Gidday v. Wakefield

• Decision Date: 19 June 1979
• Docket Number: Docket No. 78-223
• Parties: Elwyn G. GIDDAY, Jr., Plaintiff-Appellant, v. Shirley WAKEFIELD, Individually and as Clerk of Highland Township,Defendant-Appellee. 90 Mich.App. 752, 282 N.W.2d 466
• Court: Court of Appeal of Michigan — District of US

Page 466

282 N.W.2d 466

Elwyn G. GIDDAY, Jr., Plaintiff-Appellant, v. Shirley WAKEFIELD, Individually and as Clerk of Highland Township,Defendant-Appellee.

Docket No. 78-223.

90 Mich.App. 752, 282 N.W.2d 466

Court of Appeals of Michigan.

June 19, 1979.

Released for Publication Aug. 22, 1979.

[90 MICHAPP 753] Stephen P. Ferris, Orchard Lake, for plaintiff-appellant.

Moore, Sills, Poling, Wooster, Sinn & Taylor, P. C., by Richard B. Poling, Jr., Birmingham, for defendant-appellee.

Before KELLY, P. J., and CAVANAGH and MacKENZIE, JJ.

MacKENZIE, Judge.

The plaintiff appeals as of right from a December 28, 1977 order of the Oakland County Circuit Court granting the defendant's motion for summary judgment against the plaintiff. Plaintiff had filed a complaint against defendant on July 8, 1976, alleging that the defendant slandered the plaintiff at a meeting of the Highland Township Board of Trustees on July 9, 1975.

At the meeting, the plaintiff's wife, Sharyn Gidday, the township treasurer, requested a key to an [90 MICHAPP 754] area of the township offices where the defendant's office was located. The defendant, the township clerk, resisted the request, contending that an unauthorized person had been seen in her office and had gone through her files. The defendant then requested that a security partition be constructed in order to protect her records. The plaintiff's wife inquired whether the defendant wished to protect the records from her. The defendant responded that she wanted to keep the records safe "from your husband, Mrs. Gidday!" The defendant then reiterated that her files had been "rifled" and that a person saw "this man" in her office.

In his complaint, the plaintiff alleged that the defendant's statements were not spoken in furtherance of any legislative debate, judicial proceeding, executive or statutory duty or military affair, and thus were spoken without benefit of privilege or immunity.

The plaintiff's complaint had additional counts alleging that the remarks invaded the plaintiff's privacy and intentionally inflicted mental distress on the plaintiff. He sought a total of $2,500,000 in damages, $1,000,000 of this figure representing the damages resulting from the alleged defamation.

Trial was twice adjourned by agreement of the parties. On October 13, 1977, defendant filed a motion for summary judgment under GCR 1963, 117.2(1), alleging that the plaintiff had failed to state a cause of action upon which the court could grant relief. On December 5, 1977, the motion was granted by the trial judge, who held that the statements were protected under the doctrine of absolute privilege.

When reviewing a ruling on a motion for summary judgment, we accept as true all well pleaded [90 MICHAPP 755] facts in the plaintiff's complaint. We then determine whether the claims are so clearly unenforceable as a matter of law that a right to recovery cannot be predicated upon any factual development. Gartside v. Young Men's Christian Association, 87 Mich.App. 335, 337-338, 274 N.W.2d 58 (1978).

In Tocco v. Piersante, 69 Mich.App. 616, 629, 245 N.W.2d 356, 362 (1976), this Court discussed the doctrine of absolute privilege in defamation cases:

"A communication absolutely privileged is not actionable, even though false and maliciously published, whereas proof of actual malice will overcome a qualified privilege. Trimble v. Morrish, 152 Mich. 624, 627, 116 N.W. 451 (1908), Lawrence v. Fox, (357 Mich. 134, 97 N.W.2d 719 (1959)), Timmis v. Bennett, 352 Mich. 355, 89 N.W.2d 748 (1958), Prosser, Torts (4th ed.), § 114, pp. 776-777.

"Michigan has recognized an absolute privilege for communications made by judges during the course of judicial hearings. Ginger v. Wayne Circuit Judge, 369 Mich. 680, 120 N.W.2d 842 (1963), Mundy v. McDonald, 216 Mich. 444, 185 N.W. 877 (1921). This privilege is well known and universally recognized, albeit sometimes with minor modifications not relevant here.

"An absolute privilege is also generally recognized for statements made in the course of legislative proceedings. Prosser, Torts, (4th ed.), § 114, pp. 781-782. This privilege has also been adopted in Michigan. Bolton v. Walker, 197 Mich. 699, 164 N.W. 420 (1917), Trebilcock v. Anderson, 117 Mich. 39, 75 N.W. 129 (1898), Wachsmuth v. Merchants' National Bank, 96 Mich. 426, 56 N.W. 9 (1893)."

In Michigan, the absolute privilege extends to proceedings of subordinate legislative and quasi-legislative bodies. In Wachsmuth v. Merchants' National Bank, 96 Mich. 426, 56 N.W. 9 (1893), it was held that a resolution offered by a city council [90 MICHAPP 756] member to the council, relating to a matter within the member's duty, was absolutely privileged. In Trebilcock v. Anderson, 117 Mich. 39, 75 N.W. 129 (1898), a mayor's communication to a city council concerning a veto was deemed absolutely privileged. In Bolton v. Walker, 197 Mich. 699, 164 N.W. 420 (1917), words spoken by an Ex officio member of the Board of Estimates of the City of Detroit during a discussion of a matter of public concern at a regular meeting of the board were held absolutely privileged. In Powers v. Vaughan, 312 Mich. 297, 20 N.W.2d 196 (1945), a report issued by the Detroit Department of Health was deemed absolutely privileged.

In the instant case, the defendant was a member of the Board of Trustees of Highland Township. The aforementioned Supreme Court decisions establish that proceedings of local legislative and quasi-legislative bodies are cloaked by an absolute privilege. We thus conclude that the duly convened meeting of the township board may serve as a forum for application of the absolute privilege doctrine.

The finding that the proceeding lends itself to application of the doctrine of absolute privilege does not, however, end our inquiry. The fact that a public official is a member of a legislative body and is in attendance at a duly convened proceeding of such body does not afford him an...