Johnsen v. Carhart

• Decision Date: 20 December 1977
• Docket Number: No. 76-2149,76-2149
• Citation: 353 So.2d 874
• Parties: George S. JOHNSEN, Appellant, v. Edward CARHART, Appellee.
• Court: Florida District Court of Appeals

Page 874

353 So.2d 874

George S. JOHNSEN, Appellant, v. Edward CARHART, Appellee.

No. 76-2149.

District Court of Appeal of Florida, Third District.

Dec. 20, 1977.

Millar & Lally and Al Millar, Jr., Jacksonville, for appellant.

Greenberg, Traurig, Hoffman, Lipoff, Quentel & Wright and Alan T. Dimond, Miami, for appellee.

Before HUBBART and KEHOE, JJ., and CHARLES CARROLL (Ret.), Associate Judge.

CHARLES CARROLL (Ret.), Associate Judge.

This appeal is by the plaintiff below, from an order dismissing the amended complaint in his libel action against an Assistant State Attorney of Dade County.

The question involved is whether the trial court was correct in determining, on the amended complaint and its exhibit, that the matter was within the absolute privilege of the defendant official. We hold the ruling of the court was correct, and affirm.

The plaintiff and three other police officers of the City of Miami were convicted of a certain crime or crimes involving moral turpitude. Thereafter, when they were under consideration for reemployment or reinstatement in the police department of the City of Miami, the defendant, who had conducted the prosecution at the trial, and who was an official of the executive department of government, with the position and title of Executive Assistant State Attorney of Dade County, sent a letter in his said capacity and under his official letterhead to the Chief of Police of the City of Miami with carbon copies to the Mayor and Members of the City Commission. The letter suggested, because of the result of the trial and the conduct of the officers at the trial, their unfitness for reinstatement. Included were statements that the officers had lied in testifying at their criminal trial. The trial principally had involved alleged misconduct by the officers with a former prostitute who was the complaining witness. The references in the letter to lying by the plaintiff officer at the trial were as follows:

"I suggest these men willfully testified falsely in their own behalf and in general conducted themselves in a fashion which clearly mocked the integrity of the Miami Police Department and the criminal justice system of this community.

"I would also point out that your own Investigators had the former prostitute in this matter polygraphed by one Warren Holmes and as a result of that and their own investigation, are satisfied of her verasity which necessarily means that the defendants in this case have willfully lied throughout the legal proceedings."

The amended complaint, to which the letter was made an exhibit, alleged the defendant Carhart "was acting beyond the scope of authority" in that in so acting the defendant did not have authority or permission of the State Attorney; that there had been no request therefor by the Chief of Police of the City of Miami; that the functions of the State Attorney's office did not "embrace the representation or participation in disciplinary proceedings within the City of Miami Police Department"; and that the said action of the defendant was "not connected to, incident, antecedent, or precedent to any function that he performed in the prosecution of the plaintiff" (in the circuit court criminal case). The plaintiff alleged injury resulted, humiliation, damage to reputation and loss of reinstatement.

The defendant's motion to dismiss the amended complaint was for its failure to state a cause of action, on the ground of immunity because of claimed absolute privilege of the defendant as to the matter involved. After hearing thereon the court entered an order dismissing the amended complaint, and this appeal ensued.

In stated accord with the great weight of authority which recognizes no distinction between executive officers of government and judicial or legislative officers of government on the question of immunity, and following the ruling of the Supreme Court of the United States in Barr v. Matteo, 360 U.S. 564, 79 S.Ct. 1335, 3 L.Ed.2d 1434 (1959) that the same absolute immunity which the courts had theretofore universally extended to the legislative and judicial branches of government should be accorded to those in the executive branch, the Supreme Court of Florida, in McNayr v. Kelly, 184 So.2d 428 (Fla.1966), held as follows:

"In summary, we hold that executive officials of government are absolutely privileged as to defamatory publications made in connection with the performance of the duties and responsibilities of their office to the same extent as such absolute immunity is afforded to members of the legislative and judicial branches of government."

In McNayr v. Kelly, supra, in a footnote, the Court quoted the language of Judge Learned Hand in Gregoire v. Biddle, 177 F.2d 579, 581 (2nd Cir. 1949) which the Supreme Court of the United States had adopted in Barr v. Matteo, supra. We view that language and the reasoning and statement of the law which it supplies to be of sufficial legal import and bearing on this case to justify repeating it here, viz:

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