dissenting.
Respectfully, I dissent.
Lyle Robey, then Chairman of the State Racing Commission, made statements in a press release which have been proved false and to have been made with reckless disregard for the truth. These statements libeled Jerry and Dale Romans in their occupations. The Majority weaves a blanket of “absolute immunity” to protect Robey from having to answer for his wrongdoing, claiming this is necessary to serve some important governmental interest. But the interest to be served by this immunity is negligible, and the opportunity thus afforded to officeholders to abuse private citizens with reckless, publicity-seeking accusations is far too great to be tolerated in a democratic society properly concerned with protecting the rights of its citizens.
Our Kentucky Constitution provides in pertinent part:
“Every person may freely and fully speak, write and print on any subject, being responsible for the abuse of that liberty.” Ky.Const., See. 8. [Emphasis added.]
Our decision relieves the Chairman of the State Racing Commission from “being responsible for the abuse of that liberty.”
Way back in 1910 our Court rejected the notion that a public school superintendent had an absolute privilege simply because of her official capacity to libel the “good moral character” of an applicant for a state teaching certificate who intended to teach in her county. Tanner v. Stevenson, 138 Ky. 578, 128 S.W. 878 (1910). We upheld a libel judgment for $5,000 in that ease: “The cases to which this privilege applies are few in number and ought not to be enlarged.” Id. 128 S.W. at 881.
In case after case over the last 100 years our judicial opinions have recognized that our founding fathers intended for our Kentucky Constitution to protect individual rights against governmental abuse. See, for example, Tabler v. Wallace, Ky., 704 S.W.2d 179, 183-84 (1985), quoting constitutional debates.
In the present case the Majority states: ‘While we intend no comfort for those public officials who may despicably defame their fellow citizens, the public interest in the unflinching enforcement of the law must prevail over the private interest of a wronged citizen.”
The relationship between Lyle Robey’s press release and “the public interest in the unflinching enforcement of the law” is attenuated at best. No statute specifies the Chairman of the State Racing Commission shall issue press releases, even about matters of public concern that fall under the duties of the Commission to investigate and to adjudicate. On the contrary, if Robey had a duty here, it was to refrain from reckless accusations and to await the outcome of the investigation before making press accusations that the Romans were guilty of telling lies and concealing information. This case is substantially identical to Lanier v. Higgins, Ky.App., 623 S.W.2d 914 (1981), wherein the Kentucky Court of Appeals reached an opposite conclusion, and our Court denied further review. Just as (in Lanier) no specific duty compelled the City of Louisville Chief of Police to accuse a police officer of being “perhaps the worst racist in the Louisville Division of Police” during a television interview “about race relations within the police department,” Id. at 914, here no duty compelled Robey to accuse the Romans in the press.
The Majority cites McAlister & Co. v. Jenkins, 214 Ky. 802, 284 S.W. 88 (1926), as controlling authority in this case. I agree. Unfortunately, McAlister calls for the opposite result from that we reached in this Majority Opinion. McAlister does not provide carte blanche (or “absolute”) immunity to public officials making public pronouncements in an official capacity. It specifies limited circumstances in which such officials are protected, none of which apply here:
“... the cases to which this immunity from liability applies are confined to judicial and . legislative proceedings, matters involving military affairs, and communications made in the discharge of a duty under express *30authority of law by or to heads of executive departments of the state.” 284 S.W. at 90.
While it holds that the exception for communications made in the course of “judicial and legislative proceedings” extends to the “quasi-judicial” act of administrative bodies, specifically the Kentucky Real Estate Commission, it further holds this protection applies only to the official report of the investigation and findings of the Real Estate Commission:
“Here we have an administrative body charged with the exercise of quasi judicial powers and the duty imposed. upon its membership to take certain action after exercising those quasi judicial functions, and the very reason for the rule requires they should be exempt from such actions.” Id. [284 S.W.] at 91.
Further, McAlister holds immunity applies to the official reports and findings of an administrative body only upon a further finding that the part of its report which was allegedly libelous was “pertinent to the inquiry.” Id. There is nothing in McAlister sanctioning the Real Estate Commission to engage in press releases, let alone to do so with immunity.
When McAlister turns to the remaining exception to the rule of liability for false and defamatory statements, which applies to statements by “heads of executive departments of the state,” it holds absolute immunity would not apply to the members of the Real Estate Commission. Therefore, it would also not apply to the members and Chairman of the Racing Commission in the present case who are in exactly the same position. The “Commissioner” of the Kentucky State Racing Commission is simply “a member” “designate[d]” by the other members to preside. KRS 230.220(1). He has no special statutory status or duties in addition to those assigned to the Commission.
As expressed in Restatement (Second) of Torts, Sec. 591(B), absolute immunity of public officials to publish defamatory material extends only to “a Governor or other superi- or executive officer of state.” The definition of executive department is limited by KRS 12.010(2) to the highest level of state government:
“ ‘Department’ means the basic unit of administrative organization of state government, by whatever name called,....”
KRS 230.010, et seq., does not designate the Kentucky State Racing Commission as a “department.” Robey was not head of an executive department of government by any stretch of the imagination. The Racing Commission is established by statute as “an independent agency of state government,” KRS 230.220(1), no different in character from the Kentucky Real Estate Commission. It is simply an “administrative body” under KRS 12.010(8), and as such, its Chairman and members have no greater authority to publish a libel than that assigned to the Kentucky Real Estate Commission in the McAlister case.
Judge Wilhoit’s Opinion in Lanier v. Higgins, supra, cogently expresses the legal principles which apply here. It describes the limited nature of the immunity enjoyed by a public official when speaking to the news media about a matter within his jurisdiction, as follows:
“Applying the case law to the appeal before us, it is obvious that at the time he made the alleged defamatory statements Chief Higgins was not the head of an executive department of the state nor was he engaged in a judicial or legislative proceeding or in military affairs. He was not involved in a quasi-judicial proceeding, the statements were not communicated to another officer in the course of the performance of their similar duties, nor was the communication made in the discharge of a statutory duty. The appellant’s brief does show that the Policy and Procedure Manual of the Louisville Division of Police provides that a commanding officer has ‘the authority as well as the responsibility to respond directly to legitimate news inquiries about operations of his command.’ This is not the equivalent of a statutory duty to answer news inquiries, although it does make it clear that, at the time Chief Higgins was being interviewed, he was engaged in the performance of official duties. Under the circumstances, and in view of the foregoing case law, we believe that *31Chief Higgins was not clothed with an absolute privilege but rather with a special or conditional privilege. See also Restatement (Second) of Torts, Sec. 598A (1977).” 623 S.W.2d at 915-16.
Here the trial court’s analysis of the law of libel as it applies to this case was sound in every respect. The trial court recognized that Commissioner Robey did not qualify for absolute immunity as the head of an executive department of state government, nor was he protected from liability by the immunity extended to communications in the course of judicial or quasi-judicial proceedings. Commissioner Robey, as did Chief of Police Higgins, both speaking to the news media in an official capacity, enjoyed a “qualified” or “conditional” immunity. This immunity is the legal equivalent of that extended to members of the press reporting on a public figure, as we discussed at length in Ball v. E.W. Scripps, Ky., 801 S.W.2d 684 (1990), only without the special requirements on standards of proof imposed by the U.S. Supreme Court to protect freedom of the press under the First Amendment. This is a limited immunity from liability for a defamatory statement: one which does not extend to “misstatements of fact made “with actual malice’ or “with reckless disregard of whether it [the misstatement] was false or not.’ ” Id. at 689, citing New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964).
The Majority does not challenge the sufficiency of evidence to support the jury’s findings in this respect. Thus the Majority Opinion accepts the fact these two professionals earning their living in the horse racing business, trainer Jerry Romans and assistant trainer Dale Romans, were libeled in their occupations by Robey’s statements they “concealed from the officials of Churchill Downs” the “correct identity of the horse,” and that they made “false and misleading statements ... to the stewards and to the Kentucky State Racing Commission in the course of the investigation.” Yet we deny redress for this wrong, citing the McAlister case which is qualitatively different from this one and sets out rules calling for the opposite result. The Majority Opinion greatly expands the reach of absolute immunity.
I recognize that the protection afforded by the laws of libel to our citizens against the abuse of governmental officials has already been somewhat eroded by the U.S. Supreme Court in Barr v. Matteo, 360 U.S. 564, 79 S.Ct. 1335, 3 L.Ed.2d 1434 (1959), but this applies only where the officials speak for the federal government. There is no need to extend this oppressive regime to state and local government officials other than the Governor and heads of executive departments who speak for the Governor. There is no reason to believe Barr v. Matteo produces benefits that merit its use to protect the defamatory statements of less important state and local officials. We should reject this notion in favor of the position taken by Judge Wilhoit in the Lanier case:
“The public certainly has an interest that officials of government be entitled to exercise their duties unembarrassed by the fear of damage suits arising from acts done in the course of those duties.... At the same time, the public also has interests that officials act responsibly, that they furnish it with accurate information, and that the good reputations of citizens not be damages wrongfully. At least until now, the case law in this jurisdiction has found the latter interests to be more compelling in a case such as we have here.” 623 S.W.2d at 916. [Emphasis added.]
Judge Wilhoit qualifies his Opinion by stating we have protected our citizens “at least until now.” We now choose the opposite course, and I disagree. We should not abandon our citizens to defamation in the press simply because the speaker is a public official speaking under the pretext of keeping the public informed. A qualified or conditional privilege as described in Lanier v. Higgins, requiring proof of actual malice or reckless disregard for the truth, is all that is needed to balance public interest and private rights. This was the law in Kentucky until now. This was the law as the trial court defined it. We should affirm.
SARAH COMBS and WINTERSHEIMER, JJ., join.