ZUTZ v. NELSON

KUHN, J.

On appeal, we review a summary judgment that awarded penalties to plaintiff-appellee, Kenneth K. Krygier, for the failure of defendant-appellant, Progressive Casualty Insurance Company ("Progressive"), an uninsured/underinsured motorist ("UM") insurer, to make a timely tender of its policy limits following a motor vehicle accident. See La.R.S. 22:1892. We affirm.

Acts 2008, No. 415, § 1, eff. January 1, 2009, renumbered former La.R.S. 22:658 to La.R.S. 22:1892 without changing the substance of the provisions. Although the accident occurred before this renumbering, because the substance of the newly designated statute is the same, we reference La.R.S. 22:1892 throughout this opinion.

I. PROCEDURAL AND FACTUAL BACKGROUND

On October 11, 2006, Krygier was a passenger in a 2006 Chevrolet Cobalt operated by a co-worker, Billy Toon, who had rented the vehicle in Louisiana. Both Krygier and Toon worked for Hornbeck Offshore Services, L.L.C. ("Hornbeck"). While Toon and Krygier were travelling to Hornbeck's office in Covington, Louisiana, the vehicle they occupied was rear-ended by a 2005 Ford Explorer operated by Karen Vidrine and insured by Liberty Mutual Fire Insurance Company ("Liberty Mutual"). Progressive had issued a policy to Toon that was in effect on the date of the accident and provided UM coverage to all occupants of an "insured" vehicle.

When the accident occurred, Krygier worked for Hornbeck as a mate on an offshore supply boat.

On May 14, 2007, Krygier filed suit naming as defendants, Vidrine, Progressive, and Liberty Mutual. Krygier alleged that Vidrine's negligence caused the accident, that he had sustained severe and permanent personal injuries, and that the policies issued by Progressive and Liberty Mutual provided coverage for the nature of the liability asserted in his petition.

Although the petition named both Liberty Mutual Fire Insurance Company and Liberty Mutual Insurance Company as defendants, the policy at issue was issued by Liberty Mutual Fire Insurance Company. We refer to these defendants collectively as "Liberty Mutual."

In a first amended petition, filed on June 25, 2007, Krygier also named Hornbeck as a defendant. Krygier asserted that the motor vehicle accident occurred while he was in the course and scope of his employment with Hornbeck, for whom he alleged he was employed as a Jones Act seaman. Krygier alleged that Hornbeck had initially paid maintenance and cure benefits for a period of time after the accident but had ceased providing wages "in violation of the Admiralty law and [Hornbeck] sought reimbursement of all sums paid to [him]." Based on these allegations, Krygier sought to recover maintenance and cure benefits from Hornbeck.

Progressive answered the suit, generally denying the allegations of Krygier's original and first amended petition, and further denying coverage under its policy on the grounds that the rental vehicle in question was not a covered vehicle under Toon's policy, Krygier was not a "covered person" under the policy, and Vidrine was not underinsured.

Liberty Mutual answered Krygier's original petition, generally denying the allegations of the petition but admitting the existence of a liability policy. Thereafter, counsel for Liberty Mutual and Vidrine, D. Russell Holwadel, answered Krygier's first amended petition on behalf of both Liberty Mutual and Vidrine, generally denying its allegations. Hornbeck likewise answered Krygier's original and first amended petition, generally denying the allegations, asserting affirmative defenses, and asserting a cross-claim against Vidrine and Liberty Mutual.

In September 2007, Progressive filed a motion for summary judgment, seeking a determination that Krygier was not afforded UM benefits under Progressive's policy on the basis that coverage did not extend to the rental vehicle driven by Toon. Krygier also filed a motion for summary judgment on the same coverage issue, urging that Progressive's policy provided UM benefits to guest passengers when Toon drove the rental vehicle. On December 6, 2007, the trial court granted Krygier's motion for summary judgment and denied Progressive's motion for summary judgment, determining that coverage under Progressive's policy extended to Toon's rental vehicle and to Krygier as a guest passenger.

The parties had disputed whether Tennessee or Louisiana law controlled this coverage issue, since the Progressive policy had been purchased in Tennessee by a Tennessee resident, although Toon had rented the vehicle in Louisiana, the accident had occurred in Louisiana, and Vidrine was a Louisiana resident.

In August 2007, Hornbeck had submitted a request for production of documents to Liberty Mutual, which requested, inter alia, "[a]ny and all policies of insurance providing liability coverage to [Vidrine] for the [October 11, 2006 accident]." Holwadel, in his capacity as counsel for Liberty Mutual, responded to this particular request on January 15, 2008, and therein referenced the "attached [Liberty Mutual] policy" that had been issued to Vidrine, which provided liability coverage with a $30,000 maximum limit for each accident involving the 2005 Ford Explorer for the period of April 2, 2006 to April 2, 2007. It is undisputed that Liberty Mutual's response was served on all counsel of record. Nevertheless, Progressive took the position that it did not have sufficient documentation establishing that Vidrine was underinsured at the time of the accident.

The first page of the Liberty Mutual policy declarations lists "Jeffrey M. Vicknair" and "Karen V. Vicknair" as "named insureds," and the second page of the policy declarations lists "Jeffrey M. Vicknair" and "Karen Vidrine" as insured drivers. The parties do not contest that "Karen Vidrine" and "Karen M. Vicknair" are the same person.

It is further undisputed that Krygier also provided a copy of the Liberty Mutual policy to Progressive on October 8, 2008.

On January 29, 2008, Progressive participated in Krygier's deposition, during which Krygier testified regarding the injuries he sustained in the accident, his ongoing medical treatments, and his pain and suffering related to the injuries sustained. Krygier had also previously provided documentation regarding his employment, lost earnings, and medical treatment in response to Progressive's requests for productions of documents.

On March 4, 2008, the trial court dismissed Vidrine and Liberty Mutual from the lawsuit with prejudice after Krygier settled his claims against them. On May 27, 2008, this court denied Progressive's application for supervisory writs on the issue of whether Progressive's policy afforded coverage to the rental vehicle driven by Toon ( Krygier v. Vidrine , 08-0145 (La. App. 1st Cir. 5/27/08) (unpublished writ action)), and on September 26, 2008, the supreme court denied Progressive's application for supervisory writs on this issue ( Krygier v. Vidrine , 08-1365 (La. 9/26/08), 992 So.2d 990).

In Krygier's second amended petition for damages, filed on November 17, 2008, he sought penalties, attorneys' fees, and costs based on Progressive's failure to timely tender its policy limits upon receipt of satisfactory proofs of loss. Krygier alleged that Liberty Mutual had paid him $15,000 in settlement of his claims against it and Vidrine. Krygier also averred that although he had sought maintenance and cure benefits from Hornbeck, it had failed to pay such benefits. Krygier alleged that when the supreme court denied Progressive's writ application on September 26, 2008, Progressive was well aware that Vidrine did not have sufficient insurance to cover the damages sustained in the accident by Krieger. Krygier further alleged that although he had previously made demand on Progressive to tender its policy limits of $100,000, plus judicial interest in the amount of $12,378.52, Progressive had failed to tender any amount to Krygier despite Progressive's receipt of satisfactory proofs of loss and clear liability under the policy terms. Krygier claimed that Progressive had violated La.R.S. 22:1892A(1) (formerly La.R.S. 22:658A(1)), urging that its failure to tender its policy limits within thirty days after receipt of satisfactory proofs of loss was arbitrary, capricious, and without probable cause. As such, Krygier prayed for $50,000 in penalties, together with reasonable costs and attorneys' fees.

In December 2008, Progressive generally denied the allegations of Krygier's second amended petition and further answered that it was "entitled to a credit for any payments which have been made or may in the future be made by . . . any other . . . entity . . . whatsoever. . . ." Progressive further answered that it had "acted reasonably and in good faith at all times in connection with the handling of the . . . matter" and further averred that "[Krygier had] failed to provide satisfactory proofs of loss."

The parties do not dispute that on February 11, 2009, Progressive received an "Affidavit of No Other Insurance," executed by Vidrine, wherein she attested to the fact that she had no other liability insurance in effect on the date of the accident and that on March 12, 2009, Progressive unconditionally tendered $100,000 to Krygier.

On March 30, 2009, Krygier and Hornbeck filed a joint motion and order for dismissal of all claims against Hornbeck, and on May 13, 2009, Krygier's claims against Hornbeck were dismissed with prejudice. On June 1, 2009, Krygier filed a motion for summary judgment, urging that no genuine issue of material fact remained in dispute that Krygier had provided satisfactory proofs of loss to Progressive by September 26, 2008, the date the supreme court denied Progressive's writ application on the coverage issue. Krygier urged that Progressive failed to timely tender its policy benefits in accordance with La.R.S. 22:1892 and that such conduct was arbitrary and capricious, resulting in liability for penalties, attorneys' fees and costs.

On July 10, 2009, Progressive opposed Krygier's motion for summary judgment, and Progressive also filed a cross motion for summary judgment, in which it urged that Krygier had not proven the underinsured status of Vidrine before February 11, 2009, because Krygier had not established that Vidrine had no insurance other than the Liberty Mutual insurance coverage. In opposing Krygier's motion, Progressive did not contest that: 1) Krygier was riding as a passenger in Toon's rental vehicle; 2) Vidrine had negligently failed to stop her vehicle which rear-ended the vehicle in which Krygier rode; 3) Krygier was a covered insured under Progressive's policy; and 4) it had been provided with "Krygier's employment and tax records evidencing that he was earning approximately $80,000 per year at the time of the accident, [Krygier had] been unable to return to work, and [he had] sustained approximately $200,000 in lost wages. . . ." Further, Progressive did not contest that "[t]hroughout the course of [the] litigation [it] had been provided with [Krygier's medical records] that [evidenced] he sustained permanent and severe injuries, that he [was] unable to return to work and that he will likely be unable to return to work for the remainder of his life." Progressive also did not contest that approximately $22,000 of the $30,000 Liberty Mutual policy limits was paid to satisfy claims other than those of Krygier. Rather, Progressive contested that it had not been provided with satisfactory proofs of loss that included information that Vidrine was underinsured when the supreme court issued its September 26, 2008 denial of Progressive's application for supervisory review of the December 6, 2007 summary judgment granted in Krygier's favor on the coverage issue.

Pursuant to a September 8, 2009 judgment, the trial court granted Krygier's motion for summary judgment, denied Progressive's motion for summary judgment, found Progressive was "arbitrary and capricious in failing to promptly tender policy limits," and awarded penalties in the amount of $50,000 to Krygier. The judgment further declared that Krygier was entitled to "the remaining interest owed on the policy limits, plus attorneys' fees and costs."

The September 8, 2009 judgment further provided, "The amount due for [attorneys'] fees, costs and remaining interest will be determined by hearing upon [m]otion of counsel." The trial court designated the judgment as a final appealable judgment based on its finding that there was no just reason for delay. La.C.C.P. art. 1915B. We likewise find there is no just reason for delay (see R.J. Messinger, Inc. v. Rosenblum , 04-1664, p. 14 (La. 3/2/05), 894 So.2d 1113, 1122-23), and we find the trial court properly designated the judgment as final.

Progressive has suspensively appealed, urging that Krygier did not establish that it acted arbitrarily, capriciously, or without probable cause after receiving satisfactory proofs of loss. Progressive contends that "sufficient admissible proof of the [underinsured status]" of Vidrine was not conclusively established until February 11, 2009, when it received Vidrine's affidavit of no other insurance, and that it tendered its policy limits within thirty days of receiving this affidavit. Progressive urges that Krygier had the burden of proving Vidrine's underinsured status in order to establish a satisfactory proof of loss, and it further contends that this burden was not shifted to it as a result of Liberty Mutual's discovery responses. Thus, Progressive urges that Krygier had not established that Vidrine was underinsured as of September 26, 2008, and the judgment in Krygier's favor should be reversed.

II. ANALYSIS

A motion for summary judgment shall be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law. La.C.C.P. art. 966B. The summary judgment procedure is favored in Louisiana and is designed to secure the just, speedy, and inexpensive determination of actions. La.C.C.P. art. 966A(2). Summary judgments are reviewed on appeal de novo, using the same criteria that govern the trial court's consideration of whether a summary judgment is appropriate, and in the light most favorable to the non-movant. Yokum v. 615 Bourbon Street, L.L.C. , 07-1785, p. 25 (La. 2/26/08), 977 So.2d 859, 876. Thus, appellate courts must ask the same questions the trial court does in determining whether summary judgment is appropriate: whether there is any genuine issue of material fact and whether the mover is entitled to judgment as a matter of law. Hood v. Cotter , 08-0215, p. 9 (La. 12/2/08), 5 So.3d 819, 824. A "genuine issue" is a "triable issue." Smith v. Our Lady of the Lake Hospital, Inc. , 93-2512 (La. 7/5/94), 639 So.2d 730, 751. An issue is genuine if reasonable persons could disagree. If on the state of the evidence, reasonable persons could reach only one conclusion, there is no need for a trial on that issue. Id. A fact is "material" when its existence or nonexistence may be essential to plaintiff's cause of action under the applicable theory of recovery. Jones v. Estate of Santiago , 03-1424, p. 6 (La. 4/14/04), 870 So.2d 1002, 1006. Summary judgment is usually not appropriate for claims based on subjective facts of motive, intent, good faith, knowledge, and malice. Id. However, an exception is recognized when no genuine issue of material fact exists concerning the relevant intent, and the only issue to be decided is the ultimate conclusion to be drawn from the uncontested material facts. See Jones, 03-1424 at pp. 6 16, 870 So.2d at 1006 1010-11.

The initial burden of proof remains with the mover to show that no genuine issue of material fact exists. La.C.C.P. art. 966C(2); Jones , 03-1424 at p. 5, 870 So.2d at 1006. If the mover has made a prima facie showing that the motion should be granted, the burden shifts to the non-moving party to present evidence demonstrating that a genuine issue of material fact remains. Id. The failure of the non-moving party to produce evidence of a material factual dispute mandates the granting of the motion. La.C.C.P. art. 966C(2); Jones , 03-1424 at p. 5, 870 So.2d at 1006.

Louisiana Revised Statutes 22:1892 provides, in pertinent part:

A. (1) All insurers issuing any type of contract . . . shall pay the amount of any claim due any insured within thirty days after receipt of satisfactory proofs of loss from the insured or any party in interest. . . .

B. (1) Failure to make such payment within thirty days after receipt of such satisfactory written proofs and demand therefor . . . within thirty days after receipt of satisfactory proofs of loss of that claim, . . . when such failure is found to be arbitrary, capricious, or without probable cause, shall subject the insurer to a penalty, in addition to the amount of the loss, of fifty percent damages on the amount found to be due from the insurer to the insured, or one thousand dollars, whichever is greater, payable to the insured, or to any of said employees, or in the event a partial payment or tender has been made, fifty percent of the difference between the amount paid or tendered and the amount found to be due as well as reasonable attorney fees and costs.

Because Section 1892 is penal in nature, it is strictly construed. See Reed v. State Farm Mut. Auto. Ins. Co., 03-0107, p. 13 (La. 10/21/03), 857 So.2d 1012, 1020. A satisfactory proof of loss is a necessary predicate to a showing that the insurer was arbitrary, capricious, or without probable cause. Id. Whether or not a refusal to pay is arbitrary, capricious, or without probable cause depends on the facts known to the insurer at the time of its action. Id. , 03-0107 at p. 14, 857 So.2d at 1021. "Satisfactory proof of loss" in a claim pursuant to UM coverage is receipt by the insurer of "sufficient facts which fully apprise the insurer that (1) the owner or operator of the other vehicle involved in the accident was uninsured or underinsured; (2) that he [or she] was at fault; (3) that such fault gave rise to damages; and (4) establish the extent of those damages." Id. , 03-0107 at p. 15, 857 So.2d at 1022.

In the instant appeal, Progressive challenges Krygier's proof as to only the first of the four enumerated requirements necessary to establish "satisfactory proof of loss," arguing that Krygier failed to establish that Vidrine was underinsured as of September 26, 2008. Progressive claims the underinsured status was not established until it obtained Vidrine's affidavit on February 11, 2009, wherein she attested that she had no insurance other than the Liberty Mutual policy. Progressive does not claim that it did not know of the Liberty Mutual policy and its limits as of September 26, 2008; it asserts merely that knowledge of these facts was not sufficient to apprise it of Vidrine's underinsured status.

We reject Progressive's contention. It is undisputed that Progressive had received Liberty Mutual's policy and its policy declarations, which established the $30,000 limits of the available liability coverage, and Progressive had been provided with Krygier's employment records and medical records establishing losses greater than $130,000 (representing the limits of Liberty Mutual's liability coverage and the limits of Progressive's UM coverage) prior to September 26, 2008. No countervailing evidence was presented. At this point, the burden then shifted to Progressive to prove the existence of other applicable liability policies in order to defeat the application of its UM coverage. See Gillmer v. Parish Sterling Stuckey, 09-0901, pp. 8-9 (La. App. 1st Cir. 12/23/09), 30 So.3d 782, 788; Simon v. Reel , 03-932, p. 6 (La. App. 3d Cir. 3/3/04), 867 So.2d 174, 179.

It was undisputed that Vidrine's negligence had caused the accident, and defendants did not controvert the evidence submitted by Krygier prior to September 26, 2008, which established that the accident had caused his resulting injuries.

Progressive argues in brief that Krygier did not use the methods provided by La.R.S. 22:1295D(6) to prove that Vidrine was underinsured. However, the methods of proving the UM status provided by that statute are not exclusive and such status can be proven by other evidence. See Gillmer , 09-0901 at p. 7, 30 So.3d at 787; Boudreaux v. State Farm Mut. Auto. Ins. Co. , 385 So.2d 480, 484 (La. App. 1st Cir. 1980).

We likewise find no merit in Progressive's assertion that Krygier's pending maintenance and cure claim against Hornbeck had some bearing on the amount due to Krygier as of September 26, 2008. Progressive's policy provides, "The damages recoverable under [the UM coverage] shall be reduced by all sums . . . paid or payable because of bodily injury under any of the following or similar law: a. workers' compensation law; or b. disability benefits law." General maritime or admiralty law, pursuant to which Krygier sought maintenance and cure benefits, is not similar to workers' compensation law. Sanders v. Home Indemnity Ins. Co. , 594 So.2d 1345, 1352 (La. App. 3d Cir. 1991), writ denied , 598 So.2d 377 (La. 1992); see Sampsell v. B I Welding Services and Consultants, Inc., 93-2456, p. 5 (La. App 4th Cir. 6/15/94), 638 So.2d 477, 479, writ denied , 94-2175 (La. 11/11/94), 644 So.2d 397, cert denied , 514 U.S. 1063, 115 S.Ct. 1692, 131 L.Ed.2d 556 (1995). This baseless defense was abandoned by Progressive before it even determined any amount that Krygier may have recovered as maintenance and cure benefits from Hornbeck.

Viewing the evidence in the record de novo, we find reasonable persons could reach only one conclusion, i.e., that Progressive acted arbitrarily, capriciously, or without probable cause in not tendering its policy limits within thirty days of September 26, 2008. When a motion for summary judgment is made and supported, the adverse party may not rest on the allegations or denials of his pleadings but must set forth specific facts showing that there is a genuine issue for trial. La.C.C.P. art. 967B. Once Krygier made a prima facie showing that his motion for summary judgment should be granted, the burden shifted to Progressive to present evidence demonstrating there remained a genuine issue of material fact or that Krygier was otherwise not entitled to judgment as a matter of law. It failed to meet this burden.

III. CONCLUSION

For these reasons, we affirm the trial court's September 8, 2009 judgment, which granted Krygier's motion for summary judgment and awarded penalties in the amount of $50,000. Appeal costs are assessed against Progressive.

AFFIRMED.

ANDERSON, PAUL H., J., dissenting.

STRAS, J., not having been a member of this court at the time of the argument and submission, took no part in the consideration or decision of this case.

ANDERSON, PAUL H., J., (dissenting).

I respectfully dissent. The majority relies on two of our older cases — one from 1909 and the other from 1967 — in declining to extend absolute legislative privilege to statements made by watershed district board members in their official capacities. Jones v. Monico, 276 Minn. 371, 150 N.W.2d 213 (1967); Burch v. Bernard, 107 Minn. 210, 120 N.W. 33 (1909). Since we decided those cases, a contrary trend has emerged in several other jurisdictions, extending absolute privilege beyond a state's highest legislative bodies. I find the authority supporting the modern trend highly persuasive. A thorough review of cases from our court and elsewhere, including the United States Supreme Court supports a change in the law in this area. Because I conclude that the qualified privilege provides insufficient protection for the public interest in free and open legislative debate, I dissent.

The extension of the absolute legislative privilege, which Minnesota's Constitution grants to members of the Legislature, to other contexts as a matter of policy has been "`a story of uneven development.'" Carradine v. State, 511 N.W.2d 733, 734 (Minn. 1994) (quoting Barr v. Matteo, 360 U.S. 564, 579, 79 S.Ct. 1335, 3 L.Ed.2d 1434 (1959) (Warren, C.J., dissenting)). In an early case, we stated that "It is a rule of general application in this country that libelous or slanderous matter published in the due course of judicial or legislative proceedings is absolutely privileged. . . . The rule is broad and comprehensive, including within its scope . . . all legislative bodies, state or municipal." Peterson v. Steenerson, 113 Minn. 87, 89, 129 N.W. 147, 147-48 (1910) (citations omitted). This broad language in Peterson was dicta, however, because a member of a state or municipal legislative body did not make the statement at issue. Rather, in Peterson we addressed statements made by a postmaster regarding the misconduct of a mail carrier and held that only qualified privilege, and not absolute privilege, applied. Id. at 88, 90, 129 N.W. at 147, 148.

Our broad statement in Peterson regarding the scope of absolute legislative privilege was to a certain degree inconsistent with three of our earlier cases on this issue. In those earlier cases, we focused on the scope of the duties of the members of local legislative bodies, and held that their allegedly defamatory statements were not absolutely privileged because the statements exceeded the scope of those duties. In Wilcox v. Moore, 69 Minn. 49, 50-51, 71 N.W. 917, 918 (1897), for example, a city council published a resolution in the local newspapers calling for the resignation of a local judge and describing the judge's alleged conduct as "highly unbecoming a man." The judge sued the city council, and we held on appeal that "the article [was] not privileged" because the city council members "went outside of the line of their official duty" in publishing it. Id. at 52, 71 N.W. at 919. In Trebby v. Transcript Publishing Co., 74 Minn. 84, 88-89, 76 N.W. 961, 961-62 (1898), we similarly held that a city council resolution published in the local newspaper that characterized the plaintiff as a "disreputable person" was not "within the scope of official authority" and therefore was not absolutely privileged. Finally in Burch, 107 Minn, at 211-12, 120 N.W. at 33-34, where a city council member accused a nurse employed by the city of "running nothing but a damn whorehouse," we held that the statement was not absolutely privileged because it was not "made on a proper occasion" nor "pertinent to any inquiry or investigation pending before the council."

More than half a century later in Jones, 276 Minn. 371, 150 N.W.2d 213 (1967), we again addressed the issue of absolute legislative privilege for members of subordinate legislative bodies. The plaintiff in Jones charged members of a board of county commissioners with defamation of his personal and business reputation during board proceedings. Id. at 371-72, 150 N.W.2d at 214. Citing the language in Peterson applying absolute privilege broadly, we said that

[s]tatements made in the course of legislative proceedings, including those made by members of municipal councils or other governing bodies of political subdivisions, are privileged. This privilege applies if it relates to a matter within the scope of that particular body's authority.

Jones, 276 Minn. at 374, 150 N.W.2d at 215 (citing Peterson, 113 Minn. at 89, 129 N.W. at 147).

With no explanation of our reasoning, we abruptly shifted gears in Jones after making the foregoing broad statement about the general rule on absolute privilege and proceeded to articulate a much narrower holding. We held that "the proceedings of subordinate bodies, including municipal councils or town meetings, are not within the policy underlying absolute immunity since the members of such bodies are sufficiently protected" by the qualified or conditional privilege. Id. at 375, 150 N.W.2d at 216. In reaching this holding, we did not elaborate further regarding the policy underlying absolute privilege or the reasons for distinguishing subordinate legislative bodies from the State Legislature. The court of appeals has subsequently read Jones as placing Minnesota "among the jurisdictions applying [only a] conditional privilege" to subordinate legislative bodies. Johnson v. Northside Residents Redevelopment Council, 467 N.W.2d 826, 828 (Minn.App. 1991), rev. denied (Minn. July 24, 1991).

In their analysis of the case before us, neither the district court nor the court of appeals cited Jones or discussed its reasons for reaching a result contrary to our holding in Jones. Both courts focused on our more recent cases dealing with absolute privilege in the executive branch. See, e.g., Johnson v. Dirkswager, 315 N.W.2d 215, 216 (1982) (extending absolute privilege to cover a top level cabinet-type official in the executive branch). In Carradine v. State, 511 N.W.2d 733, 736-37 (Minn. 1994), the case upon which the court of appeals relied most heavily, we held that police officers enjoy absolute privilege against defamation suits arising from the contents of their official arrest reports, but only a qualified privilege with respect to statements made to the news media. Adopting reasoning from the United States Supreme Court, we noted in Carradine that immunity:

is not a badge or emolument of exalted office, but an expression of a policy designed to aid in the effective functioning of government. The complexities and magnitude of governmental activity have become so great that there must of necessity be a delegation and redelegation of authority as to many functions, and we cannot say that these functions become less important simply because they are exercised by officers of lower rank in the executive hierarchy.

Id. at 735 (quoting Barr v. Matteo, 360 U.S. 564, 572-73, 79 S.Ct. 1335, 3 L.Ed.2d 1434 (1959)). Rejecting the high level/low level officer distinction, we went on to state in Carradine that the assignment of an absolute privilege to an executive official "depends on many factors, including the nature of the function assigned to the officer and the relationship of the statements to the performance of that function." Carradine, 511 N.W.2d at 736.

The court of appeals read Carradine as implicitly overruling Jones, although the court of appeals reached this result without citing or discussing Jones itself. Zutz v. Nelson, No. A08-1764, 2009 WL 1752139, at *1 (Minn.App. June 23, 2009). Rather, the court of appeals discussed Johnson v. Northside Residents Redevelopment Council, 467 N.W.2d 826, 828 (Minn.App. 1991) rev. denied (Minn. July 24, 1991), a case that followed the bright-line rule we articulated in Jones. The court stated that:

Although the Johnson court indicated that proceedings of municipal councils and other subordinate bodies are not within the policy underlying absolute immunity, the Minnesota Supreme Court has since held [in Carradine] that absolute immunity is not determined by the individual's "rank in the executive hierarchy," but rather is dependent on the "nature of the function assigned to the officer and the relationship of the statements to the performance of that function."

Zutz, 2009 WL 1752139, at *1 (citation omitted) (quoting Carradine, 511 N.W.2d at 735-36) (internal citation omitted). We therefore now face the decision of whether to explicitly extend Carradine's reasoning to lower level officials in the legislative context, overruling Jones in the process, or to instead reaffirm the rule articulated in Jones, and hold that members of subordinate legislative bodies are entitled to only a qualified privilege. The majority chooses the latter course, and in my view, strikes the wrong balance between the interest of the public in open legislative debate and the interests of private citizens seeking recourse for defamation.

Although we are not bound by Restatement positions, we nonetheless view them as useful persuasive authority that can sometimes prove helpful in our analysis. See, e.g., Moreno v. Crookston Times Printing Co., 610 N.W.2d 321, 332 (Minn. 2000) (describing section 611 of Restatement (Second) of Torts as "persuasive"). Here, I find the relevant Restatement provisions to be a useful starting point for my analysis. The first Restatement of Torts grants absolute privilege to members of only "the highest legislative body of a State." Restatement of Torts § 590 cmt. c (1938). That rule reflects the majority rule of its era, but today represents a minority position. The second Restatement extends the privilege by providing that "[a] member of the Congress of the United States or of a State or local legislative body is absolutely privileged to publish defamatory matter concerning another in the performance of his legislative functions." Restatement (Second) of Torts § 590 (1977) (emphasis added).

Counting jurisdictions to determine which rule is the majority and which is the minority is difficult because many states, like Minnesota, have inconsistent authority on the question. According to M.O. Regensteiner, Annotation, Libel and Slander: Statements or Utterances by Member of Municipal Council, or of Governing Body of Other Political Subdivision, in Course of Official Proceedings, as Privileged, 40 A.L.R.2d 941, 943 (1955), Mills v. Denny, 245 Iowa 584, 63 N.W.2d 222 (1954), is the only decision that "expressly" holds that members of subordinate legislative bodies are entitled to only a conditional privilege. Several other states, however, also have authority expressing this position. See 5 Restatement (Second) of Torts app. § 590 Reporter's Note, cmt. c (1981) (listing cases from states including Delaware, Maine, and Minnesota).
The American Law Reports article states, and the cases cited in the note to the Second Restatement confirm that, in the majority of the comparatively few cases to consider the issue, courts "have held or recognized that at least under some circumstances members of governing bodies of political subdivisions are entitled to the complete defense afforded by [absolute] privilege, for utterances made by them during the course of official proceedings." Regensteiner at 943. Jurisdictions that have expressly adopted the modern rule include Oregon, Arizona, Michigan, New Hampshire, Florida, and (by statute) Kentucky and Utah. See Restatement (Second) of Torts app. § 590 Reporter's Note, cmt. c. (1981 — also citing supplement(s)).

Our prior cases together with subsequent developments in the law, including the second Restatement, place us at a fork in the road with respect to the question of what Minnesota's law regarding absolute legislative privilege should be. We must decide whether to retain the historic rule reflected in Jones, 276 Minn. at 375, 150 N.W.2d at 216, and the first Restatement, or to abandon that rule and join other states that have adopted the modern majority position of the second Restatement. Upon reviewing the two alternatives and the cases analyzing them, I ultimately conclude that the modern rule, applying the absolute legislative privilege more broadly, is the better rule. I will proceed to review and compare the relevant cases that lead me to this result.

The Iowa Supreme Court's 1954 case Mills v. Denny, 245 Iowa 584, 63 N.W.2d 222 (1954), provides the only thorough articulation I have found of the reasoning supporting the traditional rule. In Mills, a mayor allegedly defamed the plaintiff, a local attorney, during a city council meeting. Id. at 223-24. The Iowa court explained its decision that "the utterances or publications of members of a city council are not included" in the absolute[] privilege id. at 227, by stating:

Absolute immunity, it seems, should be confined to cases where there is supervision and control by other authorities, such as courts of justice, where . . . a learned judge . . . may reprimand, fine and punish as well as expunge from records statements of those who exceed proper bounds. . . . The same is true in federal and state legislatures, and their committees, where the decorum is under the watchful eye of presiding officers and records may be stricken and the offending member punished.

Id. at 225; see also Hawkins v. Harris, 141 N.J. 207, 661 A.2d 284, 291 (1995) (employing the same type of analysis).

The Iowa court went on to predict that without such "supervision and control," courts might eventually cease to "recognize and grant absolute immunity" even within courts and the highest legislative bodies of a state, because "the evil [of unredressable defamation might] overshadow the good and [thus] not aid the public welfare." Mills, 63 N.W.2d at 225. In addition, the court expressed a view that "only top officers or executives whose acts are of necessity secret or confidential fall within [absolute] immunity." Id. But see Carradine, 511 N.W.2d at 736 (extending absolute privilege to lower level executive officers under some circumstances in Minnesota).

The Iowa court in Mills also relied on the first Restatement of Torts and other secondary authorities of its era that granted absolute privilege to only "`the highest legislative body of a State.'" 63 N.W.2d at 226 (quoting Restatement of Torts § 590 cmt. c (1938)). The court thus followed what was at the time the holding of "the majority of the courts in other jurisdictions." Id. at 227. A decade later in a case involving defamation of one city council member by another, Delaware's Superior Court followed the rule of Mills and the first Restatement even while acknowledging "persuasive public policy reasons for making absolutely privileged" the statements of municipal legislators. McClendon v. Coverdale, 203 A.2d 815, 817 (Del.Super.Ct. 1964).

The Iowa Supreme Court's reasoning, limiting absolute privilege to the courts and the highest legislative bodies of a state where the "controlling influence of [the] learned judge" and general prevailing "decorum" might protect plaintiffs' reputation interests, has not prevailed in the modern era. Mills, 63 N.W.2d at 225. Commentators criticize reasoning analogous to that in Mills because of the unlikelihood that defamatory statements in courts or Congress are in fact stricken from the record or controlled via censure. E.g., 1 Robert D. Sack, Sack on Defamation: Libel, Slander, and Related Problems § 8.2 (3d ed. 2009). Several more recent cases from other states contain persuasive explanations of why absolute privilege should be extended to members of legislative bodies beyond a state's highest bodies. These cases grapple with the core policy dilemma underlying absolute legislative privilege — the appropriate balance between the public interest in free exchange of information during the legislative process and the individual rights of people who might be defamed by unscrupulous participants in that process. A growing number of courts have ultimately come out in favor of affording absolute privilege to members of local legislative bodies.

E.g., Sanchez v. Coxon, 175 Ariz. 93, 854 P.2d 126, 130 (1993); Voelbel v. Town of Bridgewater, 144 N.H. 599, 747 A.2d 252, 253 (1999); Bd. of Educ. v. Buffalo Council, 52 A.D.2d 220, 383 N.Y.S.2d 732 (1976); Costanzo v. Gaul, 62 Ohio St.2d 106, 403 N.E.2d 979 (1980); Noble v. Ternyik, 273 Or. 39, 539 P.2d 658 (1975).

In Noble v. Ternyik, 273 Or. 39, 539 P.2d 658, 659-61 (1975), for example, the Oregon Supreme Court addressed a law-suit against a port commission member who allegedly falsely accused the plaintiff of theft during a commission meeting. The Oregon court discussed the shift in the Restatement rule and "reached the conclusion . . . that [the modern rule was] preferable." Id. at 661. The court noted that "[uncompensated citizens, serving at least in part to fulfill their civic responsibility, comprise the vast bulk" of members of "[p]ort commissions, city councils, school boards, and special service districts. . . ." Id. The court reasoned that "[t]his system will function only if capable people are willing to serve on these bodies," and many individuals would be deterred from service entirely or be "hesitant to bring information to the attention of their legislative bodies" if they were protected by only a conditional privilege. Id.

An Oregon port commission, like a Minnesota watershed district, is a public body created by statute for the purpose of managing water resources. Noble, 539 P.2d at 660; Or.Rev. Stat. § 777.010. Port commissions "exercise a great variety of governmental power, including the levying of taxes and the acquiring of property." Noble, 539 P.2d at 660. Port commission board members are elected. Or.Rev. Stat. § 777.135; 777.160.

The Oregon court in Noble, like many other courts addressing absolute privilege, found support in an argument advanced more than sixty years ago by Judge Learned Hand of the Second Circuit Court of Appeals. Judge Hand wrote that the absolute privilege is justified because

it is impossible to know whether the [defamation] claim is well founded until the case has been tried, and . . . to submit all officials, the innocent as well as the guilty, to the burden of a trial and to the inevitable danger of its outcome, would dampen the ardor of all but the most resolute, or the most irresponsible, in the unflinching discharge of their duties.

Id. at 661 (quoting Gregoire v. Biddle, 177 F.2d 579, 581 (2d Cir. 1949) quoted in Noble, 539 P.2d at 661.).

Gregoire was an executive privilege case, but its reasoning has been adopted in the context of legislative privilege. See, e.g., Voelbel, 747 A.2d at 253.

In 1993, the Arizona Supreme Court addressed a defamation suit by two police officers against a town council member for statements made during a council meeting. Sanchez v. Coxon, 175 Ariz. 93, 854 P.2d 126, 127 (1993). The Arizona court also adopted the second Restatement of Torts rule, employing the reasoning articulated in Noble and citing the need to "attract[] qualified council members," promote "candor" in the local legislative process, and avoid "the chilling effect accompanying a qualified privilege." Id. at 129. The court reasoned that local lawmakers sometimes "legislate on matters of more immediate importance to their electorate than state or federal legislators." Id. at 130. Absolute immunity was therefore extended to statements "made by a town council member at a formal council meeting during the course of that meeting." Id.

The council member statements at issue in Sanchez involved criticism of local police officers in the performance of their duties. Id. at 127. The plaintiffs in Sanchez argued that absolute legislative privilege should not apply, because "the content of the statements (complaints about police officers' official conduct) was executive or administrative, rather than legislative" in nature. Id. at 130. A similar argument could apply to the statements at issue in this case, which involved the conduct of watershed district board members with respect to salaries and other internal administrative affairs. The Arizona Supreme Court in Sanchez rejected a distinction based on the content of the legislator's statements. Id. The court explained that "[i]t is the occasion of the speech, not the content, that provides the privilege." Id. This reasoning is also reflected in the Restatement (Second) of Torts § 590 cmt. a, which provides that

legislative officers . . . are absolutely privileged in publishing defamatory matter while they are performing a legislative function although the defamatory matter has no relation to a legitimate object of legislative concern.

The Arizona court explained that "[a]ny other rule would frustrate the purposes for which immunity is granted" — that is, the policy decision to protect legislators from defending lawsuits arising out of the performance of their duties. Sanchez, 854 P.2d at 130.

More recently, the New Hampshire Supreme Court adopted the same reasoning in Voelbel v. Town of Bridgewater, 144 N.H. 599, 747 A.2d 252 (1999). The New Hampshire court held that a town selectman was entitled to absolute privilege for comments "made at the town meeting, involv[ing] issues arising from [his] duties, related to a matter of local importance, and involv[ing] a matter properly before the town meeting" even though the specific topic was not "listed as a subject" on the agenda. Id. at 253.

Cases from the United States Supreme Court on related topics provide further support for my position that absolute legislative privilege should be extended to members of local legislative bodies. In a 1951 case against members of a California legislative committee, the Court addressed "[t]he privilege of legislators to be free from . . . civil process for what they do or say in legislative proceedings." Tenney v. Brandhove, 341 U.S. 367, 372, 71 S.Ct. 783, 95 L.Ed. 1019 (1951). The Court explained the political principles that underlie the absolute legislative privilege using the words of founder and legal theoretician James Wilson, an influential member of the Committee on Detail, which was responsible for placing the Speech and Debate Clause in the Federal Constitution. Wilson said that

[i]n order to enable and encourage a representative of the public to discharge his public trust with firmness and success, it is indispensably necessary, that he should enjoy the fullest liberty of speech, and . . . be protected from the resentment of every one, however powerful, to whom the exercise of that liberty may occasion offence.

II Works of James Wilson 38 (Andrews ed. 1896) quoted in Tenney, 341 U.S. at 373, 71 S.Ct. 783. The Court went on to explain why a qualified privilege would be insufficient, stating that the legislative privilege protects

uninhibited discharge of . . . legislative duty, not for . . . private indulgence but for the public good. One must not expect uncommon courage even in legislators. The privilege would be of little value if they could be subjected to the cost and inconvenience and distractions of a trial upon conclusion of the pleader, or to the hazard of a judgment against them based upon a jury's speculation as to motives.

Tenney, 341 U.S. at 377, 71 S.Ct. 783.

In a later case quoting the foregoing language from Tenney, the Court made clear that "[t]his reasoning is equally applicable to federal, state, and regional legislators." Lake Country Estates, Inc. v. Tahoe Reg'l Planning Agency, 440 U.S. 391, 405, 99 S.Ct. 1171, 59 L.Ed.2d 401 (1979). The Court accordingly granted immunity from federal damages liability to the members of the Lake Tahoe Regional Planning Agency, an unelected body created by California and Nevada "to adopt and to enforce a regional plan for land use, transportation, conservation, recreation, and public services." Id. at 394, 99 S.Ct. 1171.

Bogan v. Scott-Harris, 523 U.S. 44, 118 S.Ct. 966, 140 L.Ed.2d 79 (1998), provides additional and informative policy discussion regarding the rank of legislative officials as it relates to immunity. In Bogan, the plaintiff brought a 42 U.S.C. § 1983 action against a mayor and city council members, alleging that the elimination of the city department that employed him violated his constitutional rights. 523 U.S. at 47, 118 S.Ct. 966. The Supreme Court held that local legislators, like legislators at higher levels, are "absolutely immune from suit under § 1983 for their legislative activities," id. at 49, 118 S.Ct. 966, because "the exercise of legislative discretion should not be inhibited by judicial interference or distorted by the fear of personal liability," id. at 52, 118 S.Ct. 966. The Court went on to reason that local "part-time citizen legislators]" especially merit the protection of immunity because "the threat of liability may significantly deter service in local government, where prestige and pecuniary rewards may pale in comparison to the threat of civil liability." Id. at 52, 118 S.Ct. 966.

Finally, I find the analysis in Barr v. Matteo, 360 U.S. 564, 79 S.Ct. 1335, 3 L.Ed.2d 1434 (1959) — reasoning that we adopted in Carradine — especially relevant. In Barr, the Supreme Court extended absolute privilege to statements made by the director of an executive government agency. Id. at 574, 79 S.Ct. 1335. The Court rejected a bright-line rule awarding the privilege to executive officers solely based on rank. Barr, 360 U.S. at 572-73, 79 S.Ct. 1335, cited in Carradine v. State, 511 N.W.2d 733, 735 (Minn. 1994). In Barr, the Court explained that "the duties with which the particular officer . . . is entrusted" and "the relation of the act complained of to matters committed by law to his control or supervision" guide the scope of the absolute privilege, rather than "the title of [the] office." Barr, 360 U.S. at 573, 79 S.Ct. 1335 (citation omitted) (internal quotation marks omitted).

The diverse collection of authorities discussed above underlies my disagreement with the majority. I have carefully considered the position of the first Restatement of Torts, which granted absolute privilege to only a state's highest legislative bodies, and the second Restatement of Torts, which broadened the application of absolute legislative privilege to cover local legislative bodies as well. Our cases on absolute legislative privilege create a somewhat unclear picture of our stance on this issue to date. We adopted the bright-line rule of the first Restatement in Jones v. Monico, 276 Minn. 371, 375, 150 N.W.2d 213, 216 (1967), but we have also stated, at least in dicta, that absolute privilege extends to "all legislative bodies, state or municipal." Peterson v. Steenerson, 113 Minn. 87, 89, 129 N.W. 147, 148 (1910). And in recent decades, the majority of courts to consider this issue have adopted the modern rule embraced in the second Restatement.

Having reviewed the reasoning that underlies both the traditional rule and the modern rule, I find myself compelled to conclude that a change in Minnesota's law regarding absolute legislative privilege should be made in this case. The majority asserts that "the reasoning underlying the holdings in Burch and Jones is not sound," and therefore leaves the Jones rule intact. I agree with the majority that stare decisis is a very important value, but I believe the public interest at stake in this case is more than sufficient to support a change in the law.

In Burch and Jones, we provided no substantive analysis to explain our choice to use only the qualified privilege. In Jones, 276 Minn. at 375, 150 N.W.2d at 216, we simply said that the qualified privilege provides "sufficient protection" for members of subordinate legislative bodies without explaining why that is so. We did no more than follow what was at the time the majority rule without considering the alternatives. Id. at 375, 150 N.W.2d at 216. And in Burch, we provided no explanation at all of our reasons for applying only a qualified privilege. See Burch v. Bernard, 107 Minn. 210, 211-12, 120 N.W. 33, 33-34 (1909).

I therefore take issue with the majority's suggestion that I have ignored sound reasons underlying the traditional rule. I have searched carefully for such reasons in our cases and found them to be few and lacking in merit. Moreover, cases from other states following the traditional rule provide little assistance in articulating support for that rule. Mills v. Denny, 245 Iowa 584, 63 N.W.2d 222 (1954), is the only case that engages in any substantive analysis in support of the rule, and I find the reasoning in Mills unpersuasive. The Iowa Supreme Court distinguished the state's highest legislative bodies from subordinate bodies on the basis that the highest bodies provide additional "supervision and control by other authorities" and greater standards of "decorum." Id. at 225. I agree with experts on the subject who conclude that these arguments are dubious at best. See Sack, supra, § 8.2 (criticizing this reasoning for the traditional rule); Restatement (Second) of Torts § 590 (1977) (adopting the modern rule).

The reasoning supporting adoption of the modern rule is persuasive and voluminous by comparison. Broader application of absolute legislative privilege encourages participation in public service by capable citizens at the local level, where much important legislative decision making occurs. Local public servants often receive little or no compensation for their efforts, and without absolute privilege, "prestige and pecuniary rewards may pale in comparison to the threat of civil liability." Bogan v. Scott-Harris, 523 U.S. 44, 52, 118 S.Ct. 966, 140 L.Ed.2d 79 (1998). Exposure to defamation suits might therefore discourage "all but the most resolute, or the most irresponsible," from taking on the burden of public service. Gregoire v. Biddle, 177 F.2d 579, 581 (2d Cir. 1949).

Even more significantly, adoption of the modern rule would provide necessary protection for the public's interest in free and open legislative debate. See, e.g., Sanchez v. Coxon, 175 Ariz. 93, 854 P.2d 126, 129-30 (1993) (adopting the modern rule in part to promote "candor" in the legislative process). The public would be better served if legislative decision makers at all levels of government feel free to present relevant information in the discharge of their duties, without fearing "the hazard of a judgment against them based upon a jury's speculation as to motives." Tenney v. Brandhove, 341 U.S. 367, 377, 71 S.Ct. 783, 95 L.Ed. 1019 (1951). Like Judge Hand, I believe that the threat of defending oneself in a lengthy and expensive lawsuit chills legislative speech nearly as much as the threat of ultimate liability. See Gregoire v. Biddle, 177 F.2d at 581.

The majority asserts that my key reasons for favoring the modern rule — diminishing disincentives to public service in local government and encouraging free and open legislative speech by members of local legislative bodies — are not supported by record evidence showing any ill effects of the current rule. But such criticism applies equally to the majority, given that the record also contains no evidence for the premise underlying the majority's preferred conclusion. We have no evidence that any defamatory speech by any member of a Minnesota legislative body has ever had "personally crushing and career-ending" effects for a citizen. I take a more optimistic view of our state's public servants and believe that the vast majority are hardworking and honest in their service of the public.

I acknowledge that empirical studies would be valuable in a case like this where we must weigh competing public policy interests in an attempt to identify the best rule of law, but we have never required such evidence before making a decision. Here, I am aware of no relevant studies in existence. In balancing the interests at stake — open legislative debate versus the risk of unredressable harm from defamation — I would rely on the overwhelming and well-reasoned federal and state precedent that supports adoption of the modern rule, especially our own highly relevant precedent in Carradine v. State, 511 N.W.2d 733, 735 (Minn. 1994).

For all of the foregoing reasons, I conclude that the qualified privilege provides insufficient protection for members of local legislative bodies. Therefore, to the extent that Jones v. Monico, 276 Minn. 371, 150 N.W.2d 213 (1967) applies to the facts and circumstances of this case, I would overrule that case. Extensive authority from other jurisdictions on the topic and the trend of our own cases support that result. We have already recognized the importance of the absolute privilege for lower-level officials in the executive context in Carradine, 511 N.W.2d at 735, and I see no reason why a distinction based solely on the rank of the official should carry more weight in the legislative context than in the executive. I believe the court of appeals was correct in reading Carradine as a shift in our jurisprudence away from the Jones bright-line rule, a shift made in order to "`aid in the effective functioning of government'" at the local level. Carradine, 511 N.W.2d at 735 (quoting Barr, 360 U.S. at 573, 79 S.Ct. 1335). I would make that shift explicit and hold that members of local legislative bodies are protected by the absolute legislative privilege against defamation suits for statements made in the performance of a legislative function.

Carradine requires that we consider "the nature of the function assigned to the officer and the relationship of the statements to the performance of that function." 511 N.W.2d at 736. Minnesota's watershed districts are significant public bodies with considerable authority to carry out important legislative functions. See, e.g., Minn. Stat. § 103D.335 (2008). The public interest demands that watershed district board members carrying out their official duties, like state legislators and like police officers making official reports, have the freedom to report information in carrying out those functions without fear of facing lawsuits for defamation. I therefore conclude that the board members of the Middle Snake Tamarac Rivers Watershed District are entitled to the protection of the absolute privilege. Because Nelson and Stroble made their allegedly defamatory statements during an official watershed district board meeting, I would hold that their alleged statements are absolutely privileged and that the district court therefore properly granted their motion for judgment on the pleadings.

The majority relies heavily on the fact that watershed district board members are appointed by elected officials, rather than elected directly. Such officials are therefore arguably less accountable to the public. I agree that this is a relevant consideration in assessing the balance between the competing interests in this case. Ultimately though, this factor does not change my conclusion. Members of the public have a powerful interest in free and open debate during proceedings of local legislative bodies, and I do not think that interest is less in the case of a watershed district than a city council or other elected body. Cf. Lake Country Estates, Inc. v. Tahoe Reg'l Planning Agency, 440 U.S. 391, 405, 99 S.Ct. 1171, 59 L.Ed.2d 401 (1979) (granting immunity from federal damages liability to members of an unelected regional resource management agency with functions analogous to those of a watershed district). I see no effect of election versus appointment on this side of the balance.
Regarding an individual's interest in a remedy for defamation, I note that appointed board members are subject to public criticism and are accountable to the public through the elected officials who appointed them. Although this accountability is indirect, I do not believe that unelected members of our state's vitally important local legislative bodies are significantly more likely to maliciously defame members of the public they serve than directly elected ones. I therefore conclude that absolute privilege is equally important for all local legislative bodies, elected and appointed alike, and would hold that the absolute legislative privilege applies to both.