We said:
"[t]he question whether a defamatory statement should be absolutely privileged involves a matter of public policy in which the public interest in free disclosure must be weighed against the harm to individuals who may be defamed. See Maurice v. Worden, 54 Md. 233, 253 (1880). The underlying rationale for according an absolute privilege to the defamatory statements made in court by participants in judicial proceedings or to such statements published in documents which have been filed is that such a privilege is necessary to the proper administration of justice. The ultimate purpose of the judicial process is to determine the truth. The investigation, evaluation, presentation and determination of facts are inherent and essential parts of this process. If this process is to function effectively, those who participate must be able to do so without being hampered by the fear of private suits for defamation.
* * * * * *
These public policy reasons are equally applicable to defamatory statements published in documents which are prepared for possible use in connection with a pending judicial proceeding but which have not been filed.
* * * * * *
The people who engage in these activities and who generate such documents must be able to do so without being hampered by the fear of private suits for defamation."
Id. at 5-6, 8, 415 A.2d at 294-95. In Adams, the report was requested by an attorney representing a client in an active domestic case and was therefore absolutely privileged because it "was published during the course of that judicial proceeding." Id. at 8, 415 A.2d at 296 (emphasis added).
Adams did not address in any detail the question of what constitutes a "judicial proceeding" for purposes of the absolute privilege, probably because in that case the answer was an easy one there was divorce litigation pending in the courts. The defendants in this case ask us to extend the judicial proceedings privilege to cover their communications with Baltimore County police. We do not believe, however, that the privilege should be extended so far.
In addressing the meaning of "judicial proceedings" for purposes of granting an absolute privilege we have, for example, refused to extend the privilege to statements made at some administrative hearings. In Gersh v. Ambrose, 291 Md. 188, 434 A.2d 547 (1981), the plaintiff alleged that the defendant, while testifying at a public hearing before the Baltimore City Community Relations Commission, had slanderously accused him of having committed certain criminal offenses. The defendant claimed he was entitled to absolute immunity as a witness called to testify before the Commission. We refused to grant an absolute privilege for his testimony, noting that
"[m]ost American courts which have extended absolute immunity to witnesses testifying in other than strictly judicial, in-court settings have first assured themselves that in such settings there are sufficient judicial safeguards so as to minimize the likelihood of harm to potentially defamed (or otherwise injured) individuals who would have no legal remedy."
Id. at 192, 434 A.2d at 549. Applying this principle to the facts in Gersh, we observed that the Commission's hearing, really no more than an "open public meeting," lacked the procedural safeguards traditionally provided in judicial proceedings. We found that "[t]he public benefit to be derived from testimony at Commission hearings of this type is not sufficiently compelling to outweigh the possible damages to individual reputations to warrant absolute witness immunity." Id. at 196, 434 A.2d at 551; see also McDermott v. Hughley, 317 Md. 12, 26, 561 A.2d 1038, 1045 (1989) ("administrative investigation" was not sufficiently protective to warrant absolute privilege).
Distinguishing judicial proceedings from some administrative hearings because of procedural safeguards in the former is one basis for drawing a line between granting and denying the absolute privilege. Another way of drawing the same line is by examining at what stage of the legal process the defamatory communication is made. The communications in the instant case were made to the police and not, for example, to a prosecuting attorney or magistrate. Although we have never addressed the issue directly, in Miner v. Novotny, 304 Md. 164, 498 A.2d 269 (1985), we noted that Professors Prosser and Keeton have suggested that
"`an informal complaint to a prosecuting attorney or a magistrate is to be regarded as an initial step in a judicial proceeding, and so entitled to an absolute, rather than a qualified immunity.'"
Id. at 171, 498 A.2d at 272 (quoting W.P. Keeton, et al., Prosser & Keeton on Torts § 114, at 819-20 (5th ed. 1984)). This Court has also extended the absolute privilege to complaints to police in one very distinct situation. In Miner, 304 Md. at 177, 498 A.2d at 275, we extended an absolute privilege to citizen complaints of police brutality made under oath, which initiated administrative disciplinary proceedings. In weighing the need for extending the absolute judicial proceedings privilege to this limited area we said:
"Our society vests its law-enforcement officers with formidable power, the abuse of which is often extremely detrimental to the public interest. Citizen complaints of such abuses, and the administrative disciplinary procedure which has been developed to investigate these complaints, serve a public function of vital importance by providing a mechanism through which abuses may be reported to the proper authorities, and the abusers held accountable."
Id. at 176, 498 A.2d at 274-75. We recognized the potential harm a false brutality complaint may cause to a law enforcement officer's reputation, but concluded that it is "outweighed by the public's interest in encouraging the filing and investigation of valid complaints." Id. at 176, 498 A.2d at 275.
Miner is easily distinguishable from the instant case. Miner conferred an absolute privilege for a sworn complaint which initiated law enforcement disciplinary proceedings. Those proceedings had sufficient procedural safeguards to make the judicial proceeding privilege applicable. The complaint in Miner was the formal means of initiating the proceedings and was analogous to the complaint which initiates a judicial proceeding. Further, law enforcement officers have some protections because the complaint must be under oath, and if the offic