Goddard v. Fields

OPINION

OROZCO, Judge.

¶ 1 Terry Goddard, Monica Goddard and the Office of the Arizona Attorney General (collectively, the Attorney General) petitioned this court for special-action relief, challenging the trial court’s order finding that the Attorney General is not entitled to absolute immunity, but only qualified immunity for the allegedly defamatory statements he published in a press release regarding a lawsuit his office is pursuing. For the following reasons, we accept jurisdiction, but deny relief.

FACTS AND PROCEDURAL HISTORY

¶ 2 This special action arises from a lawsuit the Attorney General’s Office filed on behalf of five State agencies against real estate developer, George Johnson, and his related entities (collectively, the Johnson Defendants). The Johnson Defendants acquired title to property bordering state trust lands, which they intended to transform into a residential and business development. The suit alleged that the Johnson Defendants violated numerous laws applicable to developers in their position.

¶ 3 Johnson and one of his entities (Coun-terclaimants) filed a counterclaim against the Attorney General alleging that he personally issued a press release making numerous false and defamatory statements directed at the Johnson Defendants.

¶4 Although the Attorney General stood behind the truth of his statements, he moved to dismiss the defamation counterclaim by asserting that his position as an executive officer entitled him to “an absolute privilege to publish defamatory matter concerning another in communications made in the performance of his official duties.” The trial court found that the Attorney General did not have absolute immunity but only qualified immunity. The Attorney General sought special action relief from the trial court’s order denying him absolute immunity for his statements in the press release regarding the litigation.

SPECIAL ACTION JURISDICTION

¶ 5 Generally, we “declin[e] jurisdiction when the relief sought is to obtain review of orders denying motions to dismiss.” Henke v.Super. Ct. (Kessler), 161 Ariz. 96, 98, 775 P.2d 1160, 1162 (App.1989). However, we allow interlocutory appeals of motions to dismiss based on an immunity claim “because any benefit of that immunity is lost if the party claiming it is forced to defend himself.” Darragh v. Super. Ct. (Michael), 183 Ariz. 79, 80, 900 P.2d 1215, 1216 (App.1995). Accordingly, because the Attorney General “does not have a plain, speedy or adequate remedy by appeal, we accept jurisdiction.” Id. (citing Ariz. R.P. Spec. Act. 1).

STANDARD OF REVIEW

¶ 6 In reviewing a trial court’s denial of a motion to dismiss, “ “we consider the facts alleged in the complaint to be true’ ... and ‘determine whether the complaint, construed in a light most favorable to the plaintiff sufficiently sets forth a valid claim.’ ” Douglas v. Governing Bd. of the Window Rock Sch. Dist. No. 8, 206 Ariz. 344, 346, ¶ 4, 78 P.3d 1065, 1067 (App.2003). (Citations omitted.) Additionally, we review de novo whether an immunity exists in a defamation case when the speaker raises an immunity defense. Sobol v. Alarcon, 212 Ariz. 315, 317 n. 2, ¶ 10, 131 P.3d 487, 489 n. 2 (App.2006). (Citations omitted.)

MERITS

¶7 Absolute immunity insulates an individual from legal liability from “all acts, no matter how malicious,” whereas qualified immunity shields “only those acts done in good faith.” Chamberlain v. Mathis, 151 Ariz. 551, 554, 729 P.2d 905, 908 (1986) (citing Barr v. Matteo, 360 U.S. 564, 79 S.Ct. 1335, 3 L.Ed.2d 1434 (1959)). The interest favoring providing executive officials with immunity for conduct within the scope of their employment is that government executives must be allowed to perform their official duties without being obligated to justify their past actions in court. Id. “The arguments favoring official immunity are countered by the legitimate complaints of those injured by [a] government offieial[’]s” malicious comments. Id. at 555, 729 P.2d 905, 729 P.2d at 909.

¶ 8 In Chamberlain v. Mathis, the Arizona Supreme Court, after considering the competing interests, adopted a general rule of qualified immunity, bolstered by an objective malice requirement for executive government officials. In doing so, the court expressly rejected the rationale supporting absolute immunity for executive state officials articulated in Barr v. Matteo, 360 U.S. 564, 79 S.Ct. 1335, 3 L.Ed.2d 1434 (1959). Chamberlain, 151 Ariz. at 557, 729 P.2d at 911. It recognized, however, that there might be a narrow exception and “some government offices that require absolute immunity.” Id. at 558, 729 P.2d at 912 (citing Nixon v. Fitzgerald, 457 U.S. 731, 102 S.Ct. 2690, 73 L.Ed.2d 349 (1982)). Finally, it denied absolute immunity to the Director of the Arizona Department of Health Services after concluding that “in the vast majority of cases, qualified immunity will adequately protect state executive officials.” Id. (Citation omitted.)

¶ 9 Because absolute immunity is the exception to the general rule of qualified immunity, to successfully assert a claim for absolute immunity from personal liability, the Arizona Supreme Court required that an executive government official demonstrate that absolute immunity is essential to conducting public business. As the Arizona Supreme Court more specifically articulated, it has “endorsed the use of governmental ‘immunity as a defense only when its application is necessary to avoid a severe hampering of a governmental function or thwarting of established public policy.’ ” Id. (Citation omitted.)

¶ 10 Based on the facts of this case and after considering the Attorney General’s arguments regarding why he is entitled to absolute immunity, we conclude that the trial court did not err in denying him absolute immunity.

¶ 11 The Attorney General claims that his governmental function will be severely hampered if he is not granted absolute immunity. Specifically, he alleges that forcing him “to defend against the Counterclaim at the same time that [he] is prosecuting the underlying case will severely hamper [his] ability to prosecute the underlying action and to represent the client agencies.”

¶ 12 In adopting the general rule of qualified immunity, the Arizona Supreme Court recognized “that qualified immunity [alone] may offer executive public officials insufficient protection if plaintiffs, by merely alleging malice can force public officials to engage in intensive discovery and cumbersome, time-consuming” litigation. Id. Thus, the court adopted an extended protection: it requires that plaintiffs filing defamation claims against public officials establish proof of objective, rather than subjective, malice. Id. at 559, 729 P.2d at 913.

¶ 13 We are not persuaded by the Attorney General’s argument that being forced to defend against the defamation counterclaim will impair his ability to effectively represent the client agencies in the main suit against the Johnson Defendants, primarily because the trial court contemplates conducting separate trials of the two actions. The trial court also has notified the parties that separating the claims will not be necessary if the defamation counterclaims do not survive pretrial motions for summary judgment. Because the trial court foresees conducting separate trials to minimize any potential conflicts and recognizes that such a solution may not be necessary if the defamation counterclaims do not survive summary judgment, we conclude that the Attorney General’s ability to prosecute the underlying ease against the Johnson Defendants will not be sufficiently impaired to require granting him absolute immunity.

¶ 14 The Attorney General further argues that he will be unable to adequately defend himself against the defamation counterclaim because he has no authority to waive the confidentiality of privileged communications without his clients’ consent and “[l]ogically, at least some of the information available to the Attorney General when the press release was issued ... would have included privileged attorney-client communications and information.” But the Attorney General has not indicated and we cannot imagine what type of privileged attorney-client communications and information could support a decision to issue a press release and yet still be undiscoverable.

¶ 15 The Attorney General also cautions that denying him absolute immunity would result in defendants asserting defamation counterclaims as a defense strategy, causing “the Attorney General and his assistants [to] consider their potential liability before initiating and while prosecuting such actions.” However, the Attorney General has not adequately explained how qualified immunity with the additional requirement that the Counterclaimants must prove an objective malice standard is insufficient protection. Under the objective malice standard, “qualified immunity will protect a public official if the facts establish that a reasonable person, with the information available to the official, ‘could have formed a reasonable belief that the defamatory statement in question was true and that the publication was an appropriate means for serving the interests which justified the privilege.’” Joel F. Handler and William A. Klein, The Defense of Privilege in Defamation Suits Against Government Executive Officials, 74 Harv. L.Rev. 44, 68 (1960). (Footnote omitted.) Adding an objective malice standard to qualified immunity provides additional protection because it “would tend to allow significant judicial control of the jury through directed verdicts and to permit many cases to be disposed of on summary judgment.” Id. at 68-69.

¶ 16 The Attorney General also argues that established public policy entitles him to absolute immunity for issuing press releases describing litigation his office is pursuing, including allegedly defamatory statements. He further asserts that established public policy requires him to inform citizens about the litigation he undertakes on their behalf.

¶ 17 We reject the Attorney General’s contention that the statutory requirement mandating that he report his litigation and other activities to the Governor and the Legislature through an annual report, which is open and available to the general public, is the source of the public policy requiring him to inform citizens of matters occurring in his office.

¶ 18 Although the Attorney General is required to provide an annual report of his office’s activities to the Governor and the Legislature, see Arizona Revised Statutes (A.R.S.) section 41-194.B (2004), none of the statutes delineating his duties, see A.R.S. §§ 41-191 to -198 (2004 and Supp.2006), require him to issue press releases, communicate with the public regarding pending cases or provide information relating to defendants outside of court proceedings. As Counter-claimants assert, issuing press releases and holding press conferences about litigation his office is pursuing are highly discretionary functions as is the information he chooses to disseminate to the public.

¶ 19 The dissent relies on Restatement (Second) of Torts § 591 (1977), and Barr, 360 U.S. at 573, 79 S.Ct. 1335, for the proposition that “the heads of executive departments are entitled to a greater degree of protection from defamation claims than lesser governmental officials because ‘the higher the post, the broader the range of responsibilities, and the wider the scope of discretion.’ ”

¶20 However, in Chamberlain, the Arizona Supreme Court noted that Restatement (Second) § 591 follows Barr. 151 Ariz. at 556, 729 P.2d at 910. Thus, by expressly choosing to reject the rationale in Barr, the court also rejected the rationale contained in Restatement (Second) § 591.

¶ 21 Finally, the Attorney General and the dissent cite several cases from other jurisdictions that have granted their attorney generals absolute immunity in defamation cases arising when the attorney general publishes matters about individuals in the performance of their official duties. The Attorney General maintains that the these cases “reflect[] the strong public interest in allowing high executive officers to inform the public on important matters, unfettered by the fear that they may be sued for defamation.” The problem with this argument is that all of these cases follow Barr, Restatement of Torts § 591, or Restatement (Second) of Torts § 591. People ex rel Hartigan v. Knecht Services, Inc., 216 Ill.App.3d 843, 159 Ill.Dec. 318, 575 N.E.2d 1378, 1390 (1991)(citing Barr, 360 U.S. at 571, 79 S.Ct. 1335); Gautsche v. State, 67 A.D.2d 167, 415 N.Y.S.2d 280, 282 (App.Div.l979)(citing Barr, 360 U.S. at 564, 79 S.Ct. 1335); Matson v. Margiotti, 371 Pa. 188, 88 A.2d 892, 895 (1952)(citing Restatement of Torts § 591 (1938)), overruled on other grounds by Commonwealth v. Schab, 477 Pa. 55, 383 A.2d 819 (1978); Salazar v. Morales, 900 S.W.2d 929, 931 (Tex.App.1995)(citing Barr, 360 U.S. at 564, 79 S.Ct. 1335); id. at 932 (citing Restatement (Second) of Torts § 591); Gold Seal Chinchillas, Inc. v. State, 69 Wash.2d 828, 420 P.2d 698, 701 (1966)(citing Barr, 360 U.S. at 564, 79 S.Ct. 1335). Additionally, Salazar explicitly states that the Arizona Supreme Court’s Chamberlain opinion is the only opinion rejecting Barr. 900 S.W.2d at 933. Because the Arizona Supreme Court rejected the rationale in Barr and Restatement (Second) § 591, we cannot agree with the Attorney General or the dissent that these cases are persuasive authority.

¶22 In arriving at this holding, we note that this opinion does not address situations in which the Attorney General is the policy maker, such as when he makes the decisions concerning the State of Arizona’s position. Those situations typically involve cases in which the Attorney General possesses statutory authority to sue without the involvement of a state agency or officer, including criminal prosecutions and consumer protection. In such situations, the Attorney General is not simply acting for state officials who, under Chamberlain, are entitled to only qualified immunity.

¶23 We find support for this holding in Green Acres Trust v. London, wherein the Arizona Supreme Court held that defendant attorneys were not entitled to an “absolute privilege for the oral and written communications published by them to” the press before a lawsuit is filed. 141 Ariz. 609, 616, 688 P.2d 617, 624 (1984). Although the court also noted that there may be other circumstances in which absolute privilege may be appropriate for certain types of statements published before the initiation of proceedings, id. at 615, 688 P.2d at 623, it denied the defendant lawyers absolute privilege for potentially defamatory statements made to the press before a lawsuit was filed. Id. The court held “that both the content and manner of extrajudicial communications must bear ‘some relation to the proceeding.’ The requirement! ] ... that the recipient of the extra-judicial communication have some relationship to the proposed or pending judicial proceeding for the occasion to be privileged is sound.” Id. at 614, 688 P.2d at 622. (Citations omitted.) Similarly, in this case, we find no relationship between the press release issued by the Attorney General and the judicial proceedings at hand.

¶ 24 Based on the narrowness of the absolute immunity exception articulated in Chamberlain, the additional protection of an objective malice standard and the Attorney General’s insufficient support to demonstrate that issuing press releases potentially containing defamatory information relating to litigation pursued by his office is essential to conducting public business, we deny the Attorney General the relief he requests.¹

CONCLUSION

¶ 25 For the above reasons, in the exercise of our discretion, we accept special-action jurisdiction and deny relief.

CONCURRING: PATRICK IRVINE, Judge. HALL, Judge dissenting.

1 . To hold otherwise, would create a situation in which public officials that only have qualified immunity, would always have the Attorney General issue press releases on their cases, in order to avoid potential litigation.