Reichardt v. Flynn

*378 CATHELL, J.,

dissenting:

I respectfully dissent from the reasoning and' the result reached by the majority. . The majority has, once again, extended a creature that this Court created, but did not apply, in Gersh v. Ambrose, 291 Md. 188 , 434 A.2d 547 (1981): administrative proceeding absolute immunity. 1

I initially acknowledge that there are cases in which I did not dissent, where we have recognized absolute immunity for witnesses or complainants in an administrative agency proceeding. The most recent such opinion in which I joined was Imperial v. Drapeau, 351 Md. 38 , 716 A.2d 244 (1998). There may have been others.

I have concluded that Í was wrong and that this Court lacks the power to modify the common law to create new absolute privileges (absolute immunity) for parties, complainants or witnesses in administrative proceedings. In my view, the exercise of that power violates a unique provision of the Maryland Declaration of Rights (see infra) not mentioned in any of the Maryland cases since the 1901 case of Coffin v. Brown, 94 Md. 190 , 50 A. 567 (1901), a case which we have *379 never overruled. No similar provision is found in the federal constitution. No such constitutional limitations are mentioned in the Gersh discussion of the foreign state cases there examined, as being contained in any of the constitutions of those foreign states.

I would also dissent in this specific case, even if the Maryland constitutional provision did not exist. The standards that we discussed in Gersh , and later applied (unconstitutionally in my current view) in Imperial, in Odyniec v. Schneider, 322 Md. 520 , 588 A.2d 786 (1991), and in Miner v. Novotny 304 Md. 164 , 498 A.2d 269 (1985), in respect to administrative proceedings being the functional equivalent of judicial proceedings, simply do not exist in the case at bar. To apply absolute privilege, principles to the case at bar is to open Pandora’s Box. 2 If an absolute privilege exists here, it will exist for all administrative proceedings no matter how far from, or attenuated they are from, the type of proceedings contemplated in Gersh . 3

*380 Before addressing the constitutional issue, I will address some of the other cases involving the creation of privileges establishing absolute and qualified immunity from defamation suits.

We long ago established the basic rule for determining the extent of privilege in a defamation context. Although there have been recent cases, including Imperial, Odyniec, and Miner , in which we have applied a much broader interpretation (though I now doubt the constitutional validity of those cases), we have never overruled the basic holding of Maurice v. Worden, 54 Md. 233, 253-55 (1880), where we stated:

“There are two classes of privileged communications which form exceptions to the general law of libel. The one is absolutely privileged and cannot be sued upon, while the other may be the cause of action, and the suit upon it maintained on proof of actual malice [qualified privilege/immunity]. These privileges rest alone on the ground of public policy, and in speaking of them we have no reference to privileges which are secured by constitutional or statutory provisions.

“... Those enumerated by the author as being absolutely privileged, though false and malicious, and made without reasonable or probable cause, ‘are communications made in the course of judicial proceedings, whether civil or criminal, and whether by a suitor, prosecutor, witness, counsel or juror; or by a judge, magistrate, or person presiding in a judicial capacity, of any court or other tribunal, judicial or military, recognized by and constituted according to -law; and so also communications made in the course of parliamentary proceedings, whether by a member of either House of Parliament or by petition of individuals who are not members, presented to either house or to a committee thereof.’ Beyond this enumeration we are not prepared to go. The doctrine of absolute privilege is so inconsistent *381 with the rule that a remedy should exist for every wrong, that we are not disposed to extend it beyond the strict line established by a concurrence of decisions.

“We cannot, in view of the authorities or upon principle, hold the communication declared upon to be absolutely privileged. It was made in the line of duty, and this only clothes it with a privilege that is qualified. The occasion operates as a defense, unless express malice be proved. “ ‘... The other class of privileged communications, for which there is no absolute privilege, is very numerous. In order to make the writer or publisher liable, it must appear that he acted maliciously and without probable cause. If there were no probable cause for the communication, the law implies that it was made with malice. If, however, it appear that there was probable cause, the communication is privileged, no matter how much actual malice dictated it.’ ... In White v. Nicholls, 3 How. 266 , 11 L.Ed. 591 , where the question of privilege was presented, the Supreme Court refused to extend the doctrine of absolute privilege to cases where the author of the alleged slander acted in the bona fide discharge of a public or private duty, legal or moral.... [T]he court [said] on page 287, ‘But the term “exceptions,” as applied to cases like those just enumerated, could never be interpreted to mean that there is a class of actions or transactions placed above the cognizance of the law, absolved from the commands of justice. It is difficult to conceive how, in society where rights and duties are relative and mutual, there can be tolerated those who are privileged to do injury legibus soluti; and still more difficult to imagine how such a privilege could be instituted or tolerated upon the principles of social good....’” [Citations omitted.] [Alterations added.]

We noted in Walker v. D’Alesandro, 212 Md. 163, 172 , 129 A.2d 148, 153 (1957), that “This Court long ago expressed opposition to the extension of the doctrine of absolute privilege (Maurice v. Worden, 54 Md. 233 ) to persons occupying offices *382 not previously recognized as falling within the protection of absolute privilege.” In Maurice , we commented on a prior nisi prius case, Dawkins v. Lord Paulet, L.R. 5 Q.B. 94, 4 rejecting the majority opinion and adopting the dissenting opinion.

Dawkins involved an alleged libel contained in a communication from an Army officer to his superior made “in the course of military duty and as an act of military duty.” Maurice, 54 Md. at 256 . As in the case sub judice, it was argued that such a communication was absolutely privileged. Our predecessors disagreed with the majority opinion in Dawkins, saying

“But Chief Justice Cockburn [the dissenting Justice in the Dawkins case] thought differently, and was of opinion that an action would lie if the communications were made of actual malice and without reasonable and probable cause. We concur in the views taken in his opinion, and believing that they state the true rule of law, shall adopt them rather than the conclusions reached by the two judges who sat with him.”

Id. at 256 (alteration added). We then held in Maurice that no absolute privilege existed, but, rather a qualified privilege, that threw “upon the plaintiff the onus of proving that [the defamatory statement] was not made from duty, but from actual malice and without reasonable and probable cause.” Id. at 257 (alteration added).

I fail to see any greater duty, nor any greater public purpose in protecting the false statements of the girls and their parents in the case sub judice, than that of the duty of a military officer to communicate with others in the military. Surely, the need for candor and freedom of communication is even greater in the profession of arms (the profession of *383 killing), than it is in the need to protect a group of teenagers that are involved in the present situation.

In Marchesi v. Franchino, 283 Md. 131 , 387 A.2d 1129 (1978), we held that statements made to an employer by an employee, that another employee had made improper advances to her, were conditionally privileged. We explained the foundation for the existence of a conditional privilege as:

“The common law conditional privileges rest upon the notion that a defendant may escape liability for an otherwise actionable defamatory statement, if publication of the utterance advances social policies of greater importance than the vindication of a plaintiffs reputational interest.”

Id. at 135 , 387 A.2d at 1131 . In Marchesi , we then “reformulated” a definition of malice, based in large part on some of our prior statements.

“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.”

Id. at 139 , 387 A.2d at 1133 .

In Hanrahan v. Kelly, 269 Md. 21, 28-30 , 305 A.2d 151, 156 (1973), we repeated the standard for establishing a conditional [qualified] privilege in a case involving business relationships, saying:

“ ‘An occasion is conditionally privileged when the circumstances are such as to lead any one of several persons having a common interest in a particular subject matter correctly or reasonably to believe [good faith] that facts exist which another sharing such common interest is entitled to know.’ ”

“Mutual interest in the subject matter is but one type of qualified privilege recognized in the law of defamation. The general rules governing all conditional privileges are, how *384 ever, well-settled. A finding of conditional privilege conditionally negates the presumption of malice and shifts the burden to the plaintiff to show actual malice. Malice may be a jury question.... Absent a finding of express malice, a conditional privilege, if not abused, defeats the libel action.” [Citations omitted.] [Alteration added.]

There are a number of cases where this Court has extended a qualified privilege to certain persons in respect to communications that were potentially defamatory. They include Orr ison v. Vance, 262 Md. 285, 292 , 277 A.2d 573, 576 (1971), where we extended a qualified privilege to a person who had reported a potentially dangerous, and possibly illegal, situation to appropriate authorities. There, we held that “we think the words spoken and written by Vance enjoyed, in these circumstances, a qualified privilege . . . .” Id.

I agree that the qualified privilege extended to Vance in Orrison was appropriate. More important, it preserved Orrison’s right to require that Vance be responsible for his words, and Vance’s constitutionally imposed duty to be responsible for abuses, if any, in the exercise of his speech.

In the instant case, my difference with the majority is that it has extended the improper privilege, i.e., an absolute privilege, instead of a qualified privilege. 5 Why, as a matter of policy, should parents and their children be absolutely immune when they are not acting in good faith? 6 Why should parents and their children be permitted to purposefully ruin the lives of others by maliciously communicating defamatory statements as is alleged here? I see no reason, based upon public policy concerns, or on anything else, to extend absolute immunity in such circumstances. The public policy concerns expressed by the majority could, in my view, be fully addressed by the extension of a qualified privilege under the circum *385 stances here present. And, in the process, the constitutional duty imposed upon the exercise of speech in this state could be preserved.

In Orrison, the Court, in extending a qualified privilege, noted certain factors very similar to the factors the majority notes in the present case, but the majority in the case at bar goes even further than the Court did in Orrison. It extends an absolute privilege.

We noted in Orrison that the extension of the qualified privilege in respective cases, depended upon whether the communications were of the type and character, which would allow the claim of privilege to be made. We looked first at the relationships between Vance and the recipients of his communications, then the legal, moral or social duty impelling Vance to transmit the information, and whether he did so in good faith. In Orrison, 262 Md. at 293 , 277 A.2d at 577 , quoting the Restatement of Torts § 598:

“An occasion is conditionally privileged when the circumstances induce a correct or reasonable belief that

(a) facts exist which affect a sufficiently important public interest, and

(b) the public requires the communication of the defamatory matter to a public officer or private citizen and that such person is authorized or privileged to act if the defamatory matter is true.”

We commented then, that:

“The question is not whether Orrison obeyed the law but whether Vance was justified in saying what he did say.... He was trying to eliminate what he thought was a very real danger and we are quite unwilling to say that he was not justified in thinking that the danger still existed. Moreover, the State’s Attorney, the police, the commissioners and their attorney were certainly reasonable recipients of the communications and the citizens to whom he spoke shared his interest in obviating the danger. We think his efforts in this regard were conditionally privileged.”

*386 Orrison, 262 Md. at 293-94 , 277 A.2d at 577 (citations omitted) (footnote omitted).

We discussed in Stevenson v. Baltimore Baseball Club, Inc., 250 Md. 482, 486 , 243 A.2d 533, 536 (1968), the common law origins of the concept of a qualified or conditional privilege, by quoting from the old English case of Toogood v. Spyring, 1 C.M. & R. 181, 193, 149, Eng. Rep. 1044 (1834):

“ ‘In general, an action lies for the malicious publication of statements which are false in fact, and injurious to the character of another (within the well-known limits as to verbal slander), and the law considers such publication as malicious, unless it is fairly made by a person in the discharge of some public or private duty, whether legal or moral, or in the conduct of his own affairs, in matters where his interest is concerned. In such cases, the occasion prevents the inference of malice, which the law draws from unauthorized communications, and affords a qualified defence depending upon the absence of actual malice. If fairly warranted by any reasonable occasion or exigency, and honestly made, such communications are protected for the common convenience and welfare of society; and the law has not restricted the right to make them within any narrow limits.’ ”

I perceive that the public policy concerns of the majority would be adequately addressed by the adoption of a requirement that defamatory statements be privileged if they are fairly and honestly warranted by a reasonable perception of the circumstances and the exigency of the respective situation requires a qualified privilege. In such instances, a qualified privilege suffices.

In Carr v. Watkins, 227 Md. 578 , 177 A.2d 841 (1962), we declined to extend an absolute privilege to a federal officer and two local law enforcement officers, noting that the communications at issue to a prospective employer of the plaintiff were not made within the scope of the defendants’ offices. We did note several federal cases, in which the federal courts had extended absolute immunity for defamatory statements to *387 certain federal officials acting within the scope of functions of their offices. We discussed what had been, until recent times, this Court’s reluctance to extend absolute privileges.

“Maryland .has not adopted the rule laid down in the Barr case [ 7 ] but, on the contrary, this Court has shown reluctance to extend absolute privilege or immunity from liability for torts to government officers of a higher rank than these defendants.”

Id. at 585 , 177 A.2d at 844 .

As I note, infra, the United States Constitution, unlike Maryland’s Declaration of Rights, contains no provision in its free speech clause providing that a speaker must remain responsible for abuses in the exercise of speech. I would suggest that in purely state matters, i.e., this, and similar cases, the federal cases extending absolute privileges beyond the traditional common law absolute privileges, are not appropriate authority to extend such privileges where a state constitution requires as a condition of speech, the assumption of responsibility for abuses of that speech.

One of the recent cases in which we extended an absolute privilege in respect to communications made in an administrative proceeding, under the guise of it being the functional equivalent of a judicial proceeding, was Odyniec v. Schneider, 322 Md. 520, 529 , 588 A.2d 786, 790 (1991), cited by the majority, in which we initially noted what we had said ten years earlier in Gersh v. Ambrose 291 Md. at 197 , 434 A.2d at 551 -52:

“We decided that

‘whether absolute witness immunity will be extended to any administrative proceeding will have to be decided on a case-by-case basis and will in large part turn on two factors: (1) the nature of the public function of the proceeding and (2) *388 the adequacy of procedural safeguards which will minimize the occurrence of defamatory statements.’

“There being no evidence of the kind of safeguards which are present during judicial proceedings, and no evidence that the hearing was anything other than an open public hearing, we declined to extend absolute immunity to the witness in the Gersh case.”

In Odyniec , we further discussed the making of defamatory statements during proceedings in respect to the Law Enforcement Officer’s Bill of Rights, citing Miner v. Novotny, 304 Md. 164 , 498 A.2d 269 (1985). We noted in Odyniec that in our holding in Miner (that the declarant had an absolute privilege, just as did witnesses in judicial proceedings) we had considered the following:

“In so concluding [in Miner ], we examined the safeguards present during the investigation of the complaint, and at the adjudicatory hearing before the departmental hearing board, noting that they were adequate to minimize the occurrence of defamatory statements. We observed that under the statute, complaints of brutality are not investigated unless they are sworn, and that false complaints are subject to criminal liability; that prior to investigation, the officer has a right to be informed in writing of the nature of the investigation and of the officers involved in it; that the officer has a right to counsel during interrogation and to a record of the interrogation; that if an adversarial hearing is warranted after the investigation, it is held before at least three officers who were not involved in the investigation; that the officer has a right to counsel at the hearing; that the hearing board is authorized to issue summonses for witnesses] and documents; and witnesses at the hearing testify under oath and are subject to cross-examination.”

Id. at 529-30, 588 A.2d at 790-91 (alterations added). In Miner , we considered the extensive procedural safeguards in place for the officer, before holding that there was an absolute privilege for statements made during those administrative proceedings. In Miner , however, as in all of our post-Coffin v. Brown, infra, cases, including Odyniec and Imperial, we *389 failed to even address the effects of the constitutional limitations of the Maryland Declaration of Rights. 8

Instead, in Odyniec , we contrasted Gersh and Miner , with our case of McDermott v. Hughley, 317 Md. 12 , 561 A.2d 1038 (1989), which involved whether a psychologist had an absolute privilege in respect to reports that the psychologist furnished to an employer at the employer’s request. We commented in Odyniec that we had rejected the psychologist’s argument, in McDermott , that he had an absolute privilege against being sued for defamation, in that the report was “made in connection with an on-going administrative proceeding.” Odyniec, 322 Md. at 530 , 588 A.2d at 791 . After noting that the procedure in McDermott was not in the nature of an administrative proceeding in the first instance, we went on in McDermott to hold:

“that there were insufficient procedural safeguards present; that ‘there was no public hearing adversary in nature; no compellable witnesses were sworn or cross-examined; no reviewable opinion or analysis was generated; and ... [the employee had no] opportunity to present his side of the story.’ ”

Odyniec, 322 Md. at 531 , 588 A.2d at 791 .

Odyniec involved statements made by a doctor called as an expert, during a physical examination of a patient made outside of the administrative hearing itself, but during the course of, and as a part of, a Health Claims Arbitration proceeding. We noted that the statute provided that the Board was a unit of the executive branch of government; that it required the Board’s Director to refer all issues of liability and damages to a three-member arbitration panel; that the panels were made up of a health care provider, a lawyer, and a member of the general public; that it was to be chaired by an attorney who would decide all prehearing issues; that he had *390 authority to decide discovery and evidentiary issues (thus discovery and some rules of evidence were contemplated). Additionally, the statute provided that physical examinations of claimants could be required by the Board. We noted that the controlling statute and rules were detailed and comprehensive. Each party had the right to object to, and to seek the removal of any arbitrators. Additionally, the claimant had to file a certificate with the Board at the inception of his claim. The certificate had to be executed by a qualified expert and was required to assert that the care given the claimant was a departure from the appropriate standard of care.

As to the proceeding itself, each party could be represented by counsel, the proceedings were public, and they were adversarial in nature. Witnesses could be subpoenaed. Witnesses were sworn and were subject to cross-examination. Panels could rule on matters of evidence, discovery was available, and each side’s case could be presented orally or by documentation. The panel members, by statute, had absolute immunity, and were insulated from political influences. Finally, we noted that the panel’s determinations had to be in writing.

After that process was concluded, the parties still had access to the courts, and the procedures and remedies there available. We held, therefore, in Odyniec , that because of the extensive procedures and safeguards available in Health Claim Arbitration proceedings, it operated in a manner that was “functionally comparable to a trial before a court.... ” Odyniec, 322 Md. at 534 , 588 A.2d at 792 . We held:

“Taking full account of the vital public function of health care malpractice proceedings initiated before arbitration panels, and of the procedural safeguards provided by the statute and the implementing rules to minimize the occurrence of defamatory statements, we conclude that the absolute privilege may safely be extended to statements of potential witnesses made during the pendency of such proceedings.”

Id. at 534 , 588 A.2d at 792-93 .

We noted in Jacron Sales Co. v. Sindorf, 276 Md. 580, 589 , 350 A.2d 688, 693-94 (1976), that the Supreme Court’s decision *391 in Gertz v. Robert Welch, Inc. 418 U.S. 323 , 94 S.Ct. 2997 , 41 L.Ed.2d 789 (1974), had modified (or explained) its prior holdings in New York Times Co. v. Sullivan, 376 U.S. 254 , 84 S.Ct. 710 , 11 L.Ed.2d 686 (1964), and Rosenbloom v. Metromedia, 403 U.S. 29 , 91 S.Ct. 1811 , 29 L.Ed.2d 296 (1971). We said in Jacron, 276 Md. at 589 , 350 A.2d at 693 :

“The very essence of the Gertz decision, as we noted early on, was the shift in focus from the protection of free expression, which undergirded New York Times and its progeny, including Rosenbloom , to the state interest in protecting private persons who have been defamed. It was because the Rosenbloom approach did not afford sufficient recognition of this state interest that the Gertz Court found it unacceptable and sounded the death knell for the ‘public or general interest’ test as a [federal] constitutional requirement.” [Citations omitted.] [Alteration added.]

Even without a consideration of Maryland constitutional requirements, I would, again, respectfully suggest, that the safeguards in place in the case at bar as pointed out and relied on by the Court of Special Appeals in its opinion, and in the majority opinion in this case, and in similar cases, are woefully inadequate, even under Imperial, Odyniec and Miner standards, to safeguard the teachers of this State from false, career damaging and career ending, accusations. What the majority does with its opinion, is to empower disgruntled students, of which one would think there are many, to remove teachers with whom they do not agree, and to do so with absolute immunity from meaningful consequences.

Under the majority’s holding, while there are remedies relating to a teacher keeping his job, there are no remedies where the defamed teacher can redeem his or her reputation, nor any significant consequences for a student who fabricates a potentially hurtful claim against a teacher. If a student has a problem with a teacher, all she or he has to do is falsely accuse the teacher of some wrongful act. It ruins the teacher’s career. And the student is not accountable to the teacher for his or her deceitful actions. The disturbing examples are seemingly endless.

*392 If a teacher, Ms. Smith, is a tough grader in a required course, all a student needs to do is to falsely claim that she touched him or her in an inappropriate manner, and Ms. Smith will be removed from her teaching position. She will be gone, along with her tough grading reputation. Another teacher, Mr. Jones, sends a student to the principal’s office for misbehavior. When the student arrives there he or she tells the principal that Mr. Jones is only trying to punish him or her because he or she has resisted his advances, complained about his sexist remarks, or he or she may accuse him of sexual, gender or racial discrimination. Instead of the student being suspended, Mr. Jones, just like Ms. Smith, will be terminated. These teachers not only lose their jobs, but their careers are destroyed. Even if the student later admits that he or she was lying, Mr. Jones’ personnel records will always note that the complaint was made. A later finding of “unsubstantiated” merely means “not proven.” Future prospective employers will always evaluate the existence of the charges in comparing Mr. Jones or Ms. Smith, with other applicants for the same positions. In these times of political correctness, the hiring administrators will take the safest course. They will not hire Ms. Smith or Mr. Jones.

Ms. Smith and Mr. Jones are forever tainted, as is Mr. Flynn in the case at bar. Why? In Mr. Flynn’s case, merely because several girls wanted a separate cross-country coach. Mr. Flynn will forever be punished for acts he may not have committed. With its decision, the majority endorses what the children might have done. It does so in the name of public policy concerns based upon the importance of open avenues of communication for students and their parents. In the process, the majority is sending a message, that it is okay to be less than completely truthful. This is clearly not the type of activity that this Court should encourage and protect by a grant of absolute immunity.

Regardless of which standard is applied, with its decision the majority runs the risk of putting the children in charge of the schools. A logical extension of the holding will put patients in charge of mental health facilities, inmates in charge *393 of correctional institutions, and if its provisions were to be extended to animals, animals in charge of zoos. We should not facilitate such a potential transfer of control.

Moreover, the majority, in my view, does not sufficiently address another issue of policy and public concern — the impact of its decision, along with the cumulative impact of the numerous similar cases based upon false accusations by students, on the teaching profession as a whole.

According to the National Center for Education Statistics, 9 this country will need 2,200,000 new teachers for the public schools in this decade because of teacher attrition and retirement and the anticipated increase in enrollments. It is predicted that half of the teachers who will be in public school classrooms ten years from now have not yet been hired. By 2008, public school enrollments will exceed 54,000,000 students, an increase of 2,000,000 from 1998. Elementary school enrollments are expected to increase by 17% and high school enrollments by 26% over 1998 enrollments. The need for new teachers in high poverty urban and rural districts alone, in the decade will be more than 700,000 teachers.

The National Center for Education Statistics estimates that 6% of the nation’s teaching force leaves the profession every year and 20% of new hires leave teaching within three years. The attrition rate for new teachers is especially acute in urban districts where 50% of new teachers leave the profession in the first five years of teaching.

According to Education Week, Vol. XIII, Number 40, August 3, 1994, more and more students are falsely accusing teachers of sexual abuse according to teacher’s unions. The article quoted Karen L. Johnson, the general counsel of the Texas State Teachers Association, saying, “It’s [false charges by students] more of a problem now than it has ever been in the past” (alteration added). Ms. Johnson indicated that in *394 the sixteen years prior to 1994, the complaints against Texas teachers, alone, had risen from one or two a year to between thirty and fifty per year. Education Week reported that according to Ms. Johnson, the vast majority of complaints were unfounded.

The staff counsel for the Wisconsin Education Association Council reported that in 1977 such accusations against teachers constituted 5% of his workload. By 1994, it had risen to 25% of his work load. The article attributed to concerns expressed by Karl K. Pence, the President of the Maryland State Teachers Association, that the “climate of concern about abuse is much more charged now than it was just five years ago.” The article quotes Mr. Pence as saying, “I will go back to the classroom far more wary than when I left.”

The article included instances where false accusations had occurred.

“False charges sometimes arise as a way for a student to get revenge on a teacher for some perceived wrong.

“Last spring in Chicago, a substitute teacher was falsely accused by students in a 4th-grade class that had become unruly.

“The substitute said he disciplined the students and told them he would leave a note reporting their behavior to their regular teacher. The next day, the substitute teacher was accused of molesting 10 of the students.”

According to Education Week, false accusations are particularly egregious in the teaching profession. “Allegations of abuse, whether true or false, can be devastating to educators, both personally and professionally.” The Article continued, according to Ms. Kanthak the director of middle-level education at the National Association of Secondary School Principals: “They can never truly regain their position in the community, their sense of themselves, and how other people view them.” The article noted that, according to Mr. Meredith, the Wisconsin Association lawyer, “students also learn that to get administrators’ attention, ‘certain words don’t get *395 you anywhere in school, and certain words get you everywhere.’ ”

According to Karl Pence, President of the Maryland State Teachers Association, as reported in U.S.A. Today on March 22, 2000:

“A few years ago, we got one or two calls a week from a teacher saying a student was making false accusations against him. Now we get one or two a day.

“Beyond ruining teachers’ reputations and calling the credibility of children into question, you have a more widespread impact.... Teachers are getting more and more afraid to interact with kids. You can’t put a hand on a student’s shoulder for fear it will be deemed inappropriate contact.

“It’s terrible that it’s coming to this.... But, it’s scary to think you’ll wind up in court. We’re forced to distance ourselves from our students. It’s gotten so that you can’t pat a kid on the back anymore for a job well done.”

According to remarks attributed by the May 18, 1994 Edition of the Washington Times to Keith Geezer, President of the 2.1 million member National Education Association:

“It’s all part of this idea of getting back at people. With the breaking of the family and everything that goes with it, kids have so much pent-up anger over their whole life that they vent their frustration on teachers.... Nothing excuses an accusation that is true. But many more are trumped up than are true.”

The same article quoted Walter C. Levin, then chief counsel for the Maryland State Teachers Association, saying “when I got in this business thirty-seven years ago, we had one [complaint of child or sexual abuse involving a Maryland teacher] in a decade.” Now, there are about a dozen accusations a week in Maryland.

*396 The article attributed to Albert T. Shanker, president of the 800,000 member American Federation of Teachers, that the number of such accusations is costing the profession good teachers. It quotes Shanker as saying: “It contributes to people deciding not to come into teaching. Smart people see it’s easy for a teacher to be set up.”

Susan Russell, one of three staff lawyers with the Maryland State Teachers Association, is quoted in the article, saying:

“I get two calls a day from teachers accused of such abuse, and I’m only handling half the state. There’s been a flood of cases and 99 percent of them have been frivolous and never should have been reported to Social Services.

“This is a tremendous expense to the state. Teachers pay for our representation through union dues, but everybody pays for police officers and other state investigators. We have a half-million-dollar legal budget and over 50 percent of our time is spent on this type of stuff.”

I would respectfully suggest that the establishment of a conditional or qualified privilege standard would better address, what I perceive to be, both areas of public concern. The need for students to communicate with school administrators and the need to ensure that the profession of teaching remain attractive to potential teachers.

Finally, in addition to my belief that the creation of an absolute privilege is not warranted even under the Gersh, Imperial, Odyniec and Miner standards, nor that an absolute privilege properly balances the competing public policy concerns, I do not believe that this court can constitutionally fashion new non-traditional, common law absolute privileges in cases involving speech, i.e., defamation. As I perceive the facts of the instant case, and in prior cases as well, by creating the absolute privilege, the Court terminates all remedies for the wrongs committed in a manner that conflicts with the Maryland Declaration of Rights.

ARTICLE 40 — DECLARATION OF RIGHTS

Article 40 of the Maryland Declaration of Rights, provides for freedom of press and of speech, but qualifies the right to *397 freedom of speech. It provides in relevant part: “that every citizen of the State ought to be allowed to speak, write and publish his sentiments on all subjects, being responsible for the abuse of that privilege.” Id. (emphasis added). We have held in a prior defamation case that has never been overruled, that the right to speak is subject to the caveat in Article 40, that the speaker is responsible for abuse of the right.

Twenty-one years after we decided Maurice , in Coffin v. Brown, 94 Md. 190 , 50 A. 567 (1901), we addressed the issue of absolute privilege, at least partially in a constitutional context, incorporating the meaning of Article 40 of the Maryland Declaration of Rights. In Coffin , the alleged defamatory communication was addressed to a public officer, the Chairman of the Democratic State Central Committee, and concerned the qualifications of Brown to be a supervisor of elections. The communication contained this language:

“This man Brown was a Justice of the Peace under Democratic rule, and at that time kept a speak-easy, where he sold whiskey, and then as Justice fined the men for disorderly conduct. He helped stuff the ballot-box at the Republican primaries in Vansville District two years ago, and has no moral character whatever.... A man that everyone who knows him believes can be induced to perpetrate any crime in politics that will pay him.... ”

Id. at 192 , 50 A. at 567 .

In reversing a lower court judgement for the libeler, this Court said:

“If every appointee of a President, Governor, or other officer seeking re-election, is to be liable to be subjected to false charges, imputing crimes or other acts that bring reproach upon him, and he is to be deprived of all redress on the theory that words so uttered or published are privileged, then indeed is his lot an unfortunate one.... Our Declaration of Rights declares ‘that any citizen of the State ought to be allowed to speak, write and publish his sentiments on all subjects, being responsible for the abuse of that privilege.’ It is a gross abuse of that privilege to *398 falsely prefer such charges as are made against the appellee in this letter....”

Id. at 197-98 , 50 A. at 569-70 (emphasis in original). This constitutional provision recognizes, indeed, in my view reflects, the State’s constitutional interest in affording a greater degree of protection to private persons who are defamed, than that afforded by the majority’s decision and affords a greater degree of protection than that provided by the United States Constitution’s guarantees of free speech.

The majority’s opinion in this case, and perhaps in other recent cases as well, in my view, is in conflict with this Maryland constitutional provision. The majority, at least for the purposes of creating an absolute privilege flatly states, that the relators, the girls and their parents, are absolutely not responsible for the abuse because of the dictates of public policy concerns. I respectfully suggest that this Court lacks the power to create new common law absolute privileges. To do so in specific new classes of cases, abolishes, or tends to abolish, the Maryland constitutional responsibility requirement by judicial flat, under the guise of public policy concerns. 10

It is quite a different situation to create a “qualified privilege” exception. In that circumstance, the injured party retains a remedy, the right and the ability to attempt to prove that the statement at issue was not made in good faith, was not reasonable, and lacked a probable cause basis, in the absence of which, the injured party might recover damages as recourse for the injury suffered. In such a manner, the *399 constitutional obligation that requires a speaker to be responsible for abuses is met. In a case that lacks good faith, reasonableness, and probable cause, the speaker is held responsible for his false and defamatory speech, and the constitution is satisfied. If, however, a plaintiff cannot show a lack of good faith, a lack of reasonableness and/or a lack of probable cause, a speaker’s statements may be privileged.

By creating new absolute privileges whenever this Court perceives it to be proper, according to its conception of proper public policy concerns, the Court is, in essence, judicially repealing the constitutional requirement that a speaker be responsible for abusing the privileges of speech. While this Court might have had power normally, in the absence of the exercise of such power by the Legislature, to modify the common law foundation of the law of defamation, it (and the Legislature for that matter), lacks the power to modify the Declaration of Rights of the Constitution of Maryland, which is exactly what occurs when either entity provides that certain speakers are not responsible for abuses in their exercises of speech. With all due respect, it is my belief that in our constitutional form of government, this Court lacks the power to do what it has done in this case, and perhaps, in other recent cases as well (in at least one of which I, admittedly, joined).

The Maryland Constitution contains, as indicated, a provision requiring a speaker to be responsible for abuses of speech. We have recognized that requirement in declining to recognize absolute privileges. Coffin, supra.

We did at one time recognize the existence of an absolute privilege arising out of the United States Constitution (although later changing course). We attempted to base an absolute privilege on the federal constitution’s petition clause, but our reliance on that provision was later negated. McDonald v. Smith, 472 U.S. 479 , 105 S.Ct. 2787 , 86 L.Ed.2d 384 (1985), forced us to abandon our reliance on federal case law and the position we had adopted in Sherrard v. Hull, 296 Md. 189 , 460 A.2d 601 (1983), that a person who was petitioning the *400 government for redress of a grievance had an absolute privilege. As a result, in Miner, supra and infra, we overruled Sherrard and Bass v. Rohr, 57 Md.App. 609 , 471 A.2d 752 , cert. dismissed, 301 Md. 641 , 484 A.2d 275 (1984), as to the existence of an absolute privilege based upon the speaker’s right to petition.

“In light of McDonald , the qualified privilege recognized in New York Times and its progeny constitutes the extent of the constitutionally-mandated protection of the First Amendment right to petition the government for redress of grievances. To the extent that they are inconsistent with McDonald and this opinion, Sherrard and Bass are no longer authoritative rulings.”

Miner, 304 Md. at 170 , 498 A.2d at 272 (emphasis added). Instead, we then based the creation of the absolute privilege we wanted to create in Miner, on the administrative proceeding absolute privilege we had formulated under our self-granted power to modify the common law (albeit, unrealized by us, as I perceive it, in an unconstitutional manner), but not applied in Gersh .

We adopted the opinion of the Court of Special Appeals in Sherrard v. Hull, 296 Md. 189 , 460 A.2d 601 (1983). That court, in Sherrard v. Hull 53 Md.App. 553, 555 , 456 A.2d 59, 61 (1983), had recognized an absolute privilege for persons addressing a legislative body, basing such a privilege on a person’s federal constitutional right to petition such bodies to address their grievances and held “that remarks made by an individual in the course of petitioning for a redress of grievances before a legislative body are absolutely privileged under the First Amendment to the United States Constitution.” The Court of Special Appeals noted that the First Amendment forbade Congress, and, through the Fourteenth Amendment the states, from passing any law “abridging” the right of the people to petition the government for a redress of grievances.

The Court of Special Appeals in Sherrard then discussed the split among the state and federal courts as to whether the “petitioning” privilege should be absolute or qualified. In *401 recognizing that most jurisdictions had recognized only a qualified privilege, the court ascribed to those cases the fact that they involved indirect petitioning (such as in the case at bar).

“Those cases which would hold the privilege to be qualified generally predate Noerr-Pennington[ 11 ] or are distinguishable in that they do not relate to the direct petitioning of a legislative body. In light of the evolution of the petitioning doctrine, we therefore find them to be unpersuasive. The modern, better reasoned cases hold that true petitioning activity should be absolutely privileged.

“There is a common thread which runs through the fabric of absolute defamation immunity as applied in Maryland. The judge and jury in the trial and the senator, delegate and councilperson in the legislative proceeding have a common need to receive as much information as is available in order to render a proper and informed decision.”

Id. at 572, 456 A.2d at 69-70 (emphasis added). It is clear that, in any event, the absolute privilege extended to petitioning activities in Sherrard by the Court of Special Appeals, and then adopted by this Court, only to be later overruled, only extended to the petitioning of primary legislative entities, and not to other lessor governmental administrative agencies or their proceedings. With our overruling of Sherrard, in Miner , and in the cases since, including Imperial, Odyniec, Miner, and with the majority’s holding in the present case, we appear to have created a bizarre situation in Maryland where one *402 directly petitioning legislative entities has only a qualified privilege, at least so far as the constitutionally guaranteed right to petition is concerned, but when one indirectly petitions a legislative or executive branch by complaining to a subordinate agency of the legislative or executive branches he gets an absolute privilege based upon our common-law creation in Gersh of an absolute administrative agency privilege. This is nonsensical.

I would affirm the Court of Special Appeals, but for all of the reasons stated in this dissent, especially on the basis that Article 40 of the Declaration of Rights forbids the judicial creation of new common law absolute immunity from responsibility for abuses of speech, ie., absolute immunity in defamation cases. I would either overrule the holdings of this Court in Imperial, Odyniec, and Miner , or, hold that they are no longer authoritative rulings, or, in the alternative, I would modify the holdings in those cases so that they would reflect the existence of qualified privilege/immunity rather than absolute privilege/immunity.

To continue on the path this Court has taken in recent years is, in my view, a totally unwarranted extension of the principles of immunity, and, more important, is an affront to the constitutional provision found in Article 40 of the Maryland Declaration of Rights.

. While most of the cases refer to the concept as an absolute or a qualified privilege, it is really a type of immunity from suit, as distinguished from actual privileges. For example, Maryland Code (1973, 1998 Repl.Vol., 2001 Supp.) Subtitle 1. Competence, Compellability, and. Privilege of Title 9, Witnesses, of the Courts and Judicial Proceedings Article provides for privileges for certain persons, against those persons being compelled to testify, or compelled to permit testimony, as to certain topics. That subtitle provides that spouses cannot be compelled to testify about confidential communications that occur during a marriage; that a spouse cannot be compelled to testify in a criminal case against the other spouse; that a person may not be compelled to testify in violation of the attorney-client privilege; that the disclosure of communications between patients and psychiatrists and psychologist cannot be compelled, and there are many other privileges contained in the subtitle and perhaps in other statutory provisions and the common law.

That type of privilege is a right that a person has to keep matters, normally communications, confidential. The absolute and qualified or conditional privileges at issue in the case sub judice is the granting of a right not to be sued for communications the relator has already disclosed, i.e., published. It is, in essence, a form of immunity rather than a privilege against disclosure.

. According to Greek Mythology, Pandora was:

“the first woman, created by Hephaestus, endowed by the gods with all the graces and treacherously presented to Epimetheus along with a box in which Prometheus had confined all the evils that could trouble mankind. As ihe gods had anticipated, Pandora opened the box, allowing the evils to escape, thereby frustrating the efforts of Prometheus. In some versions, the box contained blessings, all of which escaped but hope.”

The Random House Dictionary of the English Language 1042 (Jess Stein ed., unabridged ed., Random House 1983). The term "Opening Pandora's Box” has come to be known as releasing "a source of extensive but unforeseen troubles or problems.” Id.

. The Legislature has afforded only qualified immunity in cases involving reports of child abuse or neglect under the provisions of Md.Code (1984, 1999 Repl.Vol., 2002 Cum.Supp.) § 5-708 of the Family Law Article and Md.Code (1973, 1998 Repl.Vol., 2001 Cum.Supp.) § 5-620 of the Courts and Judicial Proceedings Article. The provisions of § 5-620 stating "Any person who in good faith ... ”, i.e., creates a qualified immunity. The majority in the present case, in extending its absolute immunity holdings in administr ative agency cases, extends the concept beyond the immunities created by the Legislature in very similar circumstances. Now, if sexual abuse of a child is reported directly to a police officer or child welfare agency, the reporter has a qualified immunity, but, if it is reported first to a school official, and then *380 indirectly to a police officer by that school official, the reporter has an absolute immunity. For many reasons, the distinction simply does not; in my view, make sense.

. Maurice does not identify the jurisdiction where Dawkins was decided. It would appear to be an English case. Others of the cases cited in Maurice are clearly English cases, although not always identified as such.

. It may well be that had the case been fully tried, the parents would have been found to have acted in good faith and would have been entitled to a qualified privilege.

. Because of the posture of the case as it reaches us, we are required to assume that the appellees did not act in good faith.

. In Barr v. Matteo, 360 U.S. 564 , 79 S.Ct. 1335 , 3 L.Ed.2d 1434 , reh'g denied, 361 U.S. 855 , 80 S.Ct. 41 , 4 L.Ed.2d 93 (1959), the Supreme Court extended an absolute privilege to the acting director of the Office of Rent Stabilization.

. The opinions in Odyniec, Imperial, Gersh, and Miner, supra, including the dissenting opinion in Imperial, make no mention of the constitutional provision. It appears from the opinions that the constitutional provision I discuss, infra, has not been described in the cases since it was applied in Coffin, supra, a hundred years ago.

. Richard W. Riley, U.S. Secretary of Educalion, A Back to School Special Report on the Baby Bootn Echo: America’s Schools Are Overcrowded and Wearing Out (1998).

. As I have indicated, I would also argue that the majority misconstrues, or at .least fails to balance, valid, contrary public policy concerns, (as well as the constitutional provision). The public journals and media are replete with references to the shortages of teachers and the quality of the instruction that results, at least partially, from that shortage. With its entire focus on the public concern that students should have the right to express themselves, without being responsible for abuses of that expression, the majority opens the floodgates of false accusations on members of the teaching profession. A qualified or conditional privilege might balance the competing public policy concerns. The creation of an absolute privilege cannot.

. The Noerr-Pennington doctrine, while it was applicable, provided that the right to petition protects the freedom to seek redress from all three coordinate branches of government. In its early formulation, it was held to apply both in federal and state court actions. It was derived from three cases. Eastern R.R. Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127 , 81 S.Ct. 523 , 5 L.Ed.2d 464 (1961); United Mine Workers of America v. Pennington, 381 U.S. 657 , 85 S.Ct. 1585 , 14 L.Ed.2d 626 (1965); and California Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508 , 92 S.Ct. 609 , 30 L.Ed.2d 642 (1972). None of the cases was a defamation case. They were anti-trust-Sherman Act cases, although in Pennington the Supreme Court held that efforts to influence legislative or executive public officials were privileged.