Friday, April 6, 2007
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S.C.: Litigation Privilege Not Limited by Constitutional Privacy Right
By TINA BAY, Staff Writer
The litigation privilege extends to causes of action based on the constitutional right to privacy, the Supreme Court ruled yesterday.
In a unanimous decision, the justices agreed with the Third District Court of Appeal that the state constitution’s privacy right does not limit Civil Code Sec. 47(b), the “litigation privilege” that generally protects from tort liability any publication made in connection with a judicial proceeding.
Justice Ming W. Chin, writing for the court, explained that voters adopted the constitutional privacy right provision in 1972 with knowledge of the preexisting litigation privilege.
“The parties have not cited, and we are not aware of, anything in the ballot materials or history of the 1972 initiative that added the constitutional right to privacy that suggested any intent to limit the scope of this preexisting privilege or to create a right of privacy that would prevail over the privilege,” he said.
Family Visitation Dispute
The court’s ruling came in an invasion of privacy suit by “James B.,” as he was identified, against Shasta County and the supervisor of the county’s Victim Witness Program, Stephanie Lloyd. The plaintiff alleged his privacy was violated by a letter prepared by a Victim Witness advocate and signed by Lloyd in connection with a family law visitation dispute.
In addition to holding Sec. 47(b) extends to causes of action involving the constitutional right to privacy, the high court held Lloyd’s letter was protected by the statutory privilege.
The letter was prepared in February 2003 at the request of a woman whom the court referred to as “Laura B.,” the mother of a boy identified as “B.B.” B.B. was allegedly molested in 1993, when he was five, by Jacob B., his then-15-year-old uncle.
Jacob B. was the younger brother of Laura B.’s then-husband “Charles B.,” as the court identified him.
Although an officer investigating the incident believed B.B. had been molested, a juvenile court case was never opened against Jacob B. due to B.B.’s young age and inability to communicate adequately.
Victim Witness Program
Laura B. filed a claim with the Shasta County Victim Witness Program, which is authorized to compensate victims of criminal acts even in the absence of a prosecution or conviction, and obtained $10,000 worth of counseling services for her son. Victim Witness transferred information about the case into a statewide victims-of-crime database, which listed B.B.’s birth date and identified him as a victim of molestation by his uncle Jacob B.
When Laura and Charles B. divorced in 1999, they stipulated their son would have no contact with either Jacob B. or B.B.’s paternal grandparents.
B.B. subsequently lived with his mother and her new husband, identified as “Todd B.” Charles B. remarried to a woman referred to as “Stephanie B.” and lived together with her and her three sons from her previous marriage to Todd B.
Todd and Stephanie B.’s dissolution decree mirrored Charles and Laura’s stipulation, prohibiting contact between their three sons and Jacob B. and the same grandparents.
In 2003, Charles and Stephanie B. asked the Tehama County Superior Court to permit visitation between the three sons and Jacob B. and the grandparents. The couple maintained that visitation restrictions caused the stepfamilies financial and emotional hardship.
Believing that removal of the non-contact order as to the three sons would inevitably be followed by a lifting of the prohibition as to B.B, Laura B. sought out Victim Witness and asked them to help her by writing to the court in the matter.
An advocate with the program, Carol Gall, prepared a letter using information from the statewide database setting forth B.B. and James B.’s identities and details about the 1993 molestation claim, including the $10,000 benefits used for B.B.’s counseling. Lloyd signed the letter understanding it would be presented to a family law court judge.
Motion for Nonsuit
Todd B. filed the letter in Tehama Superior Court in support of his declaration opposing Stephanie B.’s request to modify visitation. Jacob B. sued Lloyd and the county in 2003 after obtaining a copy of the letter from Stephanie B.
At trial, the defendants moved for nonsuit based on Sec.47(b). Retired Shasta Superior Court Judge Jack Halpin, sitting by assignment, denied the motion on the ground that Jacob B.’s constitutional privacy interests overrode the litigation privilege.
The jury returned a $30,000 verdict in Jacob B.’s favor, which the Court of Appeal reversed and remanded with instructions to grant the defendants’ motion for nonsuit.
The high court concluded the litigation privilege was not nullified by James B.’s privacy interests, and that it extended to the letter because
“[I]n this case, providing information regarding whether one of the persons considered for visitation rights had previously molested his nephew obviously furthered the goal of ascertaining which visitation arrangement was in the children’s best interest,” he wrote. “Consistent with the general policies behind the litigation privilege, public agencies like Victim Witness must be permitted to provide such information without fear of being harassed by derivative lawsuits.”
Chin rejected the plaintiff’s argument that information regarding the alleged molestation was confidential, and was unlawfully disclosed in the letter, because he was a minor at the time of the incident.
Even if the disclosure violated juvenile confidentiality laws, the justice wrote, the law permits a communication to the court relevant to a family law decision it must make.
“Just as the privilege extends to communications otherwise within section 47(b)‘s reach that are perjurious, it also extends to communications otherwise within its reach that might be deemed confidential,” he said.
Chief Justice Ronald M. George along with Justice Marvin R. Baxter, Kathryn Mickle Werdegar, Carlos R. Moreno, and Carol A. Corrigan concurred in the opinion.
Justice Joyce L. Kennard authored a separate concurrence noting she was departing from her previously articulated view that “the litigation privilege does not bar a constitutional right of action.” The jurist had stated that observation in her concurring and dissenting opinion in Heller v. Norcal Mutual Ins. Co. (1994) 8 Cal.4th 30, 56.
Agreeing with the majority that the constitutional right to privacy does not extend to situations covered by the litigation privilege, she explained:
“Because a statute is subordinate to, and must be in conformity with, the state Constitution, a statutory privilege cannot of its own force defeat a right of action that is required or guaranteed by the state Constitution. In determining the scope of the constitutional privacy right, however, and whether that right exists in a particular situation, a court may consider traditional statutory privileges.”
The case is Jacob B. v. County of Shasta, 07 S.O.S. 1657.
Copyright 2007, Metropolitan News Company