Barge v. Ransom

• Decision Date: 05 October 2000
• Citation: 30 S.W.3d 889
• Parties: (Mo.App. S.D. 2000) Daron Barge, Plaintiff-Appellant, v. Athel Ransom, Defendant-Respondent. 23329
• Court: Missouri Court of Appeals

30 S.W.3d 889 (Mo.App. S.D. 2000)

Daron Barge, Plaintiff-Appellant, v. Athel Ransom, Defendant-Respondent.

23329

Missouri Court of Appeals Southern District

10/05/2000

Appeal From: Circuit Court of Greene County, Honorable C. David Darnold, Special Judge

Counsel for Appellant: Robert A. Lynch

Counsel for Respondent: Jerry M. Kirksey

Opinion Summary: None

Crow, J., and Garrison, J., concur.

James K. Prewitt, Judge

The issue presented at trial and here is whether statements made regarding a police officer in a complaint to a police department and investigated following department-mandated procedure are protected by an absolute privilege or a qualified privilege. The parties agree that this question is one of first impression in Missouri.

Plaintiff, a Springfield Police Department officer, claims that a complaint Defendant made to the Springfield Police Department contained false and malicious accusations concerning Plaintiff's conduct as a police officer, harming his reputation. Defendant counters that the statements that he made are absolutely privileged because they were made through the department's official complaint procedure. The trial court determined that the statements are protected by an absolute privilege and granted Defendant's motion for summary judgment. Plaintiff appeals, contending that the statements are protected only by a qualified privilege.

In reviewing the grant of summary judgment, review is "essentially de novo." ITT Commercial Fin. Corp. v. Mid-Am Marine Supply Corp., 854 S.W.2d 371, 376 (Mo.banc 1993). Whether summary judgment was properly issued is a question of law, thus an appellate court does not defer to the trial court's order granting summary judgment. Id.

Generally, in a defamation action, the court must first determine whether the statements complained of were defamatory. Pape v. Reither, 918 S.W.2d 376, 379 (Mo.App. 1996). However here, the only issue is whether the allegedly defamatory statements are protected by an absolute privilege, as held by the trial court in granting Defendant's "Motion for Summary Judgment as to the Issue of Absolute Privilege."

Turnbull v. The Herald Co., 459 S.W.2d 516, 520 (Mo.App. 1970) states:

Based upon public policy the law recognizes certain communications to be

privileged, and, as such, not within the rules imposing liability for defamation. A

privileged communication is one which would be defamatory except for the occasion on which or the circumstances under which it is made. Privileged communications are divided into two general classes: 1) those which have an absolute privilege and 2) those that bear a qualified or conditional privilege. [Citation omitted.]

Cases in Missouri establish that an absolute privilege is given only in limited situations where there is a policy of permitting complete freedom of expression without inquiry into motives, including judicial, quasi-judicial, legislative or executive proceedings, and situations where the communication is provided for and required by law. Hester v. Barnett, 723 S.W.2d 544, 557 (Mo.App. 1987). See also Wright v. Over-the-Road and City Transfer Drivers, Helpers, Dockmen and Warehousemen, 945 S.W.2d 481, 492 (Mo.App. 1997).

An absolute privilege provides complete immunity for defamation, regardless of motive. In contrast, the qualified or conditional privilege is "conditioned upon good motive." Hester, 723 S.W.2d at 557.

In order to recover for defamation where there is a qualified privilege, the plaintiff must prove actual malice. Wright, 945 S.W.2d at 490. Within the category of qualified privilege are statements concerning public officials protected by the "constitutional privilege" recognized in New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). Under this privilege, a person making defamatory statements about a public official may be liable for defamation only if there is actual malice.

Police officers are considered public officials within the meaning of the New York Time Co.decision. Schafer v. Lamar Publ'g Co., Inc., 621 S.W.2d 709, 710-11 (Mo.App. 1981). The question, however, is not just whether Plaintiff was a public official, but whether the context in which the statements were made is one to which an absolute privilege should extend. The statements in this case were not made in a judicial, executive, or legislative proceeding. Thus, it appears this Court must determine whether "the communication is provided for and required by law," it was part of a quasi-judicial proceeding, or a strong public policy exists which would justify the application of an absolute privilege.

Missouri courts generally decline to extend absolute privilege to proceedings not fitting within the legislative, executive or judicial categories. See Hohlt v. Complete Health Care, Inc., 936 S.W.2d 223, 224 (Mo.App. 1996). For example, in Wright, the court determined that only a qualified privilege existed for statements made in a union grievance proceeding, stating at 945 S.W.2d at 492-93:

Neither the [Joint Grievance Committee] nor its functions are established or mandated pursuant to law. It is neither a public body with official duties nor does it render judgments or make decisions of a judicial nature. The Committee does not possess the power to subpoena witnesses or documents. Witnesses that come before the Committee are not required by law to be sworn before testifying and are not subject to perjury. There are no formal rules of evidence and no opportunity for cross-examination. The only record of the proceeding is an unofficial tape recording.[ Wright noted that other jurisdictions extend an absolute privilege to union grievance proceedings based on considerations Missouri courts do not find significant. 945 S.W.2d at 496.

]

Similar to the proceedings in Wright, the Springfield Police Department Internal Affairs Unit investigators cannot subpoena witnesses or documents, the witnesses are not...