Noble v. Ternyik

• Decision Date: 05 September 1975
• Citation: 273 Or. 39,539 P.2d 658
• Parties: Norman L. NOBLE, Appellant, v. Wilbur E. TERNYIK, Respondent.
• Court: Oregon Supreme Court

Page 658

539 P.2d 658

273 Or. 39

Norman L. NOBLE, Appellant, v. Wilbur E. TERNYIK, Respondent.

Supreme Court of Oregon, In Banc.

Argued and Submitted June 4, 1975.

Decided Sept. 5, 1975.

Kenneth A. Osher, Springfield, argued the cause for appellant. With him on the briefs were Moore, Wurtz & Logan, Springfield.

Richard Bryson, Eugene, argued the cause for respondent. With him on the brief were Calkins & Calkins and Bryson & Robert, Eugene.

DENECKE, Justice.

This is a defamation action. Plaintiff alleged the defendant, a member of a port commission, slandered him during the course of a port commission meeting. Defendant demurred to the complaint. The trial court first overruled the demurrer, then reconsidered and sustained the demurrer. Plaintiff appeals.

The facts are to be considered as alleged in the complaint, and as admitted by plaintiff. The port commission held a public hearing attended by the defendant as a commission member. Someone proposed that the commission obtain a registered brand to mark the port's logs. During the discussion of that proposal, plaintiff alleges the defendant remarked, 'The Port of Siuslaw should buy a log-branding device in order to stop that damn Norman Noble (plaintiff) from stealing any more logs.' This is the alleged slander.

Plaintiff further alleged the statement was false and published 'maliciously.' ¹

The defendant contends the complaint fails to state a cause of action because the statement made by defendant was absolutely privileged and the defendant made the statement as a public officer and, therefore, is immune from liability.

Courts have intermingled the terminology of privilege, a part of the law of defamation, and immunity. For example, see comment in Norton v. McShane, 332 F.2d 855, 858, n.3 (5th Cir. 1964), on Barr v. Matteo, 360 U.S. 564, 571--572, 79 S.Ct. 1335, 3 L.Ed.2d 1434 (1959). There is at least a theoretical difference. Prosser, Torts (4th ed.) 970, § 131. There also may be a practical difference; however, we do not need to explore these possible differences in this case. ² We hold the publication was absolutely privileged.

A port commission is a public body, designated by ORS 777.010 as a municipal corporation, which may exercise a great variety of governmental power including the levying of taxes and the acquiring of property. Ch. 777 ORS. The power and authority of a port commission is invested in a board of commissioners. ORS 777.135.

In determining whether to acquire a registered log brand the port commission was acting in a legislative capacity.

The Congress and state legislatures have always been absolutely privileged in their statements. Prosser, supra, at 781--784; 1 Harper and James, Law of Torts, 427, § 5.23. There has been a divergence of judicial opinion, however, on the question of whether the absolute privilege extends to lesser legislative bodies.

The reason for the privilege accorded federal and state legislatures is the belief that it is more essential that legislators speak freely than defamed persons recover damages for injury to their reputations.

The trend of judicial decisions and legal thought is to extend the absolute privilege to communications of members of lesser legislative bodies. This is well illustrated by what has occurred in the drafting of the Restatement of Torts (Second). The first Restatement of Torts, published in 1938, provided in § 590:

'A member of the Congress of the United States or of the legislature of any State or Territory thereof is absolutely privileged to publish false and defamatory matter of another in the performance of his legislative function.' 3 Restatement 236, Torts § 590.

Comment C. to that section provided:

'The rule stated in this Section is applicable to members of the Congress of the United States and to members of the highest legislative body of a State or Territory of the United States. It is not applicable to members of subordinate legislative bodies to which the State has delegated legislative power. As to the conditional privilege of members of such bodies, see § 599, Comment A.' 3 Restatement, supra, at 237--238.

In the preparation of the Restatement of Torts (Second), § 590 and Comment C. remained in that same form through Tentative Draft No. 20, dated April 1974. The latest draft, Tentative Draft No. 21, dated April 1975, however, changed Comment C. Comment C. now tentatively reads:

'The rule stated in this Section is applicable to members of the Congress of the United States and to members of the highest legislative body of a State. It is also held to be applicable to members of subordinate legislative bodies to which the State has delegated legislative power, such as a city council or a county board. Under a minority rule, the absolute privilege is held not to be applicable to these legislative members, who may be entitled instead to the conditional privilege set forth in § 598A. * * *.' At 43.

Tentative Draft No. 20 contains the latest version of tentative § 598A, which provides:

'AN OCCASION IS CONDITIONALLY PRIVILEGED WHEN AN INFERIOR ADMINISTRATIVE OFFICER OF A STATE, OR OF ANY OF THE SUBDIVISIONS OF THE STATE, MAKES A DEFAMATORY COMMUNICATION WHICH IS REQUIRED OR PERMITTED IN THE PERFORMANCE OF HIS OFFICIAL DUTIES.' At 216.

The tentative draft of § 590 granting absolute privilege to communications made by members of lesser legislative bodies may never be approved by the American Law Institute. If it is, of course, we are not bound to concur, nor do we necessarily follow any trend of decisions from other jurisdictions.

We have reached the conclusion, however, that the tentative Restatement approach is preferable. Uncompensated citizens, serving at least in part to fulfill their civic responsibility, comprise the vast bulk of numerous legislative bodies in Oregon. Port commissions, city councils, school boards, and special service districts are some of these bodies. Oregon prides itself on its citizen participation. These bodies make economic, social, educational, and other important decisions. This system will function only if capable people are willing to serve on these bodies.

We are of the opinion that a substantial number of capable people...