(dissenting). I respectfully dissent.
In the within case, defendant, a school principal, had the responsibility of recommending disciplinary action for staff members when, in her opinion, their actions interfered with the educational process. Pursuant to that duty, defendant wrote a memorandum recommending disciplinary action against plaintiff and delivered the memorandum personally to the school official who was designated under the collective bargaining agreement to receive it. Defendant did not communicate the memorandum to any other person. The memorandum was based upon personal observations of the defendant and upon reports about the plaintiff which the defendant allegedly received from school employees, students and parents.
The relationship between the parties, taken together with an occasion where defendant was obligated to and could properly express an opinion regarding plaintiff’s performance, gives rise to a privilege in the defendant to make an expression which might conceivably otherwise be defamatory and actionable.1 The fact that defendant was carry*171ing out the essential function of her job and performing her duty, the fact that she was expressing an opinion that she was required to give and the fact that there was not any excessive publication of it, indicate to me that as long as she stayed within the "outer perimeter” of her duties, her privilege protected her against libel or slander claims.2 Some cases would say that the privilege may be lost if the expression is made with "actual malice”, that is, with knowledge that it was false or with reckless disregard of whether it was true or not. In this connection, I would note that the expression made by defendant was one of opinion clearly within the scope of her employment; the fact that her statement was intemperate and unprofessional, although perhaps reflecting on the administrative capability of the maker, is not determinative of the legal issue. I would also note that the allegations made by plaintiff in her complaint and in her answer to the motions for summary judgment and for rehearing, are not of sufficient magnitude or of a quality to support a finding of actual malice.
The issue here is whether plaintiff offers or asserts facts from which an inference of actual malice may arise. Malice is a concept or word of art in the law of libel. A fact issue regarding malice does not necessarily arise merely because a litigant asserts a statement was made with malice. *172Whether actual malice exists sufficient to defeat a qualified privilege depends upon the occasion when the statement is made, the relationship between the maker of the statement and the person concerning whom it relates, to whom it is made and what the statement contains.3 The statement complained of contains only matters relevant and relating to plaintiff’s responsibilities as a school counselor; it is limited to matters pertinent to the employment relationship between plaintiff as a school counselor and defendant as a school principal. The issue is not whether the defendant’s opinion of plaintiff’s performance is correct or even whether allegations in the statement are true, e.g., whether it is true that plaintiff refused to stay after school hours to meet with parents.4 As indicated, the statement was delivered by defendant only to the regional superintendent to whom defendant was obligated to deliver it as part of her employment responsibility.
While, in terms of technical terminology, the Michigan cases would not deem this privilege to be absolute, it is, nevertheless, in the circumstances of this case, a very strong privilege and, although qualified or conditional, it is not easily lost or defeated.5
*173In responding to defendant’s motion for summary judgment under GCR 1963, 117.2(3), plaintiff filed letters of various interested persons attesting to plaintiffs good personal qualities, habits of hard work, including overtime efforts and her reputation as a successful, able teacher. While these documents pose an issue for the school administration as to the merits of the charges defendant makes against plaintiff, they do not indicate actual malice or lack of good faith on the part of defendant, sufficient to deprive her of her privilege to express opinions that might otherwise be actionable defamation.
For purposes of this opinion, I take as true the statements and expressions of opinion utilized by plaintiff in her answer to defendant’s motion for summary judgment and motion for reconsideration of the trial court’s ruling on the motion for summary judgment. Even when so considered, no sufficient claim of actual malice is made.
Under these circumstances, determination of whether the privilege extends to the statement complained of was for the judge. Plaintiffs complaint and her counteraffidavits do not, as a matter of law, indicate the presence of actual malice. Thus, on this record, defendant’s statement was privileged as a matter of law.
In view of this conclusion, it is unnecessary to analyze whether, in this case, defendant’s statement was constitutionally protected under the Federal First and Fourteenth Amendments from a state libel action.6
Consequently, for these reasons, I would hold that under the circumstances of this case, defend*174ant possessed a privilege to make the written expressions that are complained of, and the trial court should have granted defendant’s motion for summary judgment.
As a matter of fact, any other result would cause an intolerable situation in the public schools where persons in authority could not exercise their judgment and do the jobs for which they are appointed without being subjected to the expense and time of trial on the merits before a jury to defend claims of slander and libel. Í would also note that plaintiff has plenty of other remedies by way of the state tenure statute and under the collective bargaining contract that apparently exists in this school district to gain redress of any grievances that may be caused her.
I would vote to reverse the trial court and to grant the motion for summary judgment with costs.
Bacon v Michigan Central R Co, 66 Mich 166, 170; 33 NW 181 (1887), states:
"Qualified privilege exists in a much larger number of cases. It *171extends to all communications made bona fide upon any subject-matter in which the party communicating has an interest, or in reference to which he has a duty, to a person having a corresponding interest or duty.”
Lawrence v Fox, 357 Mich 134; 97 NW2d 719 (1959), Bostetter v Kirsch Co, 319 Mich 547, 556-557; 30 NW2d 276 (1948).
Bacon v Michigan Central R Co, supra. Also, Anno: Libel and Slander: actionability of statements imputing inefficiency or lack of qualification to public school teacher, 40 ALR3d 490, 502 and cases cited therein.
53 CJS, Libel and Slander, pp 158-160, citing Fortney v Stephan, 237 Mich 603; 213 NW 172 (1927), and other cases.
Truth is always a defense to alleged libel. But truth is a fact issue and we have here only an issue of the propriety of denial of a motion for summary judgment based upon a claim that there is no genuine issue of material fact. The truth or untruth of the statements, which are not mere expressions of opinion, becomes relevant here, only if plaintiffs claims in her pleadings and in her affidavits are sufficient as a matter of law to give rise to an issue of actual malice or of lack of good faith. For the reasons indicated, neither the issue of actual malice nor of good faith arises on this record. See, Fortney v Stephan, supra, p 610.
Brunn v Weiss, 32 Mich App 428; 188 NW2d 904 (1971), Bacon v Michigan Central R Co, supra.
Typical of these Federal cases are New York Times Co v Sullivan, 376 US 254; 84 S Ct 710; 11 L Ed 2d 686 (1964), and Rosenblatt v Baer, 383 US 75; 86 S Ct 669; 15 L Ed 2d 597 (1966).