Murray v. Brancato

48 N.E.2d 257, 290 N.Y. 52, 146 A.L.R. 906, 26 Ohio Op. 20, 1943 N.Y. LEXIS 1137

• Court: New York Court of Appeals
• Decided: March 4, 1943
• Status: Published

Opinions

Lehman, Ch. J.

The complaint alleges that the defendant, a judge of the County Court of the County of Kings, in deciding motions made by the District Attorney or by the plaintiff as attorney for a person then under indictment, “ maliciously composed ” two opinions, annexed to the complaint, containing defamatory statements concerning the plaintiff, a member of the bar of the State. The complaint further alleges “ upon information and belief, that * * * defendant, acting unofficially and privately, published, and advised, induced, procured, and aided and abetted in the publication of ” these opinions in the New York Law Journal and in New York Supplement, Second Series, and that “West Publishing Company was and is a corporation organized and existing pursuant to the statutes of the State of Minnesota, with its principal place of business in St. Paul, Minnesota, from which place it published and sold, for general distribution ” the New York Supplement. In this action the plaintiff seeks damages from the defendant for each alleged publication. The gravamen of the plaintiff’s asserted causes of action is ‘ ‘ that said publication was false, which defendant at all times well knew; and was so published by him, acting unofficially and privately, as aforesaid, wantonly, recklessly and with malice aforethought to defame plaintiff and injure him both in his professional character and in his good name and reputation. ’ ’

The defendant in his answer denied material allegations of the complaint and alleged as an affirmative defense to each cause of action that each opinion ‘ ‘ complained of herein, was a judicial opinion duly written by defendant as said County Judge of the County of Kings, State of New York, in the exercise and discharge of his duties, upon the determination of a motion made before the defendant as such County Judge ” and that these ‘ ‘ judicial opinions * * * were entirely pertinent and relevant to the questions raised upon the aforesaid motions which they determined and are absolutely privileged.” The Attorney-General of the State, appearing as attorney for the defendant, moved “ for an order dismissing the complaint herein, upon the ground that the complaint fails to state facts sufficient to constitute a cause of action against defendant, and upon the further ground that the writing complained of, in the complaint herein, was absolutely privileged under and by virtue of judicial immunity.” The order of Special Term denying the motion was reversed by the Appellate Division and the motion to dismiss the complaint was granted on the ground that " the publication of the opinions was in the exercise of a judicial function and they are absolutely privileged.” (264 App. Div. 862.) The only question presented upon this appeal is whether the publication of which the plaintiff complains was " in the exercise of a judicial function ” for which the law gives complete immunity to the judge even if he acted maliciously and with actual intent to injure the plaintiff.

There can be no doubt that the defendant is exempt from liability for all acts done in the exercise of his judicial function. Long ago Chancellor Kent in Yates v. Lansing (5 Johns. 282, 291) traced the history of the rule which exempts judges of courts of record from prosecution or suit for any illegal act done in the exercise of a judicial function and stated that the principle has " a deep root in the common law.” Citing* with approval the opinion of Chancellor Kbut, the Supreme Court of the United States in Bradley v. Fisher (13 Wall. 335, 351) formulated the applicable rule. " Judges of courts of superior or general jurisdiction arc not liable to civil actions for their judicial acts, even when such acts are in excess of their jurisdiction, and are alleged to have been done maliciously or corruptly. A distinction must be here observed between excess of jurisdiction and the clear absence of all jurisdiction over the subject-matter.” (Italics throughout this opinion are ours.) The rule or principle of exemption has been stated in many opinions and in varying forms, but" It is to be seen that in these different modes of stating the principle, there abides a qualification. To be free from liability for the act, it must have been done as judge, in his judicial capacity; it must have been a judicial act. So it always remains to be determined, when is an act done as judge, in a judicial capacity? And this is the difficulty which has most often been found in the use of this rule, and which is present here; to determine when the facts exist which call into play that qualification. For it is plain that the fact that a man sits in the seat of justice, though having a clear right to sit there, will not protect him in every act which he may choose or chance to do there.” (Lange v. Benedict, 73 N. Y. 12, 25, 26.)

No case has been cited to us where exemption from liability was claimed by a judge for any act done or words spoken or written when the judge was not actually sitting “ in the seat of justice,” i. e., in connection with a matter then sub judice. The opinions which the plaintiff claims contain false and defamatory statements were written and filed in a matter upon which the defendant was called to rule. It is clear that even if those opinions had been written with knowledge of their, falsity and with actual intent to injure the plaintiff, the defendant, in accord with the well-established public policy, would be exempt from liability for “ composing ” the opinions. The plaintiff does not claim otherwise. He seeks damages for the alleged malicious publication of the opinions after the matter ivas no longer sub judice. The problem presented upon this appeal is only whether the complaint alleges causes of action for such publication.

In this State, in accordance with the Constitution and statutes, a State Law Reporting Bureau has been established for the publication of official reports of opinions and decisions of the court. The Judiciary Law provides that the " law reporting bureau shall report every cause determined in the court of appeals and every cause determined in the appellate divisions of the supreme court, unless otherwise directed by the court deciding the cause; and, in addition, any cause determined in any other court which the state reporter, with the approval of the court of appeals, considers worthy of being reported because of its usefulness as a precedent or its importance as a matter of public interest.” (§ 431.) In the next section the Judiciary Law provides that í¿ the judges or justices .of every court of record, including surrogates, shall promptly cause to be delivered to the state reporter, without charge, a copy of every written opinion rendered in causes determined therein J’ (§ 432.) Since only those opinions rendered in courts of first instance which might be useful as precedents or which have importance as a matter of public interest, are published in the official reports, the judges and justices of these courts have, with almost complete unanimity, given to the statutory mandate a practical construction, and they deliver to the State Reporter copies of only those opinions which the Reporter requests or which the judge writing the opinion might deem “ worthy of being reported.” Regardless of the scope of the legislative mandate it is plain that the law of this State now places upon each judge an official duty to facilitate the publication in the official reports of opinions worthy of being reported. That new duty is so connected with the strictly judicial duties of a judge that we assume that all acts done in connection with the statutory duty fall within the scope of judicial immunity though done maliciously or corruptly. No such question is presented upon this appeal. The plaintiff here seeks to hold the defendant for the publication of an opinion in unofficial reports and eoneededly the law placed upon the defendant no duty in connection with such publication.

We are asked to take judicial notice that the New York Law Journal and the New York Supplement, though not official reports, are recognized legal publications, and that " opinions in the New York Supplement are continually cited both by judges and attorneys in opinions, decisions and briefs.” Even though that be true, a judge has no official duty in connection with any publication of opinions except in the official reports. The publication of an opinion begins when the judicial decision is complete, and though in some degree connected with the exercise of a judicial function, since the law imposes upon the judge no duty to publish opinions in unofficial reports, acts connected with such publication are not performed by the judge in his judicial capacity. The judge’s rights and duties there are the same as those of any private person and if he chooses to act he must be held liable like any other person for damages resulting from a wrongful act 'maliciously performed with intent to injure another, unless the courts on grounds of public policy extend into neighboring fields the immunity from liability created by law for the protection of judges when acting within the field of their official functions and duties. No imperative public poEcy pointing to such extension is contained in any statute and we discern none in any judicial decisions. Only by judicial legislation beyond the legitimate power of the courts could such extension be made; nor can we see any reason for extending the immunity to publications in the New York Law Journal and the New York Supplement and excluding from the extended field of immunity publications in Law Reviews, or even in popular magazines or in the daily press. Such differences may be relevant in deciding whether the publication was made with actual malice and with intent to injure the person defamed by the publication — it is difficult to see in such differences a guide by which the court could draw a new line separating absolute judicial immunity from the qualified common law privilege in which all persons share.

Though we have found no case in which any court has discussed the question whether the absolute immunity of a judge extends to the publication of a judicial opinion, the courts of England long ago decided that the analogous absolute immunity of a member of Parliament for words spoken in the house does not extend to publication outside the house. (See Odgers on Libel & Slander [6th ed., 1929], pp. 269, 270; Newell on Law of Slander & Libel [4th ed.], § 355.) Except where the Legislature may perhaps have extended the absolute immunity of judges or legislators or may perhaps have conferred absolute immunity upon persons publishing true and correct accounts of judicial or legislative proceedings the publication of judicial and legislative proceedings in unofficial reports is privileged only if made in good faith and from proper motives. Odgers, op. cit. pp. 252, 265; Newell, op. cit. §§ 450, 460; Evans, “ Legal Immunity for Defamation ” 24 Minn. L. Review [1940] 607, 610; Prosser on Torts, [1941] 844-851.)

The Legislature of the State of New York by chapter 130 of the Laws of 1854 provided tha t no reporter, editor or proprietor of any newspaper shall be liable to any action or prosecution, civil or criminal, for a fair and true report in such newspaper of any judicial, legislative, or other public official proceedings * * * except upon actual proof of malice in making such report, which shall in no ease be implied from the fact of publication. ’ ’ This statute, it has been said, was " simply declaratory of the common law.” (Ackerman v. Jones, 37 N. Y. Super. Ct. 42, 54.) The statute was in substance reenacted as section 1907 of the Code of Civil Procedure and as section 337 of the Civil Practice Act. Then in 1930 by chapter 619 of the Laws of 1930 the words "without proving actual malice in making the report ” were omitted and no express qualification of the privilege remained in the statute. Still later the statutory privilege was extended to cover publication by all persons.

There may be doubt whether the omission of the express qualification of the privilege was intended to change the common law rule of liability where there is proof of " actual malice.” See discussion of the effect of similar omission in the analogous English statute. (Odgers, op. cit. 267,268.) There may be doubt too whether the statute is intended to apply to the publication by a judge of an opinion written by himself. No such questions are here presented or considered. The defendant has pleaded only Mg absolute immunity from liability for any acts done in his judicial capacity, and the courts below considered no other defense. In no event could the statute confer immunity for publication outside the State, and though we may presume that in Minnesota, where the New York Supplement is published, the common law rule exists which demes to an aggrieved person a right of action without proof of actual malice there is no allegation or proof that absolute immunity has been conferred by any statute there.

Improbable though it may be that this defendant or any other judge would publish an opinion with actual malicious intent to injure a lawyer, and though we may well doubt whether the plaintiff can prove such allegations contained in the complaint, we must upon this appeal assume that they are true. They are sufficient to constitute a cause of action.

The judgment of the Appellate Division should be reversed and the order of the Trial Term affirmed with costs in this court and in the Appellate Division.