Costanzo v. Gaul
| Citation | 62 Ohio St.2d 106,16 O.O.3d 134,403 N.E.2d 979 |
| Decision Date | 30 April 1980 |
| Docket Number | No. 79-532,79-532 |
| Parties | , 16 O.O.3d 134 COSTANZO, Appellant, v. GAUL, Appellee. |
| Court | United States State Supreme Court of Ohio |
In 1970, plaintiff-appellant, Joseph R. Costanzo, a builder and land developer, conceived of a real estate development plan involving apartments for a certain area in Cleveland, known as Triskett-Grapeland. The plaintiff discussed the plan with the Cleveland Planning Commissioner, and he was informed that such an apartment development would be suitable if he were successful in obtaining rezoning for the property in question.
The plaintiff apparently was also informed that prior to any commission and Cleveland City Council action it would be necessary for him to obtain the cooperation of the city councilman from that area who, in this instance, was the defendant-appellee, Francis E. Gaul.
The plaintiff did meet with Gaul on two occasions, and the latter was shown several proposals and sketches for possible apartment and townhouse development on the property. The plaintiff testified that Gaul had informed him that the rezoning could be accomplished and that the project could proceed. Relying upon such advice, the plaintiff proceeded to obtain options upon the real estate in question.
Thereafter, apparently due to Gaul's lack of interest in the development of multiple units in his ward, the discussions broke down between Costanzo and Gaul. Costanzo sought out Gaul at City Hall, hoping to obtain the defendant's acceptance of the rezoning for the apartments upon the planning commission's application form. Gaul refused such acceptance.
The plaintiff attempted to file applications for rezoning of the parcels without Gaul's acceptance with the Cleveland Planning Commission, but the agency refused to allow him to file such applications. Thereafter, the plaintiff filed an action in mandamus against the Cleveland Planning Commission, its members, and Cleveland City Council, seeking an order requiring the planning commission to allow such filing of the applications to rezone.
During the pendency of the mandamus action, the plaintiff apparently approached the Cleveland Planning Commission with yet another development plan for the real estate in question; this plan involved the development of a nursing home which would not require rezoning of the property. The record indicates that Councilman Gaul learned of the plaintiff's approach to the planning commission.
Sometime after the filing of the mandamus action, Councilman Gaul was interviewed by a reporter from the West Side Sun, a newspaper serving the area in which Gaul's ward was located and other areas in the western portion of Cuyahoga County. In the interview, which was published in that paper on April 22, 1971, Councilman Gaul stated that appellant was a questionably ethical builder trying to pull a "get-rich-quick scheme" on the residents of his ward.
The specific alleged defamatory statements as published in the West Side Sun were as follows:
Thereafter, Costanzo brought this action for slander against Gaul in the Court of Common Pleas of Cuyahoga County. At trial, the court directed a verdict for defendant at the close of the plaintiff's case, seemingly upon the basis that plaintiff had neither alleged nor proved any special damages resulting from the published statements of defendant. The Court of Appeals affirmed upon the basis that the plaintiff's evidence showed that defendant, as a city councilman, had a qualified privilege in making the statements that he did, and that there was no showing that defendant had actual malice in publishing such statements.
The cause is now before this court upon allowance of a motion to certify the record.
Kalk & Valore and Zeev Friedman, Cleveland, for appellant.
Daniel P. McDonnell, Cleveland, for appellee.
Appellant sets forth the following single proposition of law:
"A statement made by a city councilman when he was interviewed by a newspaper reporter is not qualifiedly privileged where the statement is not made in good faith, is not limited in its scope to a topic upon which said councilman has a right, duty or interest to speak, is not made upon a proper occasion, and is published in an improper manner and to improper parties."
In resolving the questions presented, we must briefly review the applicable law of slander and, more particularly, the applicable principles of the law of privilege relative to slanderous publications.
Privilege in the law of defamation recognizes certain communications as not being within the rules imposing liability for defamation. A privileged communication is one which, except for the occasion on which or the circumstances under which it is made, would be defamatory, and actionable. The defense of privilege is a matter of public policy in furtherance of the right of free speech. See 50 American Jurisprudence 2d 695, Libel and Slander, Section 192.
Privileged communications are divided into two general classes those which are absolutely privileged, and those which are qualifiedly or conditionally privileged. The basic difference between the two as generally stated is that complete protection is afforded by absolute privilege, whereas a qualified or conditional privilege affords protection only in the absence of ill motive or malice in fact. Id. at page 696.
The application of an absolute privilege is to be found in only very limited areas of activity in our society. It has been generally limited to legislative and judicial proceedings, and other acts of state, such as communications made in the discharge of a duty of the Governor and heads of the executive departments of a state.
Absolute privilege is conferred upon members of the Congress of the United States with respect to matters published in the performance of their legislative functions, by Section 6 of Article I of the United States Constitution. *
A similar privilege is conferred upon members of most state legislative bodies either by state constitution or by state statute. See, e. g., Section 12, Article IV, Ill.Constitution; Section 43, Ky.Constitution; Section 11, Article IV, Mich.Constitution. In Ohio, senators and representatives of the General Assembly are provided an absolute privilege for statements made in session, by Section 12, Article II, of the Ohio Constitution, which provides: " * * * for any speech, or debate, in either house, they shall not be questioned elsewhere."
Therefore, with respect to Congress and many state legislative bodies, the absolute privilege in uttering defamatory matters is applicable to any speech, debate, vote, report of action done in session without regard to the motive or reasonableness of the conduct. McGovern v. Martz (U.S.D.C.1960), 182 F.Supp. 343.
Whether an absolute privilege is extended to defamatory matter published in the course of legislative proceedings of city councils and other local governmental legislative bodies, such as county commissioners, is not a matter of uniformity throughout the country. See Annotation 40 A.L.R.2d 941.
In some cases the absolute privilege has been held not to be available to members of local governmental legislative bodies. See Mills v. Denny (1954), 245 Iowa 584, 63 N.W.2d 222; McClendon v. Cloverdale (Super.Ct.1964), Storey 568, 57 Del. 568, 203 A.2d 815. These cases state that the absolute privilege is limited to the state legislature, the courts, and quasi-legislative bodies.
Other cases have extended the absolute privilege to members of governing bodies of political subdivisions, if the defamatory matter was published during the course of the official proceedings of the body, and if the matter as published was within the scope of that body's authority, and the statements or utterances are pertinent to the subject under consideration, discussion or debate of the legislative body. See, e. g., Wachsmuth v. Merchants' Nat. Bank (1893), 96 Mich. 426, 56 N.W. 9; Scott v. McDonnell Douglas Corp. (1974), 37 Cal.App.3d 277, 112 Cal.Rptr. 609; Jacobs v. Underwood (Ky.1972), 484 S.W.2d 855.
An example of the latter position is set forth in the case of Tanner v. Gault (1925), 20 Ohio App. 243, 153 N.E. 124, concerning the defamatory statement of county commissioners relative to official acts of the county surveyor. The court held that the utterances were absolutely privileged on the ground that it was pertinent for the commissioners to state their reasons for enacting a particular regulation regarding materials for a county...
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