The opinion
Finch, J.
(dissenting). The question presented is whether the defense of absolute privilege is available to a defendant in a libel action based upon the charge that the defendant, a duly elected judge of the County Court, Kings county, procured the publication of two opinions written by Mm allegedly libeling plaintiff, in the New York Law Journal and the New York Supplement.
Plaintiff had been retained as counsel for one Cordon who had been indicted in the County Court of Kings county, of which defendant is a judge, for the crime of manslaughter. Plaintiff appeared before defendant and moved for an adjournment of G-ordon’s trial on the ground that plaintiff was then engaged in arguing a case before the Connecticut Court of Errors.
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Defendant denied the motion and plaintiff declined to participate in the trial. The court then assigned counsel to Gordon. Gordon, through the assigned counsel, then declined to participate in the trial and was convicted. Plaintiff again appeared before defendant, moving to set aside the verdict on the ground that Gordon had been deprived of his constitutional right to have counsel of his own choosing. In denying this motion, defendant wrote the first allegedly libelous opinion, charging that plaintiff had merely attempted to win delay in order to have Gordon’s case come up before another judge of plaintiff’s choice. Plaintiff appealed, urging as the principal ground of reversal, defendant’s action in assigning counsel instead of adjourning the trial at plaintiff’s request. Subsequently the District Attorney made a motion before defendant, contending that plaintiff was including in the record on appeal only his own affidavit in reference to the aforesaid matters and moving that the other papers pertinent to said matters also be included in the record. In granting the District Attorney’s motion, defendant wrote the second allegedly libelous opinion, implying that plaintiff had not acted in good faith in this matter and then had attempted to shift the blame to the clerk of the court. It appears that defendant thereafter forwarded copies of these opinions to the New York Law Journal and the New York Supplement, with the request that they be published.
The New York Law Journal is published by a corporation located in New York city. The Law Journal has been designated as the official newspaper in the First Judicial Department for the publication of calendars and official notices. The New York Supplement, second series, and the Advance Sheets of the New York Supplement, second series, are published by West Publishing Company located at St. Paul, Minnesota. Both the Supplement and the Advance Sheets to the Supplement are well known legal publications, widely circulated among the legal profession in this and other states.
Upon the publication of the aforesaid two opinions, plaintiff based the present libel action against defendant. The first cause of action alleges the publication of the first opinion in the New York Law Journal. The other three causes of action allege the publication in Minnesota of the first and second opinions in the New York Supplement, and also the second opinion in the
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Advance Sheets of the New York Supplement. It is further alleged that defendant officially and in his individual capacity procured the publication of these opinions in these publications.
Defendant pleaded absolute judicial privilege and moved for judgment on the pleadings. Special Term denied the motion, holding that while defendant acts in his official capacity when he reads an opinion in court or hands it to the clerk, he acted unofficially when he forwarded his opinions to these publications widely used in the legal profession though unofficial. The Appellate Division reversed and dismissed the complaint, holding that the publication of the opinions was in the exercise of a judicial function, and was absolutely privileged.
To resolve the question into its component parts we must determine,
first,
whether defendant is liable in a civil action for his utterances in an opinion, when it is alleged that defendant has maliciously made a defamatory and untrue statement in such judicial opinion.
Second,
whether the use of this« opinion subsequent to its writing by the judge, in sending it to the New York Law Journal and the West Publishing Company, publisher of the New York Supplement, accompanied by a letter specifically requesting its publication, renders the judge liable in a civil action even though the writing of the opinions, as aforesaid, would not create such liability.
It has been the settled holding of the English Courts for many centuries, and is a principle generally accepted in this country, that judges of courts of superior or general jurisdiction are not liable in civil actions for their judicial acts, although such acts are in excess of their jurisdiction and are alleged to have been done maliciously.
(Lewis
v.
Levy,
E. B. & E. 537, 120 Eng. Reprint 610;
Wason
v.
Walter,
L. R. 4 Q. B. 73;
Lange
v.
Benedict,
73 N. Y. 12, 25 ;
Sweeney
v.
O’Dwyer,
197 N. Y. 499, 504 ;
Bradley
v.
Fisher, 13
Wall. 335, 351.) This immunity rests upon the general principle, which is of the highest importance to the proper administration of justice, that a judicial officer, in exercising the authority conferred upon him, shall be free to proceed in accordance with his own convictions without apprehension of personal consequences to himself. Liability to anyone who might feel himself aggrieved by the action of the judge would be inconsistent with the possession of this freedom, and wo.uld impair that independence which is so necessary to an efficient
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judiciary. A judge who maliciously makes a defamatory and untrue statement in the course of a judicial proceeding commits a reprehensible act for which he may be punished, but considerations of public policy protect the judge from any challenge of his good faith in a civil action. This principle obtains in all countries in which there is any well ordered system of jurisprudence.
Is the privilege of freedom from liability in a civil action then lost to those making public use of a judicial opinion if it is alleged that the opinion was forwarded with a letter requesting publication to the New York Law Journal and the New York Supplement? In determining the question of the liability of one dealing with a judicial opinion, it must be remembered that the opinion forms a part of the record of the case and that this record is filed as a public document. As a public document a judicial opinion may be reproduced freely. Article VI, section 22, of the State Constitution provides that all judicial opinions or decisions shall be free for publication by any person. The Constitution also requires the Legislature to provide for the creation of a State Law Reporting Bureau, charged with the duty of publishing official reports of opinions and decisions of all the courts of this State. (Art. VI, § 22.) Implementing this provision of the Constitution, the Legislature has required that 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 opinion rendered in causes determined before them. (Judiciary Law, § 432.)
The filing of the record in a case in public places and the constitutional provision for free publication of judicial opinions are founded upon the permanent policy of the State to have justice administered publicly rather than in Star Chamber.
(Lee
v.
Brooklyn Union Pub. Co.,
209 N. Y. 245, 247 ; cf.
Stevens
v.
Sampson,
(1879-80) L. R. 5 Ex. D. 53, 55.) The Civil Practice Act, indeed, has gone further in carrying out this policy by providing that a civil action may not be maintained against any person for the publication of a fair and true report of any judicial, legislative or other public and official proceedings. (§ 337.)
It is urged, however, that the privilege of judicial immunity cannot be extended to publication of an opinion in the New York Supplement which is published in the State of Minnesota.
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An opinion must be read not only by the immediate litigants before the court, but also by members of the legal profession in general who must deal with it in the light of the principle of
stare decisis
and this applies to attorneys and others both within and without the State. It is well known that decisions and opinions in the New York Supplement are continually cited both by judges and attorneys in opinions, decisions and briefs. Therefore, publication of judicial opinions in this recognized and widely used legal publication is an accepted and constituent part of the judicial process in this State. Such publication comes within the principle that any dealing with a part of a. record in a case must, for the proper and efficient administration of justice, be attended with an absolute privilege in order to protect attorneys and others using this record, as well as the judge.
Any person dealing with or sending a duly written judicial opinion to the New York Law Journal or New York Supplement should not first have to consult the libel law. To hold that upon such publication the privilege is lost is contrary to the very principle upon which the privilege is founded. We decide nothing else.
As to matters which lie outside the scope of the judicial authority vested in the judge, he occupies no different position from the members of the bar and his fellow citizens, and his actions are judged by the same measure of responsibility.
(Douglas
v. Collins, 243 App. Div. 546 , affd. 267 N. Y. 557 .)
The judgment appealed from should be affirmed.
Loughran, Rippey and Desmond, JJ., concur with Lehman, Ch. J.; Finch, J., dissents in opinion in which Lewis and Conway, JJ., concur.
Judgment accordingly.