Lead Opinion
OPINION OF THE COURT
The principal issue before us is whether allegedly defamatory oral statements made by the defendant to a District Attorney concerning the possible commission of a crime by the plaintiff, as well as statements made in an affidavit submitted to the District Attorney by the defendant in lieu of an appearance before the Grand Jury are, in an action for libel and slander, protected by an absolute or a qualified privilege.
Plaintiff Toker is an Assistant Corporation Counsel of the City of New York, a position which he has held since 1954. In 1961, defendant Stern’s mother suffered a broken wrist as a result of a fall which occurred on a New York City sidewalk. At the time of the injury, Stern, an attorney, was confidential secretary to a Justice of the Supreme Court, New York County — a position which prohibited him from representing his mother in her personal injury action against the city. He, therefore, retained defendant Poliak, a personal friend, to pursue his mother’s claim. Plaintiff Toker, as Assistant Corporation Counsel representing the city, settled the action in 1963. At that time, Stern alleges Poliak informed him that he had paid Toker a sum of money to settle the claim. Upon learning of this information, Stern took no action to report the purported bribe.
In the spring of 1972, however, Toker became a candidate in the Democratic primary for Judge of the Civil Court for the Municipal Court District in lower Manhattan. Stern, then First Deputy Commissioner in the Department of Consumer Affairs of the City of New York, informed Victor A. Kovner, a member of the Mayor’s Committee on the Judiciary (Mayor’s Committee), of the purported bribe involving Toker. It is Stern’s contention that he informed Kovner that the information he was relating was based upon hearsay rather than personal or direct knowledge; Stern never appeared before the Mayor’s Committee, however, because Kovner advised Stern that the Mayor’s Committee had jurisdiction solely over appointive judicial offices. As chance would have it, Toker was unsuccessful in his election bid.
Subsequently, in January of 1974, Toker’s name was submit
Shortly thereafter, Stern received a telephone call from Nicholas Scoppetta, Commissioner of the Department of Investigation, requesting Stern to meet with him to discuss the Toker incident. Stern complied with this request, but once again disclaimed personal knowledge of the bribery. The matter was then referred by the Department of Investigation to the District Attorney of New York County.
In June of 1974, Stern appeared at the office of the District Attorney, upon the latter’s request, and was informed by the Assistant District Attorney that an investigation had been commenced and that unless he responded to the questions posed, he would be subpoenaed to appear before the Grand Jury. The Assistant District Attorney also requested that Stern submit an affidavit summarizing his testimony in lieu of Grand Jury testimony. He was instructed that absent submission of an affidavit, he would be subpoenaed to appear before the Grand Jury. After again cautioning as to his lack of personal knowledge, Stern submitted the affidavit on June 27, 1974. Finding that there existed no legal evidence of wrongdoing on the part of Toker, the District Attorney concluded that presentment to the Grand Jury was unnecessary.
Plaintiff Toker commenced this action on December 12, 1974, alleging causes of action in libel and slander against both Poliak and Stern. Both defendants moved for summary judgment on each cause of action. Special Term granted Poliak’s cross motion for summary judgment on the libel cause of action, holding that Toker failed to establish any writing or publication by Poliak within the one-year Statute of Limitations. (CPLR 215.) As to the cause of action against
On appeal, taken by Stern, the Appellate Division modified the order of Special Term, holding that the cause of action against Stern for libel should have been dismissed. The court reasoned that the affidavit submitted by Stern to the District Attorney in lieu of testimony before the Grand Jury was an absolutely privileged communication. The Appellate Division agreed, however, with Special Term’s denial of Stern’s motion for summary judgment on the slander cause of action. Although the court believed it arguable that Stern did not repeat his statement to the Mayor’s Committee within the Statute of Limitations and that the oral statements to the District Attorney were absolutely privileged as the affidavit was, it concluded that the oral statements to the Department of Investigation were only qualifiedly privileged.
On these cross appeals, Stern, arguing that all of the communications he made were absolutely privileged, seeks a reversal of the lower court’s denial of his motion for summary judgment on the slander cause of action. Toker seeks reversal of the Appellate Division’s grant of Stern’s motion for summary judgment on the libel cause of action, arguing that none of Stern’s communications, including the affidavit submitted to the District Attorney, were absolutely privileged.
We hold that both the oral statements made by Stern to the District Attorney and the affidavit submitted upon the latter’s request should be afforded a qualified privilege. Similarly, we hold that Stern’s statements to the Department of Investigation should also be afforded a qualified privilege.
Public policy mandates that certain communications, although defamatory, cannot serve as the basis for the imposition of liability in a defamation action. (Shenkman v O’Malley,
Communications afforded an absolute privilege are perhaps more appropriately thought of as cloaked with an immunity, rather than a privilege against the imposition of liability in a defamation action. (Prosser, Torts [4th ed], § 114, n 66.) This immunity, which protects communications irrespective of the communicant’s motives, has been stringently applied. In general, its protective shield has been granted only to those individuals participating in a public function, such as judicial (Pecue v West,
In contrast, communications protected by a qualified privilege do not provide the communicant with an immunity against the imposition of liability in a defamation action. A qualified privilege does, however, negate any presumption of implied malice flowing from a defamatory statement, and places the burden of proof on this issue upon the plaintiff. (Lovell Co. v Houghton,
Critical to the determination of the present case is the scope of judicial proceedings to which absolute immunity attaches. In this regard, we stated on a previous occasion that absolute immunity "applies only to a proceeding in court or one before an officer having attributes similar to a court.” (Pecue v West,
Far removed from a judicial proceeding, however, is a communication made by an individual to a law enforcement officer such as a policeman. The majority of States afford a communication of this nature a qualified privilege, rather than absolute immunity. (See, e.g., Bergman v Hupy,
Falling between these extremes is the present case: a communication to a prosecuting attorney. As to the scope of the privilege attaching to these communications, there exists considerable disagreement. (Compare Getchell v Auto Bar Systems Northwest, 73 Wn 2d 831; Jolly v Valley Pub. Co., 63 Wn 2d 537; Cashen v Spann, 125 NJ Super 386, mod 66 NJ 541, cert den
In Pecue v West (
Stern contends, however, tht his communications to the District Attorney should be afforded absolute immunity because they were given on pain of a threatened subpoena to
Testimony before a Grand Jury is afforded absolute immunity because, by statute (CPL 190.25, subd 4), Grand Jury proceedings are secret. Disclosure of the nature and substance of testimony elicited before this body is prohibited. No such statutory directive requiring confidentiality exists with respect to communications made to a District Attorney.
Moreover, as a matter of policy, there is little reason to clothe communications to a District Attorney prior to commencement of a criminal proceeding with absolute immunity. A qualified privilege is sufficient to foster the public purpose of encouraging citizens to come forth with information concerning criminal activity. If the information is given in good faith by an individual who believes the information to be true, he is protected against the imposition of liability in a defamation action, notwithstanding that another, perhaps possessed of greater wisdom, would not have reported the information. (Pecue v West,
Turning to Stern’s communications with the Depart-
Absolute immunity has been afforded to communications made in the course of such proceedings as the filing of a claim before a Workmen’s Compensation Board (Lipton v Friedman, 2 Misc 2d 165), the filing of a complaint before a grievance committee of a Bar Association (Wiener v Weintraub,
To clothe with absolute immunity communications made to a body acting in other than a quasi-judicial capacity — communications which because of the absence of a hearing may often go unheard of, let alone challenged, by their subject — would provide an unchecked vehicle for silent but effective character assassination. While we agree that it is of the utmost importance to select as members of our judiciary persons of unquestioned integrity and ability, a balance must be struck between this objective and the right of an individual to defend himself
Finally, although the Appellate Division did not discuss the scope of the privilege attaching to Stern’s communications with the Mayor’s Committee because of their belief that any cause of action premised upon these communications was arguably untimely, we would add that for the same reasons expressed with respect to the Department of Investigation, these communications, should they come within the Statute of Limitations, are entitled to the protection afforded by a qualified privilege.
For the reasons stated, on defendant’s appeal, the order of the Appellate Division should be affirmed, without costs, and the certified question, insofar as applicable to defendant’s appeal, answered in the affirmative. On plaintiff’s cross appeal, the order should be reversed, without costs, and the first cause of action reinstated.
Dissenting Opinion
(dissenting). I would dismiss the complaint in its entirety.
The important and novel question on this appeal is whether a person, asked by a judicial screening committee to supply information concerning a bribe allegedly received by a potential candidate for judicial office, should be permitted and encouraged to speak candidly without fear of later being sued for libel or slander by the candidate.
It seems to me that selection of honest Judges is a matter of paramount public interest. Particularly in recent years the establishment of judicial screening committees, such as the Mayor’s Committee, amply demonstrates the growing public awareness of the need to fully investigate the integrity of potential candidates for judicial office. Certainly it would be abhorrent to select an accused bribe taker for judicial office without first conducting a thorough investigation to insure that the charge is in fact unfounded. Thus persons having information concerning the character of potential judicial candidates should be encouraged to make full and candid disclosure to those charged with the responsibility of determining fitness for judicial office.
The courts traditionally and properly have granted an absolute privilege or immunity from civil liability to individu
The need for the absolute privilege has also been recognized in quasi-judicial proceedings (see, e.g., Wiener v Weintraub,
To hold, as the majority does, that persons responding to this need are only entitled to a qualified privilege demeans the importance of judicial screening committees. The qualified privilege which, as in this case often subjects the witness to expensive litigation, inhibits free communication and is only appropriate when the information sought is of "intermediate importance” to the public (Prosser, op. cit., § 113, pp 776-777, 785-786). But resolving a claim that a potential candidate for judicial office has previously received or solicited a bribe is not a matter of limited public interest. Insuring the integrity of Judges is no less important than insuring the integrity of the proceedings at which they preside.
For similar reasons I would hold that the defendant should be immune from suit for communicating information regarding the bribe to the District Attorney and the Department of Investigation. The public of course has an interest in prosecuting criminal acts and it has been suggested that "the better rule seems to be that an informal complaint to a prosecuting
Those who hold public positions have always been held to a higher standard of conduct and public scrutiny. Members of the public who are instrumental in initiating inquiries into the conduct of government employees should not be treated like disgruntled neighbors acting out of private pique. Unfortunately, at a time when the courts should be seeking to encourage the public to come forward with information of possible or potential corruption in public office, particularly the judiciary, today’s decision can only be viewed as counsel to the cautious.
Chief Judge Breitel and Judges Gabrielli, Jones and Cooke concur with Judge Jasen; Judge Wachtler dissents and votes to reverse and dismiss the second cause of action on defendant Stern’s appeal and to affirm on plaintiffs cross appeal in a separate opinion; Judge Fuchsberg taking no part.
On defendant Stern’s appeal: Order, insofar as appealed from, affirmed, etc.
On plaintiffs cross appeal: Order, insofar as appealed from, reversed, etc.