Grostick v. Ellsworth

• Decision Date: 06 May 1987
• Docket Number: Docket No. 84476
• Citation: 158 Mich.App. 18,404 N.W.2d 685
• Parties: Robert GROSTICK, Plaintiff-Appellee, v. Roy E. ELLSWORTH, Defendant-Appellant. 158 Mich.App. 18, 404 N.W.2d 685, 39 Ed. Law Rep. 319
• Court: Court of Appeal of Michigan — District of US

Page 685

404 N.W.2d 685

Robert GROSTICK, Plaintiff-Appellee, v. Roy E. ELLSWORTH, Defendant-Appellant.

Docket No. 84476.

158 Mich.App. 18, 404 N.W.2d 685, 39 Ed. Law Rep. 319

Court of Appeals of Michigan.

Submitted June 24, 1986.

Decided Feb. 18, 1987.

Released for Publication May 6, 1987.

[158 MICHAPP 19] John R. Brakora, Manistee, for plaintiff-appellee.

Menmuir, Zimmerman, Rollert & Kuhn by George F. Bearup, Traverse City, for defendant-appellant.

Before R.B. BURNS, P.J., and MAHER and BROUILLETTE, ^* JJ.

BROUILLETTE, Judge.

Defendant appeals by leave granted from an order of the circuit court denying defendant's motion for summary judgment in favor of defendant on plaintiff's defamation action. We affirm.

[158 MICHAPP 20] Plaintiff was an elementary school principal in the Kaleva-Norman-Dickson School District, of which defendant is the Superintendent of Schools. Plaintiff claims that defendant libeled him in two letters and a "bill of particulars," written by defendant in March and April of 1983 and sent to the school board, which negatively evaluated plaintiff's performance as principal. Defendant prepared the letters pursuant to his duty under M.C.L Sec. 380.132(4); M.S.A. Sec. 15.4132(4) and M.C.L. Sec. 380.346; M.S.A. Sec. 15.4346. Defendant sought to have plaintiff separated from his employment with the school district. Plaintiff also alleges that defendant slandered plaintiff at school board meetings at which the letters were read and discussed.

Defendant sought summary judgment on the alternate grounds of the existence of an absolute privilege or, if only a qualified privilege existed, that plaintiff had not alleged sufficient facts to raise the issue of actual malice to overcome the qualified privilege. The trial court denied the motion, finding that there was no absolute privilege and that there was a possibility that plaintiff could develop facts to overcome a qualified privilege, if any existed.

If an absolute privilege applies in the instant case, there can be no action for defamation even if the information was false and maliciously and knowingly published. Parks v. Johnson, 84 Mich.App. 162, 166, 269 N.W.2d 514 (1978). In Raymond v. Croll, 233 Mich. 268, 272-273, 206 N.W. 556 (1925), the Court stated the limited applicability of absolute privilege:

" 'Cases of absolute privilege are not numerous, and the courts refuse to extend their number. They are divided into three classes. (1) Proceedings of legislative bodies; (2) Judicial proceedings; and [158 MICHAPP 21] (3) Communications by military and naval officers.' Newell, Slander and Libel (4th ed), Sec. 351.

"It is the policy of the courts to keep the doctrine of absolute privilege within these narrow limits, because, as Mr. Newell says, 'It rests upon the same necessity that requires the individual to surrender his personal rights, and to suffer loss for the benefit of the common welfare.'

" 'Generally speaking, absolute privilege is confined to cases in which the public service or the administration of justice requires complete immunity from being called to account for language used. It applies more directly to matters of public concern, such as language used in legislative, judicial and executive proceedings; and it is not intended so much for the protection of those engaged in the service, as it is for the promotion of the public welfare.' 36 CJ, pp 1240, 1241.

"Our court recognizes the rule of absolute privilege, but it has repeatedly refused to extend its application beyond the necessities of the judicial, legislative, and military occasions. Mundy v Hoard, 216 Mich 478 [185 N.W. 872 (1921) ]; Bolton v Walker, 197 Mich 699 [164 N.W. 420 (1917) ] (Ann Cas 1918E, 1007); Trebilcock v Anderson, 117 Mich 39 [75 N.W. 129 (1898) ]; Wachsmuth v National Bank, 96 Mich 426 [56 N.W. 9 (1893) ] (21 LRA 278)."

The parties primarily rely on two cases of this Court which considered the doctrine of absolute privilege in educational settings. Plaintiff looks to Parks, supra, where a school principal sent a memorandum to the school administration recommending disciplinary action against the plaintiff. This Court, over the dissent of Judge Beasley, found that no absolute privilege applied since the defendant was not acting in a legislative or judicial capacity. Parks, 84 Mich.App. at 168, 269 N.W.2d 514.

Defendant relies on Chonich v. Ford, 115 Mich.App. 461, 321 N.W.2d 693 (1982). In Chonich, the defendant, a member of the Wayne County Community[158 MICHAPP 22] College Board of Trustees, made allegedly defamatory statements against the plaintiffs during a Board of Trustees meeting. This Court applied the doctrine of absolute privilege, concluding that the Board of Trustees was a subordinate legislative body. Id. at 468, 321 N.W.2d 693.

The case at bar falls squarely between Parks and Chonich. Parks considered communications from an administrator to an administrator and Chonich involved communications by a trustee at a board meeting, while the case at bar involves a communication from an administrator to the school board, a quasi-legislative body. Inasmuch as it is judicial policy not to extend the doctrine of absolute privilege beyond its narrow limits, Raymond, supra, 233 Mich. at 272, 206 N.W. 556, we decline to apply it to the case at bar. Plaintiff acted in neither a legislative nor a judicial capacity. We cannot equate the reports of an administrative official to a legislative or quasi-legislative body with statements made by a legislator during the proceedings of a legislative body. Accordingly, the trial court did not err in denying defendant's motion under defendant's absolute privilege argument.

Next, we must consider whether plaintiff sufficiently alleged the existence of actual malice to evade a qualified privilege. Like the trial court, we will assume the existence of a qualified privilege, without actually deciding if such a privilege applies to this case. To prevail in a defamation suit where a qualified privilege exists, the plaintiff must show that the defendant acted with actual malice. Swenson-Davis v. Martel, 135 Mich.App. 632, 637, 354 N.W.2d 288 (1984). Actual malice is shown where...