Vultaggio v. Yasko

• Decision Date: 16 January 1998
• Docket Number: No. 96-0651,96-0651
• Parties: Richard VULTAGGIO, Plaintiff-Respondent, v. Caryl YASKO, Defendant-Appellant.
• Court: Wisconsin Supreme Court

Page 450

572 N.W.2d 450

215 Wis.2d 326

Richard VULTAGGIO, Plaintiff-Respondent, v. Caryl YASKO, Defendant-Appellant.

No. 96-0651.

Supreme Court of Wisconsin.

Argued Sept. 3, 1997.

Decided Jan. 16, 1998.

For the defendant-appellant there were briefs (in the Court of Appeals and Supreme Court) by James A. Friedman, Robert J. Dreps and LaFollette & Sinykin, Madison and Michael D. Brennan and Garczynski & Brennan Law Offices, S.C., Elkhorn and oral argument by James A. Friedman.

For the plaintiff-respondent there was a brief and oral argument by Terry P. Race, Whitewater.

¶1 JON P. WILCOX, Justice

This case is before the court on certification from the court of appeals following an order of the Circuit Court for Walworth County, Michael S. Gibbs, Judge, denying the defendant, Caryl Yasko's (Yasko) motion for summary judgment and her subsequent motion for reconsideration. Yasko petitioned the court of appeals for leave to appeal the circuit court's order.

¶2 On certification, we consider whether Wisconsin law should afford an absolute privilege, or a conditional privilege, for witnesses testifying in legislative proceedings. We hold that under the circumstances presented here, such witnesses are not entitled to an absolute privilege. However, we do hold that testimony given under these circumstances is entitled to a conditional privilege. Therefore, we affirm the order of the circuit court denying Yasko's motion for summary judgment.

¶3 On October 18, 1994, the Whitewater City Council held a public meeting to consider, among other things, a recommendation of the Ad Hoc Municipal Building and Facilities Committee pertaining to the city's need for additional office and meeting space. The committee had recommended that the council accept a proposal which provided for an addition to the public safety building and increased space for the police and fire departments.

¶4 Ms. Yasko attended this meeting and testified in favor of a different proposal that would have remodeled a former middle school for the office space. She felt that renovating the middle school would reverse the "destabilization" of her neighborhood. During her testimony, Yasko highlighted her neighborhood's transition from family housing to college student housing, and openly criticized the upkeep of several buildings owned by the plaintiff, Richard Vultaggio (Vultaggio). ¹ There is no evidence in the record that Ms. Yasko was subpoenaed or invited ² to appear at the meeting, that she was sworn under oath before testifying, or that she was directed in her testimony by questions from the council. The meeting was broadcast in its entirety on a local television station.

¶5 Approximately three months later, Mr. Vultaggio sued Ms. Yasko for defamation based on the statements she made during the city council meeting on October 18, 1994. Ms. Yasko moved for summary judgment, arguing that her statements before the Whitewater City Council were absolutely privileged, or in the alternative, that they were conditionally privileged without any abuse of that privilege. The circuit court denied her motion, holding that Yasko had failed to show the court that an absolute privilege extended to speakers before city council meetings under current Wisconsin law. Upon motion for reconsideration, the circuit court held that such testimony is afforded neither an absolute, nor a conditional privilege in the state of Wisconsin. Ms. Yasko appealed the circuit court's non-final order.

I.

¶6 The issue that we address is a question of first impression in the state of Wisconsin: whether witnesses should be afforded an absolute privilege, or a conditional privilege, when testifying at legislative proceedings. This is a question of law to be decided without deference to the circuit court's conclusion of law. See Kensington Development Corp. v. Israel, 142 Wis.2d 894, 899-900, 419 N.W.2d 241 (1988); see also Rady v. Lutz, 150 Wis.2d 643, 647, 444 N.W.2d 58 (Ct.App.1989).

¶7 A communication is defamatory if it tends to harm the reputation of another so as to lower that person in the estimation of the community or deter third persons from associating or dealing with him or her. See Zinda v. Louisiana Pacific Corp., 149 Wis.2d 913, 921, 440 N.W.2d 548 (1989). "However, not all defamations are actionable. Some defamations fall within a class of conduct which the law terms privileged." Id. A complex structure of privileges has developed in the law to protect and advance the societal and individual interests in the free flow of ideas and information. See W. Page Keeton et al., Prosser & Keeton on the Law of Torts, § 114, at 815 (5th ed.1984).

¶8 Privileged communications are either absolute or conditional. See Lathan v. Journal Co., 30 Wis.2d 146, 151-52, 140 N.W.2d 417 (1966). The defendant asks us to adopt the Restatement standard for absolute privilege in legislative proceedings, whereby a witness's statement is subject to only two restrictions: it must be made as "part of a legislative proceeding," and it must have "some relation to the proceeding." Restatement (Second) of Torts § 590A (1977). ³ Once a statement has met these two standards, the witness is clothed with complete immunity from liability, even if the witness is motivated by malice or ill will toward the plaintiff and knows the statement to be false. See Lathan, 30 Wis.2d at 151, 140 N.W.2d 417; see also Zinda, 149 Wis.2d at 922, 440 N.W.2d 548 ("Absolute privileges give complete protection without any inquiry into the defendant's motives.").

¶9 A conditional privilege, on the other hand, is not absolute and may be forfeited if the privilege is abused. See Zinda, 149 Wis.2d at 924, 440 N.W.2d 548 (citing Ranous v. Hughes, 30 Wis.2d 452, 467, 141 N.W.2d 251 (1966)); Restatement (Second) of Torts § 599 (1977). The Restatement lists five conditions which may constitute an abuse of the privilege, and the occurrence of any one causes the loss of the privilege. See Zinda, 149 Wis.2d at 924-25, 440 N.W.2d 548. The privilege may be abused, (1) because of the publisher's knowledge or reckless disregard as to the falsity of the defamatory matter (see §§ 600-602); (2) because the defamatory matter is published for some purpose other than that for which the particular privilege is given (see § 603); (3) because the publication is made to some person not reasonably believed to be necessary for the accomplishment of the purpose of the particular privilege (see § 604); (4) because the publication includes defamatory matter not reasonably believed to be necessary to accomplish the purpose for which the occasion is privileged (see § 605); or (5) the publication includes unprivileged matter as well as privileged matter (see § 605A).

¶10 In determining whether to apply an absolute or conditional privilege to legislative proceedings, we are faced with a conflict between two American principles equally regarded in the law: the right of an individual, on the one hand, to enjoy his reputation unimpaired by defamatory attacks, and on the other hand, the necessity in the public interest of a free and full disclosure of facts in the operation of government. See Van Vechten Veeder, Absolute Immunity in Defamation: Judicial Proceedings, 9 Colum. L.Rev. 463, 463 (1909). Compare Schier v. Denny, 12 Wis.2d 544, 550-51, 107 N.W.2d 611 (1961) (fostering the free filing of complaints with administrative agencies outweighs private right to compensation) with Ranous, 30 Wis.2d at 466-67, 141 N.W.2d 251 (protecting private citizens from defamation outweighs need to insulate school board members from liability).

¶11 The parties rely heavily upon these countervailing proclamations of public policy. Ms. Yasko argues that the same policy supporting the extension of absolute privilege to parties, witnesses and their counsel in judicial proceedings compels its application to legislative proceedings. See Bussewitz v. Wisconsin Teachers' Ass'n, 188 Wis. 121, 127, 205 N.W. 808 (1925). In Bussewitz, we stated:

If parties are shadowed by the fear that by some mistake as to facts or some excess of zeal, or by some error of counsel, they may be subjected to harassing litigation in an action for slander or libel, they may well feel that justice is too dearly bought and that it is safest to abandon its pursuit.

Id. See also Restatement (Second) of Torts § 590A cmt. a (1977) ("The absolute privilege of witnesses in legislative hearings and other legislative proceedings is similar in all respects to that of witnesses in judicial proceedings...."). Yasko contends that the risk of uncompensated reputational harm from even false and malicious testimony is outweighed by the strong public policy of encouraging citizen participation in legislative proceedings.

¶12 On the other hand, Mr. Vultaggio asks us to recognize that the right to use the judicial system for redress will be significantly impaired if an absolute privilege is extended to witnesses testifying at legislative proceedings. According to the plaintiff, the policy of protecting citizens from having their private or professional reputations damaged outweighs the concern for inhibiting the free exchange of views on legislative issues.

II.

¶13 It is against this background of public policy that we make our decision. We now consider the application of an absolute privilege to statements made at legislative proceedings such as the city council meeting at hand. First, however, it will be helpful to examine how far we have previously gone to bestow the absolute privilege upon otherwise actionable public statements.

A.

¶14 The law of absolute privilege is not new to the state of Wisconsin. Where the statements bear a proper relationship to the issues addressed, we have extended the absolute privilege to the statements of parties, witnesses and their counsel in judicial proceedings. See Bussewitz, 188 Wis. at 127, 205 N.W. 808; see also Spoehr v. Mittelstadt, 34 Wis.2d 653, 661, 150 N.W.2d 502 (19...