Rady v. Lutz, 88-1873

• Decision Date: 02 May 1989
• Docket Number: No. 88-1873,88-1873
• Citation: 150 Wis.2d 643,444 N.W.2d 58
• Court: Wisconsin Court of Appeals
• Parties: Carl W. RADY,d Plaintiff-Appellant, v. Holly LUTZ and Straub & Schuch, Defendants-Respondents.

Page 58

444 N.W.2d 58

150 Wis.2d 643

Carl W. RADY,d Plaintiff-Appellant, v. Holly LUTZ and Straub & Schuch, Defendants-Respondents No. 88-1873.

Court of Appeals of Wisconsin.

Submitted on Briefs March 9, 1989.

Opinion Released May 2, 1989.

Opinion Filed May 2, 1989.

Carl W. Rady, Tomahawk, for plaintiff-appellant.

George A. Richards of Patterson, Richards & Hessert, Wausau, for defendants-respondents.

Before CANE, P.J., and LaROCQUE and MYSE, JJ.

LaROCQUE, Judge.

Carl Rady appeals a summary judgment dismissing his defamation action against attorney Holly Lutz and the law firm, Straub and Schuch. The allegedly defamatory statements were contained in a letter sent from Lutz to Ninth District Court Administrator James Seidel. The circuit court concluded that Lutz's statements were protected by the doctrine of absolute privilege. We agree and affirm.

Lutz defended the city of Tomahawk and its officials against several lawsuits filed by Rady. In a letter to Seidel, Lutz accused Rady "of filing frivolous lawsuits and harassing public officials," detailed alleged examples of the problem in highly editorialized fashion, and sought various remedies. ¹ Rady filed suit against Lutz, alleging that the letter defamed him. ² The circuit court dismissed Rady's action, holding Lutz's comments to be absolutely privileged because they were relevant to proposed and pending judicial proceedings. ³ Rady appeals that determination.

In considering motions for summary judgment, we must first examine the pleadings and affidavits to determine whether any factual dispute exists or conflicting inferences might be drawn from the undisputed facts. Kensington Dev. Corp. v. Israel, 139 Wis.2d 159, 162-63, 407 N.W.2d 269, 271 (Ct.App.1987). Summary judgment is appropriate where there is no dispute of material facts and the law resolving the issue is clear. Green Spring Farms v. Kersten, 136 Wis.2d 304, 315, 401 N.W.2d 816, 820 (1987). Whether Lutz's letter is absolutely privileged is a matter of law, and we need not defer to the circuit court's determination. See Lambert v. Wrensch, 135 Wis.2d 105, 115, 399 N.W.2d 369, 373-74 (1987).

"Judicial" or "quasi-judicial" proceedings are protected by an absolute privilege. An absolute privileged statement is subject to only two restrictions: It must be made in a procedural context that is recognized as affording absolute privilege, and it must be relevant to the matter under consideration. Hartman v. Buerger, 71 Wis.2d 393, 398, 238 N.W.2d 505, 508 (1976). ⁴ Rady asserts that Lutz's statements were not absolutely privileged because they were neither sufficiently related to a judicial proceeding nor communicated to a judicial officer. We disagree. Restatement (Second) of Torts, sec. 586 (1977), states:

An attorney at law is absolutely privileged to publish defamatory matter concerning another in communications preliminary to a proposed judicial proceeding, or in the institution of, or during the course and as a part of, a judicial proceeding in which [the attorney] participates as counsel, if it has some relation to the proceeding.

The purpose of this privilege is to afford litigants the utmost freedom of access to the courts to preserve and defend their rights and to protect attorneys during the course of their representation of clients. Kensington Dev. Corp. v. Israel, 142 Wis.2d 894, 900, 419 N.W.2d 241, 243 (1988). To be privileged, the alleged defamatory matter must have been made in reference to the subject matter of the proposed or pending litigation, Converters Equip. Corp. v. Condes Corp., 80 Wis.2d 257, 265, 258 N.W.2d 712, 716 (1977), although it need not be strictly relevant to any issue involved in it. Restatement (Second) of Torts, sec. 586, comment c (1977). In addition, the statements must be made "in a procedural context which is recognized as affording absolute privilege." Converters Equip., 80 Wis.2d at 265, 258 N.W.2d at 716 (quoting Hartman, 71 Wis.2d at 398, 238 N.W.2d at 508).

The absolute privilege to defame in the course of judicial or quasi-judicial proceedings is not limited to statements during trial, but may extend to steps taken prior to trial such as conferences and other communications relevant to the proceeding. See Converters Equip., 80 Wis.2d at 266, 258 N.W.2d at 716. Thus, letters sent to persons having collateral interests in the litigation are privileged to the extent that the alleged defamatory statements have some relation to the subject matter of the proposed litigation and are made in furtherance of the litigation. See generally Annotation, Libel and Slander: Attorney's Statements, to Parties Other than Alleged Defamed Party or its Agents, in Course of Extrajudicial Investigation or Preparation Relating to Pending or Anticipated Civil Litigation as Privileged, 23 A.L.R. 4th 932, 935 (1983). While this privilege embraces anything relevant, it is not carte blanche to defame and slander with impunity during a judicial proceeding. See Spoehr v. Mittelstadt, 34 Wis.2d 653, 150 N.W.2d 502 (1967). The statement's maker and the recipient must be involved in and closely connected to the proceeding. An attorney's defamatory statements that are plainly irrelevant and impertinent and voluntarily made would not be privileged. See, e.g., Walker v. Majors, 496 So.2d 726, 729 (Ala.1986); Post v. Mendel, 510 Pa. 213, 507 A.2d 351, 356 (Pa.1986).

Under this analysis, we first address whether Lutz's statements were relevant to either past or present litigation. The pertinency requirement is not technical legal relevancy, but, rather, a general frame of reference and relation to the subject matter. Spoehr, 34 Wis.2d at 663, 150 N.W.2d at 506. All doubt should be resolved in favor of relevance. Lutz's letter was captioned with citations to several pending and past suits involving Rady, and the body of the letter explained her complaints concerning each of these suits. If Lutz had made her complaints during the course of a formal judicial proceeding, they would have been clearly relevant and therefore privileged. Extra-judicial comments made in an informal setting as well are protected by absolute privilege. Hartman, 71 Wis.2d at 399, 238 N.W.2d at 508. Although the letter is laden with the writer's subjective views of Rady's motives and includes descriptive language that may be libelous per se if proven untrue, these considerations do not negate the privilege. We conclude that Lutz's communique recounting both past and present litigation involving Rady meets the relevancy test. Rady's alleged...