Toker v. Pollak, 44 N.Y.2d 211 (1978)
Communications to a District Attorney or the Department of Investigation regarding potential criminal activity are protected by a qualified, rather than an absolute, privilege in a defamation action.
Summary
Toker, a candidate for Civil Court Judge, sued Stern for defamation after Stern reported a potential bribery incident involving Toker to the Mayor’s Committee on the Judiciary, the Department of Investigation, and the District Attorney. The Court of Appeals held that Stern’s communications to the District Attorney and the Department of Investigation were protected by a qualified privilege, meaning Toker had to prove malice to recover damages. The court reasoned that absolute immunity should be reserved for judicial or quasi-judicial proceedings, which these communications did not constitute, and that a qualified privilege adequately balances the need to encourage reporting of potential crimes with the protection of individual reputations.
Facts
Stern’s mother was injured in a fall. Toker, as Assistant Corporation Counsel, settled the claim. Stern heard from Poliak that Poliak had paid Toker a bribe. Years later, when Toker ran for judge, Stern told Victor Kovner of the Mayor’s Committee on the Judiciary about the alleged bribe. Toker was then considered for appointment to the Criminal Court. Kovner asked Stern to reaffirm the information, and Stern was later contacted by the Department of Investigation and the District Attorney regarding the matter. Stern gave an affidavit to the District Attorney summarizing his testimony, under threat of a Grand Jury subpoena.
Procedural History
Toker sued Poliak and Stern for libel and slander. Special Term granted Poliak summary judgment on the libel cause of action. Special Term denied Stern’s motion for summary judgment, finding a qualified privilege. The Appellate Division modified, granting Stern summary judgment on the libel cause of action, finding an absolute privilege for the affidavit to the District Attorney. Both parties appealed to the Court of Appeals.
Issue(s)
1. Whether oral statements made by Stern to the District Attorney concerning the possible commission of a crime by Toker are protected by an absolute or a qualified privilege?
2. Whether the affidavit submitted to the District Attorney by Stern in lieu of an appearance before the Grand Jury is protected by an absolute or a qualified privilege?
3. Whether Stern’s statements to the Department of Investigation are protected by an absolute or qualified privilege?
Holding
1. No, because the communication of a complaint to a District Attorney does not constitute or institute a judicial proceeding, therefore a qualified privilege applies.
2. No, because no statutory directive requiring confidentiality exists with respect to communications made to a District Attorney, therefore a qualified privilege applies.
3. No, because the Department of Investigation does not act in a quasi-judicial capacity, therefore a qualified privilege applies.
Court’s Reasoning
The court distinguished between absolute and qualified privileges in defamation law. Absolute privilege provides immunity regardless of motive, while qualified privilege negates implied malice, placing the burden on the plaintiff to prove malice. Absolute privilege typically applies to participants in public functions like judicial, legislative, or executive proceedings. A qualified privilege applies when a communication is “fairly made by a person in the discharge of some public or private duty…or in the conduct of his own affairs, in a matter where his interest is concerned.”
The court held that communications to a prosecuting attorney fall between communications to a policeman (qualified privilege) and testimony before a Grand Jury (absolute privilege). Reaffirming Pecue v. West, the court stated that a complaint to a District Attorney, without more, does not constitute a judicial proceeding. The court rejected Stern’s argument that the threat of a Grand Jury subpoena warranted absolute immunity, emphasizing that Grand Jury proceedings are statutorily secret, whereas communications to a District Attorney are not.
Concerning the Department of Investigation, the court reasoned that the lack of a quasi-judicial hearing with safeguards for Toker meant that communications to this body should also be qualifiedly privileged. To grant absolute immunity in such a context would provide “an unchecked vehicle for silent but effective character assassination.” The court emphasized the need to balance the importance of selecting qualified judges with the right of individuals to defend against attacks on their character. Public policy is aptly served by application of a qualified privilege.
The court noted, “[p]roof of such indirect motive will defeat the privilege which would otherwise have attached, for it is not to the convenience and welfare of society that false and injurious communications as to the reputation of others should be made, not for the furtherance of some good object, but for the gratification of an evil and malicious disposition or for any other object than that which gave rise to the privilege.”