Parks v. Johnson
| Decision Date | 19 June 1978 |
| Docket Number | Docket No. 77-137 |
| Citation | 269 N.W.2d 514,84 Mich.App. 162 |
| Parties | Verna M. PARKS, Plaintiff-Appellee, v. Zodie A. JOHNSON, Defendant-Appellant. 84 Mich.App. 162, 269 N.W.2d 514 |
| Court | Court of Appeal of Michigan — District of US |
[84 MICHAPP 165] Miller, Klimist, Cohen, Martens & Sugerman by Stephen C. Cooper, Detroit, for defendant-appellant.
Ronald W. Crenshaw by Dwight W. Philips, Detroit, for plaintiff-appellee.
Before BEASLEY, P. J., and BASHARA and RILEY, JJ.
Defendant appeals, by leave granted, denial of her motion for summary judgment. Plaintiff, a counselor in the Detroit Public School System, filed a libel suit alleging that she was defamed in a memorandum written by defendant, the principal of her school. Defendant, as part of her duties under a collective bargaining agreement, prepared recommendations for disciplinary action against staff members where circumstances demanded such action. The claimed libelous memorandum, written in the performance of defendant's duty, ultimately was partially responsible for plaintiff's transfer to another school.
Defendant moved for summary judgment on two grounds. First, she contended that the communication, which was written and processed in the course of her official duties, was absolutely privileged from liability for defamation. GCR 1963, 117.2(1). Second, assuming that only a qualified [84 MICHAPP 166] privilege was applicable, plaintiff had not alleged sufficient facts to raise the issue of malice, which would be required to overcome the privilege. GCR 1963, 117.2(3).
The trial court denied the motion, holding that the communication had only a qualified privilege and that plaintiff's response to the claim of no material fact in issue had sufficiently put malice in issue. We will consider both of those decisions.
If absolute privilege applies, there can be no action for libel even if the information was false and maliciously and knowingly published. Tocco v. Piersante, 69 Mich.App. 616, 245 N.W.2d 356 (1976). Because of this complete bar to defamation liability, the scope of absolute liability in Michigan law has traditionally been narrowly construed:
Raymond v. Croll, 233 Mich. 268, 272-273, 206 N.W. 556, 557 (1925).
[84 MICHAPP 167] See also Timmis v. Bennett, 352 Mich. 355, 89 N.W.2d 748 (1958).
Defendant's action, while committed in the course of an official duty, does not fall within these classic limits of absolute privilege. In Tocco v. Piersante, supra, this Court discussed at length the privilege to be afforded to a public employee acting in the course of his or her employment. In Tocco, the defendant, who headed the Organized Crime Division of the Michigan Attorney General's office, was alleged to have libeled plaintiff by his participation in the production and showing of a documentary film on crime in Michigan. The defendant argued that his actions were protected by absolute privilege.
The Tocco Court began by reviewing the historical view of the scope of absolute privilege in Michigan. 69 Mich.App. at 628-629, 245 N.W.2d 356. The Court then discussed a line of Federal cases, in particular Spalding v. Vilas, 161 U.S. 483, 16 S.Ct. 631, 40 L.Ed. 780 (1896), and Barr v. Matteo, 360 U.S. 564, 79 S.Ct. 1335, 3 L.Ed.2d 1434 (1959), in which absolute privilege had been extended to all Federal employees for publications within their particular lines of duty. The Court also noted similar rules in other states. See Matson v. Margiotti, 371 Pa. 188, 88 A.2d 892 (1952).
Returning to Michigan law, the Court held that the Federal rule extending absolute privilege had not been adopted in this state:
69 Mich.App. at 632, 245 N.W.2d 363.
The Court pointed out that previous cases had [84 MICHAPP 168] not applied absolute privilege to executive officials or employees acting in the scope of their employment. 1 Citing Raymond v. Croll, supra, the Tocco Court stated that an executive official has no absolute privilege unless engaged in activities of or relating to an administrative or legislative body, but does have a qualified privilege if acting under an official duty. 69 Mich.App. at 634-635, 245 N.W.2d 356.
In the case at bar defendant was not acting in any judicial or legislative capacity when she wrote the allegedly libelous memorandum. Her duty related solely to employment and supervision procedures within the school system. Since she was acting in her official capacity, she does have a qualified privilege, as do all public servants acting within the scope of their employment:
"A qualified privilege affords sufficient protection in most instances for the public servant while at the same time it does not discourage uninhibited robust and wide-open debate on important public issues." Stewart v. Troutt, 73 Mich.App. 378, 390, 251 N.W.2d 594, 600 (1977), (D. E. Holbrook, J., concurring).
We do not believe that the opinion in Brunn v. Weiss, 32 Mich.App. 428, 188 N.W.2d 904 (1971), calls for a different result. In Brunn, several teachers claimed that they were libeled in a newsletter published by the defendant school board members. One of the defendants' contentions was that the newsletter was absolutely privileged. The Court stated that although under certain conditions (without specifying those conditions) a school board member would have an absolute privilege, there was only a qualified privilege for publication of the newsletter.
Brunn, supra, is indistinguishable from the case at bar [84 MICHAPP 169] in that a school board member, who performs a type of governmental or legislative function, is different than a school principal, who has no such function. No cases have been cited to this Court in which the official functions of a person similarly situated to defendant have been protected by an absolute privilege.
Having decided that a qualified privilege applies, the issue becomes whether the trial court erred in ruling that a material issue of fact existed on whether defendant maliciously published the memorandum. When a motion for summary judgment alleging no material issue of fact, with supporting affidavits or other documentation, is brought under GCR 1963, 117.2(3), the opposing party is required to respond with some evidentiary material rebutting the motion. Trombetta v. Detroit, T. I. R. Co., 81 Mich.App. 489, 265 N.W.2d 385 (1978). Plaintiff here eventually responded to the motion with affidavits and letters, but defendant alleges that these documents were not relevant to the issue of malice.
The appropriate standards for use in ruling on a motion for summary judgment under GCR 1963, 117.2(3) are stated in Rizzo v. Kretschmer, 389 Mich. 363, 372, 207 N.W.2d 316, 320 (1973):
(Emphasis in original.)
It is true, as defendant asserts, that the material filed in opposition to the motion reflected basically on plaintiff's character, and not on defendant's mental state at the time she published the memorandum to her supervisors. However, these documents do tend to refute, or at least cast doubt upon, the accuracy of the allegations contained in [84 MICHAPP 170] the original memorandum. Under the liberal standard as expressed in Rizzo, supra, we do not find that the trial court erred in ruling that the evidence presented a factual issue as to whether defendant maliciously communicated false information. 2 See Iacco v. Bohannon, 70 Mich.App. 463, 245 N.W.2d 791 (1976).
Affirmed. Costs to appellee.
In the within case, defendant, a school principal, had the responsibility of recommending disciplinary action for staff members when, in her opinion, their actions interfered with the educational process. Pursuant to that duty, defendant wrote a memorandum recommending disciplinary action against plaintiff and delivered the memorandum personally to the school official who was designated under the collective bargaining agreement to receive it. Defendant did not communicate the memorandum to any other person. The memorandum was based upon personal observations of the defendant and upon reports about the plaintiff which the defendant allegedly received from school employees, students and parents.
The relationship between the parties, taken together with an occasion where defendant was obligated to and could properly express an opinion regarding plaintiff's performance,...
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