Stukuls v. State

• Citation: 397 N.Y.S.2d 740,366 N.E.2d 829,42 N.Y.2d 272
• Decision Date: 07 July 1977
• Docket Number: No. 59376,59376
• Parties: , 366 N.E.2d 829 Henry I. STUKULS, Appellant, v. STATE of New York, Respondent. (Claim)
• Court: New York Court of Appeals

Page 740

397 N.Y.S.2d 740

42 N.Y.2d 272, 366 N.E.2d 829

Henry I. STUKULS, Appellant, v. STATE of New York, Respondent.

(Claim No. 59376.)

Court of Appeals of New York.

July 7, 1977.

Thomas P. Gilhooley and Theodore F. Fenstermacher, Cortland, for appellant.

Louis J. Lefkowitz, Atty. Gen. (Alan W. Rubenstein and Ruth Kessler Toch, Albany, of counsel), for respondent.

FUCHSBERG, Judge.

This claim for libel and slander was brought against the State by Dr. Henry I. Stukuls, a former member of the faculty of the State University College at Cortland. The allegedly defamatory matter was uttered and published by Dr. Whitney T. Corey, a vice-president for academic affairs at the college, who, in the absence of Dr. Richard Jones, the college's president, would also act in the latter's stead. ¹

The case comes to us on appeal from the disposition of two motions, that of Dr. Stukuls for pretrial discovery and the State's cross motion under CPLR 3211 (subd. (a), par. 7) to dismiss the claim for failure to state a cause of action. The cross motion was granted by the Court of Claims because it was of the opinion that the doctrine of absolute privilege was applicable; it then dismissed the discovery motion as moot. The Appellate Division affirmed, but by a divided court, the dissent taking the view that only a qualified privilege was available in this case. For the reasons which follow, we hold that the doctrine of absolute privilege was not a bar to the claim.

The defamation is said to have taken place when, as both parties agree, Dr. Corey, at a meeting with the members of a five-man ad hoc faculty committee which had been chosen to pass on Dr. Stukuls' qualifications for tenure, read the contents of a letter which it is not denied accused Dr. Stukuls, a married man, of having attempted to seduce a young woman who was a student in one of his classes. ² It is not disputed that the truth of the assertions, made by an unnamed author, had never been verified though the letter had arrived at the college months earlier. Dr. Stukuls has never actually seen the letter, heard it read or been afforded the opportunity to do so. However, the Court of Claims Judge, after making an in camera inspection of it upon the return of the motion for discovery, found "(t)here is no question that, if not true, statements contained in the letter were libelous." Dr. Corey, in his affidavit, does not suggest that the claimant's expressed understanding of the import of the letter is either inaccurate or exaggerated, nor does he add any qualifying matter to indicate that its description is taken out of context.

In his verified claim and supporting affidavit, the claimant adds that Dr. Corey was opposed to the grant of tenure and, because of a malicious and willful design to have it denied, had, among other things, chosen to advantage himself of President Jones' absence from the country to take the letter from the president's private file so that he might use it as a means of affecting the committee's judgment, read the letter to the committee though he knew its accusations had been the subject of a rumor that had been circulated and discredited many months earlier, and, as he has since admitted to Dr. Stukuls and to others, removed favorable student course evaluations and letters from Dr. Stukuls' personnel file before submitting it to the committee. The claimant pleads that, as a consequence of the uttering and publishing of the defamatory matter, he was denied tenure and was greatly injured in his personal and professional reputation.

Against that background, and bearing in mind that on a motion under CPLR 3211 (subd. (a), par. 7) we are concerned with whether the pleading states a cause of action rather than the ultimate determination of the facts (see Rovello v. Orofino Realty Co., 40 N.Y.2d 633, 389 N.Y.S.2d 314, 357 N.E.2d 970), we turn to the central question on this appeal: Is defendant protected by an absolute privilege or a qualified one?

The difference between the two rests in the role of malice. A qualified privilege is one that is available only in the absence of malice, while an absolute privilege, a veritable immunity, is impervious to proof, and therefore to a charge, of malice (Andrews v. Gardiner, 224 N.Y. 440, 446, 121 N.E. 341, 343).

Absolute privilege is an ancient doctrine. Long recognized by English law as a means to protect freedom of speech and deliberation in Parliament, it was later embodied in American Constitutions, including that of New York State (N.Y.Const., art. III, § 11), so that our legislators would enjoy an uninhibited range of freedom to propose, oppose, debate, adopt or reject ideas as precursors to legislative action (see Yankwich, Immunity of Congressional Speech Its Origin, Meaning and Scope, 99 U. of Pa.L.Rev. 960; see, also, Hinds' Precedents of the House of Representatives, § 2670 et seq.; and § 1655). By a parallel development in the judicial sphere it has served to bolster our Judges' freedom to act without fear or favor in the furtherance of a "vigorous and independent administration of justice" (Yates v. Lansing, 5 Johns. 282, 292 (Kent, Ch. J.), affd. 9 Johns. 395). Instinct in the immunity from suit for libel and slander granted to the ministers of each of these two branches of government, legislators and Judges both, is recognition that the exercise of the responsibilities of those offices requires the making or pronouncement of judgments, the exercise of discretion, the expression and encouragement of even controverted fact and opinion, and the recognition, evolution or enforcement of public policy. ³

The right of nonjudicial and nonlegislative governmental officials to assert such an immunity is of relatively recent origin. It had its genesis in England in 1895 (Chatterton v. Secretary of State of India (1895), 2 Q.B. 189) and was adopted in this country a year later (Spalding v. Vilas, 161 U.S. 483, 16 S.Ct. 631, 40 L.Ed. 780 (postmaster general)). Significantly, both cases involved cabinet officers and were based upon the rationale that such highranking officials, "who speak for the government or as its mouthpiece", formulate and pronounce policy in varying degrees and, therefore, in a broad sense are an embodiment of government itself, should not, while carrying out their official duties, ⁴ be apprehensive that their motives might become the subject of inquiry in a civil suit (Veeder, Absolute Immunity in Defamation, 10 Col.L.Rev. 131, 141).

In England, the doctrine's application for the most part continued to be applied to top-level officials whose conduct constitutes an "act of state" (Szalatnay-Stacho v. Fink (1947), 1 K.B. 1), but in the United States it has followed a more checkered jurisprudential course. Our Federal courts, which at first adopted the concept of absolute privilege for the executive branch of Government with great hesitancy, gradually extended the zone of its application to encompass an ever-broadening range of officials. That trend culminated in a variegated group of opinions in a five to four decision noteworthy for the divergence of the views of the members of the court on the public policy to be applied (Barr v. Matteo, 360 U.S. 564, 79 S.Ct. 1335, 3 L.Ed.2d 1434; see Becht, Absolute Privilege of the Executive in Defamation, 15 Vand.L.Rev. 1127, esp. pp. 1135-1148; cf. Prosser, Torts (4th ed.), § 114, p. 783).

In the State courts, except for cases against officials of cabinet rank, the decisions have been divided and often inconsistent This has led to much judicial and other soul-searching, with most of the commentators in the end arriving at the conclusion that absolute privilege for officials of the executive branch of government should be reserved for only those at its highest echelons (Becht, op. cit., pp. 1148-1171; see, also, Restatement, Torts 2d, § 591, and Comments thereto; § 598A; Handler & Klein, Defense of Privilege in Defamation Suits Against Government Executive Officials, 74 Harv.L.Rev. 44, 50, n. 24; Gray, Private Wrongs of Public Servants, 47 Cal.L.Rev. 303).

New York has been reluctant to extend the applicability of absolute privilege to cases that would represent a departure from the policies which originally brought the doctrine into being. Thus, we have applied it to a borough president, who, as a member of the Board of Estimate, then New York City's senior legislative body, and the elected head of one of the five boroughs which make up that megalopolis, was one of its chief executives (Sheridan v. Crisona, 14 N.Y.2d 108, 249 N.Y.S.2d 161, 198 N.E.2d 359) and to members of the New York City Board of Higher Education, which is specifically empowered by statute to "govern and administer" the city's entire system of colleges (Education Law, § 6202; see, also, Education Law, § 6203; Lombardo v. Stoke, 18 N.Y.2d 394, 276 N.Y.S.2d 97, 222 N.E.2d 721). Other courts in our State have granted the benefits of absolute privilege to the State Commissioner of Education, "the chief executive officer of the state system of education" (Education Law, § 305, subd. 1); Laurence Univ. v. State of New York, 41 A.D.2d 463, 344 N.Y.S.2d 183), to a town supervisor, the chief executive officer of that unit of government (Town Law, § 29; see, also, County Law, § 150; Duffy v. Kipers, 26 A.D.2d 127, 271 N.Y.S.2d 338) and to members of a city board of education entrusted with authority to administer all the schools within the jurisdiction of its school system (Education Law, § 2501 et seq.; Smith v. Helbraun, 21 A.D.2d 830, 251 N.Y.S.2d 533).

By way of contrast, only a qualified privilege has been extended to the head of a New York State school for deaf mutes (Hemmens v. Nelson, 138 N.Y. 517, 523, 34 N.E. 342, 344), to employees, as distinguished from board members, of a board of education (Green v. Kinsella, 36 A.D.2d 677, 319 N.Y.S.2d 780), to a State examiner of accounts (Peeples v. State of New York, 179 Misc. 272, 38 N.Y.S.2d 690, qualifiedly...