Lowell v. Medford School Dist. 549C ( 2021 )

599
Argued and submitted May 27, affirmed July 28, petition for review allowed
November 4, 2021 (368 Or 702)
See later issue Oregon Reports
Thomas LOWELL,
Plaintiff-Appellant,
v.
MEDFORD SCHOOL DISTRICT 549C,
Defendant-Respondent,
and
Stephanie MALONE et al.,
Defendants.
Jackson County Circuit Court
18CV19782; A173221
497 P3d 797
On appeal, plaintiff challenges the trial court’s grant of summary judgment
in favor of defendant, determining that defendant was entitled to absolute privi-
lege in this defamation action. Plaintiff argues that the court erred because the
absolute privilege defense applies only to statements of public officers who exer-
cise policy-making governmental authority, but not to mere employees engaged
in operational functions. Held: The defense of absolute privilege applies to all
employees of a public body when the defamatory statement was made in the per-
formance of the employee’s official duties.
Affirmed.
David G. Hoppe, Judge.
Linda K. Williams argued the cause and filed the briefs
for appellant.
Rebekah R. Jacobson argued the cause for respondent.
Also on the brief was Garrett Hermann Robertson PC.
Before Ortega, Presiding Judge, and Shorr, Judge, and
Landau, Senior Judge.
LANDAU, S. J.
Affirmed.
600 Lowell v. Medford School Dist. 549C
LANDAU, S. J.
At issue in this defamation case is whether the affir-
mative defense of absolute privilege applies to statements of
public employees. Plaintiff argues that the defense applies
only to statements of public “officers” who exercise “policy-
making governmental authority.” Defendant Medford School
District contends that the defense applies to statements of
any public employees made in the course and scope of their
employment. The trial court agreed with defendant, entered
summary judgment in favor of defendant on plaintiff’s def-
amation claim, and dismissed the remaining claims with
prejudice. We affirm.
The relevant facts are not in dispute. Plaintiff pro-
vided piano tuning services to Medford School District and
assisted in producing concerts performed in district facil-
ities. In the course of assisting in the sound and lighting
set-up for a concert at the North Medford High School,
plaintiff noticed an echo near the stage. He complained to
a school theater technician, Malone, but he felt that Malone
did not adequately respond. Meanwhile, Malone told her
supervisor, Bales, that she suspected that plaintiff had
been intoxicated, “smelled of alcohol,” and “this was not
the first time.” Bales repeated that to Armstrong, a dis-
trict support services assistant. Armstrong, in turn, sent
emails summarizing Malone’s suspicions to three other
district employees, including the supervisor of purchasing.
Armstrong expressed concerns that appearing on district
property under the influence of intoxicants violated district
policy and the terms of plaintiff’s contract. Medford School
District Policy KG-AR (Use of School Facilities) provides
that “[u]se of tobacco products or alcoholic beverages is not
permitted on school property.” Similarly, Policy KGB (Public
Conduct on District Property) provides that “[n]o person
on district property or grounds, including parking lots will
* * * possess, consume, give or deliver unlawful drugs and/
or alcoholic beverages.” Anyone who violates those policies
may be “ejected from the premises and/or referred to law
enforcement officials.”
Plaintiff initiated this action for defamation ini-
tially against Malone, Bales, and Armstrong, based on the
Cite as 313 Or App 599 (2021) 601
statements that he had been intoxicated on school district
premises. The trial court allowed the substitution of the
district for the individual defendants, based on allegations
that the individual defendants were acting in the course
and scope of their employment when they made the state-
ments at issue. The district answered, alleging a number of
affirmative defenses, including the absolute privilege that
applies to statements of public employees made in the course
and scope of their employment. The district alleged that,
because its employees were immune from liability by virtue
of the privilege, the district was immune as well. See ORS
30.265(5) (providing that public bodies are immune from lia-
bility for any claim arising from actions of officers, employ-
ees, or agents who are immune).
The district moved for summary judgment on that
affirmative defense, contending that there was no dispute
that the statements at issue were made by public employees
in the performance of their official duties. Plaintiff filed his
own motion for partial summary judgment on the same affir-
mative defense. He argued that the absolute privilege did
not apply to the statements made by the district’s employees
because the employees were merely “low level employees
performing ministerial tasks.” The trial court granted the
district’s motion. The court concluded that “[t]he alleged
defamatory statements were made by public officials in the
course of their official duties and they were entitled to abso-
lute privilege.”
On appeal, plaintiff argues that the trial court
erred in granting the district’s motion. More specifically,
plaintiff argues that the court erred in concluding that the
absolute privilege applies in this case. According to plaintiff,
the privilege applies only to statements made by a public
“officer” who “exercises judgment in making complex policy
decisions.” The privilege does not apply, plaintiff argues, to
mere employees of a public body. In this case, he contends,
the record shows that the individuals whose statements are
at issue were employees who exercised only “operational
functions.” There is no record, plaintiff complains, of “policy
choices” of the sort that would justify the application of the
absolute privilege.
602 Lowell v. Medford School Dist. 549C
The district responds that the relevant case law
makes clear that the absolute privilege applies to any
employee of a public body, provided that the statement at
issue was made in the performance of the employee’s official
duties. In this case, the district argues, there is no dispute
that the statements at issue were made by employees of a
public body and that it was their duty under district policies
to notify others to ensure the safe use of district facilities.
Summary judgment is appropriate when there are
no genuine issues of material fact, and the moving party is
entitled to judgment as a matter of law. ORCP 47 C; Jones v.
General Motors Corp., 325 Or 404, 413, 939 P2d 608 (1997).
The relevant facts here, as we have noted, are not in dispute.
The sole issue is whether the statements of the district’s
employees at issue are subject to absolute privilege.
The common law recognizes two forms of privilege
in a defamation action: an absolute privilege and a qualified
privilege. DeLong v. Yu Enterprises, Inc., 334 Or 166, 170,
47 P3d 8 (2002). An absolute privilege acts as a complete bar
to liability for defamation. Wallulis v. Dymowski, 323 Or 337,
347-48, 918 P2d 755 (1996). A qualified privilege does not
act as a complete bar to liability but requires that the plain-
tiff prove that the defendant abused the privilege as a condi-
tion of establishing liability. Bank of Oregon v. Independent
News, 298 Or 434, 437, 693 P2d 35, cert den, 474 US 826(1985).
In Shearer v. Lambert, 274 Or 449, 547 P2d 98(1976), the Oregon Supreme Court held that an absolute
privilege applies to executive officers of public entities, so
long as the statements at issue were made in the course of
their official duties. Significantly for our purposes, the court
concluded that the privilege is available to all executive offi-
cers, not just those of special rank. Id. at 454. The court
explained that, although some authorities limit the privi-
lege to the governor, the attorney general, and the heads
of state departments, others have extended the privilege
“to inferior state officers no matter how low their rank or
standing.” Id. The court said that it felt “compelled to adopt
the latter view because, starting with the premise that the
Cite as 313 Or App 599 (2021) 603
privilege is designed to free public officers from intimidation
in the discharge of their duties, we are unable to explain
why this policy would not apply equally to inferior as well as
to high-ranking officers.” Id.In Chamberlain v. City of Portland, 184 Or App 487,
56 P3d 497 (2002), we concluded that the absolute privilege
recognized in Shearer applied to allegedly defamatory state-
ments that a police sergeant made in a written report about
the conduct of a fellow police officer. The plaintiff had argued
that the absolute privilege did not apply to the sergeant’s
statements because a police sergeant was not a sufficiently
high-ranking official and because the sergeant’s statements
were made in the process of engaging in a merely “ministe-
rial function.” We rejected both contentions. We began by
noting that, as a sworn police sergeant, the defendant was
an executive officer. Id. at 491. We stated that an “officer”
is a person “with ‘authority to exercise some portion of the
sovereign power of the State, either in making or admin-
istrating, or executing the laws.’ ” Id. (quoting Kaminsky v.
Good, et al., 124 Or 618, 627, 265 P 786 (1928)). As to the
plaintiff’s argument that the officer held insufficient rank,
we observed that in Shearer the Supreme Court adopted the
view that the privilege applies to “inferior state officers no
matter how low their rank or standing.” Chamberlain, 184
Or App at 491 (quoting Shearer, 274 Or at 454). As to the
nature of the sergeant’s duties, we concluded that the priv-
ilege applies “regardless of whether the alleged defamation
occurred in the performance of a discretionary or ministe-
rial function.” Id. at 492.
Similarly, in Johnson v. Brown, 193 Or App 375,
91 P3d 741 (2004), the defendant was “a Deschutes County
employee working in the adult criminal corrections pro-
gram” who had reported that her supervisor had engaged
in work-related misconduct. The supervisor was fired and
brought an action for defamation against the employee
and the county. The defendants argued that the absolute
privilege for public officials applied. The plaintiff contested
whether the privilege applies to a “public employee” who
makes defamatory statements in connection with a miscon-
duct investigation. Id. at 380-81.
604 Lowell v. Medford School Dist. 549C
We noted that the defendant employee’s responsi-
bilities were “largely ministerial,” involving the adminis-
tration of community service and related bench probation
programs for criminal offenders. We nevertheless concluded
that the employee was an “executive officer” for the purposes
of the absolute privilege. Citing Chamberlain, we explained
that the privilege broadly applies to persons who “exercise
some portion of the sovereign power of the state, either in
making, or administering, or executing the laws.” Id. at 385.
And in Christianson v. State of Oregon, 239 Or App
451, 244 P3d 904 (2010), rev den, 350 Or 297 (2011), we held
that the absolute privilege applied to allegedly defamatory
statements that a Department of Human Services (DHS)
supervisor made about an employee. We began by observing
that, in Shearer, “the Supreme Court held that an employee
of an executive agency has an absolute privilege to make
defamatory statements in the exercise of official duties, even
if * * * the person who made the statements is a lower-level
employee.” Id. at 459. We then noted that the record showed
that it was “beyond dispute that [the supervisor] was an
employee of DHS, an executive agency, and that she ren-
dered her reference in the exercise of official duties.” Id. at
460. That, we held, was sufficient to establish that the abso-
lute privilege applied. Id.
It may be argued that there is some tension between
Johnson and Chamberlain, on the one hand, and Christianson
on the other. In concluding that the absolute privilege applied,
Chamberlain first determined that the defendant police ser-
geant was a public “officer.” Johnson likewise concluded that
the privilege applied to the statements of a county employee
because her “largely ministerial” duties in administering a
corrections program made her a public “official” or “officer.”
In both cases, we explicitly addressed whether the duties of
the employee were such that they were properly considered
public “officers.” In Christianson, though, the court skipped
that analysis and simply declared that the privilege applies
to any public employees in the performance of their duties.
Whatever tension exists between those decisions,
the fact remains that Christianson is plainly controlling.
Under Christianson, the statements at issue here were made
Cite as 313 Or App 599 (2021) 605
by defendant’s employees, and so long as the statements
were made in the performance of their duties, the absolute
privilege applies.
Plaintiff contends that Christianson’s “loosely worded
description” of the law goes beyond Shearer and should be
disregarded. We need not address that contention, because
even if plaintiff were correct that Christianson went too far
in declaring that the absolute privilege applies to all public
employees, in view of Chamberlain and Johnson, we would
still conclude that the privilege applies here. Both decisions
applied a broad definition of “officer” that includes any per-
son who administers or executes the laws, regardless of how
ministerial and nondiscretionary their job duties. Johnson’s
application of that test was especially expansive. The court
in that case concluded that a county employee with “largely
ministerial” duties involving the administration of a county
correction program who had reported possible supervisory
misconduct was a public “officer” for the purposes of the
absolute privilege against defamation. 193 Or App at 385.
In this case, there is no suggestion that the duties of the
employees whose statements are at issue in this case did
not similarly include administering or executing the laws,
only that they cannot be regarded as “officers” because their
duties were “ministerial” and not requiring “judgment in
making complex policy decisions.” Both Chamberlain and
Johnson, however, squarely reject those contentions.
The remaining question is whether the statements
at issue were made in the performance of official duties.
Plaintiff does not dispute that. It was the uncontested fact
that the individuals were acting in the course and scope of
their employment that led the trial court to authorize the
substitution of the district in the first place. In any event,
it is not contested that consuming alcoholic beverages on
school district premises violated district policies and that
those policies expressly authorized the reporting of any such
violations. Nor is it contested that the supposedly defam-
atory statements were made by employees reporting their
concern that the policy may have been violated. Plaintiff
insists that “trying to follow policy” is insufficient to trigger
the absolute privilege in the absence of “the use of discretion
606 Lowell v. Medford School Dist. 549C
in the sense that a policy decision is required.” As we have
noted, though, the applicability of the absolute privilege
does not turn on whether discretion is exercised.
Plaintiff argues that applying the absolute privi-
lege to this case cannot be reconciled with the guarantee in
Article I, section 10, of the Oregon Constitution, that every
person “shall have remedy by due course of law.” It is doubt-
ful that plaintiff preserved such a contention. Although he
mentioned the remedy guarantee in his arguments to the
trial court, he offered no explanation as to why applying
the privilege here would violate the constitution. Even on
appeal, beyond asserting that the guarantee is in some way
“implicate[d],” plaintiff does not explain why the application
of an absolute privilege violates it. Rather, plaintiff merely
refers to an “unanswered question” of how to conform the
absolute privilege to the remedy clause. Given that various
absolute privileges against defamation liability have been a
part of the common law since at least the eighteenth century,
see, e.g., King v. Skinner, 98 Eng Rep 529, 530 (KB 1772) (rec-
ognizing absolute privilege for statements made in judicial
proceedings); Yates v. Lansing, 5 Johns 282, 291 (NY Sup Ct
1810) (an absolute privilege “is to be found in the earliest
judicial records”), a challenge to their constitutionality on
remedy-clause grounds requires more than a vague asser-
tion that applying such a privilege in this case runs afoul
of Article I, section 10. See, e.g., State v. Buyes, 280 Or App
564, 571 n 3, 382 P3d 562 (2016) (undeveloped argument
that constitutional violation “can result” from joinder insuf-
ficient to preserve contention that joinder violated the con-
stitution in that case). Plaintiff suggests that, at the least,
the existence of the remedy guarantee warrants construing
the absolute privilege narrowly. That, however, is a matter
for the Supreme Court.
Affirmed.