OPINION BY MR. JUSTICE BELL, May 27, 1952:
Plaintiff filed a complaint in libel, the basis of her action being a letter written by Charles J. Margiotti as Attorney General of the Commonwealth of Pennsylvania, to William S. Rahauser, District Attorney of
As a result of an investigation conducted by the Pennsylvania State Police, I have ascertained the following facts with regard to Marjory Hanson Matson, an assistant district attorney on your staff:
1. While Mrs. Matson was a student at the University of Pittsburgh Law School, she had the reputation among her fellow-students of having Communistic tendencies. I am reliably informed that she attended school at the Young Communist League and that she was one of the principal demonstrators against General MacArthur when he came to Pittsburgh to deliver the commencement address at the University of Pittsburgh in 1932.
2. I am informed that Mrs. Matson is on the Executive Board of American-Soviet Friendship and was one of the organizers of the Progressive Citizens Party, which is now the Progressive Party, and which as you may recall was the organization which undertook to force the Board of Public Education of the City of Pittsburgh to permit it to use a high school auditorium for its meeting. This matter was litigated in the United States District Court in Pittsburgh, and in its opinion the Court stated that the Progressive Party was a Communist Organization.
4. I am also informed that Mrs. Matson sat in the courtroom with counsel, who was defending Nathan Alberts in the Highland Park Riot Case. Alberts is Secretary of the Pittsburgh Branch of the Communist Party and was convicted of inciting to riot; and recently his conviction was sustained by the Superior Court. My information is that Judge MONTGOMERY spoke to you with reference to this conduct of Mrs. Matson and she was then requested to leave the courtroom.
5. In the Post Gazette of August 6, 1948, the following appears:
`The Pittsburgh Chapter of the American Civil Liberties Union, in a letter to President Truman, has protested prosecution of 12 leading Communists "for holding beliefs and opinions rather than committing overt acts." "Even in a period of near-hysteria, which this admittedly is, no restrictions should be placed upon the competition of ideas in the market-place of public opinion," Mrs. Marjorie Hanson Matson wrote the President. Mrs. Matson, local ACLU representative and an assistant district attorney, was careful to point out that her organization bars Communists, Bundists and other supporters of dictatorships from serving in its high offices.'
Executive Board Progressive Citizens Party
Women's Organizer Principal Speaker in Grant Street Rally
Duquesne Light Strike
Closely associated with Bryngold Havde & Dr. Marion Hathaway.
We have other information with regards to Mrs. Matson's communistic activities.
Some of these matters have already been brought to your attention. As Attorney General and head of the Department of Justice of the Commonwealth of Pennsylvania I am writing this letter to demand that Mrs. Matson be dismissed from her position as Assistant District Attorney in Allegheny County, as it appears obvious that her Communistic associations render her unfit to hold this position. Her future retention obstructs justice and becomes dangerous to the security of our people in Pennsylvania.
I am making this demand on the basis of information furnished me by the Pennsylvania State Police.
The complaint averred that the statements were false and were made by the defendant wickedly and maliciously; and that the libelous communication was released to the newspapers. Plaintiff also claimed special damages.
Defendant filed preliminary objections in the nature of a demurrer in which he claimed immunity or absolute privilege by reason of the fact that the letter was an official act of the Attorney General in a matter within his jurisdiction, and consequently did not constitute
We shall first dispose of defendant's contention that the statements in question were not libelous per se.
Courts have at long last taken judicial notice of the fact that Communism is a political movement which is dedicated to the overthrow of the government of the United States and incidentally of each state, by force and violence: Com. v. Truitt, 369 Pa. 72, 81, 91, 85 A.2d 425; Milasinovich v. Serbian Progressive Club, Inc., 369 Pa. 26, 84 A.2d 571; Dennis v. United States, 341 U.S. 494. We are therefore unanimously of the opinion that the statements contained in the Attorney General's letter regarding Mrs. Matson's communistic activities and her membership in a communist organization, which he alleged rendered her unfit to hold her position as Assistant District Attorney, and dangerous to the security of the people of Pennsylvania, are libelous per se.
The defendant would nevertheless have two possible defenses: (a) Truth (Press Co. v. Stewart, 119 Pa. 584, 14 A. 51; Oles v. Pittsburg Times, 2 Pa.Super. 130; Kilian v. Doubleday & Co., Inc., 367 Pa. 117, 79 A.2d 657) and (b) Privilege. He did not plead "truth", and his counsel stated at the bar of the Court that a committee of the Allegheny County Bar Association had cleared Mrs. Matson of any charge of Communism.
Privilege has been divided into two kinds, (1) absolute or unlimited, and (2) conditional or limited.
Defendant contends he is entitled to "absolute privilege" and hence absolute immunity from civil suit. Absolute privilege, as its name implies, is unlimited,
In the leading case of Spaulding v. Vilas, 161 U.S. 483, plaintiff sued a Postmaster General for maliciously representing plaintiff as a common swindler, causing him to lose several thousand clients and otherwise disgracing him. Plaintiff secured several thousand powers of attorney from United States Postmasters and alleged that he caused to be introduced a bill in Congress for payment of certain claims; that the Postmaster General, after the passage of the bill, endeavored to obtain legislation by Congress to destroy plaintiff's contracts of employment; that the Postmaster General, in order to further harass plaintiff and with malicious intent, sent, with the payment checks to plaintiff's clients, a letter stating that no attorney's services were necessary and that any power of attorney to collect payments
This absolute privilege applied originally to only three classes (1) proceedings of legislative bodies, (2)
Commencing in 1895 with Spalding v. Vilas, 161 U.S. 483, this absolute privilege has gradually been extended to the official statements and acts of the President of the United States and his cabinet and other high federal officials as well as to the Governor of a State, and necessarily to his cabinet.
There is no doubt, as appellant concedes, that the Attorney General, when acting officially, and within the scope of his authority, has absolute privilege, protection and immunity from civil liability with respect to his official communications and his official acts. But the plaintiff contends, and correctly so, that his privilege may be abused and lost, and that it becomes unavailable if and when the Attorney General (or other high public official) acts in matters outside his jurisdiction or beyond the scope of his powers or duties: Spalding v. Vilas, 161 U.S. 483; Cooper v. O'Connor, 99 F.2d 135 (C.A.D.C.); 67 C.J.S., Section 126; Restatement, Torts, § 591, p. 238.
Plaintiff further specifically contends that under the facts disclosed by this record, defendant is entitled only to a conditional privilege. This raises a difficult and very important issue. A defendant in a libel suit who relies upon the defense of conditional privilege has the burden of proving that the communication was published on a conditionally privileged or proper occasion, from a proper motive, in a proper manner and was based upon reasonable and probable cause: Morgan v. Bulletin Co., 369 Pa. 349, 353, 85 A.2d 369; Briggs v. Garrett, 111 Pa. 404, 2 A. 513; O'Donnell v. Phila. Record Co., 356 Pa. 307, 51 A.2d 775; Hartman v. Hyman & Lieberman, 287 Pa. 78, 134 A. 486; Bausewine v. Norristown Herald, 351 Pa. 634, 645, 41 A.2d 736.
We are all unanimously of the opinion that the Attorney General has no right or power to discharge or to compel a district attorney to discharge an assistant district attorney from her official position or from duties, matters or cases outside of the case or matter in which the Attorney General has superseded the district attorney: Cf. Matson v. Jackson, 368 Pa. 283, 83 A.2d 134; Constitution of Pennsylvania, Art. VI, § 4; Com. ex rel. v. Likeley, 267 Pa. 310, 110 A. 167; Com. ex rel. Kelley v. McBride, 329 Pa. 41, 196 A.2d 80; Com. ex rel. Smith v. Clark, 331 Pa. 405, 200 A. 41. However, this is not a complete answer to the question of whether the Attorney General has a right or duty, in his official capacity to notify a district attorney of Pennsylvania that one of the latter's assistants was, according to reports from the State Police, a member of a communist organization and engaged in communistic activities, and that her retention in an official position was dangerous to the security of the people of Pennsylvania. In other words, the Attorney General might have no right to discharge plaintiff, but might have
In a very able and comprehensive opinion, Mr. Justice (later Chief Justice) SCHAFFER, speaking for this Court in Com. ex rel. Minerd v. Margiotti, 325 Pa. 17, 30, 31, 188 A. 524, reviewed the powers of the Attorney General both in England and from the earliest days in Pennsylvania, and said: "We quite recently had occasion to consider the prerogatives of the Attorney General in Com. v. Lehman, 309 Pa. 486, where the defendant objected to the superseding of the district attorney by a special prosecutor appointed by the Attorney General. Speaking through Mr. Justice LINN, we observed: `Prior to the Act of May 3, 1850, P.L. 654, 16 P.S. sec. 1691, the attorney general was represented in each county by his deputy who conducted criminal prosecutions; by that statute the office of district attorney was created and that officer was charged with the performance of the duties theretofore performed by the deputy attorney general. Thereafter the prosecutor was elected instead of appointed, but the power of general supervision vested in the attorney general over the performance of a district attorney's
"We conclude from the review of decided cases and historical and other authorities that the Attorney General of Pennsylvania is clothed with the powers and attributes which enveloped Attorneys General at common law,
These vast powers of the Attorney General were further recognized in our opinions in Dauphin County Grand Jury Proceedings No. 1, 332 Pa. 289, 298, 2 A.2d 783; in Dauphin County Grand Jury Proceedings No. 3, 332 Pa. 358, 362, 2 A.2d 809; in Margiotti Appeal, 365 Pa., supra, and in Com. ex rel. Margiotti v. Orsini, 368 Pa., supra, in each of which we reiterated
It is obvious therefore that the powers and duties of an Attorney General as chief law enforcement officer of the Commonwealth, derived as they are from both statute and the common law, are wide and vast. However, as Mr. Justice STERN pointed out in Matson v. Jackson, 368 Pa., supra, these powers do not include the right "to examine into the general qualifications and views and competence of a duly elected district attorney or one of his assistants as a basis for supplanting him and thenceforth conducting the office by his own deputies." This quotation and this case are one of the main, if not the most important grounds upon which plaintiff bases her contention that the Attorney General acted beyond his jurisdiction, so it may be well to review exactly what was decided in that case. The Attorney General in that case attempted to conduct a public hearing into the "alleged communistic leanings, sympathies and utterances" of an assistant district attorney, in which hearing the Attorney General would be the prosecutor, judge and jury. Pointing out that no crime was charged, this Court held that the Attorney General had no such power either under the Administrative Code or under any other authority. However, neither the case itself nor the quoted excerpt therefrom supports plaintiff's position in this case. The objection in this case goes not to her general qualifications, views or competence, but whether she was a member of a communist organization or engaged in communistic activities in behalf of an organization, one of whose major
We have no doubt, therefore, that the Attorney General, qua Attorney General, had a right to write the letter dated January 5, 1951, to the District Attorney of Allegheny County concerning his assistant, Mrs. Matson; and to give him information which the Attorney General had obtained from the Pennsylvania State Police as to Mrs. Matson's supposed communistic activities. We specifically hold that this official letter, being written by a public official in the course and within the scope of his powers, was "absolutely privileged"; and that even if the allegations were erroneous and false, and were maliciously made, this privilege was absolute and constituted a complete defense to Mrs. Matson's action of libel.
It seems only fair to answer several further arguments of the plaintiff.
Mrs. Matson, believing she has been maliciously libeled by the false charges of a public official, very naturally wants him to pay for the suffering and the damage he has caused her. There is much to be said for her contentions. However, a myriad of cases have pointed out what every lawyer and nearly every layman, after some reflection, knows, viz., that neither freedom of speech nor freedom to protect one's property and reputation — each of which is guaranteed by the Constitution
One other point has given us grave concern: Was the immediate delivery to the press by the Attorney General of a copy of his letter, prior to its delivery, to the District Attorney — a regrettable practice pursued by high ranking officials whose victims first learn their fate by radio or press — incidental to and hence entitled to the same absolute privilege as the letter, or was it
In Spalding v. Vilas, 161 U.S. 483, the Supreme Court sustained the right of a Postmaster General to write a notice to all claimants calling their attention to the provisions of an Act of Congress and giving his own interpretation thereof, even though it resulted in serious damage to the plaintiff, and even though plaintiff alleged it was maliciously made. The Court held that the principle of absolute immunity from civil suits should (page 498) ". . . apply to a large extent to official communications made by heads of Executive Departments when engaged in the discharge of duties imposed upon them by law."
An even closer case is Glass v. Ickes, Secretary of the Interior, 117 F.2d 273. In that case Glass brought an action of defamation against Ickes, alleging that Ickes had maliciously issued a false and defamatory press memorandum or release in which he said that the plaintiff had been barred from practice from the Department of the Interior, and that all oil operators should look into the matter "before they kicked in to the plaintiff's proposed one-man lobby." The Court held the press release was an absolutely privileged communication and consequently the motive or the malice of the defendant was immaterial. Justice VINSON, now Chief Justice of the Supreme Court of the United States, said in a footnote on page 278: "The practice of cabinet officers to issue public statements in respect to the activity of their departments is too well known to
We believe it is in the public interest to permit an Attorney General to keep the public advised of his official acts and conduct where such actions are in the course of and within the scope of his official duties or powers. We therefore hold that under the facts in this case the delivery to the public press of the letter of the Attorney General to the District Attorney of Allegheny County dated January 5, 1951, was within the protection of the absolute privilege accorded in this case to the Attorney General.
DISSENTING OPINION BY MR. JUSTICE JONES:
The members of the court who heard this appeal are unanimous that the defendant's letter of January 5, 1951, to William S. Rahauser, District Attorney of Allegheny County, concerning the plaintiff, was libelous per se. We are also unanimous as to the law of privilege which the defendant pleads. As the majority opinion states it, ". . . the Attorney General, when acting officially, and within the scope of his authority, has absolute privilege, protection and immunity from civil liability with respect to his official communications and official acts. . . . this [privilege] . . . becomes unavailable if and when the Attorney General . . . acts in matters outside his jurisdiction or beyond the scope of his powers or duties." The cases, which the majority cite and analyze in support of the above-quoted legal proposition, are not open to question. My difference with the majority lies alone in their conclusion that, under the facts of this case, the defendant is entitled to absolute privilege as a defense to his libel. It is my
Just twelve days after publication of the libelous letter of January 5th, the defendant as Attorney General undertook to conduct a public hearing in a courtroom of the Court of Common Pleas of Allegheny County "into the alleged communistic leanings, sympathies and utterances of Mrs. Marjorie Hanson Matson, Assistant District Attorney of Allegheny County." On the day fixed for the Attorney General's hearing, the Court of Common Pleas of Allegheny County, upon the complaint of Mrs. Matson, issued a preliminary injunction enjoining the deputies, by whom the Attorney General was then acting, from conducting the scheduled hearing. On appeal, we affirmed: Matson v. Jackson, 368 Pa. 283, 83 A.2d 134.
That the inquiry into Mrs. Matson's alleged "communistic leanings, sympathies and utterances" by means of the proposed hearing was not within the scope of the Attorney General's powers or duties, we unmistakably confirmed in Matson v. Jackson, supra. First, we upheld the Allegheny County court's jurisdiction of the injunction suit. Had the Attorney General been proceeding within the scope of his official duties, only the Court of Common Pleas of Dauphin County would have had jurisdiction of the suit against his deputies: Act of May 26, 1931, P.L. 191. Second, in a well-considered opinion by Mr. Justice STERN, we held on the merits that conducting such a hearing was not within the powers or duties of the Attorney General under "any of the provisions of the Administrative Code" or under the common law. This latter conclusion is implicit in our answer (p. 289) to the argument then being made
The majority's conclusion in the instant case that the Attorney General's letter of January 5th to District Attorney Rahauser was within his official powers or duties ignores the necessary implications and effect of our decision in Matson v. Jackson, supra. If the Attorney General was without power, as we there decided, to hold a hearing on the alleged "communistic leanings, sympathies and utterances" of Mrs. Matson, it was equally no part of his official powers or duties to write the letter containing the charges concerning which he proposed to hold the hearing.
The letter of January 5, 1951, here involved, was no more an exercise or discharge of a power or duty reposed in the Attorney General by law than was his attempted hearing which Matson v. Jackson enjoined. In the Attorney General's succeeding letter to District
Moreover, the charges in the letter of January 5th were made for the purpose, as the letter itself reveals, of supporting the Attorney General's "demand that Mrs. Matson be dismissed from her position as Assistant District Attorney in Allegheny County," — a power which he did not possess. The majority opinion frankly concedes that "We are all unanimously of the opinion that the Attorney General has no right or power to discharge or to compel a district attorney to discharge an assistant district attorney from her official position or from duties, matters or cases outside of the case or matter in which the Attorney General has superseded the district attorney," citing Matson v. Jackson and other authority. Admittedly, the exception noted is not present in this case. Since the purpose of the letter of January 5th was to bring about Mrs. Matson's dismissal as an assistant district attorney and since
Nor can the letter be otherwise justified as an official act. It was no more in aid of an execution of the laws of the Commonwealth than was the proposed hearing. The plain purpose of the letter of January 5th being, as already stated, to compel Mrs. Matson's dismissal as an assistant district attorney, the reason for the Attorney General's effort to that end becomes relevant. He did not charge that she had violated any law; nor did he purport to be investigating violations of the law. He gave as his reason for demanding Mrs. Matson's dismissal that "it appears obvious that her Communistic associations render her unfit to hold this position." This reason is referable alone to the "qualifications, views and competence" of the assistant district attorney, — a field not open to the Attorney General even in a case where he has superseded the district attorney: see Matson v. Jackson, supra, at p. 289.
Furthermore, the Attorney General cannot be thought to have been acting within the scope of his powers and duties when he independently published the libel contained in his letter of January 5th before he had put it in due course of transmission for the accomplishment of any legitimate purpose. If that be not so, then the doctrine of absolute privilege will be extended far beyond any conscionable limits and become an aid to persecution in the hands of the unscrupulous. I well recognize that, where a public officer, acting within the scope of his lawful authority, libels another, the fact that he acts maliciously does not deprive him of absolute privilege: see, e.g., Spalding v. Vilas, 161 U.S. 483,
Notwithstanding that the letter of January 5th cannot, on the basis of any of our prior cases (especially Matson v. Jackson), be found to be an official act of the Attorney General, the majority appear content to reiterate dicta to the effect that the powers of the Attorney General are "wide and vast" and, on the basis of this broad generality, hold that the libelous letter was "written [by the Attorney General] in the course and within the scope of his powers." I readily agree that the powers and duties of the Attorney General are many and important. But, merely describing them by expansive adjectives should not be availed of to make an official act out of conduct which, under our decisions, should be found not to be within the powers or duties of the Attorney General.
To say that the Attorney General's powers are "wide and vast" puts no limitation whatsoever on them. It is tantamount to saying that they are limitless. That being so, with the current decision of this court extant, the Attorney General (a mere appointive officer) will henceforth enjoy absolute privilege for any and all of his writings so long as he uses his official stationery and signs himself with descriptive designation of his
But, more disquieting still is the evident facility with which the majority virtually repudiate the well-considered unanimous opinion for the full membership of this court in Matson v. Jackson, supra, of a little less than a year ago. That case and the present are not distinguishable in principle so far as the scope of the Attorney General's official duties is concerned. Nor does the majority opinion attempt any serious differentiation of the two cases. When read in conjunction with the decision in Matson v. Jackson, the majority opinion in the instant case places this court in
It was, of course, the Attorney General's right to communicate to the District Attorney anything he knew in relation to his assistants or the conduct of his office which the Attorney General thought might be inimical to the public interest. It is equally the right of every other public official and of every private citizen, for that matter, to do likewise. But, in so acting, such persons (including the Attorney General) enjoy only conditional privilege as a defense to their incidental libels. Once the libel is established prima facie, it becomes the duty of the person charged therewith to allege and prove that the "publication [was made] upon a proper occasion, from a proper motive, in a proper manner and [was] based upon reasonable or probable cause": see Bausewine v. Norristown Herald, Inc., 351 Pa. 634, 645, 41 A.2d 736, and cases there cited. The letter in question being libelous per se and the defendant enjoying only conditional privilege in the circumstances, it was error for the court below to sustain the preliminary objections and dismiss the complaint.
I would reverse with a procedendo.
Mr. Justice CHIDSEY joins in this dissent.