Johnson v. Brown

95 P.3d 235, 194 Or. App. 486, 2004 Ore. App. LEXIS 935

Opinions

PER CURIAM

Plaintiff has filed a motion for reconsideration of our decision in Johnson v. Brown, 193 Or App 375, 91 P3d 741 (2004), which we treat as a petition for reconsideration. See ORAP 6.25. We grant reconsideration and adhere to our former opinion, writing to address only plaintiffs contention that the issue of executive privilege for defamatory statements was not adequately raised to the trial court or on appeal.

Plaintiff correctly argues that the parties did not, either at trial or on appeal, cast their arguments in terms of “executive privilege.” But that is not fatal to a conclusion that the issue was raised sufficiently for our review. As our opinion describes, absolute privilege for defamatory statements is a privilege that may arise in a variety of settings. Id. at 380-81. References to executive privilege, judicial privilege, and so on serve as shorthand to describe the particular circumstances that give rise to an absolute privilege for defamatory statements. Here, as we outlined in our opinion, the parties at trial debated, among other bases for an absolute privilege, whether the privilege was triggered by defendant’s public employment and the fact that she was engaged in her official responsibilities when the alleged defamation occurred. Id. at 381. The trial court considered those arguments in its summary judgment ruling, and the parties’ briefs on appeal renewed those arguments, even if those arguments were not their principal ones. Id. at 382-84. Plaintiffs insistence that the issue was not preserved elevates the label that the parties used over the substance of the privilege that they debated.¹ The trial court had adequate notice of the issue, as did we on appeal. We adhere to our conclusion that the issue was adequately preserved.

Reconsideration allowed; former opinion clarified and adhered to as clarified.

Footnotes

1

Plaintiff also relies on defense counsel’s concession, during oral argument, that the defense of executive privilege was not raised at trial. Defense counsel’s concession was more narrow than plaintiff perceives, however. Defense counsel, although acknowledging that executive privilege was not raised or discussed as such, also maintained that whether absolute privilege should apply to a public versus private employee engaged in reporting work-related misconduct “was discussed and briefed extensively below.” Thus, defense counsel effectively conceded only that the label of “executive privilege” was not used, not that the privilege was never discussed in substance. In all events, we are bound by the record on questions of preservation, not by the parties’ positions. State v. Wyatt, 331 Or 335, 346, 15 P3d 22 (2000).