Tucker v. Resha, 92-3118

• Decision Date: 30 March 1994
• Docket Number: No. 92-3118,92-3118
• Citation: 634 So.2d 756
• Parties: 19 Fla. L. Weekly D699 Katie D. TUCKER, Appellant, v. Donald G. RESHA, Appellee.
• Court: Florida District Court of Appeals

Page 756

634 So.2d 756

19 Fla. L. Weekly D699

Katie D. TUCKER, Appellant, v. Donald G. RESHA, Appellee.

No. 92-3118.

District Court of Appeal of Florida First District.

March 30, 1994.

Gordon D. Cherr and Brian S. Duffy of McConnaughhay, Roland, Maida, Cherr & McCranie, P.A., Tallahassee, for appellant.

Richard E. Johnson of Spriggs & Johnson and William A. Friedlander of Friedlander & Mattox, Tallahassee, for appellee.

James K. Green of James K. Green, P.A., West Palm Beach, for amicus curiae American Civ. Liberties Union Foundation of Florida, Inc.

ALLEN, Judge.

Katie D. Tucker (Tucker) challenges a judgment in favor of Donald G. Resha (Resha) in an action founded on theories of defamation and invasion of the right to privacy guaranteed by the Florida Constitution. Concluding that the allegedly defamatory statements made by Tucker were absolutely privileged because they were made in connection with her duties as executive director of the Florida Department of Revenue (agency), and concluding that a violation of the privacy provision of the Florida Constitution does not give rise to a cause of action for money damages, we reverse the judgment for Resha on each count.

The complaint alleged that Tucker defamed Resha by making statements to her staff and to the Florida Department of Law Enforcement to the effect that Resha's family was in organized crime and that he was involved in pornography, drug smuggling, arms sales, and money-laundering. These statements were alleged to have been in retaliation for Resha's opposition to Tucker's husband in the race for president of the Florida AFL-CIO.

The testimony at trial, viewed in the light most favorable to Resha, includes that Tucker, when she was executive director of the agency, caused Resha and his two Tallahassee businesses, Movies and More and Seminole Books, to be investigated and audited. Tucker indicated to the agency's director of the division of collection and enforcement, Wood, that she had been told by a confidential source that Resha "was involved in drugs, in laundering," and in she did not "know what else."

Tucker, when interviewed by an agent of the Florida Department of Law Enforcement, Smart, said that Wood was asked to look into bookstores in Tallahassee and Gainesville for possible munitions sales and Mafia connections. Tucker said that Resha was a target of investigation because of reports of "his cash dealings in the book store." Tucker reported to Smart that Resha's suspected criminal activity included "taking cash" and not paying sales tax, "dealing in some porno tapes and in videos that were not legal," and buying and selling weapons without paying sales tax on the transactions.

Tucker's husband, Miller, and Resha both ran for president of the Florida AFL/CIO; Tucker described the battle for the presidency as a "nasty battle." Tucker believed that Resha was responsible either directly, or indirectly through his business partner or bodyguard, for an anonymous letter to the governor's office that resulted in an investigation into whether Tucker and her husband improperly used union money to build an addition to their home.

The agency's multi-year audit of Resha resulted in a total tax liability for one of Resha's businesses of approximately $500. The investigation and audits turned up no criminal activity. The president of the Florida Police Benevolent Association (PBA), Maddox, testified that although he employed Resha at a salary of $49,000 annually, if Resha were not under the cloud of this litigation, he would award Resha a $90,000 contract to lobby and raise money for the PBA. The record also includes evidence of damages to Resha's businesses. The jury returned a verdict in Resha's favor on Resha's defamation and invasion of privacy claims.

The supreme court has observed: "The public interest requires that statements made by officials of all branches of government in connection with their official duties be absolutely privileged." Hauser v. Urchisin, 231 So.2d 6, 8 (Fla.1970). The court has further expressed its rationale as follows: "[It is] in the end better to leave unredressed the wrongs done by dishonest officers than to subject those who try to do their duty to the constant dread of retaliation." McNayr v. Kelly, 184 So.2d 428, 431 n. 12 (Fla.1966) (quoting Barr v. Matteo, 360 U.S. 564, 79 S.Ct. 1335, 3 L.Ed.2d 1434 (1959)). In Florida, executive officers enjoy an absolute privilege regarding defamatory statements made in connection with the duties and responsibilities of their offices. McNayr, 184 So.2d at 433; see also City of Miami v. Wardlow, 403 So.2d 414 (Fla.1981). And the absolute privilege applies "no matter how false or malicious words spoken or written by an executive official of government may be...." McNayr, 184 So.2d at 429; see also W. Page Keeton et al., Prosser and Keeton on the Law of Torts Sec. 114, at 822 (5th ed. 1984) ("[A] qualified privilege would not be adequate protection for the public officer, since it would necessitate calling him as a witness to deny malice, and so subject him to cross-examination upon his official conduct in a private suit, and would end by submitting it to the eccentric and unreliable judgment of a jury....").

The McNayr court explained what is meant by an official acting within the scope of his power: "[T]he occasion must be such as would have justified the act, if [the official] had been using his power for any of the purposes on whose account it was vested in him." McNayr, 184 So.2d at 431 n. 12 (quoting Barr v. Matteo ); see also Huszar v. Gross, 468 So.2d 512, 515 (Fla. 1st DCA 1985).

After the facts and circumstances of a communication are revealed, the issue of whether a privilege has been established is a question of law for the court to decide. Huszar, 468 So.2d at 516 (citing Abraham v. Baldwin, 52 Fla. 151, 42 So. 591 (1906)); see also Axelrod v. Califano, 357 So.2d 1048, 1051-52 (Fla. 1st DCA 1978) (citing Myers v. Hodges, 53 Fla. 197, 44 So. 357 (1907)). Tucker's former agency had the responsibility to perform audits to ensure proper payment of taxes, and failure to pay due taxes is a crime. Secs. 20.21(3)(c)-(d), 212.18(2); 212.15(1)-(2), Fla.Stat. (1987); Sec. 213.34, Fla.Stat. (1989); see also Sec. 212.0505, Fla.Stat. (1987) (dealing with sale of drugs); Secs. 212.02(14), 212.05(1), Fla.Stat. (1987) (dealing with sales or use tax in general); Sec. 896.102, Fla.Stat. (1987) (dealing with reports of large currency transactions). Tucker's statements to members of her staff about Resha's alleged activity in illegal gun sales, drugs, pornography, money-laundering and organized crime involved activities which could include nonpayment of tax or violation of reporting requirements, and therefore were within the scope of Tucker's office at the Department of Revenue as a matter of law. That her motive may have been malicious is irrelevant under Florida law because our supreme court has determined that the unfettered exercise of governmental powers and duties must prevail over individual rights for the public good.

Tucker's statements to investigators of the Florida Department of Law Enforcement were absolutely privileged because they too were made within the scope of her duties. Even where a public official makes defamatory statements to a newspaper, the absolute privilege applies. Hauser, 231 So.2d at 8. The interview with Florida Department of Law Enforcement officials was at that agency's request and is embraced within the privilege announced in Hauser.

The...