Summary
discussing absolute and qualified privileges
Summary of this case from Thrifty Propane, Inc. v. Nat'l Propane Gas Ass'nOpinion
No. 79-532
Decided April 30, 1980.
Slander — Alleged defamatory statements by city councilman — Qualified privilege established, when — Failure to prove actual malice.
APPEAL from the Court of Appeals for Cuyahoga County.
In 1970, plaintiff-appellant, Joseph R. Costanzo, a builder and land developer, conceived of a real estate development plan involving apartments for a certain area in Cleveland, known as Triskett-Grapeland. The plaintiff discussed the plan with the Cleveland Planning Commissioner, and he was informed that such an apartment development would be suitable if he were successful in obtaining rezoning for the property in question.
The plaintiff apparently was also informed that prior to any commission and Cleveland City Council action it would be necessary for him to obtain the cooperation of the city councilman from that area who, in this instance, was the defendant-appellee, Francis E. Gaul.
The plaintiff did meet with Gaul on two occasions, and the latter was shown several proposals and sketches for possible apartment and townhouse development on the property. The plaintiff testified that Gaul has informed him that the rezoning could be accomplished and that the project could proceed. Relying upon such advice, the plaintiff proceeded to obtain options upon the real estate in question.
Thereafter, apparently due to Gaul's lack of interest in the development of multiple units in his ward, the discussions broke down between Costanzo and Gaul. Costanzo sought out Gaul at City Hall, hoping to obtain the defendant's acceptance of the rezoning for the apartments upon the planning commission's application form. Gaul refused such acceptance.
The plaintiff attempted to file applications for rezoning of the parcels without Gaul's acceptance with the Cleveland Planning Commission, but the agency refused to allow him to file such applications. Thereafter, the plaintiff filed an action in mandamus against the Cleveland Planning Commission, its members, and Cleveland City Council, seeking an order requiring the planning commission to allow such filing of the applications to rezone.
During the pendency of the mandamus action, the plaintiff apparently approached the Cleveland Planning Commission with yet another development plan for the real estate in question; this plan involved the development of a nursing home which would not require rezoning of the property. The record indicates that Councilman Gaul learned of the plaintiff's approach to the planning commission.
Sometime after the filing of the mandamus action, Councilman Gaul was interviewed by a reporter from the West Side Sun, a newspaper serving the area in which Gaul's ward was located and other areas in the western portion of Cuyahoga County. In the interview, which was published in that paper on April 22, 1971, Councilman Gaul stated that appellant was a questionably ethical builder trying to pull a "get-rich-quick scheme" on the residents of his ward.
The specific alleged defamatory statements as published in the West Side Sun were as follows:
"Gaul says, `Costanzo initiated several contacts to persuade me to support what I consider to be a poor development for this ward.
"`Under no circumstances would I help a questionably ethical builder to pull a get-rich-quick scheme on residents of Ward 4. He's picked the wrong ward and the wrong councilman.'
"Gaul says that any zoning changes he would sponsor must meet three prerequisites: (1) neighborhood benefit; (2) long range benefit for the community; and (3) additional value for the tax duplicate.
"`I told Costanzo that his plans didn't meet these criteria. I said he would have to revamp the plans to luxury apartments or townhouses and that he would have to wait until I was well enough established in the ward to gather support for any zoning change,' said Gaul."
Thereafter, Costanzo brought this action for slander against Gaul in the Court of Common Pleas of Cuyahoga County. At trial, the court directed a verdict for defendant at the close of the plaintiff's case, seemingly upon the basis that plaintiff had neither alleged nor proved any special damages resulting from the published statements of defendant. The Court of Appeals affirmed upon the basis that the plaintiff's evidence showed that defendant, as a city councilman, had a qualified privilege in making the statements that he did, and that there was no showing that defendant had actual malice in publishing such statements.
The cause is now before this court upon allowance of a motion to certify the record.
Messrs. Kalk Valore and Mr. Zeev Friedman, for appellant.
Mr. Daniel P. McDonnell, for appellee.
Appellant sets forth the following single proposition of law:
"A statement made by a city councilman when he was interviewed by a newspaper reporter is not qualifiedly privileged where the statement is not made in good faith, is not limited in its scope to a topic upon which said councilman has a right, duty or interest to speak, is not made upon a proper occasion, and is published in an improper manner and to improper parties."
In resolving the questions presented, we must briefly review the applicable law of slander and, more particularly, the applicable principles of the law of privilege relative to slanderous publications.
Privilege in the law of defamation recognizes certain communications as not being within the rules imposing liability for defamation. A privileged communication is one which, except for the occasion on which or the circumstances under which it is made, would be defamatory, and actionable. The defense of privilege is a matter of public policy in furtherance of the right of free speech. See 50 American Jurisprudence 2d 695, Libel and Slander, Section 192.
Privileged communications are divided into two general classes — those which are absolutely privileged, and those which are qualifiedly or conditionally privileged. The basic difference between the two as generally stated is that complete protection is afforded by absolute privilege, whereas a qualified or conditional privilege affords protection only in the absence of ill motive or malice in fact. Id. at page 696.
The application of an absolute privilege is to be found in only very limited areas of activity in our society. It has been generally limited to legislative and judicial proceedings, and other acts of state, such as communications made in the discharge of a duty of the Governor and heads of the executive departments of a state.
Absolute privilege is conferred upon members of the Congress of the United States with respect to matters published in the performance of their legislative functions, by Section 6 of Article I of the United States Constitution.
However, this so-called Speech or Debate Clause does not protect transmittal of information by individual members of Congress by press releases, newsletters, or mailed copies of the Congressional Record. Hutchinson v. Proxmire (1979), ___ U.S. ___, 61 L. Ed. 2d 411. In Proxmire, the Supreme Court held that Senator Proxmire's commentary on his "Golden Fleece of the Month Award," relating to Hutchinson's government research into jaw grinding in monkeys, in a press release and newsletters, was not absolutely privileged.
A similar privilege is conferred upon members of most state legislative bodies either by state constitution or by state statute. See, e.g., Section 12, Article IV, Ill. Constitution; Section 43, Ky. Constitution; Section 11, Article IV, Mich. Constitution. In Ohio, senators and representatives of the General Assembly are provided an absolute privilege for statements made in session, by Section 12, Article II, of the Ohio Constitution, which provides: "***for any speech, or debate, in either House, they shall not be questioned elsewhere."
Therefore, with respect to Congress and many state legislative bodies, the absolute privilege in uttering defamatory matters is applicable to any speech, debate, vote, report of action done in session without regard to the motive or reasonableness of the conduct. McGovern v. Martz (U.S.D.C. 1960), 182 F. Supp. 343.
Whether an absolute privilege is extended to defamatory matter published in the course of legislative proceedings of city councils and other local governmental legislative bodies, such as county commissioners, is not a matter of uniformity throughout the country. See Annotation 40 A.L.R. 2d 941.
In some cases the absolute privilege has been held not to be available to members of local governmental legislative bodies. See Mills v. Denny (1954), 245 Iowa 584, 63 N.W.2d 222; McClendon v. Cloverdale (Super.Ct. 1964), 57 Del. 568, 203 A.2d 815. These cases state that the absolute privilege is limited to the state legislature, the courts, and quasi-legislative bodies.
Other cases have extended the absolute privilege to members of governing bodies of political subdivisions, if the defamatory matter was published during the course of the official proceedings of the body, and if the matter as published was within the scope of that body's authority, and the statements or utterances are pertinent to the subject under consideration, discussion or debate of the legislative body. See, e.g., Wachsmuth v. Merchants' Nat. Bank (1893), 96 Mich. 426, 56 N.W. 9; Scott v. McDonnell Douglas Corp. (1974), 37 Cal.App.3d 277, 112 Cal.Rptr. 609; Jacobs v. Underwood (Ky. 1972), 484 S.W.2d 855.
An example of the latter position is set forth in the case of Tanner v. Gault (1925), 20 Ohio App. 243, concerning the defamatory statement of county commissioners relative to official acts of the county surveyor. The court held that the utterances were absolutely privileged on the ground that it was pertinent for the commissioners to state their reasons for enacting a particular regulation regarding materials for a county road.
We believe that the rule of absolute privilege may reasonably be applied to utterances made during the course of official proceedings by members of local governing bodies, at least where the statements relate to a matter under consideration, discussion or debate.
However, such a rule of absolute privilege will not be extended to an utterance of defamatory material not published during an official proceeding. We find that the Court of Appeals below correctly stated that an absolute privilege should not be extended to members of city council, where there is no pending legislation relating to the subject matter of the alleged defamation and where the publication is beyond the legislative forum.
We hold that an utterance or publication of a defamatory statement made by a member of a legislative body of a local governmental entity, which utterance is made other than in a legislative session or related meeting, should be afforded a qualified rather than an absolute privilege.
The principles applicable to qualified privilege were discussed in Hahn v. Kotten (1975), 43 Ohio St.2d 237, a case involving an action in slander brought by an insurance agent against the insurance company he formerly represented. The alleged defamation in Hahn was correspondence by the company to policyholders, stating that the plaintiff had been terminated as an agent of the company, and that the company questioned the capability of the plaintiff to perform as an insurance agent.
This court held that the company had a qualified privilege to publish such material in that it had a business right to protect, and that the plaintiff did not have a right to recover, since there was no showing by the plaintiff that the defendant acted with "actual malice."
The second paragraph of the syllabus in Hahn sets forth the standard adopted in this state as to when a qualified privilege is exceeded:
"A qualified privilege protecting the making of defamatory statements is exceeded when the statements are made with `actual malice,' that is, with knowledge that the statements are false or with reckless disregard of whether they were false or not."
Accordingly, this court in Hahn reversed the Court of Appeals and reinstated the judgment of the Court of Common Pleas which had directed a verdict for the defendant insurance company.
Applying the law of Hahn to the instant case, the plaintiff's evidence showed that the defendant was a councilman of the city of Cleveland who had published a statement concerning a matter which was reasonably within his councilmanic duties. This established a qualified privilege for the defendant. Further, the plaintiff's evidence failed to prove actual malice.
Therefore, based upon the law established by Hahn, the trial court did not err in directing a verdict at the conclusion of the plaintiff's case. The judgment of the Court of Appeals is hereby affirmed.
Judgment affirmed.
CELEBREZZE, C.J., HERBERT, P. BROWN, SWEENEY and LOCHER, JJ., concur.
W. BROWN, J., concurs in the judgment.
I concur in the majority opinion herein, in that the law as enunciated in the syllabus law of Hahn v. Kotten (1975), 43 Ohio St.2d 237, controls until such law is overruled or modified. However, I feel that additional principles of law should be established in order to determine the applicability of the qualified privilege in a given instance.
I am in agreement with the majority that the legal principle of qualified privilege may generally be applied to published statements of members of local governmental legislative bodies made other than in official proceedings, but concerning their official duties. However, I feel, as did the three dissenting members of this court in Hahn v. Kotten (1975), 43 Ohio St.2d 237, 245, that there need be more than a finding of the absence of "actual malice" to sustain the qualified privilege.
As pointed out in the majority decision of Hahn, but not specifically followed in the syllabus law of the case, the principle of the qualified privilege was "defined and applied in a well-considered Ohio appellate case, West v. People's Banking Trust Co. (Washington County, 1967), 14 Ohio App.2d 69." This court then approvingly set forth the following language of West where the Court of Appeals, in discussing the necessary requirements for establishing the defense of qualified privilege, stated, at page 72, as follows:
"`A publication is conditionally or qualifiedly privileged where circumstances exist, or are reasonably believed by the defendant to exist, which cast on him the duty of making a communication to a certain other person to whom he makes such communication in the performance of such duty, or where the person is so situated that it becomes right in the interests of society that he should tell third persons certain facts, which he in good faith proceeds to do. This general idea has been otherwise expressed as follows: A communication made in good faith on any subject matter in which the person communicating has an interest, or in reference to which he has a duty, is privileged if made to a person having a corresponding interest or duty, even though it contains matter which, without this privilege, would be actionable, and although the duty is not a legal one, but only a moral or social duty of imperfect obligation. The essential elements of a conditionally privileged communication may accordingly be enumerated as good faith, an interest to be upheld, a statement limited in its scope to this purpose, a proper occasion, and publication in a proper manner and to proper parties only. * * *'"
The elements of qualified privilege as noted in West, and seemingly adopted by this court in the decision in Hahn, are: (1) good faith of the one claiming the privilege; (2) an interest to be upheld; (3) a statement limited in its scope to the interest to be upheld; (4) the statement made on a proper occasion; (5) a publication of the statement in a proper manner; and (6) the publication made to proper parties only.
It seems to me, at least in reference to some of these elements, that the determination as to whether they were satisfied, or exceeded, by the defendant constitutes a jury question. Accordingly, it is stated, in 50 American Jurisprudence 2d, 805, Libel and Slander, Section 287, as follows:
"Unnecessary defamation is not countenanced, and one who goes beyond what a qualifiedly privileged occasion demands by being unnecessarily defamatory is not protected. It must appear that the publisher of the defamation was compelled to employ the words complained of, and if he could have done all that his duty or interests demanded without libeling or slandering the plaintiff, his imputations are not privileged.
"Whether or not a publication went beyond what the occasion required generally is a question of fact for the jury."
I agree with Justice Stern when he stated in his dissent in Hahn, supra, at page 251, that:
"* * * I would suggest that the proper rule, as stated by Prosser, * * * `is that the defendant is required to act as reasonable man under the circumstances, with due regard to the strength of his belief, the grounds that he has to support it, and the importance of conveying the information.
"`* * *
"`* * * Once the existence of the privilege is established, the burden is upon the plaintiff to prove that it has been abused by excessive publication, by use of the occasion for an improper purpose, or by lack of belief or grounds for belief in the truth of what is said. Unless only one conclusion can be drawn from the evidence, the determination of the question whether the privilege has been abused is for the jury. * * *'"
I believe that the law of Ohio should require the jury to determine whether, upon the evidence adduced, the defendant abused his qualified privilege by going beyond the scope of the legislative interest to be upheld, or whether there was an excessive publication, in that the particular newspaper was published considerably beyond the defendant's particular ward.