Johnson v. McDonald

Decision Date09 December 1999
Docket NumberNo. 1 CA-CV 99-0178.,1 CA-CV 99-0178.
Citation3 P.3d 1075,197 Ariz. 155
PartiesMya JOHNSON, Mary Nolde Schraven and Kathleen Andersen, Plaintiffs-Appellants, Cross Appellees, v. A. Melvin McDONALD, Jr. and Jane Doe McDonald; Jones, Skelton & Hochuli, PLLC, Defendants-Appellees, Cross Appellants, Bruce Frankie and Jane Doe Frankie, Defendants-Appellees.
CourtArizona Court of Appeals

Treon, Strick, Lucia & Aguirre, P.A. by Richard T. Treon and Michael T. DePaoli, Phoenix, for Appellants, Cross Appellees.

Gallagher & Kennedy, P.A. by Don D. Skypeck, Phoenix, for Appellees, Cross Appellants.

Turley, Swan & Childers, P.C. by Christopher J. Bork, Michael J. Childers, Phoenix, for Appellees Frankie.

OPINION

GERBER, Judge.

¶ 1 After appellants promoted an unsuccessful bill in the Arizona Legislature, they alleged that the appellees caused its defeat by defaming them. They sued for defamation, intentional infliction of emotional distress, and violation of constitutional rights. In dismissing the complaint, the trial court held appellees immune from the defamation claim and held further that the facts alleged did not support the emotional distress claim and also held that the claim under 42 U.S.C. section 1983 failed for lack of facts. We affirm the dismissal of the emotional distress claim, reverse and remand the dismissal of the defamation claim and remand the section 1983 claim for possible amendment.

FACTS AND PROCEDURAL HISTORY

¶ 2 On appeal from granting a motion to dismiss, we take the facts alleged in the complaint to be true and view them in a light most favorable to the plaintiffs. See Schabel v. Deer Valley Unified School Dist. No. 97, 186 Ariz. 161, 162 n. 1, 920 P.2d 41, 42 n. 1 (App.1996). Whether a communication is privileged is a question of law for the court; we are not bound by the trial court's conclusions of law, which we review de novo. See Blazek v. Maricopa County Superior Court, 177 Ariz. 535, 537, 869 P.2d 509, 511 (App.1994); Green Acres Trust v. London, 141 Ariz. 609, 613, 688 P.2d 617, 621 (1984).

¶ 3 In a previous lawsuit, appellants Mya Johnson, Mary Nolde Schraven and Kathleen Anderson alleged that appellee Bruce Frankie sexually abused them when they were high school students. After they became adults, they filed a civil suit against Frankie and the school district that employed him. The trial court dismissed the lawsuit for statute of limitations reasons.

¶ 4 Appellants then worked with some Arizona legislators to draft a new law to extend the statute of limitations for lawsuits filed by adults who had been sexually abused as minors. Under the proposed statute, extended time would apply to lawsuits filed against both the perpetrator of the sexual abuse and any individual or entity legally responsible for or covering up the abuse.

¶ 5 After the bill passed the Judiciary Committee of the Arizona House of Representatives by a unanimous vote and the entire House on a 50-4 vote, appellant Johnson met with members of the Arizona State Senate to urge its passage. The Senate Judiciary Committee voted 5-1 in its favor. The lone dissenting senator, John Kaites, prepared an amendment deleting the provision allowing the abused person to sue the entity, employer, or supervisor that assisted the perpetrator in the abuse.

¶ 6 Senator Kaites' amendment was defeated. Before the bill reached the Senate for final reading and vote, appellee A. Melvin McDonald, Jr., Frankie's attorney, allegedly advised some senators that Johnson had embezzled $250,000 from her father and then falsely accused him of child abuse. McDonald also supposedly informed senators that the trial judge had felt that the appellants were lying in their earlier lawsuit. Allegedly, because of these statements and pressure by Senators Kaites and Brenda Burns, President of the Senate, the bill did not come to a Senate vote.

¶ 7 Appellants then sued Frankie, McDonald and his law firm, Jones Skelton & Hochuli, for defamation, holding appellants up to a false light, intentional infliction of emotional distress, and deprivation of civil rights. In moving to dismiss the complaint, appellees argued that (1) McDonald's statements were absolutely privileged because made in connection with judicial proceedings, (2) the conduct alleged was not sufficiently outrageous to support a claim for intentional infliction of emotional distress, and (3) the facts alleged did not show a conspiracy between appellees and state officials necessary to state a claim for violation of civil rights under 42 U.S.C. section 1983.

¶ 8 In granting the motion, the trial court ruled that Green Acres Trust v. London, 141 Ariz. 609, 688 P.2d 617 (1984), gave appellees absolute immunity from the defamation claim. The court also concluded that the acts complained of did not support a claim for intentional infliction of emotional distress and that the section 1983 claim failed the state action and protected interest tests.

¶ 9 Appellants appealed from dismissal of their complaint. Appellees cross-appealed from the order that the parties bear their own fees and costs.

DISCUSSION
A. Absolute Judicial Privilege

¶ 10 Appellants argue that appellees are not entitled to any immunity because under Green Acres the recipient of an extra-judicial communication must have some relationship to a proposed or pending judicial proceeding for the communication to be privileged. For their part, appellees respond that the test is whether the alleged defamatory communication bears "some relation" to a judicial proceeding. In their view, statements made to individuals who are not direct participants in a judicial proceeding may be privileged provided the statements have "some relationship" to the proceeding. Appellees assert that appellants' proposed legislation would have resurrected their previously dismissed lawsuit against Frankie and thus McDonald's communications with the legislators protected the litigious concerns of his clients.

¶ 11 Green Acres appears to announce the governing law. In that case, attorneys for class action plaintiffs in a lawsuit against Green Acres Trust and Green Acres Memorial Gardens, Inc., provided a copy to and discussed a drafted complaint with a newspaper reporter who then wrote an article unfavorably characterizing Green Acres' marketing practices. Green Acres sued certain class action clients and their attorneys for defamation based on the communications made by the attorneys to the reporter. 141 Ariz. at 612, 688 P.2d at 620.

¶ 12 Green Acres considered whether the attorneys were covered by the absolute privilege given participants in judicial proceedings. The court explained that the privilege promotes "the fearless prosecution and defense of claims which lead to complete exposure of pertinent information for a tribunal's disposition" and protects judges, parties, lawyers, witnesses, and jurors. According to Green Acres, "to fall within the privilege, the defamatory publication must relate to, bear on or be connected with the proceeding." Further, "[t]he defamatory content of the communication need not be `strictly relevant,' but need only have `some reference to the subject matter of the proposed or pending litigation. . . .'" Id. at 613, 688 P.2d at 621 (quoting Restatement (Second) of Torts § 586, comment c). The court agreed that "`special emphasis must be laid on the requirement that it [the statement] be made in furtherance of the litigation and to promote the interest of justice.'" Id. at 613-14, 688 P.2d at 621-22 (quoting Bradley v. Hartford Accident & Indem. Co., 30 Cal.App.3d 818, 826, 106 Cal.Rptr. 718, 723 (1973) (emphasis in original)).1

¶ 13 Green Acres relied on Asay v. Hallmark Cards, Inc., 594 F.2d 692 (8th Cir. 1979), which also involved statements to the press about a judicial proceeding. Asay endorsed this statement of public policy:

The salutary policy of allowing freedom of communication in judicial proceedings does not warrant or countenance the dissemination and distribution of defamatory accusations outside of the judicial proceeding. No public purpose is served by allowing a person to unqualifiedly make libelous or defamatory statements about another, but rather such person should be called upon to prove the correctness of his allegations or respond in damages.

Green Acres, 141 Ariz. at 614, 688 P.2d at 622 (quoting Asay, 594 F.2d at 698). Green Acres concluded that "both content and manner of extra-judicial communications must bear `some relation to the proceeding'" and that "[t]he requirements of Asay that the recipient of the extra-judicial communication have some relationship to the proposed or pending judicial proceeding for the occasion to be privileged is sound." Id. Thus, because the newspaper reporter had no relation to the litigation, no absolute privilege protected the attorneys' communications to her. See id. at 614-15, 688 P.2d at 622-23.

¶ 14 Here, legislators receiving the alleged defamatory statements had no relation to appellants' defunct lawsuit against Frankie and the school district. We fail to see how the legislative recipients of the alleged defamation had "some relationship" to the dismissed judicial proceeding merely because they were being asked to enact legislation that might have revived it. The lawsuit was not pending at the time the legislation was being considered. The legislators had no more relation to that lawsuit than a news reporter who conveys information helpful to a litigant, nor had they information usable in the litigation or personal connection to the facts and legal issues underlying it.

¶ 15 The cases cited by appellees to support their "some relationship" argument illustrate the close connections to the judicial proceedings required for the existence of the absolute privilege. In Russell v. Clark, 620 S.W.2d 865 (Tex.Civ.App.1981), where an attorney wrote to investors of the party adverse to his client, the court held the letter...

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