In Batson v. Shiflett, 325 Md. 684, 722-23, 602 A.2d 1191 (1992), the Court of Appeals held there that statements made in a series of leaflets published by a faction of a labor union that ousted its president were not protected as mere opinion. Id. at 726. The pamphlets included language that appellant's behavior was motivated "to steer the reader's attention away from their crimes of conspiracy, perjury, falsification of records, illegal contract ratification and violation of both the National Union's Constitution and By-Laws for your Union." Batson, 325 Md. at 694. The Court concluded that such remarks were not protected as "mere opinion," because they were capable of being proved or disproved. Batson, 325 Md. at 724-25. In Batson v. Shiflett, the plaintiff was a local union president who sued his national union and the national union's president for defamation and intentional infliction of emotional distress. Batson, 325 Md. at 696. The parties became engaged in a labor dispute over claims that the plaintiff entered into an unauthorized collective bargaining agreement. Id. at 693. During the dispute, the plaintiff and the defendant both distributed literature attacking the other. Id. at 694. One of the pieces of literature alleged that the plaintiff was involved in the misappropriation of union funds. Id. at 695. The defendant also verbally repeated this allegation at several union meetings. Id. The plaintiff sued and a jury rendered a verdict in his favor, awarding him compensatory and punitive damages. Id. at 698. The defendants appealed and this Court affirmed the judgment of the trial court. Id. The Court of Appeals granted certiorari and considered, among other issues, whether there was clear and convincing evidence to establish that the statements were made with actual constitutional malice. Id. at 692. The Court of Appeals noted that the actual malice test is a subjective test predicated on the defendant's intent. Id. at 728-30. The Court continued, explaining that absent the rare situation when actual constitutional malice can be established as a result of words from the defendant, a jury must rely entirely on circumstantial evidence. Id. at 730. Actual malice may be inferred from objective facts . . . . These facts should provide evidence of negligence, motive, and intent such that an accumulation of the evidence and appropriate inferences supports the existence of actual malice. Id. The Court continued, noting that the plaintiff had the burden of proving actual constitutional malice by clear and convincing evidence. Id. at 731. The jury was presented with evidence regarding the defendant's motive and his intent to remove the plaintiff from office. Id. There was evidence of prior disagreements between the parties, of allegations of fund misuse, and of statements made to other union members that the plaintiff was guilty of theft, although the defendant was aware that there were no charges. Id. The Court concluded that based on the circumstantial evidence, the jury could have inferred that the statements were made with knowledge they were false or with reckless disregard for the truth. Id. The Court of Appeals said that whether "an administrative agency's declaration should be given preclusive effect hinges on three factors: (1) whether the agency was acting in a judicial capacity; (2) whether the issue presented to the district court was actually litigated before the agency; (3) whether its resolution was necessary to the agency's decision." 325 Md. at 701. In Batson, the Court of Appeals explained: "it must appear that the precise issue was raised and resolved in the former proceeding." Id. at 706.