affirming allowance of summary judgment on grounds of absolute privilege where allegedly defamatory statements were made by public employee during the course of an interview that the employee was required, as a duty of her employment, to participate in and to “cooperate fully in providing * * * her thoughts, perceptions, and observations regarding [the] plaintiff”
How later courts described this case
- affirming allowance of summary judgment on grounds of absolute privilege where allegedly defamatory statements were made by public employee during the course of an interview that the employee was required, as a duty of her employment, to participate in and to “cooperate fully in providing * * * her thoughts, perceptions, and observations regarding [the] plaintiff”
- “The defense of qualified privilege can be overcome if the alleged defamatory statements were made in bad faith or with malice.”
Written by the judges who cited it.
The opinion
LINDER, J.,
concurring.
I agree with the majority that the issue of executive privilege for the allegedly defamatory statements was adequately preserved for our review. I write separately, however, to identify an additional reason why we should adhere to our former opinion.
Even if defendants had not pleaded absolute privilege broadly enough to invoke executive privilege, and had not otherwise raised the substance of executive privilege at trial, the existence of absolute privilege on that theory provides an alternative ground for affirmance. As the Oregon Supreme Court has held, when a trial court on remand may allow the pleadings to be amended, appellate courts may consider matters that go beyond the scope of the pleadings. Lancaster v. Royal Ins. Co. of America, 302 Or 62, 70 , 726 P2d 371 (1986). Consistently with that holding, we have affirmed on alternative grounds where an affirmative defense is available to the defendant as a matter of law, despite the fact that the defendant neither pleaded nor raised the affirmative defense at trial. See Durham v. City of Portland, 181 Or App 409, 427-28 , 45 P3d 998 (2002) (affirming on alternative ground of issue preclusion, even though issue preclusion had not been raised at trial).
In this case, if we were to remand for trial, it would be a simple matter for defendants to move to amend their answer to raise executive privilege. The factual admissions in plaintiffs pleadings, as well as the record developed for summary judgment, amply establish that the allegedly defamatory statements were made by an executive officer while engaged in the performance of her official responsibilities. See Johnson v. Brown, 193 Or App 375, 385-87 , 91 P3d 741 (2004). Under Shearer v. Lambert, 274 Or 449, 452-54 , 547 P2d 98 (1976), and Chamberlain v. City of Portland, 184 Or App 487, 490-92 , 56 P3d 497 (2002), absolute privilege clearly *489 applies to the alleged defamation. Thus, as a matter of judicial economy, it would be appropriate for us to affirm the trial court’s grant of summary judgment to defendants even if plaintiff were correct that defendants did not raise executive privilege as a defense at trial.