explaining that “judicial privilege provid[es] immunity for communications which are made in the regular course of judicial proceedings and are material to the relief sought,” and that “the declarant’s intent is immaterial even if the statement is false and made with malice”
How later courts described this case
- explaining that “judicial privilege provid[es] immunity for communications which are made in the regular course of judicial proceedings and are material to the relief sought,” and that “the declarant’s intent is immaterial even if the statement is false and made with malice”
- holding that “the judicial privilege does not apply to an allegation [concerning a school teacher] made by an adult[, former student,] before commencement of any quasi-judicial proceeding and without an intent that it lead to a quasi-judicial proceeding”
- stating that the privilege is “absolute, meaning that, where it attaches, the declarant’s intent is immaterial even if the statement is false and made with malice.”
- holding that absolute privilege does not extend to statements before commencement of a quasi-judicial proceeding without intent that it lead to one
Written by the judges who cited it.
The opinion
Justice EAKIN,
concurring.
I join the majority’s analysis and result. I write only concerning speculation by my colleagues about a different result being possible, had appellee been a student at the time of her allegations. Respectfully, the purpose and applicability of the judicial privilege is not related to appellee’s status; categorizing her as a student, past or present, or any other denomination, is irrelevant to application of this discrete privilege. The applicability of the judicial privilege depends on the existence of, or potential for, judicial-related proceedings at the time of utterance. Restatement (Second) of Torts, § 588 cmt. e (stating “the rule ... applies only when ... a proceeding ... is actually contemplated in good faith and under serious consideration by the witness” (emphasis added)). It *563 matters not whether the speaker is old or young, tall or short, a student, teacher, doctor, lawyer, or Indian Chief.
This is not to say a broader privilege to speak out should not be afforded to students. However, if a privilege to encourage reporting based on status rather than circumstance is appropriate, that privilege should be articulated clearly and independently. No mere classification of the speaker creates a “judicial privilege,” and that venerable privilege should not be contorted to fit a prospectively desirable result, whatever its salience.