McClendon v. Coverdale

• Decision Date: 09 October 1964
• Citation: 203 A.2d 815,57 Del. 568
• Parties: , 57 Del. 568 Betty M. McCLENDON, Plaintiff, v. William H. COVERDALE, Defendant.
• Court: Delaware Superior Court

Page 815

203 A.2d 815

7 Storey 568, 57 Del. 568

Betty M. McCLENDON, Plaintiff, v. William H. COVERDALE, Defendant.

Superior Court of Delaware, New Castle County.

Oct. 9, 1964.

Samuel R. Russell (of Herrmann, Bayard, Brill & Russell), Wilmington, for plaintiff.

Carroll F. Poole, Wilmington, for defendant.

DUFFY, President Judge:

This is an action for slander by Betty M. McClendon, plaintiff, against William H. Coverdale, defendant. Defendant has moved to dismiss the complaint upon the grounds that at the time he used the language alleged to have been slanderous he was protected by an absolute privilege. The complaint alleges in substance as follows:

Plaintiff and defendant are both members of the City Council of Newark, Delaware. At a Council meeting on March 9, 1964, defendant falsely accused plaintiff of having committed the crime of bribery. This accusation was made with express malice, in the presence and hearing of other members of City Council, of City employees, and of the members of the general public attending the meeting. Defendant has refused to make a retraction and as a result of his slander plaintiff has been disgraced, defamed, and held in contempt and ridicule.

For purposes of the motion, the allegations of the complaint are considered to be true. The question thus raised is whether or not statements made by an elected member of a city council at a meeting of that body are absolutely privileged as a matter of law.

Our constitution, 1 Del.C., Art. 2, § 13, provided that Senators and Representatives 'for any speech or debate in either House * * * shall not be questioned in any other place.' There is no similar constitutional or statutory provision for any other kind of legislator. And there are no reported Delaware decisions which would provide useful guidance. ¹ Thus the question of absolute privilege for a city councilman is open in Delaware.

While there is respectable authority to the contrary, the general rule, widely applied and supported, is that the class of absolutely privileged communication is narrow and is limited (for present purposes) to 'legislative' proceedings as distinguished from municipal or subordinate proceedings. 33 Am.Jur., Libel and Slander, § 125. In 3 Restatement of the Law of Torts, § 590, the general rule is adopted and the comment specifically limits absolute privilege to members of the highest legislative body of a State: the privilege 'is not applicable to members of subordinate legislative bodies to which the State has delegated legislative power.'

Two of the leading text writers agree that the absolute privilege is not extended to members of town councils or boards. Prosser on Torts (3d Ed.), § 109 states:

'It is generally agreed, however, that the proceedings of subordinate bodies performing a legislative function, such as municipal councils or town meetings, are not within the policy underlying such absolute immunity, and that the members of such bodies are sufficiently protected by exemption from liability in the exercise of good faith.'

And in Harper on Torts (1956), § 5.23 it is said:

'It [absolute privilege] does not extend to municipal boards or councils, to town meetings or other subordinate legislative bodies, the members of which are protected only by a qualified or conditional privilege.'

Cases from various jurisdictions are cited in these texts.

A reading of Odgers on Libel and Slander (5th Ed.), p. 227, suggests that under English law the absolute privilege enjoyed by members of Parliament does not apply to lesser legislative bodies.

Reaching a contrary result, the courts of several States have concluded that various kinds of subordinate legislative bodies are within the absolute privilege doctrine at least under certain circumstances. Michigan extended it to an alderman in Wachsmuth v. Merchants' National Bank, 96 Mich. 426, 59 N.W. 9, 21 L.R.A. 278 (1893), and Ohio to county commissioners in Tanner v. Gault, 20 Ohio App. 243, 153 N.E. 124 (1925). More recently, Illinois followed earlier decisions in that State and held absolutely privileged a resolution by city councilmen about their clerk. Larson v. Doner, 32 Ill.App.2d 471, 178 N.E.2d 399 (1961). See, also, 53 C.J.S. Libel and Slander § 105.

Cases reflecting various views of the subject are collected at...