Vultaggio v. Yasko

Plaintiff-Respondent, Richard Vultaggio, Caryl Defendant-Appellant. Yasko,

Supreme Court 3, September argument Oral 1997. Decided No. 96-0651. January 450.) (Also reported in 572 N.W.2d (in For the there were briefs defendant-appellant Court) by James A. the Court of and Appeals Supreme Friedman, Robert J. and LaFollette & Dreps Sinykin, Madison and Michael D. Brennan & Garczynski S.C., Brennan Law Offices, Elkhorn and oral argument A. by James Friedman.

For the there was a plaintiff-respondent brief Race, P. argument by Terry oral Whitewater. WILCOX, JON P. J. This case is before the

¶1. court on certification from the court follow- appeals an order of the Circuit ing County, Court for Walworth Gibbs, Judge, defendant, Michael S. denying Caryl (Yasko) Yasko's motion summary (judgment for and her peti- subsequent Yasko for reconsideration. motion appeal appeals for leave tioned the court of circuit court's order. certification, consider whether Wis- 2. On we privilege, an should afford

consin law testifying legisla- privilege, for witnesses conditional proceedings. that under We hold tive presented here, are not such witnesses circumstances privilege. However, do hold an we entitled to given testimony under these circumstances privilege. Therefore, affirm we entitled to a conditional denying Yasko's motion the order of the circuit court summary judgment. City 18, 1994, the 3. On October Whitewater among meeting public consider, other Council held a Municipal things, of the Ad Hoc a recommendation pertaining Building and Facilities Committee meeting space. city's The need for additional office and accept a recommended that the council committee had public provided proposal the for an addition to which space police safety building for the and increased departments. fire meeting attended this and testi- 4. Ms. Yasko proposal in a different that would have

fied favor of space. a former middle school for the office remodeled renovating the middle school would She felt that neighborhood. the of her Dur- reverse "destabilization" testimony, highlighted ing her her Yasko family housing neighborhood's from to col- transition housing, upkeep lege openly criticized the student by buildings plaintiff, owned the Richard of several Vultaggio (Vultaggio).1 There is no evidence area, Referring to one home in the Yasko said "It's one designed pigs. by Rich pig It was to house It's owned our sties. announced, Pertaining "[L]ast Vultaggio." ard to another she that record Ms. Yasko was or subpoenaed invited2 to at the appear that she under meeting, was sworn oath before or that she directed in her testifying, was testi- mony by from the council. The questions meeting was in its on entirety broadcast a local television station. 5. Approximately later, three months Mr. sued Ms. Yasko for Vultaggio defamation based on the statements she made council during meeting on October 1994. Ms. Yasko moved for summary that her judgment, arguing statements before the City Whitewater Council absolutely were privileged, alternative, that they were conditionally privi- leged any without abuse of that The privilege. circuit motion, court denied her that Yasko had failed holding show court that an absolute privilege extended to hall, year pool it was a pay. belongs Vultag- That to Richard gio. proud community. respects people He's real of our He Concerning another, who built those posed houses." still Yasko belongs Vultaggio, proud "Guess what? It to Richard owner slum property. years this This house has now three been with stages. students and it's I parasites on its last call them university." Finally, glimpse "for a further of the destabilization community," of our Yasko directed her audience's attention to place” by "another sub-human habitation Rich- was "owned Vultaggio." ard argument, In both his briefs and at oral counsel for the defendant maintained that Ms. Yasko was invited to the Octo 18, 1994, city meeting testimony. ber council to offer To the contrary, point suggests evidence in the record on this 29,1994, August meeting that Yasko was invited to an held Municipal Building the Ad Hoc and Facilities Committee. There suggest city requested is no evidence to that the council her 18, 1994, meeting subject attendance at the October that is action, any actually of this nor is there evidence that she 29,1994, August meeting specifi attended the to which she was cally invited.

329 meetings speakers under current council before Upon reconsideration, motion for Wisconsin law. testimony is afforded court held that such circuit privilege in the absolute, nor a conditional neither an appealed the circuit Ms. Yasko state of Wisconsin. court's non-final order.

h-4 question address is a 6. The issue we impression in the state of whether wit- first Wisconsin: privilege, or a nesses should be afforded an absolute testifying legislative pro- privilege, conditional when question ceedings. of law to be decided without This is to the circuit court's conclusion law. deference Corp. Kensington Development Israel, v. 142 Wis. 2d (1988); Rady 899-900, 241 see also 419 N.W.2d (Ct. App. Lutz, 643, 647, 2d N.W.2d 58 150 Wis. 1989). defamatory A if it tends to communication is reputation of another so as to lower that

harm the community person in the estimation of the or deter persons associating dealing him third from with or Corp., 2d her. See Zinda v. Louisiana Wis. Pacific (1989). 913, 921, "However, not all 440 N.W.2d Some defamations fall defamations actionable. privi terms within a class of conduct which the law leged." complex privileges A structure of has Id. developed protect the societal the law to and advance interests in the free of ideas and and individual flow Page al., Keeton et Prosser & Kee information. See W. (5th 1984). § Torts, 114, the Law at 815 ed. ton on Privileged ¶ 8. communications are either abso- Co., See Lathan v. Journal 30 Wis. lute or conditional. (1966). 146, 151-52, 140 2d N.W.2d 417 The defendant adopt asks us to the Restatement standard for absolute legislative proceedings, whereby a wit subject ness's statement is two restrictions: it "part legislative proceeding," must be made as of a proceeding." it must have "some relation to the (Second) (1977).3 § Restatement of Torts 590A Once a statement standards, has met these two the witness is complete immunity liability, clothed with from even if the witness is motivated malice or ill will toward the plaintiff and knows the statement to be false. See Lathan, 151; 30 Wis. 2d at Zinda, see also 149 Wis. 2d ("Absolute privileges give complete protection at 922 motives."). any inquiry without into the defendant's privilege, ¶ 9. A conditional on the hand, other is may not absolute and be forfeited if the is (citing Ranous Zinda, abused. See 149 Wis. 2d at 924 Hughes, (1966)); 452, 467, Wis. 2d 141 N.W.2d 251 (Second) (1977). § Restatement of Torts The may Restatement lists five conditions which constitute privilege, any an abuse of the and the occurrence of one privilege. causes the loss Zinda, of the 149 Wis. 2d (1) privilege may at 924-25. The abused, be because of publisher's knowledge disregard or reckless as to (see falsity 600-602); defamatory §§ matter (2) defamatory published because the matter is purpose particular some other than that for which (see (3) given 603); publica § because the person reasonably tion is made to some not believed (Second) (1977) The Restatement pro of Torts 590A§ vides: absolutely privileged publish defamatory

A witness is matter as part legislative proceeding testifying of a in which he is or in com- preliminary proceeding, munications if the matter has some proceeding. relation to the purpose necessary accomplishment for the (see (4) 604); pub- particular privilege § because defamatory reasonably not matter includes lication purpose (5) necessary accomplish for to to be believed (see 605); privileged § or is the occasion which publication unprivileged as matter as well includes (see 605A). privileged § matter apply determining

¶ an whether to abso In legislative proceedings, privilege to lute or conditional two American a conflict between we are faced with principles right regarded equally an in the law: the of enjoy reputation his individual, unimpaired hand, the one to on by defamatory the other attacks, and on necessity public in the interest of a free and hand, the operation government. in the of disclosure of facts full Immunity Veeder, in Absolute See Van Vechten Defa Proceedings, 463, 9 Colum. L. Rev. Judicial mation: (1909). Denny, Compare 12 Wis. 2d Schier (1961) (fostering filing the free 550-51, 107 N.W.2d 611 agencies outweighs complaints with administrative of private right compensation) Ranous, with 30 Wis. 2d private (protecting defamation citizens from at 466-67 outweighs from insulate school board members need to liability). rely heavily upon parties these coun 11. The

tervailing public policy. proclamations Yasko of Ms. policy supporting argues the extension that the same parties, and their coun witnesses application judicial proceedings compels its sel in legislative proceedings. See Bussewitz v. Wisconsin (1925). Ass'n, 121, 127, 205 N.W. 808 Teachers 188 Wis. Bussewitz, stated: In we by by that some parties

If are shadowed the fear zeal, some excess of some mistake as to facts or counsel, they may subjected error of harassing litigation libel, in an they may action for slander or justice dearly bought well feel that is too and that it pursuit. is safest to abandon its (Second) § Id. See also Restatement of Torts 590A cmt. ("The (1977) legisla- in witnesses hearings legislative proceedings

tive and other is respects judicial similar in all to that of witnesses ."). proceedings. . . Yasko contends that the risk of uncompensated reputational harm from even false and testimony outweighed by strong public malicious policy encouraging participation citizen proceedings. Vultaggio hand, 12. On the other Mr. asks us to

recognize right judicial system to use the significantly impaired redress will be if an absolute privilege testifying legisla- is extended to witnesses at proceedings. According plaintiff, policy tive protecting having private pro- of citizens from their reputations outweighs damaged fessional the concern inhibiting exchange legislative for the free of views on issues. against background public pol-

¶ It this icy that we make our decision. We now consider the application of an to statements made proceedings at such as the council meet- ing helpful however, First, at hand. it will previously gone examine far we have how bestow privilege upon public otherwise actionable statements.

333 A. is not new 14. The of absolute law the statements bear Where

the state of Wisconsin. proper relationship addressed, we have to the issues to the statements extended the absolute injudicial proceed parties, their counsel witnesses and Spoehr ings. 127; also v. Bussewitz, 188 at see Wis. (1967) 661, 150 Mittelstadt, 653, 2d N.W.2d 34 Wis. (statement by pre-trial conference abso counsel in lutely privileged); 215, Sumner, 13 Wis. Calkins v. (witness (1860) [*198] at 220-21, statements [*193], Jennings absolutely privileged); Paine, 4 v. Wis. trial (counsel's (1855) [*360-61] state 372, [*358], 375, absolutely privileged). jury regarding ments to witness privi- extended the absolute 15. We have also investigatory quasi-judicial lege participants in jury grand proceedings, made to a such as statements pending attorney relating for to matters or to a district grand jury investigation, Bergman Hupy, 64 Wis. see (1974), statements made to a 747, 2d 221 N.W.2d 898 board, Schier, 12 2d see Wis. real estate broker's petitions governor sheriff, for removal of a see to a (1865). Noonan, Whether wit- Larkin v. Wis. privilege afforded an absolute nesses should be testifying legislative pro- made while statements ceedings question indicated, first is, have as we impression in this state.4 Zinda, Citing for the defendant contends that we counsel privilege extends to explicitly recognized

have that an absolute Corp., legislative Zinda v. Louisiana 149 proceedings. Pacific ("[The (1989) 913, 922, privi absolute] 548 Wis. 2d 440 N.W.2d officers, judicial legislative lege has extended to been officers."). governmental executive proceedings, and to certain any persuaded that this statement should have We are not today. The decision ren- bearing on the decision that we reach However, other states have explicitly The cites question. addressed this defendant case law from her contention multiple jurisdictions support that courts throughout country recognize abso- lute for a privilege testimony legislative witness's We now address those claims. proceedings.

B. is privilege applicable Whether abso- lute or conditional an requires analysis situation involved. See 2d particular Bergman, Wis. at 749. Here we must decide whether to extend an to Ms. Yasko's statements before a council when there is no evidence to meeting, sug- that she was sworn under gest subpoenaed testify, oath or that she was responding particular questions the council make this decision posed by members. We full that knowing well the occasions which free- upon high dom of at so a value are "few speech placed rely upon dered in Zinda did not an fact —a apparent by immediately following made sentence case, however, by arguments cited counsel: "The in this Moreover, privilege." concerned with Id. at 922. conditional by the sentence referred to counsel cites and Keeton on Prosser Torts, indicating simply commenting that we were on the state necessarily generally, Finally, of the law not that in Wisconsin. specify the dicta in Zinda did not whether the absolute bodies, legislative is afforded to statements made members of appearing or witnesses them. an before This distinction is Const, (members IV, important legisla- one. See Wis. art. § debate); spoken ture not liable for words Restatement (Second) (1977) (member legisla- of Torts 590 of state or local § body absolutely defamatory privileged publish tive matter concerning functions); performance another in of his (1995). 50 Am. Jur. 2d Libel and Slander 294-295 §§ quite exceptional in character" and should number and Veeder, 9 Colum. L. "fixed some hesitation." with at 463. Rev. Although many

¶ states have extended an 18. legislative they proceedings, to have remarkably often done so under circumstances that e.g., Kelly present See, v. different from the situation. (Cal. 1941) (absolute App. Daro, P.2d 37 Dist. Ct. 118 subpoenaed testify to extended to witnesses by reading produced subpoena from books under duces by specific questions posed legis- tecum who answered committee); Sheppard Bryant, v. 78 N.E. 394 lative (Mass. 1906) (absolute privilege extended to sum- testimony duly given in moned witness's sworn response question legislative asked chairman of committee). However, several states have held that a testimony

witness's lutely before bodies is abso regardless privileged of such considerations. For Jersey example, explicitly held, New courts have both privi levels, at the federal and state that the absolute lege applies subpoenaed when a is not even witness testimony appear gives unsolicited, unsworn respond particular questions legisla does not Yip Pagano, Supp. v. 606 F. tive bodies. (D.N.J. 1985) (testimony before House Subcommittee (3d Crime), 1986); 'd, on 782 F.2d 1033 Cir. DeSantis aff Employees County Ass'n, v. Passaic 568 A.2d Welfare (N. 1990) Super. (testimony App. J. Ct. Div. before board). advisory commission of town employed Other states have similar reason- ing. e.g., Partnership See, North Coast Cable Ltd. v. (Ohio (wit- 1994) App. Hanneman, 648 N.E.2d 875 Ct. subpoenaed appear ness not before committee of asking appear council, but who received letter him to privilege); Jennings Cronin, afforded (Pa. 1978) Super. (possible A.2d 1183 Ct. lack of sub- poena testimony in determination that irrelevant legislative absolutely privileged); committee before Logan's Super Markets, McCalla, Inc. v. 343 S.W.2d (Tenn. 1961) (voluntary appearance 892 before com- legislature absolutely privileged).5 mittee of Tennessee done, 21. Just as these states have the defen- dant invites this court to extend an absolute city meeting to statements made at a council where she the and speak other members of the audience were allowed to compulsion discretion,

at their own without the subpoena, having aof without the control of their testi- mony supervision sworn and of direct without questions from the council.

C. ¶ 22. We decline the invitation to stretch the lengths. "[T]he to such effect of an give support is to lavish to the social obtaining complete interest in disclosures of facts from ignore completely predicament witnesses, and to of maligned reputa- and remediless individual whose may Weinblatt, Note, tion be harmed." Ysrella Case 15 (1942). 276, S. Cal. L. Rev. We are troubled Several other states to which defendant refers have See, precise been less as to the factual for their decisions. basis (Ill. 1995) (state Collis, e.g., Joseph App. 649 N.E.2d 964 Ct. by private ments citizen finance made before committee meeting city absolutely privileged); of Domestic council Stone, Supply Laundry Linen & Co. v. 314 N.W.2d (members (Mich. 1981) App. Ct. administration who concerning matters the officials made statements "about which upon called to comment" at a session were enti were privilege). tled to absolute guidance, little structure or

fact that in a situation with testimony, privi- an absolute control for the witness's right lege redress, eliminates a defamed citizen's falsity despite malice statements, and the them. ill will of those who make holding, Although dispositive ¶ 23. not to our we particularly inequitable where, here, as find this result immediately published to the sur- the statements are rounding community to those who choose —not meeting, anyone might who watch attend the but evening. television that today's society The flow of information virtually unimpeded much so —so defamatory lies and statements can be that scurrilous instantaneously by regardless public, heard community deliberately seeks out that whether the weapon powerful information. Such a can be lethal in to the hands of one who chooses defame. argument, At defendant set oral counsel for why

forth at least five reasons our concerns are unwar- (1) requirement in that the ranted this instance: the proceeding" the statement have "some relation to protection might affords sufficient to those who (2) may testify legis- plaintiff defamed; the same the proceeding meeting or at a later to rebut the lative (3) testimony; may plaintiff the choose to write letters city the to editors or mony; council members to rebut testi- (4) legislative body authority the has the and (5) duty meeting; credibility and control speakers defaming is at stake to deter them from arguments others. We will address these turn. ¶ 25. Should we afford an absolute testimony anything goes. Only prereq- sort, of this two uisites must be satisfied order to meet privilege: the state- Restatement standard for absolute legislative proceeding, part of and ments must be a they proceeding. must "relate to" the substance of that (Second) (1977). § Restatement of Torts 590A We have explicitly "relevancy" held that the standard for abso- liberally construed, lute is to be and that all relevancy. doubts must be resolved in favor of (statement Spoehr, 34 Wis. 2d at 661-63 relevant proceedings "any pertinence, if the remark has no remote"); Bussewitz, matter how 188 Wis. at 125. Undaunted, the dissent also contends that relevancy superficial "the liberal test is not a doctrine providing protection allegedly no defamed." Dis- following example help clarify sent at 356. The will why persuaded: City arewe not if the Whitewater evening ways Council had met that to discuss different improve beautify city, city and a resident would completely falsely be maliciously without redress if a witness owning operat-

accused the resident of ing pornography selling drugs a child business, or of from his or her home.

¶ 27. rationale, Pursuant to the dissent's the wit- testimony by alleging ness could continue this line of neighbor prostitute, that his or her predator, is a sexual pedophile or even in the name of —all "improving" "cleaning up" of Whitewater. In example, part legisla- this the statements would be of a proceeding, any interpretation, tive and under court's certainly subject would almost "relate to" the matter of meeting. Koeppl, 77, 81, See Snow v. 159 Wis. 2d (Ct. 1990) App. (relevancy require- 464 N.W.2d 215 court). question Permitting ment is a of law for the only public policy, such a result is not bad but also provi- Therefore, defies common sense. the "relate to" assuage sion of the Restatement does little to our fears. arguments equally unper- ¶ next 28. The two testimony injured suasive. Rebuttal often affords the defamatory party matter has the little relief. As soon as regardless damage done, circulated, has been the been may This made in the future. that be of counterattacks plaintiff particularly here, is not where, as true is present against meeting to hear the accusations at the may possible meeting Testimony a later not be at him. again, subject letters to editors is not addressed if that may published not to reach the and are certain not be party's audience, and letters intended defamed city little to restore the would do council members throughout injured party's reputation the remainder of any community. event, decline to hold that a In we person's of relief is to wait for an form defamed eye. public opportunity in the to clear his or her name argues just as a The defendant next testimony scope judge in a the nature and controls presiding judicial proceeding, at does the official so too meeting keep "tight rein" on of this sort council disagree. judicial testimony In a and debate. We proceeding, oath, sworn under will be witnesses will be by questions can reined in from counsel and be directed subject they stray by judge from the should ("Jurors, Veeder, L. Rev. at 471 9 Colum. hand. parties litigant overstep witnesses, and who counsel may reprimanded, fined be the bounds of decorum punished defamatory by imprisonment, utter- record."). may expunged from the ance be judicial proceedings would Furthermore, witnesses they charges perjury court, should lie before face contempt they persist should in their can held in ways. uncooperative of such control 30. Here we find no evidence City appears Ms. Yasko Council. Whitewater any supervision spoken meeting at the without

have punish- itself. There was no fear of from the council lie, ment truth, should she she was not sworn to tell the testimony by questions nor her was limited from mem- bers of the council. Should we afford Ms. Yasko's privilege, statements an absolute the last conceivable testimony disappear restraint on her would when she approaches podium to make her "relevant" state- might Although ment, no matter how attenuated it be. may it is clear that some bodies have authority duty legislative hearings, to control present controls enough under these circumstances were not adoption privilege. to warrant of the absolute proceeding ¶ 31. This was also different from a quasi-judicial "[I]t proceeding. is true that there seems quasi- to be 'no clear definition' of what constitutes a judicial proceeding quasi-judicial body," before a Klieger, DiMiceli v. 359, 365, 58 Wis. 2d 206 N.W.2d (1973) (citation omitted), yet apparent it we quasi-judicial often extended an absolute proceedings protections because similar to those judicial proceedings pertinency offered in ensured the propriety testimony before such bodies. See Schier, 551; Larkin, 98-99; 12 Wis. 2d at 19 Wis. at see Privilege Note, also in Adminis- Defamation —Absolute Proceedings, 877, 879, trative 97 U. Pa. L. Rev. 880-83 (1949) ("though [it is] expressly articulated," seldom adequacy procedural safeguards which mini- will defamatory mize the occurrence of statements is a many factor used in cases to determine whether to grant privilege); Nedwyn or withhold absolute R. (1948) Case, Nelkin, Recent 13 Mo. L. Rev. ("Invariably, privi- the extension of the rule of absolute lege quasi-judicial to most bodies is said to be based upon strictly judi- the same considerations as exist in proceedings."). Compare Bergman, cial 2d 747 Wis. Peterson, 351, 359, with State 195 Wis. 218 N.W. 367 (in (1928) offense, district alleged investigation who analogous judge pre- position holds a attorney consult those who know trial he must sides at because course determine what thereby the facts and pursue).6 commentary the cases and 32. Applying hand, are therefore convinced

situation at we dis- sufficiently was meeting Council City Whitewater as to withhold proceeding tinct from a quasi-judicial here The involved is proceeding privilege. 6 position, we do not assert that Contrary to the dissent's judicial/quasi- adopted in the the absolute has been always subpoenaed, judicial because the witness was context by questions channeled from sworn to tell the truth and was Instead, that a fundamental supervising body. we illustrate testifying extending privilege to witnesses for the absolute basis protec proceedings is that alternate judicial quasi-judicial or nature, quasi-judicial such as those we judicial a tions of satisfy judiciary grant that its highlight today, exist so as to See, immunity appropriate. e.g., Schultz complete and total is ("The (1906) 325, Strauss, proceedings of a 127 Wis. 329 ."); judicial in character. . . Cal grand jury unquestionably (1860) [*193], 220-21, Sumner, 215, [*197-98] kins v. 13 Wis. (witness damages any may he in for statements "not answerable questions put [Wit to him. . . . responsive make which are evidence, give may compelled attend and and when nesses] be so; notified, duty duly law makes it their unavoidable to do damages.. responsible in .for such obedience and to make them a most wicked and intolerable legal requirement, to a would be Comment, Bezold, Privilege Barring H. The outrage."); William Liability Pleadings, Marq. L. Rev. Civil Libel in (1953) ("A judicial proceeding is not limited to trials of civil actions, proceedings in scope includes within its all law a but judi having judicial nature either before court or tribunal Noonan, powers.") (citing Larkin v. 19 Wis. quasi-judicial cial or added). (1865)) (emphasis compare legislative hearing to a in even difficult might testify, subpoenaed which the witness oath, sworn under and would be controlled would be body. questions the direction of from the Finally, ¶ 33. counsel for defendant asserts that speaker losing credibility the risk a faces of his or her defaming argu- serve as a deterrent to others. This will perhaps today's ment the most troublesome. In society, typically placed more focus is on the accusa- tions that are circulation than the individuals who originally speaker's result, set them in motion. As a credibility totally unscathed, will often remain even in society the face of shameless and lies. In a offensive personal accountability diminished, where has we find comforting responsibility it less than to leave such power the hands of those who wield the to defame. ¶ 34. These considerations lead us to conclude any "chilling that, upon circumstances, under these effect" participation legislative process a citizen's in the might protection result that without exhaustive right privilege outweigh an absolute cannot a citizen's society reaping to redress. "For while a doubtful ben- immunizing suit, from efit from malicious slanderer reputation has suffered some individual whose has deprived remedy wrong of a for the done him." been Weinblatt, Therefore, 15 S. Cal. L. Rev. at 278. we adopt privilege decline to the absolute for witness testi- mony legislative proceedings at of this sort.7

7 persistent employ A theme of the dissent is that we rea soning jurisprudence that contradicts Wisconsin's in the area of privileged communications. "The misses the mark analyzes policies because it the case not in terms of whether exist, privilege an but rather in terms of supporting testimony, safeguards subpoena, as sworn whether certain such Therefore, the dissent supervision exist." Dissent at 350. f—1 I—1 H-f However, at a testimony we conclude that this sort is of a con- deserving legislative proceeding therefore the conditional privilege. adopt ditional We ("abuse occasion") test as set forth in Zinda privilege 149 Wis. 2d at 924-25.8 In Corp., Louisiana Pacific so, for an individual who doing protection we provide be defamed at a which lacks may legislative proceeding adopted approach privilege a new law. contends that we have disagree. We highlight myopic safeguards

In its focus on the that we today, explicitly engage in the dissent fails to realize that we public policy analysis privilege juris- characterized our has prudence procedural safeguards to date. Due to the lack of in case, however, public policy favoring this we conclude that right outweighs policy citizen's redress concerned with discouraging process. a citizen's in the participation democratic Contrary position, policy public to the dissent's all determina- case; particular tions are affected the facts of a the facts of simply adoption this case were insufficient to warrant the of an privilege. Indeed, a examination of these issues reveals that our close approach privilege troubling law is less to the dissent than adopt the actual difference result. The dissent would have us an across-the-board absolute rule for all proceedings, regardless of the facts of each individual case. Dis- contrary, ignore at Much to the we decline to sent facts determining adopt of the case before us in whether to the abso- legislative proceedings. lute Zinda involved common interest employer-employee context. See Zinda v. Louisiana Pacific 913, 922-24, (1989); Corp., 149 Wis. 2d 440 N.W.2d 548 see also (Second) (1977). Therefore, rely Restatement of Torts 596 we § upon employed Zinda in this decision to the extent that it the Restatement standard for the abuse of a conditional privilege.

344 protections to ensure that a testi- sufficient witness's appropriate. mony and remains relevant expressly adopted Zinda, In we the most (Second) of Restatement of Torts recent version (1977) §§ to determine whether a conditional 600-605A again today. abused, has and we do so been Doing Zinda, 149 2d at 925 n.1. so will avoid Wis. previously applications inconsistent confusion over privilege test, the conditional which often included con "good siderations of "malice" or faith wdthout malice." Bergman, Compare 64 2d at 751 and Hett v. Wis. (1963) Ploetz, 55, 59, 2d with 20 Wis. N.W.2d Buerger, 393, 398, Hartman v. 71 Wis. 2d 238 N.W.2d (1976) (referring to such considerations but "malice") acknowledging disapproval of the word (criticizing avoiding Ranous, 30 2d at 468 use Wis. "malice"). of the term testimony legisla- Therefore, a witness's meeting proceedings as the council

tive such conditionally privileged here the involved will be when during proceeding. However, statements are made privilege may stated, for- as we have witness's (1) any following feited if of the occur: the witness defamatory false, knows the matter to be or acts (see disregard falsity to its truth or Restate- reckless as (2) (Second) (1977)); §§ ment of Torts 600-602 purpose defamatory published other matter is for some (see given particular privilege than that for which the (3) 603); person publication § is made to some not necessary accomplish- reasonably believed to be (see purpose particular privilege ment of (4) 604); defamatory publication § matter includes necessary accomplish reasonably not believed to be (see purpose privileged for which the occasion is (5) 605); publication unprivileged § includes (see 605A). privileged § matter as as matter well argues The defendant that a conditional enough, privilege is not because citizens will still have knowing they testifying, to "think twice" before may jury face a trial on the abuse standards set forth (question Zinda, 149 Wis. 2d at 924-26 above. whether a conditional has been abused a question jury, facts are such that factual unless drawn) only reasonably (citing can one conclusion (Second) 619(2) (1977)). § Restatement of Torts cmt. b contrary, today To the sary we view our decision as a neces- upon testimony a sufficient bridle witness's legislative proceeding a of this sort.9 significant body

¶ 39. note that a We case law developed support position has that witnesses voluntary testimony legislative body supply who a privilege. are entitled to a conditional See Fiore v. (Fla. 1962) Rogero, App. 99, 144 So. 2d 103 Dist. Ct. (testimony given legislative body conditionally before voluntarily privileged appeared where witness without having subpoenaed); Corp. Lincecum, been v. Adserv (La. 1980) (witness App. 433, 432, 385 So. 2d Ct. appeared voluntarily legislative who before committee only qualified privilege); Wright Lathrop, afforded v. (Mass. 1889) (unsworn 963, 21 N.E. witness who appeared voluntarily before committee and question being made who the statement without question subject asked a on is entitled to condi- privilege only); Horton, tional Bell v. 669 N.E.2d 9 concluding In apply that the absolute does not sort, legislative proceedings of this we do not decide whether the testimony apply would to witness that is com oath, pelled by subpoena, given under or directed and supervised questions legislative body. from the (Ohio 1995) App. (distinguishing 549, n.3 Ct. North Partnership Ltd. Hanneman, Coast Cable (Ohio 1994), App. Ct. N.E.2d 875 to hold that unsolic- meeting township ited statements made at of union qualified privilege only); board trustees entitled to (1995). § see Am. Jur. also 50 2d Libel and Slander These cases illustrate that others have walked before path today. us on the that we choose ¶ 40. Because a conditional ade- will quately protect yet injured witness, still afford an party opportunity to secure redress in an action for Vultaggio jury defamation, Mr. is entitled to have a determine whether Ms. Yasko abused her City meeting. the Whitewater Council The case is remanded to the circuit court for a determination of this issue.

By the Court.—The order of the circuit court is affirmed. {concurring).

¶ BABLITCH, 41. A. J. I WILLIAM join opinion. I write to answer dissent. Stripped give

¶ core, to its the dissent would anyone say anything any- about body proceeding, at a school board a council county any proceeding, proceeding, board other proceeding, long type the accusation as as remotely was even relevant. speech

¶ 43. Free is not and should not with- Newspapers, radio, television, out its limits. even They anybody tabloids, limits. have cannot accuse anything facing consequences for mali- about without good In cious untruths. And with society, reason. an ordered society people in a that should insist accept responsibility actions, for their reasonable lim- imposed. its must be Unfortunately, the dissent would remove thereby legislative type proceedings,

those limits at creating loophole through irresponsi- the most which army. stop among there to us could drive an What is ble reporting or the simultaneous broadcast general public? Reputations untruths vicious destroyed overnight while the dissent takes could be legal analysis cold, solace authority. mechanical dubious e.g., Buerger, See, Hartman v. 71 Wis. 2d (1976). 393, 238 N.W.2d majority opinion points out, the 45. As the flow today's society changed information has enor- mously authority upon since the relied the dissent. Society public So too has the level of discourse. has long way alleged defamatory good" from the "no come a in the on the dis- reference 1976 Hartman case which today's accusing world, sent relies. In someone tabloid being good compliment. no tantamount almost reality ¶ 46. The dissent fails to address the example provided the majority set out in the in the tabloid world they opinion example because cannot. As the position clear, makes ingly the dissent's allow a would know- pedophilia prostitution false accusation of to be "cleaning impunity up uttered with in'the name of city" zoning petition. on a provide

¶ 47. Nor does the dissent a reasoned application proposed holding principles of its justifying privilege: an absolute correctly prin- The dissent states that the first justifying privilege ciple an absolute is that it ensures fully that decision makers more It will be informed. allowing utterly false, fails to discuss how an mali- It cious, and destructive accusation furthers end. self-evidently it cannot. does not because correctly 2. The dissent states that the second justifying principle an absolute is that it elim- chilling effect of defamation law and ensures inates discouraged participating that citizens will not be from process by It in the democratic fear later lawsuit. allowing utterly false, fails to discuss how an mali- cious, furthers that It and destructive accusation end. self-evidently it cannot. does not because correctly 3. The dissent states that the third principle justifying it an absolute is that encourages expression part the free of ideas as allowing political process. It fails to discuss how an utterly false, malicious, fur- and destructive accusation self-evidently It not it thers that end. does because cannot. society point 48. Have we come to a where protection knowingly allow absolute to a false

we will accusation, vicious, untrue, malicious, no matter how long is, and destructive it is? As as the accusation at its says "relevant," tenuous tunately, the dissent we have. For- best majority disagrees. {dissenting). BRADLEY, 49. ANN WALSH J. question certified to this court is whether the The legislative proceedings statements of witnesses pur- entitled to absolute or conditional question poses of defamation law. To this certified unpredictable "Maybe." an answers Although majority opinion ¶ the the 50. outset testimony legislative pro- purports to at a hold that ceeding only privilege, the real is entitled to conditional holding appears the that it could either of case be be depending privilege, on the or conditional absolute appearance each case. This individual circumstances of throughout opinion major- when the is underscored ity general principles ties its decision not specific in involved, to the facts this case. but principles, analysis ignoring In these majority is misdirected and it arrives at an errone- analysis policies ous conclusion. Because an judi- underlying adoption privilege for our of absolute policies proceedings demonstrates that those cial equally applicable legislative proceed- to declarants at ings, apply I would statements legislative proceedings purposes of made at defama- tion law. majority analyzes The this case as if our

task is to decide where to draw a line between those deserving proceedings application hearings sufficiently and those untrustworthy privilege. conditional deserve Admittedly, conducting such a demarcation would be require difficult task. It would us to choose between the society the interests of the interests of individual proceeding. of each based on circumstances government body, Depending the nature of the on parties presented, examined, to be and the issues may vary dramatically. procedural requirements Testi- mony may voluntary subpoenaed, or invited be or testify may unsolicited. Witnesses be sworn or without may Inquiries panel members, oath. comments specific accepted without direction. just analysis

¶ 53. The conducts such an focusing procedural case, of this on the absence of affecting testimony requirements before the Whitewa- City ter Council and on the dearth of outside remedies allegedly defamed individual. Ulti- available mately, majority determines that the defendant may only be entitled to conditional for her statements. analysis pro- 54. Both the and the conclusion by majority unsatisfactory. majority

vided are The analyzes misses the mark because it the case not policies supporting terms of whether exist, but rather in terms of whether certain safe- guards subpoena, testimony, such as sworn and supervision doing majority paints so, exist. In itself into an untenable and unworkable corner.1

1 majority The attacks this being "myopic" dissent as in its interpretation majority opinion. of the In developing this attack, majority asserts at footnote 7 that its conclusions weighing based on a public policy presence and not on the procedural alternative safeguards subpoena power, such as the potential supervision, testimony. However, or sworn proclaim ing in a majority analysis footnote that the really policy is discussion does not make it so. majority's repeated

The potential focus on pro- alternative throughout tections the opinion, and offer of statements such as, "[d]ue procedural to the lack safeguards case, in this however, we public policy conclude that the favoring a citizen's right outweighs to redress policy discourag- concerned with ing. a participation citizen's process," the democratic majority's contradicts the proclamation. footnote Majority op. at strength n.7. The public policy argument of the protecting an reputation attack," individual's from "scurrilous to use the majority's terms, now, be, is not dependent never will upon presence protections. or absence of alternative judges may

Reasonable differ on policy the conclusion of a However, analysis debate. such an should be conducted based independent on the opposing policy merits of the positions, not on whether the protections existence of alternative obviates the need for such a discussion. privi- that absolute concludes The

lege it lacks all of case because in this will not attach subpoena, safeguards procedural sworn testi- the mony, supervision. Yet, the conclusion upon very relied cases the untenable since majority analysis this conclusion. contradict in its safeguard subpoena ¶ is an essential If a 56. privilege, the the cases cited how can then absolute aligned present subpoena majority no was in which Spoehr majority's v. Mittel See conclusion? the with (1967) 502 653, 150 N.W.2d stadt, 2d 34 Wis. (extending privilege of counsel at to comments absolute conference); preliminary v. Wisconsin Bussewitz (1925) 808 121, 205 N.W. Ass'n, 188 Wis. Teachers (applying plead allegations privilege to absolute (1855) [*358] Jennings ings); 372 Paine, 4 Wis. v. counsel). privilege (applying to statements absolute safeguard supervision ¶ is a critical 57. If majority privilege, grant then how can of absolute privilege grant justify in cases this court's absolute supervise presiding officer to there was no where Buerger, 71 2d v. Wis. See Hartman made? statement (1976) privi- (applying absolute 393, 238 N.W.2d 505 county defamatory telegram lege sheriff of part responding town board check as to character licensing process); Ascher, v. 86 Wis. Werner tavern (1893) privilege (holding absolute 869 349, 56 N.W. petition applicable probably to town to unsolicited license); liquor Noonan, 19 Larkin v. to revoke board (1865) privilege (applying [*82] absolute 93 Wis. governor petition in an unsolicited statements sheriff). county asking of a for the removal necessary, testimony then how ¶ If sworn 58. privi- grant of absolute rationalize can this court testimony lege v. See Schier is not sworn? where

352 (1961) Denny, (grant- 544, Wis. 2d 107 N.W.2d 611 ing allegations made in a complaint against a real estate broker to State Real Board); Estate Broker's Schultz v. Strauss, 127 Wis. (1906) (extending 325, 327, 106 N.W. 1066 attorney acting to statements made to district capacity). in official jurisdic- Indeed, there are cases within this applied

tion in which absolute has been safeguards espoused by none of the essential present. were Hartman, 2dWis. Bergman Hupy, 398-400; Wis. 2d (1974) (holding N.W.2d 898 that statements to an attorney seeking assistant district while issuance of a complaint absolutely privileged); criminal Schultz, 127 Wis. at 327. Equally problematic, majority opinion acknowledge already

fails to applied that we have privilege legislative proceedings absolute to in a num- Although ber of instances. Wisconsin courts have not specific question addressed the of whether witnesses given privilege testifying should be absolute when legislative body, acknowledged before appli- a we have privilege cation of absolute Werner, to town boards in Klieger, DiMiceli v. 359, 58 Wis. 2d 206 N.W.2d 184 (1973), Bergman city and Hartman.2 boards, Town like

2This court has noted that privilege "[absolute] has judicial officers, been extended to legislative proceedings, and to governmental certain executive officers." Zinda v. Louisiana (1989) Corp., 149 Wis. 2d 440 (finding N.W.2d 548 Pacific communications employer employees between concerning ex-employee's see, dismissal conditionally privileged); e.g., (D. Yip Pagano, v. Supp. 1985); 606 F. N.J. DeSantis v. (N.J. Employees County Ass'n, Passaic 568 A.2d 565 Welfare 1990); App. Hanneman, North Coast Partnership Cable Ltd. subsidiary legislative councils, bodies constituted are authority delegated pursuant from the state to legislature. plaintiff Werner, the claimed defamation In provided to a statements town board

based on written proceeding. part liquor of a license revocation While as evidentiary grounds, disposed of the the court case on made that if the statement had been the court noted only absolutely probably priv- board, it town was Subsequent ileged. case law Werner, See 86 Wis. at 351. upon and further established has relied this statement proceedings liquor rule that board license town absolutely privileged. DiMiceli, 2d at See 58 Wis. to be ("[S]uch has been extended including. quasi-judicial proceedings, . .town board license."); concerning proceedings also tavern see Bergman, addition, Hartman, 2d at 751. In in Wis. abrogate explicitly application this court refused to this privilege, applied it to a town board of absolute meeting defamatory telegram had been sub- which Hartman, 71 mitted as Wis. 2d at evidence. 397-400. justified

¶ of these cases we have In each meeting application town board determining grounds that the was on town board "quasi- public and thus matters interest was judicial" extending nature. In proceedings, we did not consider what alternate such safeguards against Indeed, defamation. even existed safeguards primary concern, had such been our proceeding presiding officer of a council would greater, supervi- equal, if not seem to have control and Cronin, (Ohio 1994); Jennings App. Ct. 648 N.E.2d 875 (Pa. Markets, 1978); Logans Super Inc. v. Super. A.2d 1183 Ct. (Tenn. 1961). McCalla, 343 S.W.2d 892 liquor sion as officers of town boards license proceedings. majority's Thus, the conclusion that state- City ments made Council, to the Whitewater municipal subsidiary legislature, privi- not leged, appears previous inconsistent with our application privilege of absolute to other subsidiaries. Having pointed

¶ 63. out these threshold incon- significant sistencies, it is also none theof cases adopted privilege in which we have absolute has our decision been based whether on an defama- otherwise tory subpoena, statement was made under under while supervised. oath, or while otherwise We have instead adopted privilege balancing on absolute based our of important public policy the Thus, interests at stake. any attempt adoption draw line between of privilege absolute or conditional based on whether a subpoenaed, supervised3 witness sworn, is or while making ignores policy comments the fundamental rea- application sons behind of absolute defamation actions. The affirmative defense justified "where the interests and necessities of soci-

ety require that the time and occasion publication though utterance, or even it be both false protect malicious, shall the defamer all from liabil- ity prosecution public good." for sake Michigan Co., Bacon v. Central R. 33 N.W. (Mich. 1887). The interests and necessities referred to take three basic forms. by eliminating potential per- First, liability declarants,

sonal ensures 3Examples supervision of such include a member of the legislative body witness, asking specific questions of rules limiting scope of a witness's comments. fully more informed. See makers will be

that decision Corp. Kensington Development Israel, 142 2d v. Wis. (1988). Second, 241 absolute 894, 900, 419 N.W.2d chilling the effect of defamation eliminates discouraged not be ensures that citizens will law and pro participating in the democratic from fundamental by past, in the of suit. have noted cess fear later As we by parties by mis fear some "If are shadowed the that by zeal, or facts some excess of some take as to or litiga .they may subjected harassing to error. . dearly justice .they may too . feel that is tion. bought well pursuit...." to abandon its and that it is safest Association, 188 Wis. v. Wisconsin Teachers' Bussewitz (1925). 121, 124-25, 808, 205 810 N.W. encourages Finally, privilegé the political process. expression part as

free of ideas County Employees Passaic DeSantis Welfare (N.J. 1990). Accordingly, App. Ass'n, 565, A.2d applied to this should be the issue of whether legislative requires a determi- witnesses before bodies uncompensated nation of whether risk reputational outweighed public policy of harm is proceedings. encouraging participation in citizen such tips the balance in favor the socie- 67. Where privilege, set interests, as out tal (Second) (1977) provides § of Torts 590A Restatement that: absolutely privileged publish

A defam- witness matter atory part proceeding as testifying prelimi- which he is in communications if the has some nary proceedings, matter proceeding. relation procedural subject Such statements safeguards they in a to which the that be made context applied, has been and the substantive safe- guard statement be relevant matter being Koeppl, considered. See Snow v. Wis. 2d (Ct. 1990). App. promote 81, 464 N.W.2d 215 To public relevancy liberally interest, is to be construed. See id. Despite majority's

¶ 68. to contention contrary, relevancy superficial the liberal test is not a providing protection allegedly doctrine no defamed. Statements which have no relation to the issues under discussion do not receive the benefit of the privilege. explicitly upon Indeed, this court has relied relevancy requirement reject arguments to that a necessary prevent conditional ings was hear becoming "forum[s] from for unfettered character Hartman, assassination." See 71 2d at Wis. arguments (rejecting Slonsky, on based Melton v. (Ariz. 1973)). App. 1288, 1291 P.2d Ct. rejecting

¶ requirement In the "relate to" of privilege, absolute asserts its view that pedophilia, prostitution purveyance of accusations of pornography against sufficiently local a resident hearing municipal "relate to" a on beautification privilege. disagree majority's invoke the I with the con- "any interpretation clusion that court's almost would certainly" calling neighbor pedophile find that a a municipal Major- relates to the issue of beautification. ity op. at 338. Not incorrect, is the conclusion but such a blanket assertion does a disservice to courts may in this state that not be inclined to embrace the majority's pedophilia conclusion that relates to munici- pal beautification.

¶ 70. Where are statements relevant to issues judicial arising proceeding, recog- in a this has court importance protecting nized the of the societal interest hearing argu- obtaining facts and in full disclosure of parties. Bussewitz, 188 Wis. See ments from interested recognition is this societal interest Our at 127-28. applicable proceedings equally, more, if not before legislative entities. questions proceedings resolve 71. Judicial parties

rights pro- a small number between Quasi-judicial proceedings privilege. absolute tected privilege, part the societal also because receive upon is based are interests which proceeding quasi-judicial more forceful where even deciding private public interest and between Schier, Wis. 2d at 548. interest. justification argues in favor of 72. This same legislative hearings. applying Legislative public inter entities are the arbiters through argument input the democratic est, after very process. inter Schier, 12 2d at 548. The Wis. Cf. necessary for ests that make absolute judicial quasi-judicial in made communications proceedings legislative pro essential are also fully legislature to must informed enact cess. The Pagano, Supp. legislation. Yip 606 F. v. suitable (D. 1985). 1566, 1571 N.J. regardless scope true of the size or of 73. This is

authority legislative body question. particular in of (Second) (1977); § Torts cmt.c See Restatement of (Cal. 1941). Kelly App. Daro, 37, 38 v. 118 P.2d leg speaking the state the declarant before Whether county municipal board, islature, or a committee of process requires atmosphere council, the an democratic petition openness participants can wherein citizen being government forced their officials without fear of in to defend their later court. See Webster statements (D.C. 1984). Company, 1, 4 The Inc., Sun 731 F.2d Cir. holding majority's open does not create such an democratic environment. Compounding majority's

¶ 74. error refus- ing apply majority's is the advocacy analysis. opin- of an frame unworkable The provides guidance ion is unworkable since it little impedes process. courts and its result the democratic By applying conditional to this case and refusing application even elucidate a standard of majority future cases, leaves trial court without apply direction as how to absolute or conditional privilege, except case-by-case on a The basis. open possibility also leaves that a citizen who might important otherwise offer information on local reprisal. issues will remain silent because of a fear of privilege, target ¶ 75. Under conditional of a legislative hearing may declarant's comments at a filing respond by recently suit for defamation. As noted story in the cover of the ABA Journal: Increasingly, who speak opposi- Americans out in private tion to development plans before local boards, zoning testify meetings at school board petitions circulate to their elected officials are find- ing court, defending themselves themselves against developers, lawsuits landown- .claiming ers. . to have been defamed or otherwise injured by public comment. Speaking Lowe, See Alexandra D. Out, The Price Sept., 48, 48-49,

A.B.A. J. Regardless legiti- suph of whether suits grievances (Strategic mate or SLAPP suits Lawsuit Against Participation), possibility the of a multi- Public may million dollar lawsuit chill democratic participation keep and citizens out of committee rooms. only grant to witnesses

A of conditional impedes workings legislative proceedings of our the process: democratic being now rou- groups

"[B]oth and are individuals damage in multimillion-dollar actions tinely sued as circu- political for "All-American" activities such editor, writing a letter to lating petition, a hearing, violations testifying public reporting at a law, lobbying legislation, peacefully demon- for strating, attempting or otherwise influence government action." Pring Penelope (quoting George & id.

See at 48 W. Getting Speaking Out Canan, (1996)). Sued SLAPPs: suit defendants and 77. Defamation observers may future to be those suits choose not silent. The more emotional involved and to remain expended energy capital such financial to defend energy suits, is to the less incentive or there contest underlying Accordingly, promote policies project. participation free and that ensure democratic a issues, frank protect should discussion proceedings statements made reality from the threat or of a defamation lawsuit. Foreign provide jurisdictions do also not majority analysis the legitimate policy cover from the with sufficient

objectives just Citing discussed. four jurisdictions, foreign majority proclaims cases from significant body developed that "a of case law has support position supply that witnesses who volun- tary testimony legislative body to a entitled immunity." op. at 345. While conditional grant privilege may be the ultimate of conditional holding very of a limited number of cases cited majority support in result, its their number is far "significant body by less than the of cases" claimed majority. importantly, reasoning they employ More contrary privilege juris- to Wisconsin's established prudence unsupportive majority's rationale. Corp.

¶ In 79. Adserv v.Lincecum, 385 So. 2d 432 (La. 1980), App. applied Ct. privi- the court conditional lege legislative hearing only acknowledging to a after applies Louisiana, unlike Wisconsin, condi- privilege judicial proceedings. tional to statements at (Ohio In 1995), App. Horton, Bell v. 669 N.E.2d 546 Ct. the court did not even consider whether statements of legislative subpoenaed witnesses were sworn, ignored presented applying the issue here instead conditional based on statements made to a public authority officer with the to take action in the public interest. (Mass. Wright

¶ Lathrop, 80. 21 N.E. 963 1889) in was resolved manner, similar with the court refusing unsubpoenaed to label as a witness an declar- meeting. ant at a committee That court also applied conditional to statements made to public public Finally, in officers interest. in Fiore v. (Fla. Rogero, 1962), App. 144 So. 2d 99 Ct. the court did apply conditional to statements of witnesses legislative hearings. taking However, action, this public the Fiore court failed to consider and balance the interest unconstrained statements and the individ- protection reputation. ual's interest in reasoning employed by Thus, the for- eign cases around which the rallies does not align prior public policy with this court's focus on the. adopting privilege. merits of absolute or conditional Accordingly, prior we should not then deviate from our majority's adopt new framework law and

case analysis. majority's addition, extensive evalu- In to an remedies available ation of alternative point allegedly misses the that individual defamed Admittedly, privilege was created to address. absolute application privilege defamation of absolute to the legislative just proceedings, arising like out of actions privilege application of absolute to defamation the judicial quasi-judicial pro- arising and out of actions ceedings, to in a limitation of remedies the results By focusing allegedly proceedings. in those on defamed plaintiffs the in the response remedies offered alternative arguments, majority question to a at oral the proper inquiry. focus of obfuscates the pro- privilege applied When absolute public ceeding, it the interest in disclosure of is because private proceedings outweighs the at those statements Although protecting reputation. in tort interest one's alleged may victim, remedies still be available preserving participation public in interest trumps exposing the truth suits for defamation. The right purposefully is thus sub- individual's redress protected by public interest servient privilege, and the absence of alternative remedies is irrelevant. majority, concurring opinion,

¶ 84. The like the privilege, engage espouses but fails to conditional public weighing competing policy these discussion majority, the concurrence fails to interests. Like privilege effects of conditional address invidious process. majority, upon Like the the democratic acknowledge previ- fails to we have concurrence ously applied privilege to absolute witnesses legislative proceedings application and that privilege legislative witnesses is consistent prior with our case law. importantly, noteworthy 85. More it is that the scope

concurrence does not consider the full of its own argument. apply If this court is to conditional presented perceived to the situation here based on a society" by threat to America's "ordered the tabloid agree media, abrogate how then can the not applications all of absolute in situations, including judicial proceedings defamatory where state- might arguments ments be uttered? The support eliminating concurrence could be cited as privilege currently enjoyed by parties to a judicial proceeding legislators or the accorded city hearings. Leg- council members at greater islators have far access to the media than has commenting an individual homeowner at a council meeting. protections Yet, this court endorses the legislators for council mem- legislative meetings bers at protection but allows no such meetings.

for witnesses at such If indeed the going why tabloid media is to rule law, our should it not uniformly? then rule it

¶ attacking using 86. Further the dissent for legal analysis approach question "cold" in its to this of any authority law, sup- the concurrence fails to cite in port of its Instead, conclusion. it substitutes hypotheticals legal analysis. for raising

¶ specter journal- 87. After the of tabloid ism amok, run the concurrence attacks this dissent as "fail[ing] allowing utterly to discuss how an false, mali- cious, and destructive accusation furthers" the three policyjustifications privilege. for absolute Concurrence making at 347-48. In assertion, this the concurrence missteps resting argument its on the case, extreme defamatory, by alleged that definition statement is

an looking to unfettered than the value of rather discourse. allowing agree statement,

¶88. I such knowledge prior the full of all concerned that the with "utterly do false," would a disservice. statement is parties the to this However, court, this nor neither luxury prescience case, or the have the benefit such perspective. above, we As discussed of such a narrow adop- concerned the effects our must instead be with have on democratic of conditional will tion process, expression, free where decision makers and in a truthful there are witnesses who would comment but fear of a meritless suit for defamation. manner again Finally, explanation without legal analysis offering any support of the without sweeping assertion, offers a assertion the concurrence authority by upon relied is "dubi- that the dissent authority Apparently resting ous." its "dubious" age upon case, conclusion of the the concurrence example sweeping of its cites Hartman as lone vintage. is of a If the concur- assertion. Hartman applied reasoning same to the cases cited in rence majority's opinion, almost one-half authority "dubious." Hartman cited would deemed dissent control- and the other cases cited in this are the they ling legal precedent court until are this by the court —an action not taken overruled majority today. This decide state- court asked to whether legislative proceedings

ments witnesses privilege pur- for entitled to absolute or conditional poses of law. The focuses on defamation safeguards right procedural redress. In applying judicial quasi-judi- absolute proceedings, cial Wisconsin courts have never held the safeguards existence of alternative to be determina- majority's right tive. The concern for the of redress is arguments rejected by no different than this court each adopted applied time it has adopting defamation actions. I Because believe that witnesses is consistent prior supported by public policy, with our decisions and respectfully I dissent.

¶ 91. I am authorized to state that Chief Justice Shirley S. Abrahamson and Justice Donald W. Stein- join opinion. metz this

Case Details

Case Name: Vultaggio v. Yasko

Court Name: Wisconsin Supreme Court

Date Published: Jan 16, 1998

Citation: 572 N.W.2d 450

Docket Number: 96-0651

Court Abbreviation: Wis.