Cornett v. Fetzer
| Citation | 604 S.W.2d 62 |
| Parties | J. I. CORNETT and J. I. Cornett Construction Company, Inc., Appellants, v. John FETZER, Appellee. |
| Decision Date | 18 June 1980 |
| Court | Court of Appeals of Tennessee |
Thomas E. Cowan, Jr. of Tucker, Cowan, LaPorte & Norris, Elizabethton, for appellants.
William T. Gamble and Frank A. Johnstone of Wilson Worley, Gamble & Ward, Kingsport, John Bowers, Jr. and John Bowers, III, of Allen, Nelson & Bowers, Elizabethton, for appellee.
Appellants, J. I. Cornett and J. I. Cornett Construction Company, Inc. brought this suit seeking compensatory and punitive damages resulting from several allegedly defamatory statements 1 made by appellee, John Fetzer, while in his capacity as a member of the Elizabethton City Council. Appellee filed a motion for summary judgment, claiming that the remarks were privileged. The trial judge granted the motion, and this appeal followed.
On March 8, 1979, during a regularly scheduled meeting of the Elizabethton City Council, appellee made several remarks concerning the design and construction of the roof on the Elizabethton Comprehensive High School. Appellant, J. I. Cornett, was the general contractor for the construction of that school. These remarks were seemingly precipitated by appellee's review of the proposed budget for the city school system submitted to City Council. The budget contained an item for the maintenance of school buildings within Elizabethton, including the Elizabethton Comprehensive High School. In an affidavit filed in support of his motion for summary judgment, appellee states that his statements grew out of a concern that the allocation for school building maintenance in the budget was inadequate in light of the condition of the Elizabethton Comprehensive High School.
The sole issue presented by this appeal is whether the remarks made by appellee were privileged since they were made in his role as city council member. There has not been, to our knowledge, any prior reported Tennessee decision that has considered whether a privilege, either absolute or conditioned, is to be afforded members of subordinate legislative bodies. However, we feel that-in view of the Tennessee and Federal Constitutions and several well-reasoned authorities from other jurisdictions-an absolute privilege should be recognized in this state for remarks made by city council members which relate to matters within the scope of that body's authority.
Through Article 1, Section 6, of the United States Constitution, the concept of absolute privilege is conferred upon members of Congress with respect to defamatory matters published in the performance of their legislative function. 50 A.L.R.2d, Libel and Slander, § 221. The Constitution of this State also embodies the concept of absolute privilege in Tenn.Const. Art. 2, § 13:
Senators and Representatives shall, in all cases, except treason, felony, or breach of the peace, be privileged from arrest during the session of the General Assembly, and in going to and returning from the same; and for any speech of debate in either House, they shall not be questioned in any other place.
These constitutional provisions reflect the obvious policy determination that the importance of legislators freely speaking their minds outweighs the countervailing argument that those people who are defamed should be able to recover damages for injury to their reputations.
We feel that the above policy is equally relevant and should apply with equal weight with regard to subordinate legislative bodies. Such lesser legislative entities make important social and economic decisions that many times affect our lives to a greater degree than do decisions made by our state legislators and congressmen. If the utterances of members of the legislative bodies such as city councils are not cloaked with an absolute privilege, an unwarranted consideration-personal monetary liability-will be interjected into a councilman's decision making process. This, we feel, would have the unavoidable effect of inhibiting the independent and forceful debate out of which decisions which best serve the interests of the populace are borne.
We further feel that the privilege which protects officials, such as in the case at bar, should be absolute rather than qualified. We agree with the reasoning in Noble v. Ternyik, 273 Or. 39, 539 P.2d 658 (1975) wherein the Supreme Court of Oregon held that a port Commissioner's defamatory remarks should be shrouded with an absolute, not qualified, privilege:
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