holding that article was "fair and true" as a matter of law
How later courts described this case
- holding that article was "fair and true" as a matter of law
- rejecting argument that defendant was not performing an "official duty” because his statements were politically motivated where alleged activity "though it may well have been taken to produce a popular and appealing . . . image”, was indistinguishable from actions initiated by public officials oblivious to political ramifications
- finding that a press conference hosted by the attorney general is an official proceeding
- failure to plead illegal dissemination of confidential information barred claim against attorney general
Written by the judges who cited it.
The opinion
TAMURA, J.,† Concurring and Dissenting.
I am in full accord with the views expressed by the Chief Justice in her concurring and dissenting opinion.
*798 The words “proper discharge of an official duty” in Civil Code section 47, subdivision 1, cannot mean “improper discharge of an official duty.” The word “proper” pertains to the manner in which official duty is discharged. The statute cannot be read to extend the cloak of absolute immunity to an officer who performs his official duty in an illegal manner. The majority, however, so construes the statute by equating the phrase “proper discharge of an official duty” with the “proper scope of the [officer’s] authority.” The qualification of the phrase “scope of authority” by the adjective “proper” constitutes a redundancy; the word “proper” is rendered superfluous. Thus, as construed by the majority, inasmuch as the objective sought to be achieved by the Attorney General—the control and eradication of organized crime—was within the scope of his authority (Gov. Code, § 15025 et seq.), the statute confers absolute immunity for civil liability to one injured by the publication even if it had been made in knowing violation of an express statutory proscription or in knowing violation of the person’s constitutional right. This borders on the notion that the end justifies the means, a governmental philosophy which is abhorrent in a free society such as ours.
Nor am I persuaded by the rationale that there will be a “chilling effect” on the energetic performance of official duty if public officials are not accorded unconditional immunity from civil liability for otherwise unlawful or unconstitutional acts. This theoretical basis for the rule of absolute official immunity has been properly criticized as presupposing that the specter of civil liability will deter a conscientious official from discharging his official duties in an energetic and responsible manner. (See Van Alstyne, Governmental Tort Liability: A Public Policy Prospectus (1963) 10 UCLA L.Rev. 463, 478-480.) During our recent national tragedy similar justifications were offered to excuse official excesses.
A rationale like the one advanced to support unconditional immunity of public officers from civil liability when acting in the scope of their duties has been advanced in defense of the doctrine of sovereign immunity from torts. It has been said that “public service would be hindered and the public safety endangered” if the doctrine of sovereign immunity were abolished. (The Siren v. United States (1869) 74 U.S. 152, 154 [ 19 L.Ed. 129, 130-131 ]; 3 Davis, Administrative Law Treatise (1958) § 25.01, pp. 438-439.) As Professor Davis points out experience has shown that abolition of the doctrine has neither, hindered public service nor endangered public safety. Indeed, he notes that “the New York experience proves overwhelmingly that substituting sovereign *799 responsibility for sovereign irresponsibility can be wholly beneficial and in no respect harmful.” (Id., at p. 439.) This court abrogated the doctrine some 20 years ago in Muskopf v. Corning Hospital Dist. (1961) 55 Cal.2d 211 [ 11 Cal.Rptr. 89 , 359 P.2d 457 ]. Justice Traynor, writing for the court, declared that “[t]he rule of governmental immunity for tort is an anachronism, without rational basis, and has existed only by the force of inertia.” (Id., at p. 216.)
The notion that public officials must be unconditionally shielded from civil liability for injury caused by even a knowing violation of a statutory proscription or a knowing violation of a citizen’s constitutional right because otherwise the officials would be deterred from the energetic discharge of their duties is as groundless as the justification offered for the doctrine of sovereign immunity. The language of Civil Code section.47, subdivision 1, does not confer absolute immunity in such circumstances and should not be so construed.
Bird, C. J., and Tobriner, J., * concurred.
Retired Associate Justice of the Supreme Court sitting under assignment by the Chairperson of the Judicial Council.