Parks v. Johnson , 84 Mich. App. 162 ( 1978 )

D. C. Riley, J.

Defendant appeals, by leave granted, denial of her motion for summary judgment. Plaintiff, a counselor in the Detroit Public School System, filed a libel suit alleging that she was defamed in a memorandum written by defendant, the principal of her school. Defendant, as part of her duties under a collective bargaining agreement, prepared recommendations for disciplinary action against staff members where circumstances demanded such action. The claimed libelous memorandum, written in the performance of defendant’s duty, ultimately was partially responsible for plaintiff’s transfer to another school.

Defendant moved for summary judgment on two grounds. First, she contended that the communication, which was written and processed in the course of her official duties, was absolutely privileged from liability for defamation. GCR 1963, 117.2(1). Second, assuming that only a qualified privilege was applicable, plaintiff had not alleged sufficient facts to raise the issue of malice, which would be required to overcome the privilege. GCR 1963, 117.2(3).

The trial court denied the motion, holding that the communication had only a qualified privilege and that plaintiff’s response to the claim of no material fact in issue had sufficiently put malice in issue. We will consider both of those decisions.

If absolute privilege applies, there can be no action for libel even if the information was false and maliciously and knowingly published. Tocco v Piersante, 69 Mich App 616; 245 NW2d 356 (1976). Because of this complete bar to defamation liability, the scope of absolute liability in Michigan law has traditionally been narrowly construed:

"It is the policy of the courts to keep the doctrine of absolute privilege within these narrow limits.

" 'Generally speaking, absolute privilege is confined to cases in which the public service or the administration of justice requires complete immunity from being called to account for language used. It applies more directly to matters of public concern, such as language used in legislative, judicial and executive proceedings; and it is not intended so much for the protection of those engaged in the service, as it is for the promotion of the public welfare.’ 36 C. J. pp. 1240, 1241.

"Our court recognizes the rule of absolute privilege, but it has repeatedly refused to extend its application beyond the necessities of the judicial, legislative, and military occasions. Mundy v Hoard, 216 Mich. 478 [185 NW 872 (1921)]; Bolton v Walker, 197 Mich. 699 [164 NW 420 (1917)] (Ann. Cas. 1918E, 1007); Trebilcock v Anderson, 117 Mich. 39 [75 NW 129 (1898)]; Wachsmuth v National Bank, 96 Mich. 426 [56 NW 9 (1893)] (21 L. R. A. 278).” Raymond v Croll, 233 Mich 268, 272-273; 206 NW 556 (1925).

See also Timmis v Bennett, 352 Mich 355; 89 NW2d 748 (1958).

Defendant’s action, while committed in the course of an official duty, does not fall within these classic limits of absolute privilege. In Tocco v Piersante, supra, this Court discussed at length the privilege to be afforded to a public employee acting in the course of his or her employment. In Tocco, the defendant, who headed the Organized Crime Division of the Michigan Attorney General’s office, was alleged to have libeled plaintiff by his participation in the production and showing of a documentary film on crime in Michigan. The defendant argued that his actions were protected by absolute privilege.

The Tocco Court began by reviewing the historical view of the scope of absolute privilege in Michigan. 69 Mich App at 628-629. The Court then discussed a line of Federal cases, in particular Spalding v Vilas, 161 US 483; 16 S Ct 631; 40 L Ed 780 (1896), and Barr v Matteo, 360 US 564; 79 S Ct 1335; 3 L Ed 2d 1434 (1959), in which absolute privilege had been extended to all Federal employees for publications within their particular lines of duty. The Court also noted similar rules in other states. See Matson v Margiotti, 371 Pa 188; 88 A2d 892 (1952).

Returning to Michigan law, the Court held that the Federal rule extending absolute privilege had not been adopted in this state:

"The question is whether a similar rule obtains in this jurisdiction. We hold that it does not and that defendant under the circumstances of this case, is entitled to a qualified, not an absolute, privilege.” 69 Mich App at 632.

The Court pointed out that previous cases had not applied absolute privilege to executive officials or employees acting in the scope of their employment.¹ Citing Raymond v Croll, supra, the Tocco Court stated that an executive official has no absolute privilege unless engaged in activities of or relating to an administrative or legislative body, but does have a qualified privilege if acting under an official duty. 69 Mich App at 634-635.

In the case at bar defendant was not acting in any judicial or legislative capacity when she wrote the allegedly libelous memorandum. Her duty related solely to employment and supervision procedures within the school system. Since she was acting in her official capacity, she does have a qualified privilege, as do all public servants acting within the scope of their employment:

"A qualified privilege affords sufficient protection in most instances for the public servant while at the same time it does not discourage uninhibited robust and wide-open debate on important public issues.” Stewart v Troutt, 73 Mich App 378, 390; 251 NW2d 594 (1977) (D. E. Holbrook, J., concurring).

We do not believe that the opinion in Brunn v Weiss, 32 Mich App 428; 188 NW2d 904 (1971), calls for a different result. In Brunn, several teachers claimed that they were libeled in a newsletter published by the defendant school board members. One of the defendants’ contentions was that the newsletter was absolutely privileged. The Court stated that although under certain conditions (without specifying those conditions) a school board member would have an absolute privilege, there was only a qualified privilege for publication of the newsletter.

Brunn, supra, is distinguishable from the case at bar in that a school board member, who performs a type of governmental or legislative function, is different than a school principal, who has no such function. No cases have been cited to this Court in which the official functions of a person similarly situated to defendant have been protected by an absolute privilege.

Having decided that a qualified privilege applies, the issue becomes whether the trial court erred in ruling that a material issue of fact existed on whether defendant maliciously published the memorandum. When a motion for summary judgment alleging no material issue of fact, with supporting affidavits or other documentation, is brought under GCR 1963, 117.2(3), the opposing party is required to respond with some evidentiary material rebutting the motion. Trombetta v Detroit, T & I R Co, 81 Mich App 489; 265 NW2d 385 (1978). Plaintiff here eventually responded to the motion with affidavits and letters, but defendant alleges that these documents were not relevant to the issue of malice.

The appropriate standards for use in ruling on a motion for summary judgment under GCR 1963, 117.2(3) are stated in Rizzo v Kretschmer, 389 Mich 363, 372; 207 NW2d 316 (1973):

"The courts are liberal in finding that a 'genuine issue’ does indeed exist. As Honigman & Hawkins correctly comments, (1) the court will 'give the benefit of any reasonable doubt to the opposing party’ and (2) 'the court must be satisfied that it is impossible for the claim or defense to be supported at trial because of some deficiency which cannot be overcome. ’ ” (Emphasis in 389 Mich.)

It is true, as defendant asserts, that the material filed in opposition to the motion reflected basically on plaintiffs character, and not on defendant’s mental state at the time she published the memorandum to her supervisors. However, these documents do tend to refute, or at least cast doubt upon, the accuracy of the allegations contained in the original memorandum. Under the liberal standard as expressed in Rizzo, supra, we do not find that the trial court erred in ruling that the evidence presented a factual issue as to .whether defendant maliciously communicated false information.² See Iacco v Bohannon, 70 Mich App 463; 245 NW2d 791 (1976).

Affirmed. Costs to appellee.

Bashara, J., concurred.

1 In Schlinkert v Henderson, 331 Mich 284; 49 NW2d 180 (1951), a statutory privilege applied which is not present in the case at bar. The Court in Powers v Vaughan, 312 Mich 297; 20 NW2d 196 (1945), held that if an absolute privilege applied, it was only because the official was involved in a quasi-judicial or quasi-legislative activity.

2 Plaintiff had pled malice in her original complaint.