Kilgore v. Younger

640 P.2d 753, 30 Cal. 3d 770, 180 Cal. Rptr. 657, 8 Media L. Rep. (BNA) 1886, 1982 Cal. LEXIS 149

• Court: California Supreme Court
• Decided: February 18, 1982
• Docket: L.A. 31266
• Status: Published

Opinions

Opinion

RICHARDSON, J.

Plaintiff Gerald Hay Kilgore appeals from a judgment of dismissal of his action to recover damages for alleged defamation, intentional infliction of emotional distress and invasion of privacy by defendant Evelle J. Younger, as Attorney General of California, and by various news media defendants. We will affirm the judgment.

In his complaint plaintiff alleges that in July 1977, while Attorney General, defendant Younger established an eight-member commission named The Organized Crime Control Commission (Commission) within the California Department of Justice to study organized criminal conspiracies within the state and to assess the effectiveness of existing criminal procedural controls. The Commission conducted private hearings at which it received the testimony of public officials and confidential informants. It also gathered data from “criminal offender record information,” as defined in Penal Code section 11075, and “state summary criminal history information,” within the meaning of Penal Code section 11105, relating to approximately 292 persons.

On May 2, 1978, the Commission formally delivered to defendant Younger its written report listing the names of 92 persons suspected of involvement in a wide variety of organized criminal activity in the state, including bookmaking, labor racketeering, loan sharking, extortion, theft, fraud, dealing in narcotics, drugs, and stolen property, arson, prostitution, pornography, and murder. Specifically with respect to plaintiff, the report included his name, residence address, picture and the following personal information: “Kilgore owns and operates a wire service in the Los Angeles area that provides information on sporting events to bookmakers in California and throughout the United States. His company has 15 telephones that provide free information concerning sporting events on a 24-hour basis. During 1976, his company had a $590,000 telephone bill. Kilgore has associated with many bookmakers throughout the country and has been convicted of bookmaking in 1962 and 1975. On May 10, 1977, he was sentenced to 14 months in federal prison for conspiracy to commit wire fraud.”

On the day the report was delivered, Younger and two Commission members held a press conference during which he distributed copies of the report to members of the news media and announced that he had adopted the report. Plaintiff was identified by name in the Los Angeles Herald Examiner on May 2, 1978, and in the Los Angeles Times on May 3, 1978, as being among the 92 persons included in the commission’s report, without tying him to any specific organized criminal activity. Thereafter, plaintiff unsuccessfully sought from the media defendants either a correction or retraction of the stories. (See Civ. Code, § 48a.)

On August 9, 1978, plaintiff commenced this action seeking damages and other appropriate relief for defamation, intentional infliction of emotional distress and invasion of privacy. Named and served as defendants were: Attorney General Younger; the Hearst Corporation, which publishes the Los Angeles Herald Examiner, reporter Mike Quail and publisher Frances Dale; the Times Mirror Corporation which publishes the Los Angeles Times, reporter Bill Farr and publisher Otis Chandler.

Each of the defendants demurred to the complaint on the ground, inter alia, that the publication of the information was privileged. The trial court sustained the demurrers without leave to amend and dismissed the action as to all defendants. (See Code Civ. Proc., § 581, subd. 3.) This appeal followed.

Because we conclude a portion of the opinion of Justice Bernstein for the Court of Appeal, Second Appellate District, Division Five, thoughtfully and correctly treats the issue of the legal efficacy of plaintiffs allegations, we adopt that portion of her opinion as our own. The Court of Appeal opinion, with appropriate deletions and additions,

* is as follows:

The Media Demurrers

[] [T]he media—that is all defendants except Younger—premised their demurrers on the privilege afforded by subdivisions 4 and 5 of section 47 of the Civil Code: “A privileged publication or broadcast is one made—

“4. By a fair and true report in a public journal, of (1) a judicial, (2) legislative, or (3) other public official proceeding, or (4) of anything said in the course thereof, . ..

“5. By a fair and true report of (1) the proceedings of a public meeting, if such meeting was lawfully convened for a lawful purpose and open to the public, or (2) the publication of the matter complained of was for the public benefit.” A parallel privilege contained in the Restatement Second of Torts reads in relevant part as follows: “The publication of defamatory matter concerning another in a report of .. . a meeting open to the public that deals with a matter of public concern is privileged if the report is accurate and complete or a fair abridgement of the occurrence reported.” (Id., § 611.)

Clearly, section 47, subdivision 5, provides an adequate basis on which to uphold the trial court’s ruling. It cannot be gainsaid that as far as the press was concerned, the news conference was a legally convened public meeting for a lawful purpose to which the public—by way of the media—had been invited. []

Somewhat more troublesome, however, is the accompanying requirement of [subdivision] 5 that the media articles be “fair and true” reports. Kilgore, of course, takes the position that the newspaper reports are substantially misleading in that they wrongfully imply that he was, and is, “engaged in criminal conspiracies involving murder, unlawful motorcycle gangs, prison gangs, terrorists, organized gambling, loan sharking, security thefts, investment frauds, pornography, prostitution and drug trafficking.” He maintains that this is neither fair nor true, because while the committee’s report may have characterized him as an organized crime figure, it did not suggest that he was now, or indeed had ever been involved in organized underworld activity in the manner and to the extent set forth above.

The media respond by asserting that the protection of the privilege is earned by any report which captures the substance, the “gist” or “sting” of the subject proceedings or documents. (See Hayward v. Watsonville Register-Pajaronian and Sun (1968) 265 Cal.App.2d 255 [71 Cal.Rptr. 295].) Both papers, of course, urge us to uphold the trial court’s conclusion that in fact the substance of their reports remained true to Younger’s statements and the materials released by him.

In assessing this question, “the publications] [are] to be measured by the natural and probable effect [they] would have on the mind of the average reader. [Citations.] The standard of interpretation to be used in testing alleged defamatory language is how those in the community where the matter[s] [were] published would reasonably understand [them]. [Citation.]” (Handelsman v. San Francisco Chronicle (1970) 11 Cal.App.3d 381, 387 [90 Cal.Rptr. 188] [brackets in Court of Appeal opinion].)

Kilgore’s attempt to read the reports’ delineation of organized criminal activity as pertaining in all respects to himself is unwarranted. In our view, the average reader of either paper would reasonably interpret the articles to imply only that Kilgore was connected in some fashion with organized crime. As we see it, this is exactly the import of Attorney General Younger’s release. In other words, we simply do not believe that the average reader would take the articles to intimate that Kilgore was involved in every—or even necessarily more than one—type of organized criminal activity. We hold, therefore, that the papers captured the substance of Attorney [General] Younger’s release, and thus that the requirement of section 47, subdivision 5, to wit: that the reports be fair and true, was satisfied as a matter of law. The trial court properly so found. []

As far as the second cause of action for the intentional infliction of emotional distress is concerned, the reasoning which makes such a cause of action subject to the absolute privilege of subdivision 2 of section 47 of the Civil Code, applies with equal force to the privileges contained in subdivision 5 of the same section. (See Lerette v. Dean Witter Organization, Inc. (1976) 60 Cal.App.3d 573, 579 [131 Cal.Rptr. 592].)

On the other hand, Kilgore’s third cause of action, for invasion of privacy, is not grounded on the alleged inaccuracy of the papers’ reportage. Rather, it is predicated on the charge “that even if accurate the publication of the facts interferes with his ‘right to be left alone.’ [Citation.]” (Kapellas v. Kofman (1969) 1 Cal.3d 20, 35 [81 Cal.Rptr. 360, 459 P.2d 912].) With regard to the media, however, Kilgore enjoyed no such rights: By virtue of the release of the report and appendix A thereto, Kilgore’s name and alleged criminal involvement became matters of public record. Manifestly, the publication of such “newsworthy” information may not be circumscribed, at least where, as here, the articles carefully noted the “alleged” nature of the report and Kilgore’s underworld involvement. (See Cox Broadcasting Corp. v. Cohn (1975) 420 U.S. 469 [43 L.Ed.2d 328, 955 S.Ct. 1029]; see also Rest.2d Torts, § 652D, com. b: “There is no liability [for invasion of privacy] when the defendant merely gives further publicity to information about the plaintiff that is already public.”) On this record, the trial court did not err as to the media demurrers.

Younger’s Demurrer

Subdivision 1 of section 47 of the Civil Code provides that a privileged publication is one made “[i]n the proper discharge of an official duty.” When that privilege applies, it is not qualified but absolute. (Saroyan v. Burkett (1962) 57 Cal.2d 706, 710 [21 Cal.Rptr. 557, 371 P.2d 293]; see also Sanborn v. Chronicle Pub. Co. (1976) 18 Cal.3d 406, 412-413 [134 Cal.Rptr. 402, 556 P.2d 764]; Rest., Torts, § 591.) The absolute privilege is extended to “high-ranking state and federal officials, such as the President of the United States, the governor of any state or territory, cabinet officers of the United States and the corresponding officers of any state or territory” (Sanborn v. Chronicle Pub. Co., supra, 18 Cal. 3d, at p. 412) on the rationale that their ability to function would be impaired and society adversely affected if they were not absolutely free of the threat of suit by the defamed seeking recompense for injury. (See Rest.2d Torts, ch. 25, [topic 2,] tit. B [, p. 243]; 4 Witkin, Summary of Cal. Law (8th ed. 1974) Torts, § 294.) Unlike qualified privileges, it is not negated by malice or other personal motivation of the publisher. [] [(See Rest.2d Torts, ch. 25, topic 3, tit. A, p. 258; 4 Witkin, supra, § 306.) Further, the privilege is equally applicable to defamation and other actions, excepting only those for malicious prosecution. (Pettitt v. Levy (1972) 28 Cal.App.3d 484, 489 [104 Cal.Rptr. 650].)] For the absolute privilege to attach, the public official need only be properly discharging an official duty.

[¶] However, Kilgore contends that Younger was not entitled to the absolute privilege because:

(1) Appendix “A” of the report released to the press by Younger contained criminal [offender] record information within the meaning of Penal Code section 11075 and state summary criminal history information within the purview of Penal Code section 11105—and the dissemination of that information to the public was unlawful and therefore] not a “proper” discharge of Younger’s official duty, and

(2) The dissemination of the information to the news media was politically motivated, i.e., Younger was acting as a candidate and therefor[e] not performing an “official duty.” []

The latter argument is without merit: Younger’s alleged activity, though it may well have been taken to produce a popular and appealing law enforcement image, was for all intents and purposes indistinguishable from actions initiated by public officials truly oblivious to the political ramifications of their moves. [] Here, Younger called his press conference in his capacity as Attorney General, purported to act in such role throughout its duration and, at least as is here relevant, dealt exclusively with law enforcement issues. As such, it may not be said that his actions were outside the scope of his official duties, or that his motives were in fact improper. []

Having found Younger to be discharging an “official duty” at the press conference, we must now address Kilgore’s other contention as to the “propriety” of that discharge. []

It is Kilgore’s contention that Younger’s duty to report under the Government Code was eclipsed by his duty to remain silent under the Penal Code. Under Penal Code section 11077, Younger was responsible for the security of criminal offender record information. It was his duty to see that only authorized agencies received such information and only when it was "... demonstrably required ...” for performance of official duties. [] [(Pen. Code., § 11077, subd. (b).)]

Similarly, Kilgore points out that under Penal Code section 11105, subdivision (b), state summary criminal history information (i.e., the master record compiled by the Attorney General) may be generally furnished by the Attorney General to only [] [fourteen] described and authorized recipients, and that there are only eight other described recipients who may be furnished such information upon a showing of a “compelling need.” (Pen. Code, § 11105, subd. [](c).) []

Kilgore also notes that Penal Code sections 11141 and 11142 complete the legislative scheme by providing criminal penalties for persons who knowingly furnish a record or information from a record to someone who is not authorized by law to receive it.

The basic problem with Kilgore’s arguments, however, is that [] they “assume allegations not in the complaint.” They are, rather, based on a super-benign reading of paragraph IX of the first cause of action, [] [which reads: “Pursuant to such purported authorization from defendant Evelle J. Younger, the said Organized Crime Control Commission conducted a series of private, ‘closed-door’ hearings and conferences, not open to the public, to gather information, on a confidential basis, from various law enforcement officials, representatives of various governmental regulatory agencies and confidential informants. During the course of such hearings and conferences the said Commission gathered, received and reviewed ‘criminal record information,’ within the meaning of California Penal Code § 11075, and ‘state summary criminal history information,’ within the meaning of California Penal Code § 11105, and ascertained the identities of 292 persons whom it suspected of being linked to organized crime activities in California.”]

[¶] By no stretch of the imagination can this paragraph be read to allege “directly and positively” (People v. Jones (1899) 123 Cal. 299, 301 [55 P. 992]) [] that any of the statements concerning Kilgore were revelations of material which the Penal Code enjoins the Attorney General to keep confidential. As far as the pleading is concerned, the “criminal record information” and the “state summary criminal history information” were simply the source of the identities of 292 persons suspected of being linked to organized crime. There is no [] suggestion that the particular statements concerning Kilgore derived from this allegedly confidential information, rather than from information gathered “from various law enforcement officials, representatives of various governmental regulatory agencies and confidential informants.” In fact, the very opposite should be the truth: the sting—at least of the defamation—can hardly be the trivial differences between the convictions which Kilgore admittedly suffered [—in 1962 for bookmaking (Pen. Code, § 337a), in 1975 for transmitting betting odds (id., § 337i), and in 1971 for disseminating and conspiring to disseminate gambling information in interstate commerce (18 U.S.C. § 1952), for which he served a 14-month sentence—] and Younger’s statements concerning his criminal record, but must, rather, consist of the report’s description of Kilgore as an “organized” criminal. [] A careful reading of the definitions contained in sections 11075 and 11105 of the Penal Code makes it extremely unlikely [] that information that Kilgore is involved in “organized” crime would be deemed confidential. In fact, under section 11105, subdivision (a)(2)(ii), “records of intelligence information ... of the office of the Attorney General and the Department of Justice” are specifically excepted from the definition of “state summary criminal history information.”

The only tenable contention that Younger’s publication was not a “proper” discharge of his official duty lies in his alleged illegal dissemination of information made confidential by sections 11075 and 11105 of the Penal Code. As we have shown, no such illegal dissemination is properly alleged. The complaint therefore] does not state a cause of action. [End of relevant portion of Court of Appeal opinion.]

Nor can we agree with plaintiffs contention that the trial court abused its discretion in sustaining defendant Younger’s demurrer without giving plaintiff an opportunity to amend his complaint. “Leave to amend should be denied where the facts are not in dispute, and the nature of the plaintiffs claim is clear, but, under the substantive law, no liability exists.” (3 Witkin, Cal. Procedure (2d ed. 1971) Pleading, § 847, p. 2451; Berkeley Police Assn. v. City of Berkeley (1977) 76 Cal.App.3d 931, 942-943 [143 Cal.Rptr. 255]; Robertson v. City of Long Beach (1937) 19 Cal.App.2d 676, 679 [66 P.2d 167].)

No California case has been brought to our attention which denies to a high-ranking state official, such as the Attorney General, immunity from civil liability for publications made in the course of his policy making functions, whether or not they are claimed to be made in violation of other statutory provisions. Instead, the disciplining of such public officials who act illegally traditionally has been left to criminal prosecution or impeachment, when appropriate, in order to free those officials “to exercise their duties unembarrassed by the fear of damage suits in respect of acts done in the course of those duties which would consume time and energies which would otherwise be devoted to governmental service. ..” (Barr v. Matteo (1958) 360 U.S. 564, 571 [3 L.Ed.2d 1434, 1441, 78 S.Ct. 204]; accord, Gregoire v. Biddle (2d Cir. 1949) 177 F.2d 579, 581; see Prosser, Law of Torts (4th ed. 1971) § 132, p. 989; 1 Harper & James, Law of Torts (1956) § 5.23, p. 429.)

Notably, all three branches of government have been afforded the privilege in their “proceedings.” (Civ. Code, § 47.) As expressed in Hancock v. Burns (1958) 158 Cal.App.2d 785, 792 [323 P.2d 456], the rationale underlying the legislative absolute privilege is equally applicable to executive privilege: “If government, operating through the individuals who form it, is afforded immunity from private suit only when its actions are beyond any question, and loses that immunity upon mere allegation of improper motives or unlawful acts in a complaint seeking damages, then those persons who form government are subject to the threat of personal liability in any matter in which their discretion is exercised.”

Stated another way, the purpose of the official immunity accorded government officers is to avoid the “chilling effect” which the fear of damage suits would have on the energetic performance of the public’s business. (See Barr v. Mateo, supra, 360 U.S. 564, 571 [3 L.Ed.2d 1434, 1441, 78 S.Ct. 204].) In the instant case, the potential for such a chilling effect is substantial. Mere allegation that the publication contained confidential information would avoid a demurrer. At a minimum, trials would be required to determine factually whether the genesis of the information was a statutorily protected file or some other unprotected source. Presumably, other charges of improper disclosure, no matter how trivial, would also demand factual hearings to delineate the scope of “propriety” in each case. At that point, of course, the damage to the proper functioning of government has already occurred since the threat of litigation will discourage public officials from providing for the extensive and robust dissemination of information so necessary in a democratic society.

It may be that the Legislature will determine at some point in the future that certain types of information are so deserving of confidentiality as to warrant compensation from government officials if the information is improperly disclosed. If so, such legislation would best focus on the nature of the information disclosed rather than the file from which it came, thus avoiding time-consuming and confusing litigation as to source. Pending such a legislative determination, however, the policies underlying the official immunity contained in Civil Code section 47, subdivision 1, require its application here. Having been made within the proper scope of the Attorney General’s authority, that is, in the “proper discharge of an official duty,” the challenged publication is absolutely privileged.

Having determined that there is no reasonable probability or reasonable possibility that plaintiff can amend his complaint to state a cause of action under the applicable substantive law interpreting that statute, we find no abuse of discretion in the trial court’s sustaining of defendant Younger’s general demurrer without leave to amend. (See Vater v. County of Glenn (1958) 49 Cal.2d 815, 821 [323 P.2d 85] [“possibility”]; Sackett v. Wyatt (1973) 32 Cal.App.3d 592, 603 [108 Cal.Rptr. 219] [“probability”].)

The judgment is affirmed.

Mosk, J., Newman, J., and Wiener, J.,* concurred.

Brackets together, in this manner [], are used to indicate deletions from the opinion of the Court of Appeal; brackets enclosing material (other than the editor’s parallel citations) are, unless otherwise indicated, used to denote insertions or additions by this court. (Estate of McDill (1975) 14 Cal.3d 831, 834 [122 Cal.Rptr. 754, 537 P.2d 874].)

Assigned by the Chairperson of the Judicial Council.