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Sacco v. High Country Independent Press2/14/1995
." HCIP counters that the District Court ruled that Sorlies' comments to Dighans and Schreiber were "absolutely privileged." They further argue that comments by Sorlies to Sacco's employer should not be considered by this Court because the cause of action for these comments was dismissed when the District Court granted Sacco's motion for summary judgment.
We agree that the subissue of Sorlies' comments to Sacco's employer is not before the Court at this time. Sacco filed a motion for summary judgment on the limited subissue of alleged defamatory comments by Glenn Sorlie to Sacco's employer in order to dispose of all issues and appeal her case. The Sorlies' comments to Dighans and Schreiber, the city attorney, are, however, at issue in the instant case. We will discuss these two categories of comments separately.
Section 27-1-804, MCA, governs whether a communication is privileged. The statute provides:
What communications are privileged. A privileged publication is one made:
(1) in the proper discharge of an official duty;
(2) in any legislative or judicial proceeding or in any other official proceeding authorized by law;
(3) in a communication without malice to a person interested therein by one who is also interested or by one who stands in such relation to the person interested as to afford a reasonable ground for supposing the motive for the communication innocent or who is requested by the person interested to give the information;
(4) by a fair and true report without malice of a judicial, legislative, or other public official proceeding or of anything said in the course thereof.
Sacco contends that the Sorlies falsely informed Dighans that she had committed a crime by stealing photographs and proof sheets. These statements are alleged to have been communicated to Dighans prior to Sacco's arrest, and in fact, formed the basis for her arrest. Sacco states that because no legislative or judicial proceedings were under way when the alleged statements were made, the privilege afforded by ยง 27-1-804, MCA, was not available to the Sorlies. We agree.
Section 27-1-804(2), MCA, states that a privileged publication is one made "in any legislative or judicial proceeding or in any other official proceeding authorized by law. . . ." Clearly, a report by a citizen to the police is neither a legislative nor a judicial proceeding. The question then becomes whether the report is an official proceeding authorized by law. In this jurisdiction we answer that question in the negative and find support for our conclusion in the Restatement (Second) of Torts.
Section 611 of the Restatement (Second) of Torts involves Reporting of Official Proceedings or Public Meetings. Comment h of that section provides as follows:
An arrest by an officer is an official action, and a report of the fact of the arrest or of the charge of crime made by the officer in making or returning the arrest is therefore within the conditional privilege covered by this Section. On the other hand statements made by the police or by the complainant or other witnesses or by the prosecuting attorney as to the facts of the case or the evidence expected to be given are not yet part of the judicial proceeding or of the arrest itself and are not privileged under this Section.
Section 611, comment h at 301. Although we are not concerned here with a report of an official proceeding or public meeting, this section does provide parameters for deciding whether a report to the police is an official proceeding. We agree that a report to the police by a citizen is not an official pro
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