Skinner v. Pistoria

No. 80-225
IN THE SUPREME COURT OF THE STATE OF MONTANA
1981

TIMOTHY B . SKINNER,
Plaintiff and Respondent,

VS .
PAUL G. PISTORIA,
Defendant and Appellant.

Appeal from: District Court of the Eighth Judicial District,
In and for the County of Cascade.
Honorable R. D. McPhillips, Judge presiding.
Counsel of Record:
For Appellant:
James W. Zion argued, Helena, Montana
For Respondent:
Smith, Baillie and Walsh, Great Falls, Montana
James R. Walsh argued, Great Falls, Montana

Submitted: June 18, 1981
Decided :sEP 11 1981-
Filed: § E f 11 1981

J
@L
! WW C

Clerk
Mr. Justice Daniel J. Shea delivered the Opinion of the
Court.

Defendant Paul G. Pistoria appeals from a judgment
entered by the Cascade County District Court following a
jury verdict in favor of plaintiff Timothy B. Skinner. The
jury found the defendant liable for defamation of the plaintiff's
character and awarded damages of $26,294. Although several
issues are raised, we dispose of this appeal by holding that
the defendant's publication was made in the course of an
official government meeting; it was therefore a privileged
publication which would not subject the defendant to liability
for defamation.
The defendant, Pistoria, has been active in Great Falls
politics and community affairs for many years, serving most
recently as a member of the Montana House of Representatives
during the 1981 session. He has characterized himself as a
"political gadfly" and has developed the reputation of being
an outspoken critic of the Great Falls city government.
Pistoria testified that sometime before February 1976,
he began receiving anonymous telephone calls from four or
five callers who stressed that Pistoria should do something
because three named police officers, including the plaintiff,
were allegedly misusing police department "buy funds."
These "buy funds" are supplied by the federal government to
enable local law enforcement authorities to set up purchases
of illegal drugs during narcotics investigations. Pistoria
testified that he believed the information that he was given
because he received several calls which repeated the same
information from callers who seemed knowledgeable about the
information they were giving.
 On March 16, 1978, Pistoria again received an anonymous
call conveying the same information. Pistoria stated that
he recognized the caller's voice from previous calls. That
same day, Pistoria prepared on Montana House of Representatives
stationery a letter which he intended to read at the next
meeting of the Great Falls City Commission. He then took
the letter to state senator Patrick Ryan and asked for
Ryan's advice on the matter. Ryan testified that he also
had been pursuing the same matter, and although he was
surprised that Pistoria was working along the same lines, he
did not discourage Pistoria from presenting the letter to
the city commission.
On March 21, 1978, at the next regularly scheduled
meeting of the city commission and during time normally
reserved for comment by the public, Pistoria read his letter,
which states as follows:
"Great Falls City Commissioners
"City Manager
"Chief of Police
"Civic Center
"Great Falls, Montana
"Gentlemen:
"I received a phone call today from an
unknown person, who stated: 'I am sure you
would like to know what is happening in our
city police department.' The person did not
identify himself. He mentioned that there
are a few policemen involved in cases whereby
Crime Control buy funds are not being distributed
through the proper channels, and that they were
being misused by Lt. Jim Cook, Lt. Timothy
Skinner, Sgt. Donald Zeman, maybe others.
"During the conversation he also stated that
much emphasis was made on how important it
was to finance the STEP Program, Which was
adopted approximately one year ago, under the
supervision of Sgt. Wayne Jacobson. This
program was recently terminated. Why?
"He stated that these problems have been
brought to the attention of the City and
County Attorney, and wondered why this was
 not investigated and made known to the public.
In no way am I personally involved in these
accusations, but if such is true, I think it
should bear investigation."
Pistoria also placed a copy of the letter on the press
table at the meeting. Although reporters from the Great
Falls Tribune and the Montana Television Network were both
present, he had no discussion with either of them. Later,
however, both the Great Falls Tribune and the Montana Television
Network News carried the story.
At the time this event took place, the plaintiff was a
lieutenant in the Great Falls Police Department, and was one
of five candidates being considered for promotion to captain.
That position would have initially paid about $75 more per
month than the plaintiff was making as a lieutenant. As a
result of Pistoria's letter and the subsequent news reports,
the police department postponed any promotions to captain
positions for about one year. The plaintiff was, however,
promoted to captain when the decisions were eventually made.
The plaintiff filed suit, contending that Pistoria's
publication of the letter exposed the plaintiff to hatred,
contempt, ridicule, and obloquy, caused him to be shunned
and avoided, and injured him in his occupation as a police
officer. He alleged that Pistoria acted out of a malicious,
personal motive stemming from disapproval of certain previous
city government actions. The jury found Pistoria liable to
the plaintiff for $1,294 in actual damages and $25,000 in
punitive damages.
Pistoria presents several issues for our consideration
in this appeal, but because we hold that his publication was
absolutely privileged, this holding disposes of the case.
 The thrust of Pistoria's claim is that a communication
made to the appropriate governmental authority, designed to
initiate an investigation into public affairs, constitutes a
publication made in an official proceeding and is cloaked
with absolute immunity. We examine that claim "against the
background of a profound national commitment to the principle
that debate on public issues should be uninhibited, robust,
and wide-open, and that it may well include vehement, caustic,
and sometimes unpleasantly sharp attacks on government and
public officials." New York Times Co. v. Sullivan (1964),
376 U.S. 254, 270, 84 S.Ct. 710, 721, 11 L.Ed.2d 686, 701.
One requisite of a defamation action is that the com-
munication must be unprivileged. A privileged communication
is one which, except for the circumstances under which it is
made, may be defamatory and actionable. Storch v. Board of Dir.
of East Mont. Reg. Five M.H.C. (1976), 169 Mont. 176, 181,
545 P.2d 644, 647. Privileged communications are of two
general classes: (1) the privileges which arise from the
consent of the person defamed; and (2) the privileges which
are conferred by law because of the occasion on which the
defamatory matter is published. Griffin v. Opinion Pub. Co.
(1943), 114 Mont. 502, 508, 138 P.2d 580, 584.
Section 27-1-804, MCA, states that " [a] privileged
publication is one made: .. .(2) in any legislative or
judicial proceeding or - - -
in any other official proceeding
authorized by -
- law; . . ." (Emphasis added.) As used here,
publication means "to make public." Black's Law Dictionary,
(5th ed.) at 1105. We draw no distinctions between the
reading of the letter to the city commission, its distribution
to the press at the meeting, and its later treatment by the
media. We are concerned only with the fact that Pistoria
made the information known publicly at the March 21, 1978
meeting. We are not concerned with the fact that he gave
the media copies of his letter, because the proceeding was
open to the public and the media was entitled to be present.
Placing a copy of the information on the press table at a
public meeting did not remove the cloak of immunity from
Pistoria's publication, for we are also not concerned with
the degree of publication. Whether there was publication
here is not an issue since everyone agrees that publication
occurred and Pistoria openly admits that his purpose was to
make his information known publicly so that it might spur an
investigation into the practices of the police department.
Freedom of expression upon public matters is secured by
both the Montana Constitution and the First Amendment. ". . .
it is a prized American privilege to speak one's mind,
although not always with perfect good taste, on all public
institutions." Bridges v. California (1941), 314 U.S. 252,
270, 62 S.Ct. 190, 197, 86 L.Ed. 192, 207. The 1972 Mont.
Const., Art. 11, 5 6, recognizes the right to comment on
public matters by stating that "[tlhe people shall have the
right peaceably to assemble, petition for redress or peaceably
protest governmental action."
Strong policy reasons exist to assure free and open
channels of communication between citizens and the authorities
responsible for investigating public wrongdoing. without
protection, these important channels cannot effectively
remain open. Protection is applicable when any recognized
interest of the public is endangered, and that interest
includes the honest and proper discharge of duties by public
officers. The concern which all citizens have in the proper
it is to be made to the proper authorities responsible for
the interest being expressed.
We recognize that unfounded and harmful charges cast
under a shield of immunity may in some situations cause real
and substantial injury. Nonetheless, the broad policy
considerations supporting this immunity have been determined
by the legislature to outweigh the likelihood that victims
of defamatory statements may be denied appropriate redress.
The advantages gained by the freedom to comment and criticize
are sufficient to outweigh the danger that the reputations
of public officers may suffer. Griffin, supra, 114 Mont.
at 511, 138 P.2d at 585.
While the Montana legislature has created an absolute
privilege, other jurisdictions have adopted a "rule of
qualified privilege." Under that rule, a person making an
allegedly defamatory publication is entitled to a privilege
against liability for defamation only if it can be shown
that his publication was not motivated by actual malice. For
example, see Sowder v. Nolan (D.C. 1956) , 125 A.2d 52 (one
who writes to police chief about the misconduct of an officer
is entitled to qualified privilege); Dempsky v. Double
(1956), 386 Pa. 542, 126 A.2d 915 (woman who wrote letter to
county controller charging that county employee was using
county equipment for his own purposes was entitled to qualified
privilege); Hancock v. Mitchell (1919), 83 W.Va. 156, 98
S.E. 65 (citizen with an interest that the duties of a
public officer be properly performed can petition the proper
authorities for action and is entitled to qualified privilege);
Nuyen v. Slater (1964), 372 Mich. 654, 127 N.W.2d 369
(citizen interested in the proper administration of the
local health department was qualifiedly privileged to express
conduct of public affairs by public officials requires that
there be wide freedom to criticize that conduct, even though
the criticism be unjustified or extravagant. Griffin,
114 Mont. at 510-11, 138 P.2d at 585. The ciuties of a
public body, such as a city commission, often include supervision
of public officers and may carry with it the power to remove
or discipline those officers for neglect of duty or malfeasance
in office. The responsible authorities should have extensive
information concerning the conduct of those officers, in
order that they might intelligently exercise their discretion.
So that information may be freely given, it is necessary to
protect those who give the information, even though it be
untrue.
The legislature has chosen, through section 27-1-
804(2), NCA, to confer a privilege upon publications made in
an "official proceeding authorized by law." From the language
used in this particular subsection, the privilege conferred
is absolute and is therefore unaffected by the presence of
malice. Although subsections (3) and (4) of section 27-1-
804 do mention malice, subsections (1) and (2) do not. We
held in Storch, supra, that section 27-1-804(1) confers an
absolute privilege against liability for defamation. We now
hold that subsection (2) also confers an absolute privilege.
Assuming, then, that Pistoria's statements were maliciously
motivated as the plaintiff contends, as long as such statements
were made at a proper proceeding, the presence of malice is
irrelevant. The only requirement of subsection (2) is that
the publication be made in an official proceeding authorized
by law. We do not take this to mean that expression critical
of the official conduct of any public officials may be made
at any official meeting authorized by law, but rather that
concern to the administrator).
We hold that the March 21, 1978 regular meeting of the
Great Falls city commission was an official meeting authorized
by law; that it was proper for Pistoria to address the Great
Falls city commission because it is the governing body of
that city (section 1-7-2, Municipal Code of Great Falls);
that it was proper for him to address the city manager
because the manager supervises the police department (section
1-7-4(e), Municipal Code of Great Falls; section 7-32-4103,
MCA); and that it was proper for him to address the chief of
police because the police chief supervises all city police
officers (section 7-32-4105(c), MCA). The judgment of the
District Court is reversed and the action is ordered dismissed.

We Concur:

,
&f
e Justice*

District ~ u d ~ e w l t t i n g
for Mr. Justice John C.
Harrison