McGranahan v. Dahar

• Decision Date: 24 October 1979
• Docket Number: No. 78-214,78-214
• Citation: 119 N.H. 758,408 A.2d 121
• Parties: John F. McGRANAHAN v. Victor W. DAHAR.
• Court: New Hampshire Supreme Court

Page 121

408 A.2d 121

119 N.H. 758

John F. McGRANAHAN v. Victor W. DAHAR.

No. 78-214.

Supreme Court of New Hampshire.

Oct. 24, 1979.

Brown & Nixon, Manchester (Stanley M. Brown, Manchester, orally), for plaintiff.

McLane, Graf, Greene, Raulerson & Middleton, P. A., Manchester (Jack B. Middleton, Manchester, orally), for defendant.

BROCK, Justice.

This action for defamation and "malicious use of process" presents the question of how much protection from civil liability is afforded persons participating in judicial proceedings.

The defendant, Victor W. Dahar, is an attorney who owns real estate in the city of Manchester. The lessee of one of Dahar's properties, American Snacks, Inc., applied for and was granted a tax abatement for the property for 1973. Following its usual procedure, the city issued and sent the abatement check to Dahar, the record owner of the property. Early in 1975, American Snacks brought suit in the Hillsborough County Superior Court alleging that Dahar had wrongfully converted the tax abatement check which American Snacks claimed belonged to it. As part of his defense, Dahar made certain statements to his attorneys and filed pleadings alleging that the disputed money belonged to the city, not to American Snacks, because the tax abatement had been unlawfully granted. In particular, Dahar implied that the plaintiff here, John F. McGranahan, then chairman of the board of assessors for the city of Manchester, had improperly granted a tax abatement to a property in which he held a financial interest. McGranahan was not a party to the civil action of American Snacks, Inc. v. Dahar. At about the same time, members of the Manchester Police Department and the city prosecutor talked with Dahar about his suspicions. On April 10, 1975, McGranahan was arrested and charged with official oppression, RSA 643:1. Dahar testified on behalf of the State at McGranahan's trial, which took place in June 1975 in the Manchester District Court. Reports of the trial appeared in the news media. McGranahan was acquitted on all counts.

McGranahan then brought this action against Dahar, pleading in a single count trespass, libel, slander, and "malicious use of process." On the defendant's motion, the Court (Keller, C. J.) ordered the plaintiff to file an amended declaration separating out the various causes of action. In response, the plaintiff filed a new writ containing three counts, each captioned as a separate cause of action, and each repeating verbatim the entire text of the original declaration. The defendant then moved to dismiss the entire suit, claiming that all of the statements and actions complained of were absolutely privileged and could not be the basis for an action for libel, slander, or malicious use of process. The Trial Court (Flynn, J.) denied the motion and reserved and transferred the defendant's exceptions. We reverse.

McGranahan alleges that the defendant made defamatory statements on a number of occasions leading up to and including McGranahan's criminal trial. The plaintiff's claims relate to the following:

1. Statements "to Jack B. Middleton and Christopher Marshall and to divers other individuals," made "for the ulterior purpose of creating a plausible defense to the suit by American Snacks;"

2. Statements contained in pleadings filed in Hillsborough County Superior Court in conjunction with the American Snacks suit;

3. Statements to the Manchester city solicitor, city prosecutor, and a member of the Manchester police department, during their investigation of McGranahan's alleged criminal conduct;

4. Dahar's testimony during McGranahan's criminal trial;

5. Reports in the public press of Dahar's allegations.

The defendant asserts that all of these statements were absolutely privileged as statements made in the course of judicial proceedings, and that any defamation action based on them must be dismissed. In response, plaintiff contends that the privilege afforded to statements in the course of judicial proceedings is a conditional one, which is lost if the declarant acts maliciously or in bad faith.

Whether this action can be dismissed at this stage depends on the type of privilege involved. In the case of a Conditional privilege, the question whether the defendant is entitled to claim the privilege is a question for the trier of fact. Supry v. Bolduc, 112 N.H. 274, 293 A.2d 767 (1972). Therefore, the matter can rarely be disposed of on a motion to dismiss or for summary judgment. Thomson v. Cash, 119 N.H. ---, 402 A.2d 651 (1979). An Absolute privilege, however, is tantamount to an immunity. It is not conditioned on the actor's good faith. Because an Absolute privilege bars an injured party from recovering any recompense, it "must be reserved for those situations where the public interest is so vital and apparent that it mandates complete freedom of expression without inquiry into a defendant's motives." Supry v. Bolduc, 112 N.H. 274, 276, 293 A.2d 767, 769 (1972). Judicial proceedings constitute one such situation. W. Prosser, Torts, § 114 at 777-78 (4th ed. 1971).

In the context of this case, determination of the scope of the privilege to be recognized requires a balancing of two important principles: the right of an individual to enjoy an unsullied reputation, and the public interest in free and full disclosure of facts pertinent to judicial proceedings. Discussions with attorneys and investigating officers, and even the filing of pleadings frequently and necessarily occur at a time when the declarant may not have access to information verifying or disproving the statements. The purpose of a judicial proceeding is to test the truth or falsity of allegations of criminal or wrongful conduct. Many of the cases in our courts involve allegations of undesirable conduct by one or more citizens. We cannot envision that these allegations should become the basis for defamation actions each time the alleged wrongdoer prevails in the first action. Under such a rule, our judicial system would be seriously hampered by parties' fears that if they were unable to establish unequivocally the truth of their pleadings they would face the burden of an extended defamation action in addition to the proceeding in which the statements were made. Annot., 38 A.L.R.3d 272, 277 (1971).

On the other hand, pleadings, testimony, and other portions of judicial proceedings are public documents and events. Thomson v. Cash, 117 N.H. 653, 377 A.2d 135 (1977); Martineau v. Helgemoe, 117 N.H. 841, 379 A.2d 1040 (1977); See Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 95 S.Ct. 1029, 43 L.Ed.2d 328 (1975). A person's reputation undoubtedly may be harmed as much by allegations contained in pleadings, or spoken from a witness stand, even if ultimately disproven, as by those proclaimed from a soapbox in the village square. There is no reason to protect one who uses the form of a judicial proceeding merely as a pretext for circulating defamatory material. Cf. State v. Burnham, 9 N.H. 34 (1837) (leaflet cast in form of petition for removal of public officer).

Due to these competing interests, the general rule is that statements made in the course of judicial proceedings are absolutely privileged from civil actions, provided they are pertinent to the subject of the proceeding. See, e. g., Aborn v. Lipson, 357 Mass. 71, 256 N.E.2d 442 (1979); Matthis v. Kennedy, 243 Minn. 219, 67 N.W.2d 413 (1954); Developments in the Law: Defamation, 69 Harv.L.Rev. 875, 920 (1956). The requirement of pertinence eliminates protection for statements made needlessly and wholly in bad faith. McLaughlin v. Cowley, 127 Mass. 316, 319 (1879). The rule reflects a determination that the potential harm to an individual is far outweighed by the need to encourage participants in litigation, parties, attorneys, and witnesses, to speak freely in the course of judicial proceedings. Aborn v. Lipson, 357 Mass. 71, 72, 256 N.E.2d 442, 443 (1970); Martirano v. Frost, 25 N.Y.2d 505, 508-09, 307 N.Y.S.2d 425, 427-28, 255 N.E.2d 693, 694-95 (1969). This rule does not assume that all persons who participate in judicial proceedings are free from malice. Rather, it reflects a determination that the need to protect honest participants from vexatious litigation to vindicate themselves is so important that the law will not risk subjecting them to defamation suits merely in order that the occasional malicious participant may be penalized in damages. Veeder, Absolute Immunity in Defamation: Judicial Proceedings, 9 Colum.L.Rev. 463, 469 (1909).

This court has previously indicated adoption of the general rule affording an absolute privilege or immunity to statements made in the course of judicial proceedings. In Supry v. Bolduc, 112 N.H. 274, 293 A.2d 767 (1972), we held that statements made during a zoning board hearing were not entitled to an absolute privilege because the hearing did not have all the hallmarks of a judicial proceeding. In In re Grievance Procedures, 115 N.H. 310, 312, 341 A.2d 272, 274 (1975), we approved extending "the absolute privilege given to statements in court" to statements made during attorney disciplinary proceedings. Cf. Sweet v. Middlesex Mutual Insurance Co., 397 F.Supp. 1101 (D.N.H.1975).

We next consider the specific statements that the plaintiff alleges were defamatory of him, to determine whether they are included in the absolute privilege.

I. Statements to the defendant's attorneys.

It may be questioned whether all statements made to an attorney during the course of legal representation may be considered part of judicial proceedings and thus entitled to absolute privilege. We think, however, that an action in defamation based on statements made to an attorney representing the declarant must fail because the plaintiff is unable to establish an essential element of his case, namely, that the alleged statements were in fact made. There is little question on the facts presented that all the statements referred to in ...