Liberty Bank of Seattle, Inc. v. Henderson

Coleman, J.

(concurring in part, dissenting in part) — I concur in the majority’s disposition of the wrongful interference claim. I disagree, however, with the resolution of the *569defamation claim and, therefore, dissent from that portion of the majority’s opinion.

In determining whether a party is entitled to the benefit of a privilege, the court must, at the outset, examine the purpose of the privilege. If the court finds that extending the privilege furthers its intended purpose, then the application of the privilege is appropriate. In this case, the majority holds that, under the Gold Seal official function privilege, Defendants Oldfield and Rhodes were entitled to absolute immunity from all liability for their publication of the allegedly defamatory statements contained in the Burke affidavit. See Gold Seal Chinchillas, Inc. v. State, 69 Wn.2d 828, 420 P.2d 698 (1966). Because I believe that the Defendants’ conduct went beyond the purpose that the Gold Seal privilege was intended to serve, I respectfully dissent.

Gold Seal provides that state officials have an absolute privilege to publish statements, regardless of whether they are potentially defamatory in nature, as long as the subject matter of those statements has more than a tenuous relation to matters committed by law to the control or supervision of the official’s office. Gold Seal, at 834. The purpose of this privilege is to allow public officials to take and announce action without fear of reprisal. See Gold Seal, at 833. The scope of this privilege is not so broad, however, that it vests public officials with a continuing absolute privilege to defame others for the sole purpose of defending actions already taken and explained.

Here, Oldfield had taken action regarding Wood’s termination in December 1987. Oldfield informed the public about this action by issuing several press releases. In January 1988, Rhodes was appointed conservator of Liberty Bank and, again, various press releases were issued and interviews were granted, explaining to the public the reasons for the action taken (i.e., poor management and bad loans). Under Gold Seal, Oldfield and Rhodes were entitled to inform the public and explain their reasons for their actions with absolute immunity. Several months later, however, public criticism continued regarding Wood’s termination. In *570early April 1988, Liberty Bank commenced the Andy’s Draperies suit. The record shows that Rhodes released the Burke affidavit and the complaint to the press not to explain or advance that suit, but to retroactively defend and rebut public criticism about Wood’s termination.

Under these circumstances, the reason for the broad protection and right to defame with absolute immunity no longer applies. The Gold Seal privilege is designed to accomplish a limited function; namely, to inform the public and to protect public officials with respect to the initiation or commencement of official action. Because Defendants Oldfield and Rhodes were defending action already announced and taken, they were not entitled to the broad scope of protection aiforded under the Gold Seal official function privilege. Indeed, even Defendants Oldfield and Rhodes did not take such a broad view of the privilege, acknowledging that the release of the unfiled affidavit was made in error.

This is not to say that Defendants Oldfield and Rhodes were entirely without protection. In the context of this case, they had a qualified privilege to publish statements, even if defamatory, as long as they were acting in the good faith performance of their official duties. See ROW 43.19.030. As argued to the jury, there were factual questions about whether Oldfield and Rhodes released the affidavit in good faith, because they apparently knew that no direct evidence of fraud had been uncovered during the months following Wood’s termination.

Thus, contrary to the majority, I would affirm the defamation portion of the verdict. In light of the court’s disposition, it is unnecessary to address the other issues related to that claim in detail. Suffice it to say, Defendants’ additional assignments of error either do not constitute reversible error or were not properly preserved for appeal.

Review denied at 126 Wn.2d 1002 (1995).