Surace v. Wuliger

495 N.E.2d 939, 25 Ohio St. 3d 229, 25 Ohio B. 288, 1986 Ohio LEXIS 725
CourtOhio Supreme Court
DecidedAugust 6, 1986
DocketNo. 85-1339
StatusPublished
Cited by95 cases

This text of 495 N.E.2d 939 (Surace v. Wuliger) is published on Counsel Stack Legal Research, covering Ohio Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Surace v. Wuliger, 495 N.E.2d 939, 25 Ohio St. 3d 229, 25 Ohio B. 288, 1986 Ohio LEXIS 725 (Ohio 1986).

Opinions

Sweeney, J.

Appellee argues that the due process provision of the Ohio Constitution permits redress of his cause of action because he has no alternative remedy to pursue, inasmuch as he was not named as a party in the RICO action. Appellee maintains that the alleged defamatory pleading is neither relevant nor pertinent to the RICO action, pursuant to this court’s prior decisions in Mauk v. Brundage (1903), 68 Ohio St. 89, and Bigelow v. Brumley (1941), 138 Ohio St. 574 [21 O.O. 471]. Appellee further contends that such a pertinence standard must necessarily be strict in light of due process considerations and that, therefore, this court should affirm the court of appeals’ reversal of this cause.

[231]*231Appellant argues that statements made in judicial proceedings and pleadings are absolutely privileged, and that the pleading in issue does meet the standards established in Mauk, supra, and Bigelow, supra, because the pleading was relevant and pertinent to the RICO action. Appellant submits that our decision in Erie County Farmers’ Ins. Co. v. Crecelius (1930), 122 Ohio St. 210, sets forth the public policy rationale underlying the absolute privilege doctrine, which is that the absence of such a privilege would thwart the truth-seeking process if parties to a lawsuit were faced with the possibility of a defamation action for any statements made concerning any particular individuals. Appellant contends that the fact that appellee was not a party to the RICO action is irrelevant, and that appellee does perhaps have an alternative remedy to redress his claimed injury by filing a motion to intervene in the RICO case, and then proffering a motion to strike the alleged defamatory statement pursuant to Fed. R. Civ. P. 12(f). Appellant submits that any doubts concerning relevance or pertinence must be resolved in favor of the pleader, based on public policy grounds, and that other jurisdictions have held that absolute privilege applies even though the libelous statement refers to a person who is not a party to the suit in which the defamatory statement appears. Lastly, appellant, contends that affirmance here could subject judges to potential liability for harsh statements made to an attorney or a party in a case, and could force attorneys to violate the Code of Professional Responsibility by not zealously representing clients out of fear of a possible defamation action.

In order to properly resolve the instant controversy, a short review of the policy underlying and precedent supporting the doctrine of absolute privilege is necessary.

The late Dean Prosser once noted that “[t]he defense of privilege, or immunity, in cases of defamation does not differ essentially from the privileges, such as those of self-defense, protection of property, or legal authority, available as to assault and battery. It rests upon the same idea, that conduct which otherwise would be actionable is to escape liability because the defendant is acting in furtherance of some interest of social importance, which is entitled to protection even at the expense of uncompensated harm to the plaintiffs reputation.” Prosser, Law of Torts (4 Ed. 1971) 776, Section 114.

In Mauk, supra, this court stated at 97-98:

“* * * [I]n order to be privileged, the [defamatory] statement must be pertinent and material to the matter in hand. To be pertinent and material it must tend to prove or disprove the point to be established, and have substantial importance or influence in producing the proper result. * * * Whether or not the occasion gives the privilege is a question of law for the court * * *.”

Mauk set forth a relatively strict standard which has been variously termed as the “legally relevant” or “pertinence to the occasion” test. A [232]*232defamatory statement under this guideline was said to be absolutely privileged only when the statement was material and pertinent to the subject matter in which it appeared. In addition, the Mauk court made it clear that it is a question of law for the court to determine whether a statement, alleged to be defamatory, should be accorded absolute privilege.

Then, in Erie County, supra, this court held in the syllabus:

“No action will lie for any defamatory statement made by a party to a court proceeding, in a pleading filed in such proceeding, where the defamatory statement is material and relevant to the issue.”

This court noted in Erie County at 212-213 that the “English rule” allows no action for any defamatory statement made in a pleading, even where the statement is false, malicious or irrelevant to the matter in which it appears. The “American rule,” on the other hand, differs only in the respect that the alleged defamatory statement “must be relevant and material to the issue in order to be privileged.” Id. at 213.

With regard to the public policy considerations inherent in the doctrine of absolute privilege, the Erie County opinion observed at 215 that “* * * as an incidental result it [absolute privilege] may in some instances afford immunity to the evil disposed and the malignant slanderer. * * * A contrary rule would manifestly result in a multitude of slander and libel suits, which would not only bring the administration of justice into disrepute, but would, in many instances, deter an honest suitor from pursuing his legal remedy in a court of justice.”

Thus, in Erie County, this court enunciated the public policy underlying the absolute privilege doctrine alluded to in Mauk, supra, where it was noted at 97 that due process applies generally, unless some other rule of law or public policy considerations demand a contrary application.

In Bigelow v. Brumley, supra, at 586-588, this court refined and slightly modified the tests set forth in Mauk and Erie County, by stating that questions concerning the applicability of absolute privilege depend on whether the alleged defamatory statement has reference and relation to the subject matter of the action in which it is found. The Bigelow court stopped short of rejecting the Mauk test in toto, because it found the statement made in Bigelow was not defamatory per se, and that the statement would be privileged under the Mauk standard in any event. The Bigelow court noted at 586 that the great majority of American decisions at that time rejected a “relevance” standard because it gave the mistaken impression that the absolute privilege in court proceedings extended only to matters which were “legally” relevant. The court further noted that the majority rule concerning absolute privilege of defamatory statements made in a court proceeding asks the central question of whether the statement made has reference and relation to the subject matter of the action in which it appears. Id.

While we are of the opinion that these precedents provide a sound framework for determining the application of absolute privilege, our [233]*233review of the prior decisions rendered by this court leads us to conclude that the better rule to be applied, in cases such as the instant cause, is that which is referred to in Bigelow as the “majority rule.” We believe that the standards developed in Mauk

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Cite This Page — Counsel Stack

Bluebook (online)
495 N.E.2d 939, 25 Ohio St. 3d 229, 25 Ohio B. 288, 1986 Ohio LEXIS 725, Counsel Stack Legal Research, https://law.counselstack.com/opinion/surace-v-wuliger-ohio-1986.