Lead Opinion
OPINION
This case involves the level of privilege from defamation liability applicable to subordinate government bodies such as water
A watershed district is a special-purpose unit of local government created by statute “[t]o conserve the natural resources of the state by land use planning, flood control, and other conservation projects.” Minn. Stat. § 103D.201, subd. 1 (2008). Watershed districts are established for various specific purposes serving those ultimate goals, including controlling flood waters, diverting watercourses, providing and conserving water supply, regulating the use of ditches and watercourses, regulating improvements by riparian property owners, and providing hydroelectric power, among others. Minn.Stat. § 103D.201, subd. 2 (2008). Watershed districts have extensive authority at their disposal in order to accomplish these goals. For example, districts may acquire dams, dikes, reservoirs, water supply systems, and real and personal property by exercising the power of eminent domain or by other means. Minn. Stat. § 103D.335, subds. 1(3), 9, 11 (2008).
Each watershed district in Minnesota is operated by a board of managers. The county commissioners of the counties served by the watershed district appoint the managers, who serve three-year terms. Minn.Stat. §§ 103D.311, subd. 2, 103D.315, subd. 6 (2008). Board members of watershed districts take an oath that applies to Executive Department officers, Minn.Stat. § 103D.315, subd. 1 (2008), but also act in a quasi-legislative capacity. The Middle Snake Tamarac Rivers Watershed District’s board has seven members, six of whom are appointed by the Marshall County commissioners. The seventh member is appointed by the Polk County commissioners.
The Middle Snake Tamarac Rivers Watershed District is one of 45 watershed districts in Minnesota. The district is located in northwestern Minnesota, primarily in Marshall County, and covers the natural watershed areas of the Middle, Snake, and Tamarac Rivers. All three rivers are tributaries of the Red River.
Watershed district boards hire employees to facilitate “the works and improvements undertaken by the district.” Minn. Stat. § 103D.325, subd. 3 (2008). In the course of their activities as members of the district’s board, plaintiffs Zutz and Elseth became concerned about payments to various district employees. They made inquiries at the district’s bank, and obtained certain bank records in response to their inquiries.
At a district board meeting on June 18, 2007, two other board members, defendants Nelson and Stroble, allegedly accused Zutz and Elseth of violating the
Zutz and Elseth brought an action against Nelson and Stroble for defamation. Nelson and Stroble raised several affirmative defenses and moved for judgment on the pleadings. The district court granted the motion and dismissed the complaint on the ground that an absolute legislative privilege protected Nelson and Stroble from defamation claims.
Zutz and Elseth appealed, arguing that Minnesota law does not extend absolute privilege to subordinate bodies such as watershed district boards. The court of appeals affirmed the district court’s judgment in an unpublished opinion. Zutz v. Nelson, No. A08-1764,
The district court granted Nelson and Stroble’s motion for judgment on the pleadings under Minnesota Rule of Civil Procedure 12.03 and dismissed Zutz and Elseth’s complaint. We have said that “judgment on the pleadings is proper where the defendant relies on an affirmative defense or counterclaim which does not raise material issues of fact.” Jacobson v. Rauenhorst Corp.,
Two categories of privilege exist as defenses against defamation claims— absolute privilege and conditional or “qualified” privilege. Both types of privilege are broadly recognized across the United States, and generally “result[] from the court’s determination that statements made in particular contexts or on certain occasions should be encouraged despite the risk that the statements might be defamatory.” Lewis v. Equitable Life Assurance Soc’y,
Nelson and Stroble argue that their alleged statements should be covered by absolute legislative privilege. Zutz and Elseth assert that Nelson and Stroble may claim the benefit of only a qualified privilege, and therefore may avoid liability for defamatory statements only by showing their good faith and lack of malice. See Matthis,
Absolute privilege is not lightly granted and applies only in limited circumstances. The Minnesota Constitution grants absolute privilege from defamation liability to members of the State Senate and House of Representatives in the discharge of their official duties. Minn. Const, art. IV, § 10. We have extended this absolute privilege, as a matter of public policy, to some other government officials in certain contexts. E.g., Bauer v. State,
We have declined to extend absolute privilege from defamation liability to members of subordinate elected government bodies such as city councils and county boards. In Burch v. Bernard, we declined to extend absolute privilege to a city council member who, pursuant to business before an ongoing city council meeting, accused a nurse employed by the city of “running nothing but a damn whorehouse.”
We are “extremely reluctant to overrule our precedent under principles of stare decisis ” and “require a compelling reason” to do so. State v. Martin,
Given our refusal to extend an absolute privilege to elected city councils or county boards, we see no reason to extend absolute privilege to appointed watershed district boards. Thus, in keeping with our holdings in Burch and Jones, we decline to extend absolute privilege here.
But we need not here decide the issue of whether to extend an absolute privilege to city councils and county boards. We can decide this case on the much more limited issue of whether to grant absolute privilege to an unelected and even more subordinate government body — a watershed district board. That consideration extends to closely examining the public costs and benefits of expanding the doctrine of absolute immunity from defamation liability within the confines of the case before us.
“The doctrine of privileged communication rests in that of public policy.” Matthis v. Kennedy,
Proponents of extending the absolute privilege to watershed district boards, including the dissent, make essentially three arguments for the absolute privilege.
We address the first and second arguments together as they are related. The dissent asserts the importance of watershed district boards, and stresses that these boards have extensive authority at them disposal in order to accomplish their goal of managing watersheds. We agree that watershed districts have substantial authority, including the power of eminent domain. We disagree, however, that extensive authority leads inexorably to an extension of absolute privilege. The dissent admits that we have never extended absolute privilege in Minnesota to subordinate bodies such as watershed district boards.
The dissent similarly asserts, without record evidence, that exposing members of watershed district boards to potential defamation claims will have a “chilling effect” that will not only result in an inability to attract qualified board members but that will also prevent those members who do volunteer from having candid deliberations at board meetings. Neither the parties to this case nor the dissent provides any evidence of a “chilling effect” associated with service on a board with a qualified privilege. We see no compelling need to extend the absolute privilege without any evidence that the qualified privilege is insufficient to protect members of watershed district boards.
Moreover, extending the absolute privilege to watershed district boards would come at a cost and strike the wrong balance between the competing interests of the public. The effect of absolute privilege is to immunize board members who engage in defamatory speech, speech that can be personally crushing and career-ending. Watershed district board members are appointed by county boards. So, unlike the State Legislature, or even a city council or county board, citizens who dislike the actions of watershed district boards cannot vote these members out of office. Nor can citizens necessarily vote
Consider the example of a hypothetical watershed district facing an eminent domain issue which prompts a heated exchange between a citizen who does not want her property seized by the government and a district board member who wrongly impugns the character of the complaining citizen. It is one thing to say that the board member has a qualified privilege in connection with official district deliberations, and quite another to say that a district board member may attack the complaining citizen with express malice. A more persuasive argument can be made, perhaps, for extending absolute privilege to the deliberations of elected county and municipal bodies, in that the citizen damaged by the wrongful speech of the board member at least has the remedy of voting for someone else. But here, the watershed district board members are largely unaccountable to the public they serve. The dissent asserts that watershed district boards are susceptible to public scrutiny and criticism and are therefore accountable. Because there is no direct accountability to the voters for watershed district board members, we agree with the dissent that public criticism is the only vehicle for holding board members accountable. But this fact supports a qualified rather than absolute privilege, at least in the absence of proof of anything more than a theoretical problem. The damage from defamatory statements is real; public criticism of an unelected board member is hardly comparable.
Finally, the third argument proponents make for extending absolute privilege to watershed district boards is that there is no reason to draw a distinction between higher ranking legislative bodies and lower ranking bodies such as watershed district boards. The dissent supports this argument by reference to our decision in Carradine v. State,
Second, Carradine does not support the dissent’s position. In Carradine we extended the absolute privilege from defamation liability to police officers for statements made in police reports.
For the reasons discussed above, we conclude that the people of Minnesota are better served by the application of a qualified, rather than absolute, privilege to members of watershed district boards. We therefore reverse the district court and remand this case for further proceedings consistent with this opinion.
Reversed and remanded.
Notes
. The complaint states that “he” in this statement by Nelson referred to both Zutz and Elseth.
. We have also said, in dicta, citing a Massachusetts case and a now-antiquated legal treatise, that the “rule of general application in this country that libelous or slanderous matter published in the due course of ... legislative proceedings is absolutely privileged” applies to “all legislative bodies, state or municipal.” Peterson v. Steenerson,
. The dissent also bases its position on a “diverse collection of authorities” that it asserts represents the "modem rule.” All but one of the sources cited by the dissent, however, address the extension of the absolute privilege to duly elected city and county legislative bodies, which is not at issue in the case before us. Further, it is only the soundness of the reasoning underlying the sources that should
. For instance, as the dissent notes, Minnesota was listed among jurisdictions not extending absolute privilege to subordinate legislative bodies in the Restatement (Second) of Torts. See 5 Restatement (Second) of Torts app. § 590, Reporter’s Note cmt. c (1981).
. The Legislature is, of course, free to extend the absolute privilege to the watershed district boards, which are a legislative creation. As a matter of public policy it is preferable that the Legislature determine whether an absolute privilege is needed to ensure the service of willing and qualified volunteers on these boards. To date, the Legislature has declined to extend absolute privilege to watershed district boards.
. The Middle Snake Tamarac Rivers Watershed District, at issue in this case, has six members appointed by the Marshall County Board of Commissioners and one member appointed by the Polk County Board of Commissioners. If a resident of Polk County living within the Middle Snake Tamarac Rivers Watershed District took issue with the actions of members of the watershed district board appointed by Marshall County, that resident would not be able to vote against those who appointed the offending watershed district board members.
Dissenting Opinion
(dissenting).
I respectfully dissent. The majority relies on two of our older cases — one from 1909 and the other from 1967 — in declining to extend absolute legislative privilege to statements made by watershed district board members in their official capacities. Jones v. Monico,
The extension of the absolute legislative privilege, which Minnesota’s Constitution grants to members of the Legislature, to other contexts as a matter of policy has been “ ‘a story of uneven development.’ ” Carradine v. State,
Our broad statement in Peterson regarding the scope of absolute legislative privilege was to a certain degree inconsistent with three of our earlier cases on this issue. In those earlier cases, we focused on the scope of the duties of the members of local legislative bodies, and held that their allegedly defamatory statements
More than half a century later in Jones,
[statements made in the course of legislative proceedings, including those made by members of municipal councils or other governing bodies of political subdivisions, are privileged. This privilege applies if it relates to a matter within the scope of that particular body’s authority.
Jones, 276 Minn, at 374,
With no explanation of our reasoning, we abruptly shifted gears in Jones after making the foregoing broad statement about the general rule on absolute privilege and proceeded to articulate a much narrower holding. We held that “the proceedings of subordinate bodies, including municipal councils or town meetings, are not within the policy underlying absolute immunity since the members of such bodies are sufficiently protected” by the qualified or conditional privilege. Id. at 375,
In their analysis of the case before us, neither the district court nor the court of appeals cited Jones or discussed its reasons for reaching a result contrary to our holding in Jones. Both courts focused on our more recent cases dealing with absolute privilege in the executive branch. See, e.g., Johnson v. Dirkswager,
is not a badge or emolument of exalted office, but an expression of a policy designed to aid in the effective functioning of government. The complexities and magnitude of governmental activity have become so great that there must of necessity be a delegation and redelegation of authority as to many functions, and we cannot say that these functions become less important simply because they are exercised by officers of lower rank in the executive hierarchy.
Id. at 735 (quoting Barr v. Matteo,
The court of appeals read Carradine as implicitly overruling Jones, although the court of appeals reached this result without citing or discussing Jones itself. Zutz v. Nelson, No. A08-1764,
Although the Johnson court indicated that proceedings of municipal councils and other subordinate bodies are not within the policy underlying absolute immunity, the Minnesota Supreme Court has since held [in Carradine ] that absolute immunity is not determined by the individual’s “rank in the executive hierarchy,” but rather is dependent on the “nature of the function assigned to the officer and the relationship of the statements to the performance of that function.”
Zutz,
Although we are not bound by Restatement positions, we nonetheless view them as useful persuasive authority that can sometimes prove helpful in our analysis. See, e.g., Moreno v. Crookston Times Printing Co.,
Our prior cases together with subsequent developments in the law, including the second Restatement, place us at a fork in the road with respect to the question of what Minnesota’s law regarding absolute legislative privilege should be. We must decide whether to retain the historic rule reflected in Jones, 276 Minn, at 375,
The Iowa Supreme Court’s 1954 case Mills v. Denny,
Absolute immunity, it seems, should be confined to cases where there is supervision and control by other authorities, such as courts of justice, where ... a learned judge ... may reprimand, fine and punish as well as expunge from records statements of those who exceed proper bounds.... The same is true in federal and state legislatures, and their committees, where the decorum is under the watchful eye of presiding officers and -records may be stricken and the offending member punished.
Id. at 225; see also Hawkins v. Harris,
The Iowa court in Mills also relied on the first Restatement of Torts and other secondary authorities of its era that granted absolute privilege to only “ ‘the highest legislative body of a State.’ ”
The Iowa Supreme Court’s reasoning, limiting absolute privilege to the courts and the highest legislative bodies of a state where the “controlling influence of [the] learned judge” and general prevailing “decorum” might protect plaintiffs’ reputation interests, has not prevailed in the modern era. Mills,
In Noble v. Ternyik,
The Oregon court in Noble, like many other courts addressing absolute privilege, found support in an argument advanced more than sixty years ago by Judge Learned Hand of the Second Circuit Court of Appeals. Judge Hand wrote that the absolute privilege is justified because
it is impossible to know whether the [defamation] claim is well founded until the case has been tried, and ... to submit all officials, the innocent as well as the guilty, to the burden of a trial and to the inevitable danger of its outcome, would dampen the ardor of all but the most resolute, or the most irresponsible, in the unflinching discharge of their duties.
Id. at 661 (quoting Gregoire v. Biddle,
In 1993, the Arizona Supreme Court addressed a defamation suit by two police officers against a town council member for statements made during a council meeting. Sanchez v. Coxon,
The council member statements at issue in Sanchez involved criticism of local police officers in the performance of their duties. Id. at 127. The plaintiffs in Sanchez argued that absolute legislative privilege should not apply, because “the content of the statements (complaints about police officers’ official conduct) was executive or administrative, rather than legislative” in nature. Id. at 130. A similar argument could apply to the statements at issue in this case, which involved the conduct of watershed district board members with respect to salaries and other internal administrative affairs. The Arizona Supreme Court in Sanchez rejected a distinction based on the content of the legislator’s statements. Id. The court explained that “[i]t is the occasion of the speech, not the content, that provides the privilege.” Id. This reasoning is also reflected in the Restatement (Second) of Torts § 590 cmt. a, which provides that
legislative officers ... are absolutely privileged in publishing defamatory matter while they are performing a legislative function although the defamatory matter has no relation to a legitimate object of legislative concern.
More recently, the New Hampshire Supreme Court adopted the same reasoning in Voelbel v. Town of Bridgewater,
Cases from the United States Supreme Court on related topics provide further support for my position that absolute legislative privilege should be extended to members of local legislative bodies. In a 1951 case against members of a California legislative committee, the Court addressed “[t]he privilege of legislators to be free from ... civil process for what they do or say in legislative proceedings.” Tenney v. Brandhove,
[i]n order to enable and encourage a representative of the public to discharge his public trust with firmness and success, it is indispensably necessary, that he should enjoy the fullest liberty of speech, and ... be protected from the resentment of every one, however powerful, to whom the exercise of that liberty may occasion offence.
II Works of James Wilson 38 (Andrews ed. 1896) quoted in Tenney,
uninhibited discharge of ... legislative duty, not for ... private indulgence but for the public good. One must not expect uncommon courage even in legislators. The privilege would be of little value if they could be subjected to the cost and inconvenience and distractions of a trial upon conclusion of the pleader, or to the hazard of a judgment against them based upon a jury’s speculation as to motives.
Tenney,
In a later case quoting the foregoing language from Tenney, the Court made clear that “[t]his reasoning is equally applicable to federal, state, and regional legislators.” Lake Country Estates, Inc. v. Tahoe Reg’l Planning Agency,
Bogan v. Scott-Harris,
Finally, I find the analysis in Barr v. Matteo,
The diverse collection of authorities discussed above underlies my disagreement with the majority. I have carefully considered the position of the first Restatement of Torts, which granted absolute privilege to only a state’s highest legislative bodies, and the second Restatement of Torts, which broadened the application of absolute legislative privilege to cover local legislative bodies as well. Our cases on absolute legislative privilege create a somewhat unclear picture of our stance on this issue to date. We adopted the bright-line rule of the first Restatement in Jones v. Monico,
Having reviewed the reasoning that underlies both the traditional rule and the modern rule, I find myself compelled to conclude that a change in Minnesota’s law regarding absolute legislative privilege should be made in this case. The majority asserts that “the reasoning underlying the holdings in Burch and Jones is not sound,” and therefore leaves the Jones rule intact. I agree with the majority that stare decisis is a very important value, but I believe the public interest at stake in this case is more than sufficient to support a change in the law.
In Burch and Jones, we provided no substantive analysis to explain our choice to use only the qualified privilege. In Jones, 276 Minn, at 375,
The reasoning supporting adoption of the modern rule is persuasive and voluminous by comparison. Broader application of absolute legislative privilege encourages participation in public service by capable citizens at the local level, where much important legislative decision making occurs. Local public servants often receive little or no compensation for their efforts, and without absolute privilege, “prestige and pecuniary rewards may pale in comparison to the threat of civil liability.” Bogan v. Scott-Harris,
Even more significantly, adoption of the modern rule would provide necessary protection for the public’s interest in free and open legislative debate. See, e.g., Sanchez v. Coxon,
The majority asserts that my key reasons for favoring the modern rule — diminishing disincentives to public service in local government and encouraging free and open legislative speech by members of local legislative bodies — are not supported by record evidence showing any ill effects of the current rule. But such criticism applies equally to the majority, given that the record also contains no evidence for the premise underlying the majority’s preferred conclusion. We have no evidence that any defamatory speech by any member of a Minnesota legislative body has ever had “personally crushing and career-ending” effects for a citizen. I take a more optimistic view of our state’s public servants and believe that the vast majority are hardworking and honest in their service of the public.
I acknowledge that empirical studies would be valuable in a case like this where we must weigh competing public policy interests in an attempt to identify the best rule of law, but we have never required such evidence before making a decision. Here, I am aware of no relevant studies in
For all of the foregoing reasons, I conclude that the qualified privilege provides insufficient protection for members of local legislative bodies. Therefore, to the extent that Jones v. Monico,
Carradine requires that we consider “the nature of the function assigned to the officer and the relationship of the statements to the performance of that function.”
. Counting jurisdictions to determine which rule is the majority and which is the minority is difficult because many states, like Minnesota, have inconsistent authority on the question. According to M.O. Regensteiner, Annotation, Libel and Slander: Statements or Utterances by Member of Municipal Council, or of Governing Body of Other Political Subdivision, in Course of Official Proceedings, as Privileged,
The American Law Reports article states, and the cases cited in the note to the Second Restatement confirm that, in the majority of the comparatively few cases to consider the issue, courts "have held or recognized that at least under some circumstances members of governing bodies of political subdivisions are entitled to the complete defense afforded by [absolute] privilege, for utterances made by them during the course of official proceedings.” Regensteiner at 943. Jurisdictions that have expressly adopted the modern rule include Oregon, Arizona, Michigan, New Hampshire, Florida, and (by statute) Kentucky and Utah. See Restatement (Second) of Torts app. § 590 Reporter’s Note, cmt. c. (1981 — also citing supplement(s)).
. E.g., Sanchez v. Coxon,
. An Oregon port commission, like a Minnesota watershed district, is a public body created by statute for the purpose of managing water resources. Noble,
. Gregoire was an executive privilege case, but its reasoning has been adopted in the context of legislative privilege. See, e.g., Voelbel,
. The majority relies heavily on the fact that watershed district board members are appointed by elected officials, rather than elected directly. Such officials are therefore arguably less accountable to the public. I agree that this is a relevant consideration in assessing the balance between the competing interests in this case. Ultimately though, this factor does not change my conclusion. Members of the public have a powerful interest in free and open debate during proceedings of local legislative bodies, and I do not think that interest is less in the case of a watershed district than a city council or other elected body. Cf. Lake Country Estates, Inc. v. Tahoe Reg’l Planning Agency,
Regarding an individual’s interest in a remedy for defamation, I note that appointed board members are subject to public criticism and are accountable to the public through the elected officials who appointed them. Although this accountability is indirect, I do not believe that unelected members of our state’s vitally important local legislative bodies are significantly more likely to maliciously defame members of the public they serve than directly elected ones. I therefore conclude that absolute privilege is equally important for all local legislative bodies, elected and appointed alike, and would hold that the absolute legislative privilege applies to both.