Burns v. Davis

• Decision Date: 10 August 1999
• Docket Number: No. 1 CA-CV 98-0422.,1 CA-CV 98-0422.
• Parties: Robert BURNS, Brent Hickey, Sedona Heights, L.L.C., Plaintiffs-Appellants, v. Paul DAVIS and Jane Doe Davis, husband and wife, Robert Earle and Jane Doe Earle, husband and wife, Gary Byer and Jane Doe Byer, husband and wife, Defendants-Appellees.
• Court: Arizona Court of Appeals

993 P.2d 1119

196 Ariz. 155

Robert BURNS, Brent Hickey, Sedona Heights, L.L.C., Plaintiffs-Appellants, v. Paul DAVIS and Jane Doe Davis, husband and wife, Robert Earle and Jane Doe Earle, husband and wife, Gary Byer and Jane Doe Byer, husband and wife, Defendants-Appellees.

No. -0422.

Court of Appeals of Arizona, Division 1, Department A.

August 10, 1999.

Review Denied February 8, 2000.

Marton & Hall, P.A. by Kraig J. Marton, Phoenix, Attorneys for Plaintiffs-Appellants.

Broening Oberg Woods Wilson & Cass by Donald Wilson, Jr. Lori Kirsch-Goodwin, Phoenix, Attorneys for Defendants-Appellees Earle.

William J. Downey, P.C. by William J. Downey Elan S. Mizrahi, Phoenix, Attorneys for Defendants-Appellees Byer.

Beale & Micheaels, P.C. by John A. Micheaels Thomas B. Dixon, Phoenix, Attorneys for Defendants-Appellees Davis.

OPINION

PATTERSON, Judge.

¶ 1 Plaintiffs (Appellants) appeal from the dismissal of their defamation complaint. The trial court found that the statements at issue were made by witnesses and an attorney at a board of adjustment meeting and as such were within a quasi-judicial proceeding; therefore, the trial court held the statements were absolutely privileged. Although presented with a very brief record, we have reviewed its contents carefully and our conclusions are as follows: 1) a qualified privilege existed for the statements made at the meeting, and 2) the dismissal of the action as a matter of law was premature because the trial court had not received testimony, reviewed it, and ruled on a record developed by the testimony. For these reasons, we reverse and remand for proceedings consistent with this opinion.

FACTUAL AND PROCEDURAL HISTORY

¶ 2 Sedona Heights, L.L.C., through its managing member Brent Hickey, sought a zoning variance on a lot in the city of Sedona. Nearby property owners, including Paul Davis and Gary Byer, opposed the variance. At the Sedona Board of Adjustment public meeting, Davis and Byer spoke, as did legal counsel representing Davis. After the meeting, Sedona Heights, L.L.C., Brent Hickey and Robert Burns (collectively "Sedona Heights") filed suit against Paul Davis, Gary Byer, and Davis' legal counsel, Robert Earle (collectively "the Davis group"), for statements made by the Davis group at the meeting. Sedona Heights asserted that these statements defamed them.

¶ 3 Upon the Davis group's motion, the trial court dismissed the action, finding the statements at issue to be absolutely privileged because the nature of the meeting was quasi-judicial. We have jurisdiction pursuant to Arizona Revised Statutes Annotated (A.R.S.) section 12-2101(B).

ISSUES

1. Were the statements made to the Sedona Board of Adjustment subject to an absolute or a qualified privilege?

2. Must this matter be remanded to the trial court, or may this Court review and summarily dismiss Sedona Heights' complaint as being protected speech, and not defamatory as a matter of law?

DISCUSSION

A. Standard of Review

¶ 4 In a defamation case, once an immunity defense has been raised, defining the scope of a speaker's immunity is a legal question for the court. See Chamberlain v. Mathis, 151 Ariz. 551, 554, 729 P.2d 905, 908 (1986)

. The privilege¹ may be either absolute or qualified. See id.; see also Restatement (Second) of Torts (Restatement) §§ 583-612 (1977). Because classification of the privilege is a question of law, we review it de novo. Ashton-Blair, 187 Ariz. at 317, 928 P.2d at 1246; see also Restatement § 619. While a qualified privilege protects the speaker only for those statements made in good faith, an absolute privilege is much broader, protecting the speaker regardless of his "motive, purpose, or reasonableness." Green Acres Trust v. London, 141 Ariz. 609, 613, 688 P.2d 617, 621 (1984). A witness is generally afforded an absolute privilege when testifying in a judicial proceeding. Todd v. Cox, 20 Ariz.App. 347, 348, 512 P.2d 1234, 1235 (1973).

B. Determining Absolute or Qualified Privilege

¶ 5 To determine if a privilege, absolute or qualified, exists, we first examine the applicable case law. If no clear answer is obtained, then we look to the Restatement for guidance. See Bruce v. Chas Roberts Air Conditioning, Inc., 166 Ariz. 221, 227, 801 P.2d 456, 462 (App.1990)

(appellate courts follow Restatement only absent case law to the contrary). We do this because "[a]lthough the Arizona courts generally follow the Restatement of the law, they do not do so if a different rule has been pronounced in prior court decisions or legislative enactments." Wilcox v. Waldman, 154 Ariz. 532, 536, 744 P.2d 444, 448 (App. 1987).

¶ 6 Here, the trial court held that the statements at issue were made within a quasi-judicial proceeding and therefore were absolutely privileged. The trial court cited two cases to support its legal finding of absolute privilege: Allan and Allan Arts Ltd. v. Rosenblum, 201 A.D.2d 136, 615 N.Y.S.2d 410 (1994), and Arkules v. Board of Adjustment, 151 Ariz. 438, 728 P.2d 657 (App.1986).

¶ 7 Allan is a factually similar New York defamation case involving witness statements made to a zoning board of appeals. 615 N.Y.S.2d at 411. In Allan, the court held that the proceedings of a zoning board of appeals on an application for a variance were quasi-judicial in character and thus deserved the benefit of an absolute privilege, reinforcing a New York rule that witness statements made before other administrative boards are quasi-judicial proceedings and are absolutely privileged. Id. at 412. The Allan court found that the zoning hearing constituted a quasi-judicial proceeding because the proceedings: 1) were adversarial; 2) resulted in a determination based upon the application of law to the facts, and; 3) were susceptible to judicial review. Additionally, the court stated that policy considerations were a factor. Id. at 413 (citing Park Knoll Assoc. v. Schmidt, 89 A.D.2d 164, 454 N.Y.S.2d 901 (1982), rev'd on other grounds, 59 N.Y.2d 205, 464 N.Y.S.2d 424, 451 N.E.2d 182 (1983)).

¶ 8 The trial court cited Arkules for its conclusion that an Arizona board of adjustment proceeding is also quasi-judicial. 151 Ariz. at 440, 728 P.2d at 659. Therefore, applying the Allan holding that quasi-judicial proceedings require an absolute privilege, the trial court concluded that the statements at issue were absolutely privileged.

¶ 9 However, authority from New York also exists which determines that the interest served by zoning hearings does not rise to the level of absolute protection. Instead, a qualified immunity may be most appropriate. For example, in Ellish v. Goldman, 117 N.Y.S.2d 867, 870 (N.Y.Sup.Ct.1952), the New York Supreme Court found that a qualified privilege applied to statements made to a zoning board of appeals. The court focused on whether the zoning board had judicial attributes. Id. at 869. The court concluded that although the board might have some quasi-judicial powers, it was not sufficiently judicial in nature:

The mere fact that a body or an officer vested with discretion has the power to conduct a hearing in which counsel are sometimes heard to argue, and the power to summon witnesses and administer oaths, does not constitute such a hearing before the body or officer a judicial proceeding so as to give persons testifying therein an absolute privilege.

Id. at 869-70.

¶ 10 The Allan court, however, declined to follow Ellish, creating a split of authority in New York. Allan, 615 N.Y.S.2d at 414. Nonetheless, although the Allan court questioned "whether the Ellish decision is still good law," Ellish has never been overturned. Id. In a more recent decision, the New York Supreme Court, Appellate Division, relying in part on Allan, found that an absolute privilege applied to a hearing challenging the termination of a police chief. See Romeo v. Village of Fishkill, 248 A.D.2d 700, 670 N.Y.S.2d 772, 772-73 (1998)

. Focusing on the specific facts of the case, the court stated that the hearing "bore sufficient indicia of a judicial proceeding to permit invocation of the absolute privilege." Id. at 773. Thus, the court used the Allan ruling not as a hard and fast rule, but as a guide for weighing and determining the judicial nature of a proceeding.

¶ 11 Other state courts have found that a qualified immunity is most appropriate for statements made during zoning hearings. In Supry v. Bolduc, 112 N.H. 274, 293 A.2d 767 (1972), the New Hampshire Supreme Court stated:

[T]he availability of an absolute privilege must be reserved for those situations where the public interest is so vital and apparent that it mandates complete freedom of expression without inquiry into a defendant's motives.

Id. at 769 (statements made before a zoning board of adjustment were only entitled to a qualified privilege) (citing W.L. Prosser, Law of Torts § 114, at 776 et seq. (4th ed.1971)).

¶ 12 The New Jersey Supreme Court also addressed this issue when it overturned an appellate court decision in J.D. Construction Corporation v. Isaacs, 95 N.J.Super. 122, 230 A.2d 168 (1967), rev'd and order vacated, 51 N.J. 263, 239 A.2d 657 (1968). The appellate court determined that a zoning board of adjustment meeting considering an application for a variance and a special use permit was a quasi-judicial proceeding, and therefore statements made at the meeting were absolutely privileged. J.D. Constr. Corp., 230 A.2d at 172. The court stated that it was "in square disagreement with the reasoning of Ellish v. Goldman." Id. On review, the New Jersey Supreme Court acknowledged that the absolute privilege is accorded to certain quasi-judicial proceedings. J.D. Constr. Corp., 239 A.2d at 660. The court further acknowledged that in general "[a] governing body, in passing upon a recommendation for a ... variance ..., acts in a quasi-judicial capacity." Id. Nonetheless, the court reversed the appellate court's holding, stating that the extent of the privilege to be accorded should be determined by the...