No. 80-225 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1981 

TIMOTHY B . SKINNER, 

Plaintiff and Respondent, 

VS . 

PAUL G. PISTORIA, 

Defendant and Appellant. 

Appeal from: District Court of the Eighth Judicial District, 

In and for the County of Cascade. 

Honorable R. D. McPhillips, Judge presiding. 

Counsel of Record: 

For Appellant: 

James W. Zion argued, Helena, Montana 

For Respondent: 

Smith, Baillie and Walsh, Great Falls, Montana 

James R. Walsh argued, Great Falls, Montana 

Submitted: June 18, 1981 

Decided :sEP 1 1 1981- 

Filed: §Ef 11 1981 

J 

@!LWW C 

Clerk 
Mr. Justice Daniel J. Shea delivered the Opinion of the 

Court. 

Defendant Paul G. Pistoria appeals from a judgment 

entered by the Cascade County District Court following a 

jury verdict in favor of plaintiff Timothy B. Skinner. The 

jury found the defendant liable for defamation of the plaintiff's 

character and awarded damages of $26,294. Although several 

issues are raised, we dispose of this appeal by holding that 

the defendant's publication was made in the course of an 

official government meeting; it was therefore a privileged 

publication which would not subject the defendant to liability 

for defamation. 

The defendant, Pistoria, has been active in Great Falls 

politics and community affairs for many years, serving most 

recently as a member of the Montana House of Representatives 

during the 1981 session. He has characterized himself as a 

"political gadfly" and has developed the reputation of being 

an outspoken critic of the Great Falls city government. 

Pistoria testified that sometime before February 1976, 

he began receiving anonymous telephone calls from four or 

five callers who stressed that Pistoria should do something 

because three named police officers, including the plaintiff, 

were allegedly misusing police department "buy funds." 

These "buy funds" are supplied by the federal government to 

enable local law enforcement authorities to set up purchases 

of illegal drugs during narcotics investigations. Pistoria 

testified that he believed the information that he was given 

because he received several calls which repeated the same 

information from callers who seemed knowledgeable about the 

information they were giving. 
On March 16, 1978, Pistoria again received an anonymous 

call conveying the same information. Pistoria stated that 

he recognized the caller's voice from previous calls. That 

same day, Pistoria prepared on Montana House of Representatives 

stationery a letter which he intended to read at the next 

meeting of the Great Falls City Commission. He then took 

the letter to state senator Patrick Ryan and asked for 

Ryan's advice on the matter. Ryan testified that he also 

had been pursuing the same matter, and although he was 

surprised that Pistoria was working along the same lines, he 

did not discourage Pistoria from presenting the letter to 

the city commission. 

On March 21, 1978, at the next regularly scheduled 

meeting of the city commission and during time normally 

reserved for comment by the public, Pistoria read his letter, 

which states as follows: 

"Great Falls City Commissioners 

"City Manager 

"Chief of Police 

"Civic Center 

"Great Falls, Montana 

"Gentlemen: 

"I received a phone call today from an 

unknown person, who stated: 'I am sure you 

would like to know what is happening in our 

city police department.' The person did not 

identify himself. He mentioned that there 

are a few policemen involved in cases whereby 

Crime Control buy funds are not being distributed 

through the proper channels, and that they were 

being misused by Lt. Jim Cook, Lt. Timothy 

Skinner, Sgt. Donald Zeman, maybe others. 

"During the conversation he also stated that 

much emphasis was made on how important it 

was to finance the STEP Program, Which was 

adopted approximately one year ago, under the 

supervision of Sgt. Wayne Jacobson. This 

program was recently terminated. Why? 

"He stated that these problems have been 

brought to the attention of the City and 

County Attorney, and wondered why this was 
not investigated and made known to the public. 

In no way am I personally involved in these 

accusations, but if such is true, I think it 

should bear investigation." 

Pistoria also placed a copy of the letter on the press 

table at the meeting. Although reporters from the Great 

Falls Tribune and the Montana Television Network were both 

present, he had no discussion with either of them. Later, 

however, both the Great Falls Tribune and the Montana Television 

Network News carried the story. 

At the time this event took place, the plaintiff was a 

lieutenant in the Great Falls Police Department, and was one 

of five candidates being considered for promotion to captain. 

That position would have initially paid about $75 more per 

month than the plaintiff was making as a lieutenant. As a 

result of Pistoria's letter and the subsequent news reports, 

the police department postponed any promotions to captain 

positions for about one year. The plaintiff was, however, 

promoted to captain when the decisions were eventually made. 

The plaintiff filed suit, contending that Pistoria's 

publication of the letter exposed the plaintiff to hatred, 

contempt, ridicule, and obloquy, caused him to be shunned 

and avoided, and injured him in his occupation as a police 

officer. He alleged that Pistoria acted out of a malicious, 

personal motive stemming from disapproval of certain previous 

city government actions. The jury found Pistoria liable to 

the plaintiff for $1,294 in actual damages and $25,000 in 

punitive damages. 

Pistoria presents several issues for our consideration 

in this appeal, but because we hold that his publication was 

absolutely privileged, this holding disposes of the case. 
The thrust of Pistoria's claim is that a communication 

made to the appropriate governmental authority, designed to 

initiate an investigation into public affairs, constitutes a 

publication made in an official proceeding and is cloaked 

with absolute immunity. We examine that claim "against the 

background of a profound national commitment to the principle 

that debate on public issues should be uninhibited, robust, 

and wide-open, and that it may well include vehement, caustic, 

and sometimes unpleasantly sharp attacks on government and 

public officials." New York Times Co. v. Sullivan (1964), 

376 U.S. 254, 270, 84 S.Ct. 710, 721, 11 L.Ed.2d 686, 701. 

One requisite of a defamation action is that the communication must be unprivileged. A privileged communication 

is one which, except for the circumstances under which it is 

made, may be defamatory and actionable. Storch v. Board of Dir. 

of East Mont. Reg. Five M.H.C. (1976), 169 Mont. 176, 181, 

545 P.2d 644, 647. Privileged communications are of two 

general classes: (1) the privileges which arise from the 

consent of the person defamed; and (2) the privileges which 

are conferred by law because of the occasion on which the 

defamatory matter is published. Griffin v. Opinion Pub. Co. 

(1943), 114 Mont. 502, 508, 138 P.2d 580, 584. 

Section 27-1-804, MCA, states that " [a] privileged 

publication is one made: . . .(2) in any legislative or 

judicial proceeding or --- in any other official proceeding 

authorized by -- law; . . ." (Emphasis added.) As used here, 

publication means "to make public." Black's Law Dictionary, 

(5th ed.) at 1105. We draw no distinctions between the 

reading of the letter to the city commission, its distribution 

to the press at the meeting, and its later treatment by the 
media. We are concerned only with the fact that Pistoria 

made the information known publicly at the March 21, 1978 

meeting. We are not concerned with the fact that he gave 

the media copies of his letter, because the proceeding was 

open to the public and the media was entitled to be present. 

Placing a copy of the information on the press table at a 

public meeting did not remove the cloak of immunity from 

Pistoria's publication, for we are also not concerned with 

the degree of publication. Whether there was publication 

here is not an issue since everyone agrees that publication 

occurred and Pistoria openly admits that his purpose was to 

make his information known publicly so that it might spur an 

investigation into the practices of the police department. 

Freedom of expression upon public matters is secured by 

both the Montana Constitution and the First Amendment. ". . . 

it is a prized American privilege to speak one's mind, 

although not always with perfect good taste, on all public 

institutions." Bridges v. California (1941), 314 U.S. 252, 

270, 62 S.Ct. 190, 197, 86 L.Ed. 192, 207. The 1972 Mont. 

Const., Art. 11, 5 6, recognizes the right to comment on 

public matters by stating that "[tlhe people shall have the 

right peaceably to assemble, petition for redress or peaceably 

protest governmental action." 

Strong policy reasons exist to assure free and open 

channels of communication between citizens and the authorities 

responsible for investigating public wrongdoing. without 

protection, these important channels cannot effectively 

remain open. Protection is applicable when any recognized 

interest of the public is endangered, and that interest 

includes the honest and proper discharge of duties by public 

officers. The concern which all citizens have in the proper 
it is to be made to the proper authorities responsible for 

the interest being expressed. 

We recognize that unfounded and harmful charges cast 

under a shield of immunity may in some situations cause real 

and substantial injury. Nonetheless, the broad policy 

considerations supporting this immunity have been determined 

by the legislature to outweigh the likelihood that victims 

of defamatory statements may be denied appropriate redress. 

The advantages gained by the freedom to comment and criticize 

are sufficient to outweigh the danger that the reputations 

of public officers may suffer. Griffin, supra, 114 Mont. 

at 511, 138 P.2d at 585. 

While the Montana legislature has created an absolute 

privilege, other jurisdictions have adopted a "rule of 

qualified privilege." Under that rule, a person making an 

allegedly defamatory publication is entitled to a privilege 

against liability for defamation only if it can be shown 

that his publication was not motivated by actual malice. For 

example, see Sowder v. Nolan (D.C. 1956) , 125 A.2d 52 (one 

who writes to police chief about the misconduct of an officer 

is entitled to qualified privilege); Dempsky v. Double 

(1956), 386 Pa. 542, 126 A.2d 915 (woman who wrote letter to 

county controller charging that county employee was using 

county equipment for his own purposes was entitled to qualified 

privilege); Hancock v. Mitchell (1919), 83 W.Va. 156, 98 

S.E. 65 (citizen with an interest that the duties of a 

public officer be properly performed can petition the proper 

authorities for action and is entitled to qualified privilege); 

Nuyen v. Slater (1964), 372 Mich. 654, 127 N.W.2d 369 

(citizen interested in the proper administration of the 

local health department was qualifiedly privileged to express 
conduct of public affairs by public officials requires that 

there be wide freedom to criticize that conduct, even though 

the criticism be unjustified or extravagant. Griffin, 

114 Mont. at 510-11, 138 P.2d at 585. The ciuties of a 

public body, such as a city commission, often include supervision 

of public officers and may carry with it the power to remove 

or discipline those officers for neglect of duty or malfeasance 

in office. The responsible authorities should have extensive 

information concerning the conduct of those officers, in 

order that they might intelligently exercise their discretion. 

So that information may be freely given, it is necessary to 

protect those who give the information, even though it be 

untrue. 

The legislature has chosen, through section 27-1- 

804(2), NCA, to confer a privilege upon publications made in 

an "official proceeding authorized by law." From the language 

used in this particular subsection, the privilege conferred 

is absolute and is therefore unaffected by the presence of 

malice. Although subsections (3) and (4) of section 27-1- 

804 do mention malice, subsections (1) and (2) do not. We 

held in Storch, supra, that section 27-1-804(1) confers an 

absolute privilege against liability for defamation. We now 

hold that subsection (2) also confers an absolute privilege. 

Assuming, then, that Pistoria's statements were maliciously 

motivated as the plaintiff contends, as long as such statements 

were made at a proper proceeding, the presence of malice is 

irrelevant. The only requirement of subsection (2) is that 

the publication be made in an official proceeding authorized 

by law. We do not take this to mean that expression critical 

of the official conduct of any public officials may be made 

at any official meeting authorized by law, but rather that 
concern to the administrator). 

We hold that the March 21, 1978 regular meeting of the 

Great Falls city commission was an official meeting authorized 

by law; that it was proper for Pistoria to address the Great 

Falls city commission because it is the governing body of 

that city (section 1-7-2, Municipal Code of Great Falls); 

that it was proper for him to address the city manager 

because the manager supervises the police department (section 

1-7-4(e), Municipal Code of Great Falls; section 7-32-4103, 

MCA); and that it was proper for him to address the chief of 

police because the police chief supervises all city police 

officers (section 7-32-4105(c), MCA). The judgment of the 

District Court is reversed and the action is ordered dismissed. 

We Concur: 

&ef Justice* , 

District ~ud~ewltting 

for Mr. Justice John C. 

Harrison