Howe v. Detroit Free Press, Inc.

• Decision Date: 14 July 1992
• Docket Number: Docket Nos. 90042,No. 1,90043,1
• Citation: 440 Mich. 203,487 N.W.2d 374
• Parties: Virgil M. HOWE and Barbara K. Howe, Plaintiffs-Appellees, v. DETROIT FREE PRESS, INC., a Michigan corporation and a subsidiary of Knight-Ridder Newspaper Sales, Inc., a foreign corporation, Knight-Ridder Newspaper Sales, Inc., a foreign corporation, San Jose Mercury-News, a foreign corporation and a subsidiary of Knight-Ridder Newspaper Sales, Inc., a foreign corporation, and Mike Antonucci, jointly and severally, Defendants-Appellants. Calendar
• Court: Michigan Supreme Court

Page 374

487 N.W.2d 374

440 Mich. 203

Virgil M. HOWE and Barbara K. Howe, Plaintiffs-Appellees, v. DETROIT FREE PRESS, INC., a Michigan corporation and a subsidiary of Knight-Ridder Newspaper Sales, Inc., a foreign corporation, Knight-Ridder Newspaper Sales, Inc., a foreign corporation, San Jose Mercury-News, a foreign corporation and a subsidiary of Knight-Ridder Newspaper Sales, Inc., a foreign corporation, and Mike Antonucci, jointly and severally, Defendants-Appellants.

Docket Nos. 90042, 90043.

Calendar No. 1.

Supreme Court of Michigan.

Argued Dec. 3, 1991.

Decided July 14, 1992.

Lopatin, Miller, Freedman, Bluestone, Erlich, Rosen and Bartnick by Richard E. Shaw, Detroit, for plaintiffs-appellees.

Honigman Miller Schwartz and Cohn by Herschel P. Fink, Michael A. Gruskin, Detroit, for defendants-appellants.

ROBERT P. GRIFFIN, Justice.

In this interlocutory appeal arising out of a civil suit for defamation, we must decide whether a probation report concerning one of the plaintiffs, prepared in connection with an unrelated criminal matter, is absolutely privileged under M.C.L. Sec. 791.229; M.S.A. Sec. 28.2299, and therefore immune from discovery. Although the statute provides a privilege, we conclude that, under the circumstances presented here, the privilege was waived with respect to portions of the report that are relevant to issues raised in the defamation suit filed by plaintiffs. Accordingly, we reverse the decision of the Court of Appeals.

I

This defamation action is based upon a newspaper article originally published in the San Jose (California) Mercury News on July 20, 1986, regarding major league baseball pitcher Steve Howe, son of plaintiffs Virgil and Barbara Howe. In the article, reporter Mike Antonucci wrote that "Howe [Steve Howe, plaintiffs' son was] the eldest of five children and four sons in a family that was a prisoner of his father's drinking problems." The article also quoted Steve Howe as stating that his mother was forced to feed her children powdered milk "because his father [plaintiff Virgil Howe] was drinking up so many paychecks that the family was having enough trouble just coming up with a combined house and car payment of $84 a month." The newspaper article was republished in the Detroit Free Press.

Plaintiffs commenced this defamation suit, naming as defendants the Detroit Free Press, Inc., Knight-Ridder Newspaper Sales, Inc., the San Jose Mercury News, and reporter Mike Antonucci. In the lawsuit, plaintiffs asserted that the quoted excerpts were false and defamatory. Defendants answered that the statements in the article were true. During the course of discovery, defendants sought release of a probation report ¹ prepared in connection with a 1987 conviction of Virgil Howe in the 52nd District Court, 3d Division, for operating a vehicle while impaired (OWI). M.C.L. Sec. 257.625(2); M.S.A. Sec. 9.2325(2). Defendants contended that the report contains information about Virgil Howe's alcohol habits, relevant to defendants' defense that Virgil Howe did in fact have "drinking problems." An attempt was made to obtain the report by issuing a subpoena to the chief Oakland County probation officer. However, on advice of counsel for the county, the officer refused to deliver the report in the absence of consent by Virgil Howe or a court order directing that it be released. Plaintiffs objected to release, citing M.C.L. Sec. 791.229; M.S.A. Sec. 28.2299, which provides in part that such records and reports "shall be privileged or confidential communications not open to public inspection." ²

Thereafter, the trial court granted a motion by defendants for release of the report, ruling that plaintiffs, by bringing the lawsuit, had "waived any privilege with regard to statements in any presentence or probation report and supporting materials that were relevant to plaintiffs' defamation claim...." After reviewing the report in camera, the trial court determined that the entire report was relevant and should be delivered to defendants; however, access to the report was limited by the court to the parties to the lawsuit. ³ At that point, plaintiffs sought an interlocutory appeal in the Court of Appeals.

Meanwhile, defendants moved in the trial court for discovery of certain supporting documentation referred to in the probation report. Specifically, defendants sought access to a portion of the probation file called "The ALCADD Test," which includes an alcohol-use questionnaire and the results of a test administered to Virgil Howe. When this request was denied by the trial court, defendants also filed an application for leave to appeal. The Court of Appeals granted both applications, consolidated the appeals, and stayed further proceedings in the lower court. ⁴

In an opinion per curiam, the Court of Appeals reversed the trial court's ruling that the report is discoverable, and affirmed its decision precluding release of the supporting ALCADD test documentation. ⁵ 184 Mich.App. 492, 459 N.W.2d 68 (1990). We then granted leave to appeal. 437 Mich. 1035 (1991).

II

This appeal turns on the meaning and applicability under these circumstances of M.C.L. Sec. 791.229; M.S.A. Sec. 28.2299, which provides:

"All records and reports of investigations made by a probation officer, and all case histories of probationers shall be privileged or confidential communications not open to public inspection. Judges and probation officers shall have access to the records, reports, and case histories. The probation officer, the assistant director of probation, or the assistant director's representative, shall permit the attorney general, the auditor general, and law enforcement agencies to have access to the records, reports, and case histories. The relation of confidence between the probation officer and probationer or defendant under investigation shall remain inviolate."

It is plaintiffs' position that the probation report is absolutely privileged under the statute, and that the privilege was not waived by their initiation of the instant defamation suit. On the other hand, defendants contend that the statute does not create an evidentiary privilege; rather, it merely places restrictions upon disclosure of probation records and reports. If a privilege is created, defendants argue that it cannot be absolutely inviolate in light of language in the statute allowing for access to the report, not only by judges and probation officers, but also by certain designated state officials as well as "law enforcement agencies." Defendants find support in the writing of one commentator:

"Because the latter authorities can be given access to the material by the probation officer in charge of a case or a superior official, without any requirement of defendant concurrence, it also seems difficult conceptually to structure this as a privilege." George, A Practical Analysis of Michigan Evidence Law, Sec. 15.30(J).

Defendants further contend that, even if a statutory privilege were to be recognized, any such privilege was waived by plaintiffs when they commenced this lawsuit for defamation, particularly in light of the fact that denial of access to the report and its supporting materials would deprive defendants of relevant evidence essential to their defense. Defendants assert that the report and its supporting materials weigh heavily on the ultimate issue in this case--the falsity or truthfulness of statements in the newspaper article concerning Virgil Howe's "drinking problems."

A

Privileges have not been readily endorsed or broadly construed by the courts, for reasons explained by Professor McCormick in his treatise on Evidence (3d ed.), ch. 8, Sec. 72, pp. 170-171:

"The overwhelming majority of all rules of evidence have as their ultimate justification some tendency to promote the objectives set forward by the conventional witness' oath, the presentation of 'the truth, the whole truth, and nothing but the truth.' Thus such prominent exclusionary rules as the hearsay rule, the opinion rule, the rule excluding bad character as evidence of crime, and the original documents (or 'Best Evidence') rule, have as their common purpose the elucidation of the truth, a purpose which these rules seek to effect by operating to exclude evidence which is unreliable or which is calculated to prejudice or mislead.

"By contrast, the rules of privilege ... are not designed or intended to facilitate the fact-finding process or to safeguard its integrity. Their effect instead is clearly inhibitive; rather than facilitating the illumination of truth, they shut out the light."

Privileges do serve a purpose, however:

"[R]ules of privilege are not without a rationale. Their warrant is the protection of interests and relationships which, rightly or wrongly, are regarded as of sufficient social importance to justify some sacrifice of availability of evidence relevant to the administration of justice.... [A] substantial number operate to protect communications made within the context of various professional relationships, e.g., attorney and client, physician and patient, clergyman and penitent. The rationale traditionally advanced for these privileges is that public policy requires the encouragement of the communications without which these relationships cannot be effective." Id., p. 171.

The existence and scope of a statutory privilege ultimately turns on the language and meaning of the statute itself. Cf. People v. Love, 425 Mich. 691, 705, 391 N.W.2d 738 (1986) (opinion of Cavanagh, J.). As this Court has said:

"The primary and fundamental rule of constitutional or statutory construction is that the Court's duty is to ascertain the purpose and intent as expressed in the constitutional or legislative provision in question. Also, while intent must be inferred from the language used, it is not the meaning of the particular words only in the abstract or their strictly grammatical construction alone that governs. The words are to...