Kirschstein v. Haynes
1990 Okla. LEXIS 9, 1990 OK 8, 788 P.2d 941 (1990)
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Rule of Law:
An absolute privilege protects attorneys, parties, and witnesses from liability for defamatory communications made preliminary to a proposed judicial or quasi-judicial proceeding, provided the communication has some relation to a proceeding contemplated in good faith and under serious consideration. This privilege also bars claims for intentional infliction of emotional distress that are based on the same factual allegations.
Facts:
- Alice Faye Kilgore, unable to find her birth certificate and told by her aunt, Eva Mae, that Eva Mae might not be her biological mother, sought to obtain a delayed birth certificate.
- Kilgore hired an attorney, Michael E. Moore, to assist her in the process with the Oklahoma Department of Health (ODH).
- Moore contacted Dr. William M. Haynes, an elderly physician, as a potential witness to Kilgore's birth.
- Haynes informed Moore that he had no memory of Kilgore's birth and knew of no records of the event.
- Despite this, Moore prepared and mailed an affidavit to Haynes which falsely stated that Haynes remembered Naomi L. Kirschtein (appellant) giving birth to Kilgore.
- Haynes signed the affidavit without reading it and returned it to Moore.
- Moore gave the executed affidavit to his client, Kilgore.
- Kilgore published the affidavit or its contents to various relatives, including Kirschtein, stating her purpose was to determine if the information was true before filing with the ODH.
- A proceeding to obtain the delayed birth certificate was never initiated with the ODH.
Procedural Posture:
- Naomi L. Kirschtein sued attorney Michael E. Moore, potential witness William M. Haynes, and party Alice Faye Kilgore in an Oklahoma trial court for defamation and intentional infliction of emotional distress.
- All defendants moved for summary judgment, arguing the communications were protected by an absolute privilege.
- The trial court granted summary judgment in favor of all defendants.
- Kirschtein, as Appellant, appealed the decision to the Oklahoma Court of Appeals.
- The Court of Appeals affirmed the trial court's judgment.
- The Oklahoma Supreme Court granted certiorari to review the Court of Appeals' decision.
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Issue:
Does an absolute privilege bar claims for defamation and intentional infliction of emotional distress against an attorney, a party, and a potential witness for communications made in preparation for a proposed quasi-judicial proceeding, even if the communications were allegedly false and the proceeding was never initiated?
Opinions:
Majority - Lavender, J.
Yes. An absolute privilege bars claims for defamation and intentional infliction of emotional distress for communications made preliminary to a proposed judicial or quasi-judicial proceeding when those communications are related to a proceeding contemplated in good faith. The court formally adopts the Restatement (Second) of Torts §§ 586-588, which establishes this privilege to ensure attorneys, parties, and witnesses have the utmost freedom to secure justice without fear of reprisal. The court determined that the administrative process to obtain a delayed birth certificate from the Oklahoma Department of Health is a quasi-judicial proceeding because it involves the exercise of discretion by a state official. For the privilege to attach, the communication must have some relation to a proceeding that is 'contemplated in good faith and under serious consideration.' The truth or falsity of the communication, or even the publisher's knowledge of its falsity, is irrelevant. The court found that from the perspectives of Moore, Haynes, and Kilgore, the affidavit was created and published in serious contemplation of an ODH proceeding. Finally, the privilege also bars the claim for intentional infliction of emotional distress because it arose from the same factual allegations, and to hold otherwise would emasculate the privilege.
Dissenting - Doolin, J.
No. The absolute privilege should not apply because the application for a delayed birth certificate is a purely administrative and ministerial act, not a quasi-judicial proceeding. The dissent argues that a quasi-judicial proceeding requires adversarial elements like a hearing and cross-examination, which are absent here. Furthermore, the privilege requires that the proceeding be contemplated in 'good faith and under serious consideration,' which is questionable given that no proceeding was ever initiated and the affidavit was known to be based on falsehoods. Applying an absolute privilege to protect an attorney who knowingly uses a false statement is contrary to the attorney's oath and undermines the integrity of the legal profession. A material factual dispute exists regarding the conversation between the attorney and the doctor that should be resolved by a trier of fact, making summary judgment inappropriate.
Analysis:
This decision formally adopts and expands the absolute litigation privilege in Oklahoma to cover pre-litigation communications, as outlined in the Restatement (Second) of Torts. It establishes significant protection for attorneys and their clients during the investigative phase of a potential legal action, immunizing them from defamation claims even for knowingly false statements, so long as a proceeding is seriously contemplated. The ruling broadens the definition of a 'quasi-judicial' proceeding to include administrative actions that involve official discretion, thereby extending the privilege's reach. This creates a high barrier for defamation plaintiffs while promoting uninhibited investigation and access to the courts for potential litigants.
