Davis v. Shavers

495 S.E.2d 23, 269 Ga. 75, 98 Fulton County D. Rep. 329, 1998 Ga. LEXIS 27

• Court: Supreme Court of Georgia
• Decided: January 26, 1998
• Docket: S97G1113
• Status: Published

Opinions

Carley, Justice.

Appellants filed recall applications against certain officials of the City of Fort Oglethorpe, including Glenn Shavers. When those officials sought judicial review of the legal sufficiency of the applications, a trial court found them to be legally insufficient, and this Court affirmed. Davis v. Shavers, 263 Ga. 785 (439 SE2d 650) (1994). Shavers then brought suit for libel based upon statements made in the recall application against him. A jury returned verdicts against Appellants and the trial court entered judgment on those verdicts. The Court of Appeals held that allegations in a recall application against an elected official are only conditionally, and not absolutely, privileged. Davis v. Shavers, 225 Ga. App. 497, 498-500 (1) (484 SE2d 243) (1997). However, the Court of Appeals reversed the lower court’s judgment based upon errors in the jury charge. Davis v. Shavers, 225 Ga. App., supra at 500-502 (3). We granted certiorari to determine whether statements in a recall application are conditionally or absolutely privileged. Because we hold that such statements are not absolutely privileged, we affirm the judgment of the Court of Appeals.

As a general rule, statements regarding public figures are not absolutely privileged. Under OCGA § 51-5-7 (9) and New York Times Co. v. Sullivan, 376 U. S. 254 (84 SC 710, 11 LE2d 686) (1964), a public official or a candidate for public office may recover on his libel claim, so long as he demonstrates, by clear and convincing evidence, that the statements complained of were made with actual malice. Gardner v. Boatright, 216 Ga. App. 755 (455 SE2d 847) (1995); Collins v. Cox Enterprises, 215 Ga. App. 679 (452 SE2d 226) (1994); Thibadeau v. Crane, 131 Ga. App. 591, 593-594 (3) (206 SE2d 609) (1974).

Appellants contend that both public policy and OCGA § 51-5-8 require that statements in recall applications be absolutely privileged. Under OCGA § 51-5-8, “[a]ll charges, allegations, and aver-ments contained in regular pleadings filed in a court of competent jurisdiction, which are pertinent and material to the relief sought,” are absolutely privileged. The Court of Appeals has stated that the privilege established by OCGA § 51-5-8 generally includes “‘official court documents’ and acts of ‘legal process.’ [Cits.]” Williams v. Stepler, 227 Ga. App. 591, 595 (3) (490 SE2d 167) (1997). However, the Recall Act provides for only limited judicial review of the legal sufficiency of the recall application, and prohibits discovery or evi-dentiary hearings and any determination of the truth of the statements in the application. OCGA § 21-4-6 (f). The reason for these strict limitations is “that the electorate, rather than the judiciary, . . . determine[s] the ultimate truth or falsity of the allegations of misconduct. . . .” Collins v. Morris, 263 Ga. 734, 737 (1) (438 SE2d 896) (1994). Thus, the recall procedure is not a “judicial” or even “official” procedure, but is political in nature, and the issue to be determined is of a political character. Gunsul v. Ray, 45 P2d 248, 249 (Cal. App. 1935). Furthermore, public policy does not support an interpretation of OCGA § 51-5-8 which leaves public officials with no remedy for allegedly libelous statements made with actual malice in the context of a procedure having only the slightest hint of a judicial nature. To the contrary, it is the policy of this state to restrict the rule of absolute privilege in the law of libel to “narrow and well-defined limits.” Fedderwitz v. Lamb, 195 Ga. 691, 697 (25 SE2d 414) (1943). Accordingly, while we recognize the importance that criticism of the conduct of public officials plays in the administration of their offices, we conclude that, consistent with New York Times Co. v. Sullivan, supra, Appellants are entitled to the protection of a conditional privilege only. Kramer v. Ferguson, 41 Cal. Rptr. 61, 64 (Cal. App. 1964). See also Gunsul v. Ray, supra. Therefore, the Court of Appeals correctly resolved this issue.

Judgment affirmed.

All the Justices concur, except Fletcher, P. J, who dissents.