Mulgrew v. City of Taunton

• Decision Date: 11 July 1991
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 389

574 N.E.2d 389

410 Mass. 631

Russell N. MULGREW v. CITY OF TAUNTON et al. ¹ Supreme Judicial Court of Massachusetts Bristol.

Argued April 1, 1991.

Decided July 11, 1991.

Philip N. Beauregard, New Bedford, for plaintiff.

Marc LaCasse, Boston, for David Westcoat.

Edmund J. Brennan, Jr. (Colleen C. Karsner with him), Taunton, for the City of Taunton.

Before LIACOS, C.J., and ABRAMS, NOLAN, LYNCH and GREANEY, JJ.

LIACOS, Chief Justice.

The plaintiff, Russell N. Mulgrew, resigned his position as a police officer for the city of Taunton (city) on November 9, 1984. Two months later, he sought reinstatement unsuccessfully. The present action was commenced by the plaintiff in the Superior Court against the city and its chief of police, David Westcoat. Westcoat moved for summary judgment pursuant to Mass.R.Civ.P. 56, 365 Mass. 824 (1974), and a judge of the Superior Court granted the motion. ² The claims against the city were tried in a proceeding jury-waived. The judge made findings of fact and rulings of law, and entered judgment in favor of the city. The plaintiff appealed; the case is before us on our own motion.

1. The Complaint.

In count one of his complaint, the plaintiff sought a declaratory judgment that he was entitled to disability benefits pursuant to G.L. c. 41, § 111F (1990 ed.), and a declaratory judgment that his resignation from the police department was not voluntary. In addition, the plaintiff sought damages against the city for its request that the plaintiff take a lie detector test allegedly in violation of G.L. c. 149, § 19B (1990 ed.), and for violating the plaintiff's Federal and State constitutional rights. 42 U.S.C. § 1983 (1988). G.L. c. 12, §§ 11H, 11I (1990 ed.). In count two of the complaint, the plaintiff sought damages against Westcoat for defamation and invasion of privacy. See G.L. c. 214, § 1B (1990 ed.). ³

2. Summary Judgment.

a. Defamation. We have stated that we favor the use of summary judgment procedures in cases where defamation is alleged. King v. Globe Newspaper Co., 400 Mass. 705, 708, 512 N.E.2d 241 (1987), cert. denied, 485 U.S. 940, 108 S.Ct. 1121, 99 L.Ed.2d 281 and 485 U.S. 962, 108 S.Ct. 1227, 99 L.Ed.2d 427 (1988). New England Tractor-Trailer Training of Conn., Inc. v. Globe Newspaper Co., 395 Mass. 471, 480, 480 N.E.2d 1005 (1985). Defendants, however, "must still meet the usual burden under rule 56 of demonstrating by evidence 'considered with an indulgence in the plaintiff's favor,' the absence of disputed issues of material fact and their entitlement to judgment as a matter of law." Godbout v. Cousens, 396 Mass. 254, 258, 485 N.E.2d 940 (1985), quoting National Ass'n of Gov't Employees, Inc. v. Central Broadcasters Corp., 379 Mass. 220, 231, 396 N.E.2d 996 (1979), cert. denied, 446 U.S. 935, 100 S.Ct. 2152, 64 L.Ed.2d 788 (1980).

The facts of record, viewed in favor of the plaintiff, are as follows. On October 14, 1984, at 2:40 A.M., the plaintiff, while on duty as a Taunton police officer, was assaulted by two individuals. As a result of the attack, the plaintiff received injuries to his head and back. The plaintiff also suffered emotional distress as a consequence of the assault. The plaintiff's physician advised him to seek psychological treatment and not to return to full duty as a police officer. Shortly after the incident, the city placed the plaintiff on leave with pay pursuant to G.L. c. 41, § 111F. In early November, 1984, the plaintiff requested that he be placed on "light duty." The then chief of police, Roger Renaud, told the plaintiff that "light duty" assignments were not within the policy of the police department. ⁴ As far as the chief was concerned, the plaintiff was medically fit to return to work. The chief told the plaintiff that his benefits under § 111F would be terminated. The plaintiff did not consider himself capable of resuming his full duties as a police officer. As a result, the plaintiff resigned from the police department.

On January 18, 1985, the plaintiff wrote the mayor and city council (council) requesting that he be reinstated. On January 22, 1985, the plaintiff's request was referred by the council to its committee on police and licenses (committee). The committee inquired of Westcoat whether in his opinion the plaintiff should be reinstated. On February 4, 1984, Westcoat wrote the committee a letter stating that the plaintiff's performance as a police officer had been poor; that the plaintiff had been a "sick day" abuser; that there were "investigational inconsistencies and unanswered questions" regarding the plaintiff's version of the incident on October 14, 1984; and that the plaintiff had left the department under a "cloud of suspicion." Westcoat recommended to the committee that the plaintiff not be reinstated. On March 25, 1985, Westcoat repeated the statements made in the February 4 letter when he appeared before the committee. The committee accepted Westcoat's recommendation, and referred its negative recommendation to the council. The council voted not to reinstate the plaintiff.

The plaintiff alleges that Westcoat's statements made in the February 4 letter and repeated before the committee on March 15 were defamatory. ⁵ Westcoat argues that the statements were absolutely privileged because they were made in direct response to an official inquiry of the council, or alternatively, that they were absolutely privileged because they were made during the course of his official duties as the chief of police.

An absolute privilege provides a defendant with a complete defense to a defamation suit even if the defamatory statement is uttered maliciously or in bad faith. Ezekiel v. Jones Motor Co., 374 Mass. 382, 385, 372 N.E.2d 1281 (1978). A qualified or conditional privilege, on the other hand, immunizes a defendant from liability unless he or she acted with actual malice, Tosti v. Ayik, 386 Mass. 721, 726, 437 N.E.2d 1062 (1982), or unless there is "unnecessary, unreasonable or excessive publication," and the plaintiff establishes that the defendant published the defamatory information recklessly. Bratt v. International Business Machs. Corp., 392 Mass. 508, 509, 467 N.E.2d 126 (1984), quoting Galvin v. New York, N.H. & H.R.R., 341 Mass. 293, 297-298, 168 N.E.2d 262 (1960). See Correllas v. Viveiros, 410 Mass. 314, 320, 572 N.E.2d 7 (1991). We need not determine whether an absolute privilege applies to statements made by Westcoat since we conclude that, at the very least, a qualified privilege applies, and that it is sufficient to protect him from liability. ⁶ Statements made by public officials while performing their official duties are conditionally privileged. See Vigoda v. Barton, 348 Mass. 478, 483-485, 204 N.E.2d 441 (1965); Bradley v. Heath, 12 Pick. 164, 165 (1831); Restatement (Second) of Torts § 598A (1977). Cf. Gildea v. Ellershaw, 363 Mass. 800, 820, 298 N.E.2d 847 (1973) (public official acting in good faith not liable to private party for negligence in making discretionary decision within scope of authority). The threat of defamation suits may deter public officials from complying with their official duties when those duties include the need to make statements on important public issues. The conditional privilege, therefore, is meant to allow public officials to speak freely on matters of public importance during the exercise of their official duties. See Vigoda v. Barton, supra; W. Prosser & W. Keeton, Torts § 115, at 830 (1984).

Westcoat's statements about the plaintiff were made in his official capacity as chief of police in response to a request by the committee. ⁷ The public has an interest in having a police force comprised of competent and able individuals. It was the committee's responsibility to recommend to the council whether the plaintiff should be reinstated. Westcoat, in the exercise of his official duties, was conditionally privileged in informing the committee about the plaintiff's past performance as a police officer. ⁸

When a defendant's statements are privileged, a plaintiff cannot succeed in a defamation suit unless he or she establishes that the defendant knowingly or recklessly published the defamatory statement. Tosti v. Ayik, supra. Bratt, supra. See Restatement (Second) of Torts § 600 (1977). "The plaintiff is entitled to a jury trial if there is some indication before the motion judge from which an inference of [recklessness] could be drawn." The plaintiff in this case argues that there was evidence before the judge from which a jury could have concluded that Westcoat acted recklessly. Godbout v. Cousens, supra, 396 Mass. at 259, 485 N.E.2d 940. As evidence of recklessness, the plaintiff points to the fact that Westcoat admitted during a deposition that he did not inspect the plaintiff's personnel file before telling the committee that the plaintiff was a sick leave abuser. Westcoat, however, stated in the deposition that he did not recall inspecting the plaintiff's personnel file, not that he failed to do so. In fact, Westcoat filed an affidavit in which he stated that he did review the plaintiff's personnel file "as a direct response to the Municipal Council's inquiry." ⁹ The plaintiff also contends that Westcoat did not have a sufficient basis upon which to tell the committee that there were "unanswered questions" regarding the plaintiff's version of the assault and that the plaintiff resigned under a "cloud of suspicion." It is clear, however, from the police reports examined by Westcoat before making the statements in question, that the police had reason to doubt the plaintiff's version of the assault. ¹⁰

b. Invasion of privacy. General Laws c. 214, § 1B, provides, in pertinent part, that "[a] person shall have a right against unreasonable, substantial or serious interference with his privacy." "This court has interpreted § 1B to proscribe ... disclosure of facts about an individual that are of a highly personal or intimate nature when there...