ards. As a result, the plaintiff asks this Court to reject the congressional defendants' renewed claim that they are entitled to summary judgment. The Court will herein decide this narrow, but important question.


Harlow v. Fitzgerald In Harlow, the petitioners, Bryce Harlow and Alexander Butterfield, were charged with participating in a conspiracy to violate the constitutional and statutory rights of the respondent, A. Ernest Fitzgerald. The petitioners were aides to former President Richard M. Nixon and were alleged to have arranged for the retaliatory firing of Fitzgerald, a "whistleblower". Fitzgerald was intent on exposing shoddy purchasing practices in the Department of Defense which resulted in cost overruns and which were politically embarrassing to the Nixon administration. The petitioners moved for summary judgment and contended they were entitled to absolute and qualified official immunity as aides to the President.

In reviewing the petitioners' claim of absolute official immunity, the Supreme Court reaffirmed the established principle that government officials are entitled to absolute immunity when their special functions or constitutional status requires complete protection from suit. To hold otherwise would be to risk undue interference with their important public duties. The doctrine was not available, however, to aides to the President, either directly or in derivative fashion. Relying on Butz v. Economou, supra, where the Court earlier held that as a general rule absolute immunity does not protect Cabinet officers, the Harlow Court said it would be "untenable to hold absolute immunity an incident of the office of every Presidential subordinate based in the White House. Harlow v. Fitzgerald, 102 S.Ct. at 2734. Nevertheless, absolute immunity may still be claimed by legislators in their legislative functions, judges in their judicial functions, prosecutors in their prosecutorial functions, executive officers in their adjudicative functions, and by the President of the United States. Harlow v. Fitzgerald, 102 S.Ct. at 2733. See also: Eastland v. United States Servicemen's Fund, 421 U.S. 491, 95 S.Ct. 1813, 44 L.Ed.2d 324 (1975); Stump v. Sparkman, 435 U.S. 349, 98 S.Ct. 1099, 55 L.Ed. 2d 331 (1978); Butz v. Economou, supra, Nixon v. Fitzgerald, supra.

Correspondingly, under Harlow, the defense of qualified immunity remains available to public officials, absent special circumstances. To raise this defense, an official must show (1) his actions were taken “reasonably and in good faith”, and (2) that his conduct was authorized. 1

· The authorization requirement, reviewed by this Court in 1980, was not modified in Harlow. See 102 S.Ct. 2739 n.34.

As the Supreme Court explained in Doe v. McMillian, (412 U.S. 306, 93 S.Ct. 2018, 36 L.Ed.2d 912 (1975): "The scope of immunity has always been tied to the 'scope of authority' ”. 412 U.S. at 320, 93 S.Ct. at 2028 (quoting from Wheeldin v. Wheeler, 373 U.S. 647, 651, 83 S.Ct. at 1441, 1444, 10 L.Ed.2d 605 (1963)). To be entitled to official immunity, therefore, the federal officials immunity, therefore, the federal officials must show that their conduct was authorized. The mere fact that certain conduct is authorized, however, is insufficient, in itself, to immunize the conduct of federal officials. See Doe v.


Prior to Harlow, the component parts of the "good faith" standard were identified as being comprised of both objective and subjective elements. The objective element concerned presumptive knowledge of and respect for 'basic, unquestioned constitutional rights', and the subjective element referred to “permissible rights', and the subjective element referred to 'permissible intentions'. Id. at 2737; See Wood v. Strickland, 420 U.S. 308, 320, 95 S.Ct. 992, 999, 43 L.Ed.2d 214 (1975).

But because the extent of an official's subjective good faith was a question of fact, which left to a jury typically resulted in the same discovery costs and disruptions of government the immunity doctrine was designed to prevent, in Harlow the Supreme Court modified the "good faith" rule by eliminating the subjective component. The objective element was redefined. Harlow v. Fitzgerald, 102 S.Ct. at 2737.

Today, "government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 102 S.Ct. at 2738. Therefore, the good faith standard is purely objective. It is left to the Court, not the jury, to determine whether the plaintiff's constitutional or statutory rights were clearly established at the time the action complained of occurred. If they are held to have been clearly established, an official can succeed only in extraordinary circumstances by proving he neither knew nor should have known of that established standard. Id. at 2739.

Also relevant to the question presently before the Court is the fact than an official who meets the objectivity test still must show that his conduct was authorized. See note 1, supra. Cf. Nixon v. Fitzgerald, supra. Therefore, officials who act beyond their scope of authority lack standing to assert a qualified immunity defense even in those instances where their behavior does not violate clearly established constitutional or statutory rights of which a reasonable person would have known. Cf. Doe v. McMillan, supra.



GOOD FAITH The congressional defendants now contend the Harlow readjustments to the law of official immunity permit this Court to decide the summary judgment motion sub judice without the assistance of a jury. These defendants further argue the record establishes they operated entirely within their official function, i.e., scope of authority, at the time of their allegedly wrongful conduct, and that they easily satisfy the "objective good faith” standard announced in Harlow for each of the five counts still at issue. The plaintiff, not surprisingly, disagrees.

McMillian, 412 U.S. at 322, 93 S.Ct. at 2029. In addition to showing proper authoriza

tion the federal officials must show that they acted reasonably and in good faith. Benford v. American Broadcasting Companies, Inc., 502 F.Supp. 1148, 1157-1158 (D. Md. 1980).

As a result of the Harlow decision, it is clear this Court may now decide whether the congressional defendants are entitled to qualified immunity in this case. The threshhold question is whether the plaintiff alleged violations of “clearly established statutory or constitutional rights of which a reasonable person would have known”.2 See Harlow v. Fitzgerald, 102 S.Ct. at 2739. If the law the congressional defendants are charged with violating was clearly established, their qualified immunity argument must be rejected without further consideration. However, if the law at the time of their actions was not clearly established, and they therefore acted reasonable and in good faith within this context, the congressional defendants still must demonstrate they operated with the scope of their authority.

This Court will first separately consider whether each of the remaining cause of action allege violations of laws which were clearly established and which a reasonable person would have been aware at the time the earlier described events transpired. A. The State of Maryland Wiretapping and Electronic Surveillance

Act The plaintiff has charged the congressional defendants with conspiring with ABC to surreptitiously tape and broadcast the November 3, 1978, sales promotion meeting on the ABC Nightly News. In Count I of the complaint, these actions are alleged to have violated the plaintiff's statutorily protected rights as codified in the Maryland Wiretapping and Electronic Surveillance Act, Md. Cts. & Jud. Proc. Ann. § 10-401, et seq.

Generally, this Act prohibits any person from wilfully intercepting, using or disclosing to another the contents of any wire or oral communication which has been obtained through an unlawful interception. It is apparent that the Maryland General Assembly adopted substantially all of the language in Title III of the Omnibus Crime Control and Safe Streets Act, 18 U.S.C. $ 2510-2520 (1970), with minor modifications, in enacting this legislation. See Gilbert, A Diagnosis, Dissection, and Prognosis of Maryland's News Wiretapping and Electronic Surveillance Law, 8 U. Balt. L. Rev. 1983, 191 (1979).

The specific sections of the Maryland Act relevant to the congressional defendants' 1978 investigation and their qualified immunity defense read as follows: $ 10-401. Definitions.

As used in this subtitle, the following terms have the meanings indicated:

(2) "Oral communication" means any conversation or
words spoken to or by any person in private conversation.

2 The Court is aware of the many other arguments the congressional defendants have offered in support of their Motion to Dismiss, or in the alternative, for Summary Judgment. They are still under consideration. This opinion is intended to address the qualified immunity question only.

8 10-402. Inception of communications generally.

(a) Unlawful acts. Except as otherwise specifically provided in this subtitle it is unlawful for any person to:

(1) Wilfully intercept, endeavor in intercept, any wire or
oral communication;
(2) Wilfully disclose, or endeavor to disclose, to any other
person the contents of any wire or oral communication
knowing or having reason to know that the information
was obtained through the interception of a wire or oral
communication in violation of this subtitle; or
(3) Wilfully use, or endeavor to use, the contents of any
wire or oral communication, knowing or having reason to
know that the information was obtained through the inter-
ception of a wire or oral communication in violation of this

subtitle. Maryland Wiretapping and Electronic Surveillance Act, Md. Cts. & Jud. Proc. Code Ann. (1977).

The congressional defendants herein submit that the Maryland Act was so vague at the time the alleged violation took place, they could not fairly be said to have known the law forbade their conduct. Specifically, these defendants direct this Court's attention to the term “private conversation” as it appears in definitional Section 10-401(2), and suggest there was significant doubt surrounding its' meaning in 1978. The inference they would leave the Court is that not knowing what a "private conversation" was under the Act, they could not possibly have known whether or not they were intercepting an “oral communication" under Section 10-402. Thus, they contend they are not subject to suit as they acted in "good faith" under Harlow.3 The ABC defendants suggest that the Maryland Court of Appeals should interpret this section.

Having considered this issue, this Court is of the firm opinion the congressional defendants argument that the term "private conversation” is inherently vague, and that the Maryland Act therefore was not clearly established" within the context of Harlow, is without merit, and there is no reason to certify the question to the Maryland Court of Appeals. One of the clear purposes of the Mary. land Act is to prevent, in non-criminal situations, the unauthorized interception of conversations where one of the parties has a reasonable expectation of privac Md. Cts. & Jud. Proc. Code Ann. § 10402(c)(3). Admittedly, the Maryland Act did not define the phrase "private conversation" as it appears in Section 10-402(2). However, it is doubtful that it could have, inasmuch as the rule of reason controls questions concerning expectation of privacy, which, by their nature, are imprecise. See Warren & Brandeis, The Right to Privacy, 4 Harv. L. Rev. 193 (1890); Katz v. United States, 389 U.S. 352 (1967). Such questions can only be decided on a case by case basis, a fact which does not in itself make the controlling statute vague or unclear. See Benford v. American Broadcasting Companies, 502 F. Supp. 1159, 1162 (1980). Moreover, the key phrase here is not "private conversation", the defining phrase. Rather, it is "oral communication", the term being defined.

3 The congressional defendants also argue they acted within the scope of their authority, which is the second prong of the qualified immunity test. See note 1, supra.

Controlling here is the fact that Title III of the Omnibus Crime Control and Safe Streets Act, 18 U.S.C. § 2510(2), which served as a model for the Maryland Act, defines "oral communication" as "any communication uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation." The law of Maryland provides that the Maryland Wiretapping and Electronic Surveillance Act be read so as to safeguard the public to at least that degree.

"(W)hile Title III requires an appropriate state act before
it can be effectuated, under no circumstances is the law
enforceable if it is less restrictive than the federal statute
so that it grants the governing power more rights at the

expense of its citizens. State of Maryland v. Siegel, 266 Md. 256, 271, 292 A.2d 86, 94 (1972). As is more fully explained in Section II-C, infra, the plaintiff met the Title III oral communication" test on November 3, 1978. Inasmuch as the congressional defendants failed to comply with this Title III standard, and the law is clear that the Maryland Act is more restrictive, the congressional defendants cannot be said to have satisfied the objective good faith test as outlined in Harlow.4 The Maryland Act was quite clear and understandable. The congressonal defendants' request for qualified immunity as to plaintiff's first count must be denied. B. Common Law Tort Actions

Count II of the plaintiff's complaint alleges the congressional defendants violated the common law of Maryland by tortiously conspiring, knowingly and maliciously, with ABC to surreptitiously tape and broadcast his November 3, 1978, sales promotion meeting, thereby causing him great injury. Count V avers the congressional defendants' above-described activities interfered with plaintiff's right to pursue a lawful insurance business, and that this was a tortious interference with his business relations. Plaintiff's Count VI seeks damages for tortious invasion of privacy.

The congressional defendants submit Harlow is inapplicable to common law claims, and that a showing they acted within the scope of their authority will altogether immunize them from the legal consequences arising out of their commission, if any, of these common law torts.5 The plaintiff disagrees, and contends Harlow is

* In reviewing the congressional defendants' conduct, it also seems appropriate to take note of the Supreme Court's admonition:

By defining the limits of qualified immunity essentially in objective terms, we provide no license to lawless conduct . . . Where an official could be expected to know that certain conduct would violate statutory or constitutional rights, he should be made to hesitate; and a person who suffers injury caused by such conduct may have a cause of action. Cf. Procunier v. Navarette, 434 U.S. 555, 565, 98 S. Ct. 855, 861 55 L. Ed 23 24 (1978) (footnote omitted) ("Becuase they could not reasonably have been expected to be aware of a constitutional right that had not yet been declared, petitioners did not act with such disregard for established law that their conduct 'cannot reasonably be char

acterized as being in good faith.'". Harlow v. Fitzgerald, 102 S. Ct. at 2739. 5 The congressional defendants phrased their argument as follows:


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