Defamation. Statements made as preliminary steps to judicial or quasi-judicial proceedings are absolutely privileged.

Couture v. Trainer, 2017 VT 73 [filed August 25, 2017]

REIBER, C.J. Father appeals from a summary judgment order dismissing his defamation claims against mother and her sister (aunt). In his complaint, father alleged that mother and aunt coached daughter into saying "Daddy hit me" and submitted defamatory audio and video recordings of daughter's statements to his parole officer. Father also alleged that mother made false statements to his parole officer and in mother's petition for relief from abuse. The trial court ruled that these recordings and statements were absolutely privileged.. On appeal, father argues that the court erred in concluding that the recordings and statements are protected by absolute privilege and that they should instead be protected only by qualified privilege,. We affirm the superior court's entry of summary judgment.

If absolute privilege applies in the present case, summary judgment in favor of mother and aunt would be appropriate for father's defamation claim because one of the six elements of defamation is "lack of privilege in the publication." Lent v. Huntoon, 143 Vt. 539, 546-7, 470 A.2d 1162, 1168 (1983). at 546-47, 470 A.2d at 1168.

In Vermont, we have long recognized that statements within a judicial proceeding are absolutely privileged if they are relevant to the matter at hand. See Mower v. Watson, 11 Vt. 536, 540 (1839). Courts in many other states have concluded that absolute privilege is the appropriate level of protection for statements made in the preliminary stages of judicial and quasi-judicial proceedings. The Restatement supports the extension of absolute privilege to "communications preliminary to a proposed judicial proceeding" Restatement (Second) of Torts § 587 (1977) Public policy favors the extension of absolute privilege to statements and recordings made or produced in the context of parole violation reports and petitions for relief from abuse.

All the statements and recordings at issue in this case were made as preliminary steps to judicial or quasi-judicial proceedings. We hold that absolute privilege applies to the statements and recordings in this case.

SCOVT NOTE

In a careful opinion by Judge Redfiled in Mower v. Watson, 11 Vt. 536, 540 (1839) the Court concluded that an action against a witness for slander is maintainable if the false statements were irrelevant and malicious.

In 2006 The local federal court summarized Vermont law on this subject as follows: 

Defamatory statements published by parties in the course of judicial proceedings, however, are absolutely privileged, so long as they bear some relation to the proceedings. Letourneau v. Hickey, 807 A.2d 437, 441 (Vt. 2002). To sustain an action for slander based on statements arising out of a judicial proceeding, a plaintiff "must show that the words spoken were not pertinent to the matter then in progress, and that they were spoken maliciously and with a view to defame." Id. (quoting Mower v. Watson, 11 Vt. 536, 539-40 (Vt. 1839); see also Wilkinson v. Balsam, 885 F. Supp. 651, 659 (D. Vt. 1995) (holding that Vermont would likely adopt the Restatement principle that a witness is absolutely privileged to publish defamatory matter in communications preliminary to proposed judicial proceedings). Courts take a liberal approach to determining whether a statement is "pertinent" to the proceedings. Letourneau, 807 A.2d at 442 (the standard requires that a statement have only "some reasonable relation or reference to the subject of inquiry, or be one that may possibly be pertinent, with all doubts resolved in favor of the defendant") (quoting Prosser and Keeton on the Law of Torts § 114, at 817-18 (5th ed. 1984)).

Okemo Mountain, Inc. v. Sikorski, No. 1:93-CV-22, 2006 WL 335858, at *3 (D. Vt. Feb. 14, 2006)