Barto v. Felix , 250 Pa. Super. 262 ( 1977 )

PRICE, Judge:

This case is on appeal from the lower court’s order sustaining appellee’s preliminary objections in the nature of a demurrer to appellants’ complaint. For purposes of appellate review, we must regard the allegations in appellants’ complaint as true and accord them all the inferences reasonably deducible therefrom. Allstate Insurance Co. v. Fioravanti, 451 Pa. 108, 299 A.2d 585 (1973).

On March 1, 1974, Kim Lee Hubbard was found guilty by a jury of the murder of a twelve year old girl.¹ His privately retained counsel thereafter filed post-trial motions but withdrew from the case before perfecting an appeal. Defendant-appellee John A. Felix, a member of the public defender’s office, was Hubbard’s appellate counsel. After filing his appellate brief for Hubbard, appellee called a press conference at which he related the contents of the brief. The brief, and thus appellee’s remarks at the press conference, contained defamatory material about appellants, who were state police officers involved in the investigation of the murder. The substance of appellee’s remarks were published in at least two Lycoming County newspapers. As a result, appellants suffered grievous harm to their reputations and interference with the proper performance of their occupations. Appellants’ complaint in trespass requested damages in excess of ten thousand dollars for each officer.

The lower court found that appellee was a “high public official” entitled to absolute immunity for defamatory utterances made in his official capacity. Furthermore, the court found that the remarks in this case were closely related to appellee’s official duties and therefore were entitled to protection. Finally, the court held that appellee was absolutely privileged to repeat matters which were of public record.

Preparatory to analyzing the factual-legal particulars of this case, it will be useful to consider some of the fundamental precepts relating to immunity from civil liability for defamation.

Judicial immunity is granted to judges, lawyers, witnesses, and all others directly involved in a judicial proceeding to make comments relevant to the proceeding. The immunity is absolute² with respect to defamatory statements made in the pleadings or in the courtroom. Greenberg v. Aetna Insurance Co., 427 Pa. 511, 235 A.2d 576 (1967), cert. denied, 392 U.S. 907, 88 S.Ct. 2063, 20 L.Ed.2d 1366 (1968). The immunity applies only to relevant statements made in an official capacity. F. Harper and F. James, The Law of Torts § 5.22 (1956).

A second, related type of immunity is that accorded to high public officials. Public interest demands that high public officials be absolutely immune from liability for defamatory statements made in the course of their official duties. A liberal construction is applied to determine whether an action falls within the official’s duties. Thus, in Matson v. Margiotti, 371 Pa. 188, 88 A.2d 892 (1952), the State Attorney General was held to have an absolute privilege to make defamatory statements to a local district attorney concerning the qualifications of one of the district attorney’s assistants.

The policy to be applied in determining the existence of this immunity is the importance of ensuring the public official’s freedom to act in areas of public interest. The threat of a potential civil suit for damages would unquestionably dampen a public official’s enthusiasm to act in certain situations, even though he entertained an honest belief that the public interest would be furthered by such actions. Public policy prefers that a public officer’s decisions be uninfluenced by such considerations, even at the expense of an individual’s priceless reputation. Montgomery v. Philadelphia, 392 Pa. 178, 140 A.2d 100 (1958).

A third type of immunity is based on the desirability of keeping the public informed. “When for the public good and interest of society a communication should be published it is said to be made on an ‘occasion of privilege’ and the defamatory statement is itself ‘qualifiedly’ or ‘conditionally’ privileged.” Montgomery v. Philadelphia, supra 392 Pa. at 181, 140 A.2d at 102, citing Restatement of Torts § 593 (1938). See also Sciandra v. Lynett, 409 Pa. 595, 187 A.2d 586 (1963). It is obvious that this last type of immunity is much broader in scope than judicial immunity or the immunity accorded high public officials, and that more diverse policy considerations can enter into determining whether immunity is appropriate in a given situation. Note, however, that while judicial and high public official immunities are absolute, an immunity based on keeping the public informed is qualified only. See note 2, supra.

Of course, a public defender, just as any other attorney, is entitled to judicial immunity. Any official papers filed with the court or any remarks made at a judicial proceeding by a public defender would be absolutely privileged. However, judicial immunity does not protect the public defender in this case, for the remarks made by him at the press conference were not made at a judicial proceeding. They did not fall within the sphere of activities which judicial immunity was designed to protect. Restatement (Second) of Torts § 586 comment c. (1977); Harper and James, supra, § 5.22. Cf. Doe v. McMillan, 412 U.S. 306, 314 n. 8, 93 S.Ct. 2018, 36 L.Ed.2d 912 (1973) (“The republication of a libel, in circumstances where the initial publication is privileged, is generally unprotected.”).³

This does not mean that appellee’s remarks are entitled to no protection. A public defender necessarily enjoys the same qualified immunity that any other attorney (or any other individual) is accorded to publish information relative to a judicial proceeding. Binder v. Triangle Publications, Inc., 442 Pa. 319, 275 A.2d 53 (1971); Restatement (Second) of Torts § 611 (1977); Harper & James, supra, § 5.24. However, judicial immunity does not extend to remarks made outside the judicial sphere.

We also hold that a public defender is not entitled to the absolute immunity of a high public official. In McCormick v. Specter, 220 Pa.Super. 19, 275 A.2d 688 (1971), this court considered the liability of a district attorney for defamatory statements made to the press. In that case, the court concluded that the “press conference was a proper undertaking of that office on the basis that the reasonable performance of the District Attorney’s office warrants his informing the public of matters pending in that office. However, it must be emphasized that it is the public interest — not that of the official involved — which provides the rationale for the immunity.” 220 Pa.Super. at 21-22, 275 A.2d at 689.

Appellee contends that a public prosecutor and a public defender enjoy identical status, citing Brown v. Joseph, 463 F.2d 1046 (3d Cir. 1972). This argument is not without logical or legal support. Brown v. Joseph, supra, however, is distinguishable. In that case, the issue was whether a public defender is entitled to immunity in a suit brought by a former client under 42 U.S.C. § 1983. The Third Circuit Court of Appeals discussed several policy factors favoring immunity in that case which are inapplicable in the case before us.

To the extent that Brown v. Joseph is indistinguishable from this case, we disagree with it. The commentary to § 1.1 of the ABA Project on Standards For Criminal Justice, The Prosecution Function (Approved Draft, 1971), describes the prosecutor as an

“administrator of justice. He is an administrator in the sense that he acts as a decision maker on a broad policy level and over a wide range of cases as director of public prosecutions. The prosecutor is in the best position to observe the work of the police in the investigation of crime and in the enforcement of the law. He has large responsibility in the decision whether to bring charges and, if so, what charges to bring against the accused, and the decision whether to prosecute or to dismiss charges, or to take other appropriate actions in the interest of justice. Since his is a large share of the responsibility for what cases are taken into the courts, the character, quality and efficiency of the whole system is shaped in great measure by the manner in which he exercises his broad discretionary powers.”

The same cannot be said of a public defender. We recognize that the public interest is enhanced by the existence of a public defender’s office, and a public defender is responsible to the community he serves no less than any other attorney. However, once appointed, the public defender’s loyalty must be to his client, the indigent defendant. Unlike the public prosecutor, his services are rendered to the defendant, not to the public. Were we to distinguish between a public defender and a privately retained defense attorney, we would be doing a disservice to the public defender’s office in areas of far greater concern than the one presently before us. When asked whether a public defender is more like a public prosecutor or more like a privately retained attorney, we must unhesitatingly choose the latter.

The ABA Project on Standards For Criminal Justice, supra, makes an instructive distinction between the relationship of the public prosecutor and the press and the defense attorney and the press. Section 1.3(a) of The Prosecution Function provides that “[t]he prosecutor should not exploit his office by means of personal publicity connected with a case before trial, during trial and thereafter.” (emphasis added) Section 1.3(a) of The Defense Function provides that “[t]he lawyer representing an accused should avoid personal publicity connected with the case before trial, during trial and thereafter.” (emphasis added) Surely this distinction was not unintentional. The distinction is based on the recognition that a public prosecutor has a definite duty to report to the public. The public defender has no such duty. Thus, the official status of a public defender cannot be equated with that of the public prosecutor.

Finally, we must consider the dangers inherent in granting absolute immunity to a public prosecutor, yet not to his adversary. Trial by press is, unfortunately, an all too familiar expression. See Merrill, The “People’s Right to Know” Myth, 45 N.Y.SLBJ. 461 (1973); Stanga, Judicial Protection of the Criminal Defendant Against Adverse Press Coverage, 13 Wm. & Mary L.Rev. 1 (1971); Comment, Free Press v. Fair Trial: A Constitutional Dichotomy, 20 Loyola L.Rev. 148 (1974); Comment, Free Press vs. Fair Trial: Insulation Against Injustice, 33 La.L.Rev. 547 (1973); Note, Procedural Compromise and Contempt: Feasible Alternatives in the Fair Trial versus Free Press Controversy, 22 U.Fla.L.Rev. 650 (1970). It can be imagined how much greater is the danger generated by widespread publicity if the defendant has no right of reply. See Note, Defense Attorney’s Reply in the Press to Prosecutor’s Press Release Prejudicial to Client Held Not Privileged, 111 U.Pa.L.Rev. 513 (1963).

However, we believe that the objective of protecting the defendant from unfair publicity is sufficiently effected by the qualified immunity to make comments relative to judicial proceedings that the public defender already enjoys. No public interest demands that a public defender be granted the privilege maliciously to publish untrue statements about others.

In appellants’ complaint, it is alleged that appellee’s statements at the press conference were known by him to be false, or were made in reckless disregard of the truth. If that allegation can be proved, appellee’s qualified privilege will not protect him. Therefore, appellants’ complaint stated a cause of action and should not have been dismissed. The order of the lower court is reversed and the case is remanded for proceedings consistent with this opinion.

SPAETH, J., files a dissenting opinion in which JACOBS, J., joins. HOFFMAN, J., joins Part I of the dissenting opinion by SPAETH, J.

1 . On January 28, 1977, the Supreme Court of Pennsylvania reversed Hubbard’s conviction and remanded the case for a hearing on the effectiveness of Hubbard’s post-trial counsel. Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977).

2 . Absolute immunity differs from qualified immunity by the amount of protection afforded its possessor. Generally, a qualified immunity will not protect one who publishes defamatory statements knowing them to be untrue or in reckless disregard of the truth. Restatement (Second) of Torts § 600 (1977); see Purcell v. Westinghouse Broadcasting Co., 411 Pa. 167, 191 A.2d 662 (1963). One who is absolutely immune is protected irrespective of the care or knowledge accompanying the publication.

3 . In McCormick v. Specter, 220 Pa.Super. 19, 275 A.2d 688 (1971), this court held that remarks made by a public prosecutor at a press conference were absolutely privileged. However, the court’s decision in McCormick was not based on judicial immunity. McCormick will be treated in greater detail infra.