*1 941 14, sоught 1987, is not at issue. The order Monday, December extended the parties reviewed was mailed to the on No- time filing appeal this to include the 23, thereafter, Twenty days ensuing vember 1987. next day, full business Tuesday day filing appeal 15, the final Okla.Const., 23, this was December 1987. art. 14, 1; Monday, 1.1, December 1987. Petition Rule of Appellate Rules Proce Tuesday, 15, dure, O.S.1981, 15, 2; was filed on December 1987. 12 app. ch. David v. Corporation, (Okla. Penwalt P.2d Appeals The Court of directed the 1979). why Petitioner to appeal show cause this This review timely per- untimely should not be dismissed as filed. filing fected of the Petition for responded Petitioner Friday, that on De 15, Review on 11, 1987, According- December 1987. Review, cember the Petition for ly, this jurisdiction Court has together fee, ap- over this appropriate filing with the peal. The Clerk of this Court is Tulsa, directed to deposited U.S. mail appeal docket, reinstate Oklahoma, this on the as- addressed to the Office of the signed to the Appeals, Court of Division Clerk of this Court and that the Clerk’s IV, for review. office should have received and filed the Monday, 14, Petition on December 1987. All
The Petitioner the Justices appeal asserts concur.
should upon be deemed commenced
mailing of the Petition necessary filing Appeals
fees. The Court of properly re
jected argument Petitioner’s under the au
thority of Turrell v. Continental Oil Com (Okla.1970).
pany,
tioner no evidence to establish timely commencement pro of this review KIRSCHSTEIN, Appellant, Naomi L. ceeding by filing the actual Tuesday, on 15, fact, December A appar 1987. critical HAYNES, ently Petitioner, Faye unknown to William M. Alice Kil which we Moore, notice, gore take and Michael that the Office of the E. Appellees. Clerk of this Court p.m. closed before 4:00 14, 1987, heavy on December due to sleet No. 67655. power and snow. This Court has the Supreme Court Oklahoma. duty inquire propriety into the of its jurisdiction. In re Matter Initiative Jan. 1990. 15, 1983, Petition Filed November Rehearing Denied March 1990. (Okla.1986). accord, P.2d 1353 In Baird v. Independent School District No. 3 of (Okla. County,
Woodward
Okl. 106 P.2d origi In this proceeding,
nal this Court take
notice, sponte, sua necessary facts jurisdiction, particularly
determine its when capable ready
the fact is and accurate
determination. 12 O.S.Supp.1989
Because the day twentieth after
mailing appealed Sunday, order was 13, 1987, day
December the final for com appeal
mencement of this would have been
Monday, closing December 1987. The
of the Clerk’s office p.m. before 4:00 *4 Brown, Norman, appellant.
Elvin for J. Norman, Perrine, appellee Robert G. Kilgore. Faye Alice Margaret W. Calvin W. Hendrickson Owens, City, for Wil- appellee Oklahoma Haynes, liam M.D. M. Norman, Moore, appellee E.
Michael Michael E. Moore.
LAVENDER, Justice:
presented in this
Four central issues are
1)
recog-
They are:
we
case.
whether
will
def-
nize
absolute
to bar
at-
amation actions
communications
having some
torneys, parties and witnesses
preliminary to a
relаtion to and made
posed judicial
quasi-judicial proceeding;
2)
recognized
if
absolute
action,
does it bar not
a defamation
inten-
premised
but
on the tort of
a cause
distress; 3)
of emotional
tional infliction
Ap-
were the trial court and
Court
affirming,
peals
granting
correct
summary judgment
in favor
respectively,
4)
was the Court
Appellees;
ruling that it would not reach
Appeals’
Appel-
in relation to
issues
merits
proper
heirs
cause
lant’s determination
preserve any
primarily
State authorities.
failed
because
father,
error in
failure to
claim of
said
raised
Alvin
her
E. Salsman and
in error.
petition
raise such
her
family
approximately
his
since she was
two
time
years old. About said
Eva Mae was
recognize
will
We have determined we
at the
institutionalized
State mental health
privilege for
communications
absolute
facility Vinita,
deposi-
Oklahoma. In her
proposed judicial
Eva
proceedings in favor of attor-
tion
Mae stated she remembered hav-
quasi-judicial
parties
generally un-
neys,
(the eldest)
and witnesses
ing only
child
one
and had
forth at the Restate-
der
standards set
mеmory
having any
gen-
other children
(Second)
586, 587
ment
of Torts
and 588
§§
(three
number),
erally attributed to her
Further,
comments thereto.
including Kilgore. According to Moore’s
only to
privilege acts not
bar def-
absolute
deposition
father,
Kilgore told him the
Sals-
actions,
those for
amation
intentional
man refused to discuss
circumstances
infliction of
distress when based
emotional
her
birth with her.
allegations as
on the same factual
the def-
Appellees, Kilgore
Moore,
an attor-
privilege’s appli-
claim.
to the
amation
As
Oklahoma,
ney
practice law in
licensed to
summary judg-
cation in this case we hold
*5
building
worked in the same office
in Nor-
granted
Appellees,
to
properly
ment was
man,
Kilgore requested
Oklahoma.
Moore
(attorney),
Michael E.
William M.
Moore
recording
to assist
her
birth certificate
(witness)
Faye Kilgore
Alice
Haynes
Department
the
with
of Health
Oklahoma
Finally,
(party).
Ap-
hold the Court of
we
(ODH).
agreed.
Moore
did some
Appel-
Moore
peals was correct
its conclusion
lant,
preserve
Naomi L.
failed to
research and
a de-
Kirschtein
determined
of еrror in
to her
layed
claim
determina-
certificate
birth
could be obtained
of heirs
failure to include
tion
cause
covering delayed
from
ODH.
statute
petition
in her
in error.
such
O.S.1981,
birth certificates is found at 63
filing
1-313.1
1-313
Section
allows
appears
genesis
its
This case
to have
delayed
person
born
birth certificate
Mae,
communications from Eva
the sister
evidentiary
in this State in accordance with
Appellant, Kilgore
to
to the effect Eva
of
requirements established
the Oklahoma
Kilgore’s
Mae did not
she was
believe
Health to
the facts
State Board of
establish
apparently
mother. These communications
birth, including
place
of
date and
of
inability
birth
Kilgore’s
coincided with
to find
parentage.2
statutory provi-
Another
any record of
certificate
file with
birth
O.S.1981,
evidentiary requirements
regard-
provides:
1. 63
2. The
of ODH
1-313
ing filing
delayed
(a)
birth
are found
of
certificates
person
the
When
birth of a
born in this
(1977).
registered,
may
has not
at 16
1239-1240
Such rules
state
been
certificate
Okla.Gaz.
regulations
part
Regulations
be filed
accordance with
of the
Gov-
are
of ODH’s Rules
State Board Health. Such certificate shall
erning
Registration,
of
Okla.Gaz.
Vital Statisics
registered
evidentiary
subject
such
be
to
re-
of
Part II
the rules concern
quirements
regulation
as the Board shall
including
registration,
delayed
certif-
birth
birth
alleged
prescribe, to
the
of
substantiate
facts
icates,
persons
are used for those
who
which
birth.
birthday.
passed
have
tenth
reached or
his/her
(b)
registered
year
one
Certificates of birth
Although
been
in Part II
there have
revisions
more after the date of occurrence shall be
(the
January
date of the
since
rules)
effective
“delayed”
their
marked
and show on
face the
pertinent
inquiry
our
none of them
to
delayed registration.
of the
date
concerning delayed
evi-
birth certificates. The
(c)
summary
the
A
statement of
evidence sub-
dentiary requirements are
at Part
set forth
delayed
support
registration
mitted in
the
of
II(5)(c)
provides:
which
be
the
shall
endorsed on
certificate.
registrant
C.
the
who has reached
For
(d)
applicant
not
When
does
submit the
birthday,
passed
facts of birth
his tenth
the
required
reg-
minimum
in the
documentation
by presentation of the
shall
established
delayed registration,
thе
ulations
when
Registrar:
following proof
to
State
finds
State Commissioner of Health
reason
records,
(3)
presentation
three
each from
of
question
validity
adequacy
of
docu-
independent
To be ac-
source.
different
evidence,
mentary
the Commissioner shall not
ceptable
proof
must have been
as
the records
register
delayed
and shall ad-
certificate
(5) years
previous to
or more
applicant
five
vise the
reasons for his ac-
certificate,
exception
filing
with the
tion.
name)
1-315,
(Appellant’s
given
maiden
had
sion,
provides for a
ble
Kilgore. Haynes
stated
further
proceeding for an order establish-
birth
reading
deposition
parentage to one
his
he did
remember
ing a record
(10)
re-
signing it and
ten
the affidavit
has lived in Oklahoma for
who
(3)
turning
deposition
it
to Moore. Moore’s
three
continuous.3
years,
last
testimony appears contradictory to that of
effort
obtain information
In an
testimony,
although
His
some-
Haynes.
delayed
Moore con-
cure a
birth certificate
got
equivocal, was he
the information
what
M.D.,
Haynes,
M.
Appellee, William
tacted
his
for the affidavit from
conversation
it
elderly
in the
where
physician
town
Haynes.
poten-
Kilgore was born as a
was believed
Kilgore,
circumstances
of birth.
Moore delivered the affidavit
tial affiant
published it or its
deposition Haynes
Moore who the record shows
In his
stated
relatives,
any
including Ap-
ask if he had
contents
various
came to see him to
deposi-
pellant.4
he
testified in her
memory
Kilgore’s
birth. He testified
Kilgore
had a
memory
he
her birth
tion she
conversation with
told Moore
had no
her the
or its
records which
cover which
told
affidavit
and knew
would
however,
Moore,
were
to find out wheth-
published
mailed an affi-
contents
the event.
signature
had
to it in
of her
Haynes
for his
which
er it
truth
view
davit
attempt
Bram-
the birth certificate.
Haynes
remembered Naomi
obtain
stated
affidavit,
may
parentage.
place
He
and must contain information
of his birth and his
registrant
support
facts
about
have the
of such information entered
record
may
affida-
following
applicant
shown on the
certificate. An
manner: Such
knowledge
personal
be used
vit
appear
judge
before a
district court
*6
one,
one,
only
of
of the three records
county
the
he is a resident and file
of which
proof.
the
All
records
indicate
three
shall
writing,
petition
petition
verified
in
his
which
registrant,
date
of the
the correct birth
name
place
and
shall state the time and
of his birth
age
registrant,
the
of
and at least two of
or
parentage
as he
his
and such other facts
reg-
birthplace
records
reflect the
of the
shall
pertinent;
petition
filed in
deems
the
shall be
Oklahoma,
the
istrant
to be
and one of
given
the office of
court clerk and
a num-
the
parentage
the
as
records
shall
indicate
thereof;
probate
thereupon
ber in the
files
the
by
registrant.
registrant
claimed
the
The
applicant
produce all the evidence he
shall
sign
affidavit on
face of the
shall
the
the
possession,
in his
which
consist of
has
Notary
attesting
a
certificate before
Public
records,
personal testimony, affidavits
and
or
authenticity
as set
the
of the information
the State Com-
shall include a statement from
forth on the face of the certificate.
Health, or similar official in the
missioner of
registrant
un-
In those instances where the
is
birth,
applicant’s
a
state of
to the effect that
name,
sign
able to
he shall make his mark
his
office;
is not recorded in his
birth certificate
sign verifying
two
shall
the
and
same,
witnesses
judge
and if the
of the district court shall be
Notary
all
a
Public.
offered,
proof
satisfied
he shall make
with the
deceased,
registrant
the
In the event the
is
establishing
and
and enter
the time
an order
to be
affidavit on the face of the certificate is
birth,
age
place
parentage
of
the
and the
of
by
signed
person attempting
the
to file
the
applicant,
and
which order shall be final
of
certificate.
It shall be noted on the face
adjudged,
conclusive of all the facts therein
registrant
that the
is deceased
certificate
(b)
copy
filed
A certified
of the order shall be
attempting
the certif-
and
individual
to file
of
in the office of the State Commissioner
relationship
the de-
icate shall state his
Health,
copy
certified
thereof shall
a
authority
legal
granted
ceased or the
him
man-
issued
the Commissioner in the same
represent
the interest of
deceased.
ner as certificates of birth.
deposition
assisting
3. provides:
Moore's
indicates he was
§
1-315
regard
Kilgore in
to a
birth certificate
(a) Any citizen of the United States who has
(10)
expressly
does not
indicate he was contem-
in
for not
ten
resided
this state
less than
filing
proceeding
(3)
plating the
a court
under
of
years,
have
the last three
which must
assisting Kilgore
last
that he was
§
been
within this state and the
continuous
(1)
goal in
must have
continuous
such
mind.
one
which
been
county
application,
his
the birth
within
Kilgore's alleged publications to rela-
4. Prior to
by the State
of whom has not been recorded
Health,
not indicate it was seen
tives
record does
predecessor,
Commissioner of
may
his
Moore,
anyone
principals,
other
i.e.
county
than
petition
court
in
the district
it)
(and
Haynes
wife who notarized
he
order
his
which
resides or
born for an
establishing
Kilgore.
public record
time and
attorney
absolutely privi-
ad-
An
at law
either an
is no record evidence
There
publish defamatory matter con-
leged to
1-313 or a
proceeding under
ministrative
cerning another
in communications
under
1-315 has ever
proposed judicial
to a
by Kilgore.
initiated
been
of,
or dur-
ceeding, or
the institution
initiated as a
lawsuit was
The instant
of,
part
ing the course and as a
publication of the affida-
Kilgore’s
result of
participates
which he
it in the aforemen-
and reference to
vit
counsel, if it has
relation to the
some
discovery was
After
tioned conversations.
proceeding.
conducted,
Appellees,
of all
on motion
587 and 588 contain substantial-
Sections
summary judgment in
granted
trial court
language
publica-
ly the same
Appellant’s case.
their favor and dismissed
witnesses,
by parties and
re-
tions made
it found the affidavit
The order stated
spectively.5
provides
Comment a to
privileged.
publication
its
pertinent part
as follows:
argues
pub-
Appellant appealed. She
privilege
The
stated
this section
privi-
not
lications of the affidavit were
upon public policy
securing
based
only
privilege applied
if
it was
leged and
attorneys as
of the court the
officers
one,
subject to
qualified
not
conditional
freedom in their efforts to secure
utmost
summary judgment treatment
in view
justice for their clients. Therefore thе
the trial court. She fur-
the record before
privilege
protects
is absolute.
It
the at-
if
did bar her
argues
ther
even
action
torney
liability in an
from
cause,
in-
theory
her
defamation
based
irrespective
purpose
his
defamation
emotional distress
tentional
infliction of
matter,
publishing
defamatory
heirs sur-
request
for determination of
truth,
even
in its
his
his belief
not
summary judgment was
vived because
pub-
knowledge
falsity.
itsof
and,
requested as to said claims
specifically
matter
defamatory
lication of
thus, summary judgment
improperly
protected
not
when
attorney is
also
granted as to her entire lawsuit. She
proceed-
in the institution
apparently argues
would
litigation be-
ings or in the conduct of
event,
assum-
these claims
even
bar
*7
tribunal, but in
judicial
a
confer-
fore
ing her defamation claim was so barred.
pre-
other communications
ences and
above,
The insti-
Appeals
proceeding.
liminary
As noted
Court
to the
judicial proceeding includes
doing
trial court.
In
so it
tution of a
affirmed the
(Second)
necessary to
pleadings and affidavits
the Restatement
of Torts
all
relied on
machinery in motion.
(1977)
judicial
set the
to bar both her defamation
586
§
dis-
intentional infliction of emotional
and
provides
586
an
d to
Comment
§
Appellant failed
claims. It also ruled
tress
proceedings
judicial
expansive definition
regard
the determi-
preserve error
to
an officer
proceedings
include all
before
Although the result
nation of heirs claim.
exercising judicial func
a
or other tribunal
cor-
by
Appeals
the Court of
reached
seen, in the circumstances
tion. As will be
granted certiorari in this case be-
rect we
case,
the determination
of this
we believe
impression
the matter is one of first
cause
(an
agency) or an
by ODH
administrative
general parameters
and to outline
(the
Com
officer thereof
State
executive
privilege
applied
as
to commu-
the absolute
delegate) made
of Health or his
missioner
preliminary
proposed
a
made
nications
filing of a
concerning the
under
1-313
§
proceeding.
judicial
quasi-judicial
or
qua
qualifies as a
delayed birth certificate
proceeding to which
provides
si-judicial
586 of the Restatement
Section
sets forth
Finally,
e
applies.6
Comment
as follows:
by implica-
Torts,
argument,
(Second)
at least
some
6. There is
§§
Restatement
587-588
5.
tion,
appellate
that
Appellant's
submissions
1-315,
contemplated
only proceeding
§
proceed-
under
a
judicial
qualify as a
supra
can
note
predecessor
statute
O.S.
communications
strued
specific criteria for
more
grant
a
to utter-
proceeding.
It
1448.1
preliminary
proposed
to a
§
judicial
proceedings
made in
or other
provides:
ances
law.8 The situation here
by
authorized
preliminary to a
toAs
communications
expressly
not
fall within the statute’s
does
rule
proceeding the
proposed judicial
...
in-
protection because the communications
only
communication has
applies
when the
pro-
a
were all made
volved
proceeding
that
is
a
some relation
posed proceeding the record fails to dis-
and under
good faith
We, thus,
instituted.
close has ever been
possibili-
The bare
serious consideration.
law,
if the
as em-
must determine
common
might
proceeding
be institut-
ty that
Restatement,
provides any
bodied
provide
not
as а cloak to
ed is
to be used
privilege to the communications
issue.
possi-
immunity for defamation when
bility
seriously
considered.
not
if a
first
task is
determine
Our
ceeding
to file a
privi-
under
1-313
applied
has
an absolute
This Court
§
quasi-judicial
during vari-
qualifies as a
lege to communications birth certificate
quasi-
proceeding.9
our case law a
In said cases we con-
Under
proceedings.7
ous
Mathis,
1443.1(A)(1).
Further,
argues
appli-
737 P.2d
ing.
Appellant
§
Hennessee
that
3, 1987);
Basnett,
(Okla.Ct.App.Div.
remedies un-
White v.
must exhaust administrative
cant
initiating
1985);
proceeding
prior
(Okla.Ct.App.Div.
un-
See also
der
1-313
949
duty
judicial
proceed-
function or
has been described
309-323. In such a
§§
follows,
quasi-judicial duty
little,
is one
ing there
if any, question
would be
“[a]
lying
judgment
in the
or discretion of an
proceedings
are conducted in a
officer other than a
officer.”10 manner like those before a court. Al-
Clearly, in our situation the State Commis-
though
specific
rules of ODH concern-
delegate
acting in
sioner of Health or his
ing delayed
appear
birth certificates do not
quasi-judicial
manner when he decides
contemplate
proceeding
individual
presented
based on the material
to him hearing following
requirements
delayed
whether a
certificate
will be
general
OAPA13 we believe the
rules of
rejected
filed under
1-313 or
because of
would,
invoked,
properly
ODH
if
provide an
deficiencies in the evidence submitted. He
opportunity
proceeding
for an individual
judgment
еxercises
or discretion in his de-
type governed
by the OAPA.14 The
delayed
termination of whether to file the
Practice,
Depart-
Rules of
Oklahoma State
present-
birth certificate on the information
ment of Health indicate that said rules are
ed.
given
impartial
a fair and
construc-
here, however,
question
A further
arises
provide
tion.15 The rules also
a mechanism
specific
relating
because the
ODH rule
petition
ODH for affirmative relief in
delayed
appear
birth certificates does not
requesting
the form of
an individual
contemplate
hearing
an actual
before the
ceeding which shall contain a reference to
Commissioner,
only a
but
submission of
involved,
the statute
giving
the facts
question
documentation.11 The
arises be-
right to relief and a statement as to the
considering
cause courts
the issue of what
requested.16
relief
provi-
We believe these
quasi-judicial proceeding
constitutes a
have
enough
sions of the ODH rules are broad
partially
hearing
relied on the fact that a
encompass
request
seeking
one
point
proceed-
was allowed at some
delayed
obtain a
birth certificate such as
ing
give
it sufficient likeness to a
the situation involved here.
applicability
to invoke the
privilege.12
absolute
Although in the normal course of
may
events it
be that the determination is
typical generic
The most
administra
simply
present
on the documentation
proceeding falling
tive
under the umbrella
(we
ed
assume in
most cases that would be
quasi-judicial would be one initiated and
required
all that
for a
pursuant
requirements
conducted
to the
determination
certificate)
an individual
under the Okla
issue the
there
be situa
Act,
homa Administrative Procedures
75 tions which would necessitate an individual
552,
889,
(1955) (proceed
qualify
quasi-judicial proceeding,
19 N.J.
117 A.2d
894
as a
nor did it
ings
industry);
quasi-judicial
before state director of milk
exercise a
function.
594,
Morgan,
Ramstead v.
Or.
P.2d
219
347
(1959) (attorney discipline proceedings);
599
13. In addition to the Rules of ODH on
Dick,
Knox v.
Nev.
P.2d
birth certificates certain forms and the instruc-
(1983) (county
grievance
personnel
proceed
concerning
tions thereto
such certificates do not
ings).
hearing,
appear
contemplate
evidentiary
required
the submission of the
docu-
Commissioners,
Gray
County
Copies
mentation.
of such forms and instruc-
Board
(Okla.1957).
Appellant’s
P.2d
tions were attached to one of
re-
*9
sponsive pleadings
request
to Moore’s
for sum-
mary judgment.
Regulations Governing
11. ODH Rules and
Vital
II(5)(c),
Registration,
supra
Part
Statistic
note 2.
Practice,
Department
14. The Rules of
Oklahoma
pertinent
of Health
hereto are found at 19 Okla.
Farms,
Valley
12. Rainer’s Dairies v. Raritan
(1980).
9;
Gaz.
600-609
supra
A.2d at
note Ascherman v. Natan
son,
659-660,
Cal.Rptr.
supra
note 9. Cf.
Practice,
Department
Bache,
Engelmohr
15. Rules of
Oklahoma
66 Wash.2d
401 P.2d
Health,
IV(A),
(1980).
19 Okla.Gaz. 603
Engelmohr
Part
347-348
held that a
study group appointed by the Securities and
11(G)
III(A),
Exchange
study
Commission to make a
16. Id. at Parts
General Method
investigation
governing
Operation
In Individual Pro-
of the rules
national se
of
ceedings, respectively.
and Procedure
exchanges
curities
did
associations
not
under serious consider-
good faith and was
required
as where the
proceeding, such
concerning de-
of ODH
documentation,
rea-
ation. The rule
for whatever
minimum
a situa-
allows for the sub-
son,
acquired.
layed
In such
certificates
cannot be
birth
would look
from someone hav-
little doubt ODH
of one affidavit
tion we have
mission
an indi-
petition
applicant’s
to initiate
Al-
favorably
knowledge
on a
birth.
ing
by
governed
those
proceeding like
questions
vidual
here as
though there are
Thus, not
own rules.
the OAPA and its
any personal knowl-
Haynes had
whether
only is the decision of
Commissioner
and whether the
edge
Kilgore’s birth
regard
to issuance of
delegate
his
knowingly so
false and
Com-
affidavit was
under
1-313
delayed birth certificate
§
Restatement
586 of the
ment a
function,
ex-
potentiality
quasi-judicial
falsity
of the defam-
that the truth
vides
proceeding like that
ists for an individual
knowledge of its
atory matter or even the
by
We believe
contemplated
the OAPA.
privilege
falsity
irrelevant when the
a conclusion
such factors necessitate
recognized
actually apply. This Court
does
delayed
quest
birth
part that a
our
matters in our
irrelevancy of these
qualifies as a
under
certificate
Employers
Ins.
pronouncements
Pacific
and, thus, the sit-
quasi-judicial
Bizzel,20
Hughes v.
v. Adams and
Co.
subject to a determination
uation here is
to communica-
ruled
where we
applies
privilege
whether
absolute
judicial or
the context of
tions made within
this case.17 With the
the circumstances of
privilege ex-
proceedings the
quasi-judicial
turn to
issue behind us we
quasi-judicial
regardless of
to communications
tends
by Appellant
arguments
other
raised
false.
they are true or
whether
privilege.18
denial
filing of the affidavit
Whether the
argues that the communication
separate
penal
criminal
provide for
would
parties
privileged because
cannot be
of either Moore
or whether the conduct
ties
filing
knew it was false and because
subject
profes
them to
Haynes would
misde-
ODH is a
false information with
distinctly separate
discipline are
sional
argument in said re-
Appellant’s
meanor.19
protect
questions.
privilege
The
does not
privi-
merit. As far as the
gard is without
sanctions, just
privlege
as the
against such
Haynes the facts
lege concerns Moore and
attorney from suffer
conclusively
protect
not
an
by
show would
revealed
the record
un
discipline because of
ing professional
the communi-
perspective
their
that from
Nor would
Moore
ethical conduct.21
cations betweеn them
between
party
from the sanc
pro- protect
a witness
Kilgore had some relation to
false testi-
perjury
conviction for
tion of
posed proceeding that was
express
case as to
We
a view in this
that even in those
18.
do
should further note
17.We
adjudicative process
agency
individual
must
situations where a formal
an
whether
final action of the Commissioner
was not held
necessity
same trial like mech-
contain the exact
applicant
or the Board of Health adverse to
thought indispensable in valid
anisms
certificate, being
quasi-
seeking a
cross-examination)
decisionmaking (e.g. right of
nature,
would
a final order
constitute
apply
to statements
for the absolute
appealable
O.S.1981,
a state district court under
of a matter
to the institution
assuming
would not
even
it
§ 951
agency.
an administrative
O.S.1981,
subject
strictly
appeal
be
under 75
provides:
318 of the OAPA. Section 951
among
provides,
other
§ 1-1701
19. 63
made,
rendered,
judgment
or final order
A
any
things,
penalties
misdemeanor
for certain
tribunal,
exercising judi-
board or officer
filing
with ODH.
false information
functions,
jurisdiction
cial
and inferior
court,
reversеd,
vacated or
district
765, supra
951 swearing question A then central is wheth mony in a courtroom or false alleged defamatory er the statements and public policy Although the affidavit. an publication the circumstances were rele detain- by privilege the immunizes served proposed to a vant or had some relation action, damage does not it ers from proceeding, opposed to whether above protect against referenced statement is true or false. As to rele or sanctions. censure forms of vancy in ruling we have little trouble issue privilege public policy fostering the The proc that the affidavit was relevant to the by stated the Texas Court Civil was Clearly, gоing eeding.23 an affidavit extending it to communi- Appeals a ease parentage is relevant under ODH vital judicial pro- to a cations issuing delayed statistic rules for birth ceeding as follows: certificate. Such an affidavit is one doc attorneys that policy Public demands may given that ument be submitted and in their ef- granted Thus, the utmost freedom process. in the consideration grant To represent relevancy requirement their clients. is met.24 also forts We conclusively rule the record Moore immunity privilege of absolute shows short employed attorney by Kilgore was as an relating pending communications purpose assisting securing for the her subject thus proposed litigation, and obtaining certificate and defamation, attorney liability in furtherance of such affidavit was attorney’s might ef- tend lessen representation perspective from the his client. The con- forts on behalf of Haynes.25 Moore and in- litigation requires more than duct of attorney procedures. An must court if the One must also determine evidence, discovery interrogate seek surrounding circumstances the communica witnesses, and оften resort to potential publication alleged tion or defam evidence; ingenious methods to obtain to the atory statement had some relation thus, the fear he must be hobbled proposed proceeding. inquiry This nar reprisal by actions for defamation. scope privilege rows the much more privilege Yet this absolute must not be relevancy inquiry than the and turns to a attorney extended to an carte blanche. large determining to whom the extent applies The act to which pro A measure of publication was made.26 relationship thus, to a is, alleged must bear some vic tection afforded to an attorney is em- publication which to the tim of defamation large parties in furtherance of third uncon ployed, public and must be or to proposed proceeding.27 As representation.22 nected with the 865, Clark, (Tex. on how to secure the certifi- 22. 620 S.W.2d with advice Russell procuring cate and in the affidavit. Civ.App.1981). defamatory alleged statement 26. Whether relevancy 23. The of the communication is content) (i.e. proposed is relevant to a itself proceeding its сourt, by the as is the matter for determination question as whether is not the same question of whether the communication the occasion of utterance should be considered privileged character or or not reason of its privilege. determine the latter within the To which it was made. Walker v. the occasion on analysis question of the facts and a detailed 726, (Ala.1986). Majors, 496 So.2d surrounding publication, its circumstances publish- particularized inquiry it was to whom a rather liberal view in 24. Courts have taken Cards, required. Asay ed See v. Hallmark relevancy requirement and doubts to the (8th Cir.1979). Inc., 594 F.2d 697-698 730; relevancy. in favor of Id. at are resolved Board, County Personnel unnecessary Barnett v. Mobile may be lost 27. (Ala.1988). publication So.2d to one for whom unreasonable Thus, privileged. Id. at 698. occasion is not Although appears record to show Moore unnecessary publication news media to the assisting Kilgore pro essentially publica bono it is privilege, as well as result in loss of the attorney-client judi wholly from the record an rela- with the clear tionship unconnected tion to those Birmingham, process. existed bеtween the two relative to See Sullivan v. cial (Mass. Clearly, Mass.App. quest. Moore was act- 416 N.E.2d birth certificate attorney assisting App.1981). ing capacity of an *11 However, the conclusion published falsity. the the Haynes neither to Moore Kil- can from this record is that or its contents we reach alleged offending affidavit requesting assistance anyone proposed gore with the came to Moore to unassociated certificate, Moore, attorney, agreed prepared to obtain a that he proceeding. as affidavit, a Haynes, potential part as assistance the sent it to to assist her and that affiant, returned it to procured who he the affidavit use before witness for As gave Kilgore. ODH, it to not. Moore. Moore then he knew it was false or whether no dis- Appellees these two there was to simply There is no evidence in the record sphere the normal semination outside and the conclusive- rebut these facts record expected to be that would be involved those ly purpose of his endeavors shows the proceeding issue. prepаration in for the at procure the birth behalf of was Thus, up point inquiry the this pro- initiating her in certificate or assist Haynes fall within actions of Moore and ceeding so. to do privilege. the also Haynes As to the record argues the communica- further dealings in re shows that his with Moore privileged tions at issue cannot be because in gard to the affidavit were furtherance was not contem- proposed proceeding the contemplated the effort the birth obtain good under con- plated in faith and serious Although he may certificate. have been ar- support theory this she sideration. To negligent by to read his admitted failure or, least, good sub- gues faith is absent affidavit, the such conduct does not take dispute the affidavit’s con- ject to because privilege him the affi outside the because it is antithetical for one tents are false and executing it davit and his role were itself good contemplate faith conclusively shown to be furtherance relying the on a false while at same time contemplated proceeding to obtain a birth sought by the support affidavit to the relief Further, there certificate. is no evidence Secondly, Appellant proceeding. asserts published he the affidavit outside is a issue whether the there factual sphere pro connected of those consideration, ceeding was under serious signed it and posed proceeding. merely He fact primarily relying on the the record Moore, Kilgore’s attorney. returned it to contains evidence That affidavit itself was false Appellant’s argu- initiated. We believe purposes deter knowingly so merit, are as will ex- ments without mining privilege applies whether plained below. on the Haynes, relation to Moore and record, irrelevant, present is as we have There material factual issue is no ap genuine dispute28 previously noted. When the subject in this record knowing pro plies potentially it perspective protects from the of Moore that a long As as the ceeding seriously damaging under falsehoods. defamatory com pro speaker or writer of the 1-313 and that the affidavit was good subjective an actual potential subject use therein to municаtion has cured litigation seriously is con faith evidentiary requirements of ODH. belief True, templated conflicting attaches whether there is evidence as truth good not he faith belief of the affidavit were has whether contents re- It must be knowledge had of of communication.29 false and whether Moore distinguish Summary appropriate important the lack judgment when 1t is between 28. good bring publi- of a faith intention suit controversy there is no substantial as to good faith cations which are made without party appears material fact and it one is entitled truth, i.e., publications. belief their malicious judgment a matter of law. Sellers v. Okla- as latter, good anticipation when made faith Publishing Company, homa 687 P.2d price litigation, protected part (Okla.1984). affording litigants paid the utmost freedom policy This considera- to the courts. access Systems, See Satellite Fuhrman California advanced, however, person when the tion publishing Cal.App.3d Cal.Rptr. fn. 5 injurious is not serious- falsehood (1986). As in Fuhrman: stated case, litigation. ly considering In such *12 Court, this which were before sions before purpose of the that the membered cоurt, genuine show there is no the trial that otherwise would protect those is not to Kilgore dispute as to whether was serious- defamation, but to lessen for be liable good contemplating faith initiat- ly and to utilize those who seek chilling effect on delayed ing proceeding to obtain a a relief. Neces- process to seek Moore, deposi- throughout his certificate. provided for some remedy no sarily then tion, quest that the for the birth testified subject to the caused conduct injuries certificate, including procurement his privilege. absolute affidavit, purpose offending was the Haynes the sub to Moore and As Kilgore. Appellant’s relationship with his the test is met and jective component of Kilgore her deposition indicates told own not to by Appellant. This is unrebutted trying get a birth certificate. she was the circum objective evidence or say that by Appel- stands unrebutted This evidence particular case stances evident lant. a defen not able to overcome would be conclusively shows Kil- The evidence also testimony litigation was under dant’s step of the shelter of thе gore did not out However, in the serious consideration.30 privilege by the circumstances absolute is no such Haynes there case of Moore surrounding publication of the affidavit her Summary judg in the record. evidence it or The record indicates or its contents. thus, was, these two proper as to ment Kilgore revealed its contents were regard Appellant’s def Appellees if the contents were relatives to determine claim. amation publication Kil- true.31 In to such position as present gore record we also hold in much the same On the would be preparatory summary judgment. conducting Kilgore lawyer entitled to a who was necessary deposition Kilgore is con conferences to determine Although no Attor- prior bringing lawsuit.32 evidentiary submis- facts tained in the record testimony Appellant, logical deposition shows she rela- publication has no "connection or Kilgore in which Kil- not made "to achieve had a conversation tion” to an action and is public publications objects" any litigation.... gore were in an effort No told her the offending extending privilege persons the- policy supports the truthfulness of to determine , worthy attempt profit threats of of use in from hollow to see whether it was who affidavit omitted) (citation litigation, procure a birth contemplated rebutted this evi- Id. never certificate. anything on to that could be relied dence with attorney that an Where there is no indication Kilgore. judgment summary in favor of defeat judicial proceeding seriously contemplated pur- Kilgore’s Nothing in the record indicates faith, litigation good if the threatened Appellant, than de- pose rather was to defame engaged purportedly in cer- defamed individual potential termining the affidavit for the truth of privilege would the absolute tain future conduct Thus, proceeding. use Restaurants, Inc., apply. Smith Suburban Kilgore did con- submitted fact the motion of Mass. 373 N.E.2d consequence affidavit is of no tain a flawed Fuhrman, factu- supra note also determined supported parts of the record because other questions as to whether were left unresolved al summary judgment favor. ruling in her published good faith and serious letters were litigation they contemplаtion where were supra record set forth in note 25 32. As signal microwave television sent to thousands of acting pro essentially in a indicates Moore was alleged receiving signals recipients without to be advising Kilgore and in secur capacity in bono Rptr. paying Cal at 119. for them. Id. 231 As ing use before ODH. for her information ultimately summary would Kilgore’s was the one that for such she submitting motion 31. Attached necessary papers to ODH the judgment unsigned/unverified affidavit was her perceive We offending filing birth certificate. stating published she to the effect doing problem this case from question to relatives to affidavit or its contents investigation have herself. Courts validity concerning of the affidavit in some recognized them potential application at least the quest procure the birth preparation her litigant was himself who Appellant asserts her motion was certificate. interrogato seeking “witness information nullity because of and should have been denied potential letters to in the form of her motion. ries” sent in the affidavit attached to this flaw Cards, Inc., Asay v. Hallmark See argument merit. The witnesses. to be without We find this properly record, supra note 26. included the 594 F.2d reviewable which infliction of emotional many must conduct based on intentional neys parties times *13 distress, claim. as well as to defamation comply to in such manner themselves O.S.Supp.1988, the of 12 strictures considering the matter have Courts 2011, provides that part, in Section only privilege the determined the bars not party signature attorney an on the of action, a cause for inten defamation but judicial proceeding consti- submission in a of We tional infliction emotional distress.33 him that the contents tutes certificate the join jurisdictions that have held those grounded in fact it well thereof are claim inten privilege applies bar a for to inquiry to be made to requires a reasonable distress, as tional infliction of emotional any factual asser- determine whether such claim. For us well as the defamation grounded. is so In the circumstances tion effectively rule would emascu otherwise Kilgore pub- this the facts reveal of case privilege, primary late rationale or its contents to rela- lished affidavit holding given by privilege those courts might who have been able shed tives Thus, also claim. when bars distress light veracity of the affidavit some on the emo the claim for intentional infliction of worthy an determine if it was in effort to is factual tional distress based on same use in birth certificate of as for underpinnings a defamation claim contemplating ceeding seriously she was applies, a for which the claim perceive initiating. In such a situation we distress intentional infliction of emotional protection her than no reason to afford less of is the reach the absolute also barred Haynes attorney either or an who Moore privilege. in- might required a similar conduct is presented. One final issue Thus, vestigation. summary judgment in Appeals That of cor is whether Court granted. was properly favor of in preserve failed to rectly found petition regard in problem disposing little of her error issue in We have privi if a her of heirs claim. Examina Appellant’s argument that even declaration arguments presented tion in the lege apply to bar her defamation does claim, Appellant’s petition in petition her for of in error and cause intentional infliction for the deci emotional should survive because certiorari this Court show distress judgment Appeals sion the Court of was correct. specific request no was made of petition in regard Although spe argument The the certiorari in to said claim. allegation petition in that in the in error request appears cific the record for sum con mary regard claim it is that evidence “shows a substantial judgment to this necessitating a fact Appellant’s theory troversy that alternative of of material clear preserve issue of trial” sufficient to intentional infliction emotional distress properly court dis the exact same factual asser of whether trial was based on It is missed the action for determination tions her claim defamation. in allegation was equally reviewing from the record heirs. We believe such clear preserve in said Appellees summary claim error requesting that were sufficient more regard regard. allegation nothing The judgment in their favor not claim, “shotgun" type approach Appellant’s but in re than the same defamation this has is insufficiеnt gard to her alternative claim of intentional Court indicated 1.16(A), Ap Very preserve infliction sim error. Rule Rules of emotional distress. Cases, summary pellate 12 O.S. ply, judgment Procedure Civil motions 1.16(A) terms, 15, partial Supp.1988, App. re Ch. 2. Rule were not couched error, gen part, “[ajllegations quested judgment their favor as a mat states (conclusional) ‘shotgun’ privilege. law eral in nature ter of based on the absolute (all as: is, thus, encompassing) in effect such task to determine whether the Our ‘[djecision is contra to law and evidence’ absolute is also a bar to action Inc., 27; 355, Clark, Organization, 60 Cal.Rptr. v. Dean Witter 33. Ribas v. 38 Cal.3d 212 Lerette 592, (1985); Cal.Rptr. Cal.App.3d Sullivan v. Bir 131 P.2d 528, 533-534, mingham, supra N.E.2d note an issue for cross-examination Failure to raise not suffice.” will application phase The of late guaranteed. in error is fatal petition of error thus, We, subject appeal.34 registration of birth is not consideration its Appeals decision of the Court affirm the 1443.1.3 to not reach to its decision (Sec- majority cites the Restatement error con- arguments made as to merits of ond) I of Torts 588. would §§ of heirs cerning Appellant’s dеtermination (Second) suggest the Restatement *14 claim. dealing in Torts 586 Comment e with a § Appeals, the Court of opinion The of proceeding, I purely administrative which City is VACATED Oklahoma Divisions be, delayed registration of believe birth FROM PUBLICATION. WITHDRAWN argument: gist my of states is AF- judgment of the trial court The to communications to a As FIRMED. proceeding the rule proposed judicial ... applies only the communication has when C.J., OPALA, V.C.J., HARGRAVE, proceeding is some relation to a JJ., SUMMERS, concur. SIMMS and good faith and under HODGES, J., possibil- concurs result. consideration. The bare serious proceeding might be insti- ity that the KAUGER, J., part, concurs in dissents a cloak to tuted is not to be used as part. provide immunity defamation ' WILSON, JJ., ALMA DOOLIN seriously possibility when the is not considered, dissent. [emphasis supplied]. by taken No further action has been DOOLIN, Justice, with whom appeal. plaintiff to date of this WILSON, Justices, and ALMA KAUGER dissenting: joins; of the Restatement Comment a to § Second, by majority, provides: adopted today properly us is The matter before application If by majority. defined section is privilege stated this The delayed certificate of made to file a securing to upon publiс policy of based judicial 1-3131 is a under 63 O.S.1981 § attorneys as officers of the court proceeding autho- proceeding or “other” to secure freedom in their efforts utmost O.S.1981, used in 12 rized law as Therefore the justice for their clients. 1443.1,2 that the ma- there is little doubt § protects the at- privilege is absolute. It proceeding jority correctly holds that the liability in an action torney from applies qua- under 12 1443.1 § irrespective purpose his defamation proceedings. judicial si matter, defamatory publishing truth, or even his in its his point, and to the I do not To be terse belief publi- The knowledge falsity_ its application judicial, the action or is believe at- defamatory matter cation au- proceeding other quasi-judicial, or when made torney protected is law, in 12 as that term is used thorized proceedings or institution application reg- Delayed 1443.1. O.S. § litigation in the conduct purely administrative istration of a birth tribunal, judicial hearing or ministerial in nature. No conferences prelimi- communications and other contem- proceedings under 1443.1 are The institution bar, proceedings. nary to the In plated guaranteed. the case plead- all proceeding includes had, necessary judicial of a hearing no evidence no necessary to set the ings and affidavits given, opportunity proceeding to a majority opinion exam- cites Company, 7 of the Royal 3. Footnote Globe Insurance 34. Timmons (Okla.1982). quasi proceeding, ples 653 P.2d properly granted. where nature majority opinion. 1 of the 1. See footnote majority opinion. 8 of the 2. See footnote attempt to gloss The over the failure of
judicial machinery in motion. [Em- conducting proceeding as contained in the supplied.] phasis majority opinion hasn’t convinced me. requires no ethical The above Comment attorney. It consideration on behalf of legion require an adver- Cases are which says in essence: is contra to his oath4 and hearing establish an sarial untrue, may know the statement is “You evidentiary fact. The instant case should under 1443.1 and unethical —but hearing require such a be- false protected.” go absolutely ahead. It lawyer doctor and tween the establish meeting. of their In the thrust truth legislature by enactment of 12 O.S. the case of v. Great Atlantic McCorkle abrogate 1443.1, power has no Co., (Okl.1981), 637 P.2d we Ins. granted by VII powers Articles IV and opined: to the Su- the Oklahoma Constitution making, conflicting preme rule “... and if there is evidence Developing, Court. *15 maintaining attorneys fostering may from which different inferences be and and law, regarding ideals drawn the of engaged practice high of reasonableness conduct, integrity of the function of this insurer then what is reasonable sole always question the of a to be Court. Nor should recommendation determined the of the Restatement Committee be allowed trier fact.” integrity of the Bar of Okla- undermine the There remains material fact in the deter- homa and this Court. posi- mination the the of truthfulness of of lawyer. tions the doctor and theory majority or of the Another vice opinion, regardless acceptance of the the of opinion majority points The out no that argument re- proceeding, administrative O.S.1981, application of 1-313 and mains. in a proceeding 1-315 has been made or hearing Department before the Oklahoma Haynes The of Dr. and the law- evidence majority of Health. The further states yer appears opposite Moore stand speaking 1443.1 and the poles. prepared by The law- affidavit the that “The instant case ... situation here yer, meeting the narrative of the between protection does not fall within the statute’s lawyer, plainly the out doctor and set because the communications involved were challenge majority. We do it. not proposed pro- all made to a radically. I conclusion would draw differs ceedings the record fails to disclose has missing is fact de- The hiatus or lacuna [Emphasis Sup- ever been instituted.” given termination taken from evidence and fact plied]. I conclude the undenied that hearing during or in def- applied no certificate of birth has been majority me miss- amation. The states a important, deciding becomes if not criteri- ing says: factor when it on. here, however, question A further arises (Okla. precedential specific Dept, opinion
because No on the issue ODH Health) Court; however, relating presented cer- exists this rule from contemplate 4th appeаr tificates not 23 ALR 932 there is collected an does hearing annotation from Federal and Courts actual Commis- State sioner, subject. docu- commences but submission of The discussion statement, [emphasis general supplied], mentation. with the usual to-wit: same; person solemnly support, pro- delay 4. do swear that I will to the I will for lucre or "I malice, tect and of the United attorney defend Constitution will act in the office of States, and of Okla- the Constitution of State learning according my this court best homa, falsehood, / will do no or con- that discretion, good fidelity with all as well court, any may be and if I sent that done client, my help See court as to so me God.” also any give knowledge judges know of I will preamble Creating of the Rules Control- court, them, some it or one of Association, ling the Oklahoma Bar 5 O.S.A.Ch. wittingly, willingly not I will reformed: I, App. p. 1 and 2 95 and Art. Sec. of 5 sued, knowingly promote, procure sue to be 1, App. such O.S.A. Ch. 1 of Rules. suit, give aid or consent false unlawful judicial proceedings are not “Where
pending, application WALKER, comment e limits the Appellant, William Marion to communications hav- judicial ing relаtionship proposed OF BOARD COUNTY COMMISSIONERS proceedings which are seri- COUNTY, Oklahoma, OF MUSKOGEE good e ously and in faith. Comment Muskogee County Clerk, Na- Court privilege does states that the absolute Harnage, Appellees. dine apply where institution proceedings seriously is not considered.” No. 68800. However, it this observation: follows with Supreme Court of Oklahoma. scope some courts have limited the “... defamatory state- Feb. 1990. attorney after the
ments uttered Rehearing April Denied judicial pro- commencement of formal ceedings, extraju- held that the have prior
dicial statements of counsel to the litigation are not within the
institution
scope privilege relating to state- ments uttered in the course of (§ infra).”
proceedings 3[b], *16 support the ... “state-
Cases view attorneys published in
ments of the course judicial proceedings apply to the did not
statements of counsel which were uttered judi-
before the formal commencement of proceedings, prepara-
cial in the course of thereto, investigation per-
tion or related party’s other than the defamed
sons
agents.” lawyer hardly are doctor
plaintiff/Kirschstein’s agents.
Admittedly “pat horse” case can be cases, pro
found this annotation. These con, private concerned with news
conferences, request letters of for stat-
ments, letters, demand letters to escrow witnesses,
agents, and letters to etc. majority disposition
I concur with the
the claim of Kirschstein to determine heirs. deny privilege
I would and remand for fur- proceedings.
ther
861,
Bennett,
355,
(1972);
App.3d
Cal.Rptr.
Lerette v.
100
656
5. Pro: Timmis v.
352 Mich.
89
Inc.,
(1958);
Cal.App.3d
Organization,
Kenney
Cleary,
App.
60
N.W.2d 748
v.
47
Dean Witter
531,
573,
(1976);
(1975);
Cal.Rptr.
Larmour v. Cam
Rosen v.
131
592
Div.2d