Opinion

Franson v. Radich

  • 84 Or. App. 715
  • 735 P.2d 632
Court
Court of Appeals of Oregon
Filed
Apr 15, 1987
Status
Published
Author
Joseph
On the bench
Buttler, Joseph, Rossman
Cited by
20 cases

explaining that “ordinarily, absolute privilege is an affirmative defense that must be raised by answer” but that “it may be raised by motion to dismiss if the amended complaint alleges facts which, if true, estab- lish the privilege” and extending that principle to claims of IIED (footnote omitted)

How later courts described this case

  • explaining that “ordinarily, absolute privilege is an affirmative defense that must be raised by answer” but that “it may be raised by motion to dismiss if the amended complaint alleges facts which, if true, estab- lish the privilege” and extending that principle to claims of IIED (footnote omitted)
  • holding that trial court erred in dismissing claim for interference with custody where plaintiff parents alleged that defendants initiated custody proceedings based on the erroneous belief that plaintiffs’ child was suffering from neglect
  • “Because the privilege ‘is based upon a public policy of securing to attorneys as officers of the court the utmost freedom in their efforts to secure justice for their clients,’ we see no reason why it should not also apply in claims for intentional infliction of emotional distress based on actions taken and statements made in connection with a judicial proceeding.”
  • extending privilege to cover claims for intentional infliction of emotional distress

Written by the judges who cited it.

The opinion

JOSEPH, C. J.,

concurring.

I must accept both parts of the majority opinion. The part dealing with the claim of custodial interference I accept without reservation. The part dealing with the claim for intentional infliction of emotional distress has, I believe, got to be accepted because of the state of the law concerning the absolute privilege accorded statements made in connection with judicial proceedings under Oregon case law.

If the facts alleged by plaintiffs could be proved, they would establish an utterly unconscionable course of officious intermeddling on the part of defendants, for which they ought to be held to account. The absolute privilege came into being when judicial policy encouraged resort to the judicial process for the resolution of disputes. That policy is still one that ought to be accorded paramount status. Today, however, in all too many instances people seek to use the judicial process for abusive purposes. Plaintiffs’ claim alleges facts that would constitute an egregious example of that.

The privilege, or immunity, was judicially created, and it can be judicially amended. I hope that the Supreme Court, if given the opportunity, will engraft a good faith and fair dealing limitation on the privilege, rendering it less than absolute. Whether or not bad cases make bad law, “bad” facts sometimes illuminate the need for law reform.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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