McNayr v. Kelly

• Citation: 184 So.2d 428
• Decision Date: 23 March 1966
• Docket Number: No. 34593,34593
• Parties: Irving G. McNAYR, Petitioner, v. Thomas J. KELLY, Respondent.
• Court: United States State Supreme Court of Florida

Page 428

184 So.2d 428

Irving G. McNAYR, Petitioner, v. Thomas J. KELLY, Respondent.

No. 34593.

Supreme Court of Florida.

March 23, 1966.

Thomas C. Britton, Miami, for petitioner.

Milton M. Ferrell and J. M. Flowers, Miami, for respondent.

Earl Faircloth, Atty. Gen., and Gerald Mager, Asst. Atty. Gen., amici curiae.

DREW, Justice.

This case is before us for review on a petition for certiorari accompanied by a certificate of the District Court of Appeal, Third District, 'that the decision of this court 'passes upon a question of great public interest' in that our decision involves the question of whether executive officials of county government are absolutely privileged as to defamatory publications made in connection with their office.' ¹ Thus the issues are clearly defined. That the publication was defamatory; that they were made in connection with the office and arose out of an official and authorized act; that the county official was an 'executive official' of Dade County, are all admitted. The sole question for our decision--and admittedly one of profound importance to the public--is whether such publications are absolutely privileged; that is to say, whether, no matter how false or malicious words spoken or written by an executive official of government may be, such public servant is protected by the law from suit or damages by or in the favor of the person wronged. That such protection is afforded public servants in the judicial and legislative branch of government is not questioned. The question here, as we have stated, is whether the same immunity should be extended to the executive branch of government. We think it should--but before discussing the question and our reasons for this conclusion, a statement of the factual background of this litigation seems appropriate.

Metropolitan government in Dade County has no counterpart in this State. 'Metro', as it is commonly called, was authorized by an amendment to the Florida Constitution in 1956. ² Pursuant to this amendment the people of Dade County adopted a charter and under the authority of this charter Dade County was ruled through a legislative body known as the Board of County Commissioners. This board acted through ordinances, exercising thereby the very broad powers granted under the Constitution and charter. In Dade County v. Kelly ³ (the same person involved here), this Court held that the office of Sheriff of Dade County (as it existed prior to Metro) could be completely abolished by the County Commissioners and a new department known as the Department of Public Safety created in its stead to be directed by a Public Safety Director. We further held in that case that the County Manager of Metro had the power 'to hire the (sheriff) on a daily basis to serve at the will of the manager and to fire him without cause or notice.' ⁴ It is pertinent here to observe that inherent in the holding in Kelly, supra, was the conclusion that the power of the Governor under the Constitution to suspend constitutional officers of this State was not affected by the Metro charter. It was simply a case of concurrent power--which in the instance there, was exercised first by the County Manager. This fact is noted only because the law is crystal clear that had the Governor suspended the sheriff and had he then published the libel in reporting his actions to the Board of County Commissioners, his actions would have been absolutely privileged. ⁵ And this is true no matter how malicious the Governor's actions had been or the great extent of the damages to Kelly by virtue of such publication. It would seem incongruous to make fish of one and fowl of the other; but this is just an example of the difficulty of the question presented and the desirability--or practical necessity--of extending to the executive branch at all levels the same immunity that has for ages been accorded the legislative and judicial branches. If areas of absolute immunity and qualified immunity are to be carved out of the executive branches of government, it should more appropriately--and historically more properly--be done by the legislative branch. ⁶

Another point material to this decision is the fact that the County Manager is appointed by and is answerable to the Board of County Commissioners. It is true that the County Manager could primarily dispense with the services of the sheriff--as he did--without any prior approval by the Board of County Commissioners, but any successor had to be approved by such Board at a subsequent meeting. It was after the County Manager, McNayr, petitioner here, had fired--or to use a kinder term--dispensed with the services of Kelly ⁷ that the former delivered to each member of the Board a report of his actions and reasons therefor which were admittedly libelous. Kelly argues that, inasmuch as McNayr was not required to report his reasons for dismissing Kelly, his actions in doing so were beyond any duty or obligation imposed on him and therefore he was not performing any duty of the office of County Manager and was therefore beyond the pale of protection which would otherwise be afforded to him, even if his communications in the line of duty were absolutely privileged. We can accept neither the premise nor the argument. While he had no positive duty to discuss the matter of dispensing with Kelly's services with the Board of County Commissioners as a condition precedent to effectively and conclusively taking action, as the appointee of the Board and its chief executive officer, he was bound by the very nature of the act itself and the impact on public opinion of discharging a high elective official summarily, to keep the Board advised of his actions and his reasons therefor. The Board, as the legislative body of the county--the people's representatives--was bound to be either praised or criticized--or at the very least--questioned concerning such action. Moreover, while the Board had no power to interfere directly with the Manager's action in dispensing with Kelly's services, the Manager was answerable to the Board for all of his actions as everyone knows from everyday experience and common sense. So, we have no difficulty in resolving that the Manager was acting within the orbit of his duties and responsibilities in making the report to the Board of County Commissioners.

We now turn to the basic question before us. Are actions of executive officials absolutely privileged as to defamatory publications made in connection with their office?

It seems to be well settled in this State that words spoken or written by public servants in judicial and legislative activities are protected by absolute privilege from liability for defamation. However false or malicious or badly motivated the accusation may be, no action will lie therefor in this State. ⁸ Nor is it questioned that such absolute immunity in this State extends to county and municipal officials in legislative or quasi-legislative activities as well as to members of the State Legislature and activities connected with State legislation. ⁹ It is also pertinent to note that in this strange area where the courts seem to have originated the idea of absolute immunity instead of the legislatures, Florida has followed the weight of authority in dealing with questions arising under the broad principle whenever it has been presented to it. ¹⁰ In stating the grounds upon which the rule of absolute privilege is sustained as to judicial proceedings, this Court has said that all persons connected therewith should be free of fear of being called upon to defend suits arising as a result of derogatory disclosures. The question, however, of absolute immunity to those engaged in the executive branches of government is one of somewhat modern origin. In Barr v. Matteo ¹¹ in an opinion by Mr. Justice Harlan, the U.S. Supreme Court held that the same absolute immunity which the courts had heretofore universally extended to the legislative and judicial branches of government should be accorded to those in the executive branch. Admittedly the question is a difficult one not only for the reasons heretofore stated in this opinion but because of the impact of constitutional provisions such as the provision of our Declaration of Rights which provides that the courts of this State shall be open so that every person for any injury done him in his lands, goods, person or reputation shall have remedy by due course of law and that right and justice should be administered without sale, denial or delay. In Barr v. Matteo, the majority opinion adopted the language of Judge Learned Hand in Gregoire v. Biddle, 2 Cir., 177 F.2d 579--581, as the rationale upon which the basic decision was reached. This excellent dissertation so effectively presents and disposes of the arguments on both sides that it is again quoted in the footnote of this opinion. ¹²

In the interest of brevity it is observed that in the majority and dissenting opinions in Barr v. Matteo and in the footnotes attached there is a collation of all of the pertinent authorities upon this subject and we will only refer hereafter to a few of these authorities to illustrate some particular point.

In our research we have concluded that the great weight of authority now recognizes no distinction between executive officials of government and judicial or legislative officials of government on...