Allen v. Ortez

• Decision Date: 06 December 1990
• Docket Number: No. 890098,890098
• Citation: 802 P.2d 1307
• Parties: Jalene Ortez ALLEN and Lynn Allen, Plaintiffs and Appellants, v. Raymond ORTEZ, aka Ray Ortez, Sheila Ortez, Lucinda A. Rasmussen, Karen Platis, and Primary Children's Medical Center, a part of Intermountain Health Care Corp., a corporation, Defendants and Appellees.
• Court: Utah Supreme Court

Page 1307

802 P.2d 1307

Jalene Ortez ALLEN and Lynn Allen, Plaintiffs and Appellants, v. Raymond ORTEZ, aka Ray Ortez, Sheila Ortez, Lucinda A.

Rasmussen, Karen Platis, and Primary Children's Medical

Center, a part of Intermountain Health Care Corp., a

corporation, Defendants and Appellees.

No. 890098.

Supreme Court of Utah.

Dec. 6, 1990.

George H. Searle, Salt Lake City, for plaintiffs and appellants.

Charles W. Dahlquist, II, Sherene T. Dillon, Salt Lake City, for defendants and appellees.

ZIMMERMAN, Justice.

Plaintiffs Jalene Ortez Allen and Lynn Allen appeal from an order of the Third Judicial District Court granting summary judgment in favor of defendants Lucinda Rasmussen, Karen Platis, and Primary Children's Medical Center and dismissing plaintiffs' libel action. The trial court held that all three of the allegedly libelous communications were entitled to qualified immunity under Utah's child abuse reporting statutes. See Utah Code Ann. §§ 62A-4-501 to -514 (1988). ¹ Additionally, the court held that two of these communications also were absolutely privileged under the common doctrine that privileges statements made in the course of a judicial proceeding. We disagree with both conclusions and reverse and remand.

M, a minor, was born February 8, 1981. M's parents, Jalene Ortez Allen and Raymond Ortez, were divorced on March 17, 1983. In December of 1984, a few months before his fourth birthday, M visited his mother at her home. Later in December, M's father suspected sexual abuse and took M to Primary Children's Medical Center ("Primary Children's") for a physical examination. Although Primary Children's found no physical evidence of abuse, it filed a report of possible sexual abuse with the Murray City Police Department. Primary Children's also referred the Ortezes to its outpatient psychiatric clinic for psychological evaluation.

On January 24, 1985, Lucinda Rasmussen, a clinical social worker and an employee of Primary Children's, interviewed and evaluated M. Rasmussen concluded that M had been abused. At the request of M's father, Rasmussen then sent a letter to the mayor of Murray City. The letter, dated February 6, 1985, detailed her conclusions concerning the abuse. The letter specifically stated that M's stepfather, Lynn Allen, and his mother, Jalene Allen, had sexually abused M. Rasmussen then saw M in therapy for a short period of time.

In April of 1987, M's father again became concerned and took M to Primary Children's for further evaluation. Rasmussen saw M for therapy in May of 1987 and again concluded that M had been abused by both his mother and his stepfather.

Also during May of 1987, M's mother filed a petition for modification of her custody and visitation rights, a petition that M's father opposed. Acting at the father's request, Rasmussen prepared and sent more letters detailing her conclusions regarding the claims of sexual abuse. This time letters were sent to the father's attorney, Rulon R. Price, and to Sandra N. Peuler, the domestic relations commissioner before whom the modification petition was pending. These letters stated quite conclusively that M's mother and stepfather had abused M. Rulon Price had not requested that Rasmussen send these letters, and nothing in the record indicates that Commissioner Peuler requested them.

Two weeks later, the Allens (M's mother and stepfather) filed suit against the Ortezes (M's father and stepmother), Lucinda Rasmussen, supervising social worker Karen Platis, and Primary Children's ("defendants"), claiming that each of the three letters sent by Rasmussen contained libelous statements. Defendants moved to dismiss on two grounds. First, they claimed that Utah's child abuse reporting statutes, sections 62A-4-501 to -514 of the Code, grant them immunity for all three letters. Specifically, they relied upon section 62A-4-510, which provides that any person "participating in good faith in making a report" pursuant to section 62A-4-503 is immune from any resulting liability. ² Utah Code Ann. § 62A-4-510. Second, they claimed that no libel charge could be based on the letters sent to Mr. Ortez's attorney and to Commissioner Peuler because the common law privileges statements made by witnesses and other participants in the course of a judicial proceeding.

Initially, the district court denied the motion, explaining that there were unresolved factual questions concerning whether the reports were made in good faith, as required by section 62A-4-510. ³ Defendants then filed Ms. Rasmussen's affidavit, which stated that all her reports were made in good faith, and renewed their motion for summary judgment. Plaintiffs did not file any responsive affidavits contradicting the assertion of good faith.

This time, the district court granted summary judgment for defendants. The court specifically found that all three letters were written in good faith and fell within Utah's child abuse reporting statutes. It therefore found that all defendants were eligible for the immunity provided for such reports in section 62A-4-510. The court also found that the letters sent to the attorney and the commissioner are "absolutely privileged." We conclude that in making this statement, the district court was relying on the common law privilege. Therefore, we have both the statutory and common law privilege questions before us.

We begin by noting the applicable standard of review. Summary judgment is appropriate only when there exists no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Utah R.Civ.P. 56(c); e.g., Landes v. Capital City Bank, 795 P.2d 1127, 1129 (Utah 1990); Utah State Coalition of Senior Citizens v. Utah Power & Light, 776 P.2d 632, 634 (Utah 1989). On appeal from summary judgment, we give no particular deference to the trial court's conclusions of law and review them for correctness. E.g., Landes, 795 P.2d at 1129; Madsen v. Borthick, 769 P.2d 245, 247 (Utah 1988).

We first consider the trial court's ruling that defendants are entitled to the qualified immunity provided by the child abuse reporting statute. In interpreting the scope of the statute, it is important to keep in mind that it merely provides a privilege to engage in what otherwise would amount to defamation. We must not give the statute a broader interpretation than is necessary to effectuate its purposes. To do otherwise would be to sanction potentially widespread libel.

Section -503 of the child abuse reporting statute requires any person with reason to believe that a child is being abused to "immediately notify the nearest peace officer, law enforcement agency, or office of the division [of Family Services within the Department of Social Services]." Utah Code Ann. § 62A-4-503 (1989). ⁴ A failure to make a report as required by section -503 is punishable as a class B misdemeanor. See Utah Code Ann. § 62A-4-511 (1989). Section -510 provides that "any person ... participating in good faith in making a report ... pursuant to this part, is immune from any liability, civil or criminal, that otherwise might result by reason of those actions." Utah Code Ann. § 62A-4-510 (1989).

We find no ambiguity in the operation of these sections. They reflect a coherent scheme. Section -503 sets out the circumstances under which one must report suspicions of child abuse, section -511 provides the penalties for failing to comply with section -503, and section -510 immunizes those who comply with the reporting requirements of section -503. The narrow purpose of this scheme is to facilitate detection, investigation, prosecution, and prevention of child abuse by the governmental agencies charged with those responsibilities. Its purpose is certainly not to require, much less immunize, the general dissemination of allegations of child abuse, one of the most defamatory charges that can be made against anyone.

The scope of the immunity granted by section -510 is consonant with this scheme. For immunity to attach, two conditions must exist. First, there must be a "report ... pursuant to this part," i.e., a report made in accordance with section -503, to "the nearest peace officer, law enforcement agency, or office of the division [of Family Services]." Utah Code Ann. § 62A-4-503 (1989). ⁵ Second, the report must have been made in good faith. Utah Code Ann. § 62A-4-510 (1989).

Addressing the first requirement, defendants argue that the letter sent to the mayor of Murray City qualifies as a "report" under section -503 because it was sent to a "peace officer" or to a "law enforcement agency." While the mayor may be considered a general supervisor of police, that does not make him "the nearest peace officer [or] law enforcement agency," and there is no suggestion that Ms. Rasmussen thought he, or any of the others to whom the letters were sent, fell within that category. Because the letters and reports were sent to persons other than those mentioned in section -503, none qualify as a "report pursuant to" the statute. Therefore, defendants are not entitled to immunity under the statute.

Having concluded that the reports in question could not be required by section -503, we need not address the question of whether defendants satisfy the other element required for section -510 immunity--good faith.

We next consider the trial court's ruling that the letters and reports sent to Commissioner Peuler and to Mr. Price, the father's counsel were eligible for common law immunity as statements made in the course of participation in a judicial proceeding. With respect to defamation claims, it is true that the common law recognizes that "conduct which otherwise would be actionable is to escape liability because the defendant is acting in furtherance of some interest of social importance, which is entitled to protection even at the expense of uncompensated harm to the plaintiff's reputation." W. Prosser & P. Keeton, The Law of Torts § 114 (5th ed. 1984) (footnote...