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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Lawson v. Helmer (9/26/2003) sp-5739

Lawson v. Helmer (9/26/2003) sp-5739

     Notice:   This opinion is subject to correction  before
     publication  in  the  Pacific  Reporter.   Readers  are
     requested to bring errors to the attention of the Clerk
     of  the  Appellate  Courts, 303  K  Street,  Anchorage,
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     e-mail corrections@appellate.courts.state.ak.us.


            THE SUPREME COURT OF THE STATE OF ALASKA


LEE LAWSON,                                  )
                              )    Supreme Court No. S-10034
             Appellant,                 )
                              )    Superior Court No.
     v.                       )    1JU-99-1714 CI
                              )
ERNEST and LINDA HELMER,      )    O P I N I O N
                              )
             Appellees.                    )      [No.   5739   -
                              September 26, 2003]
________________________________)

          Appeal  from the Superior Court of the  State
          of  Alaska, First Judicial District,  Juneau,
          Patricia A. Collins, Judge.

          Appearances:  Lee Lawson, pro se, Juneau.  No
          appearance for appellees.

          Before:    Fabe,  Chief  Justice,   Matthews,
          Eastaugh, Bryner, and Carpeneti, Justices.

          CARPENETI, Justice.


I.   INTRODUCTION

          I.   Lee Lawson appeals the superior courts holding that his

defamation claim against Ernie and Linda Helmer fails as a matter

of law and the courts award of attorneys fees to the Helmers.  We

hold  that  the  superior court correctly held that  the  Helmers

testimony  and statements to a custody investigator are immunized

from  Lawsons  derivative civil defamation suit.  We  affirm  the

superior  courts  dismissal of Lawsons claims and  its  award  of

attorneys fees to the Helmers.

II.  FACTS AND PROCEEDINGS

     A.   Facts

          Lee  Lawson has known Ernie and Linda Helmer  for  over

thirty years.  Lawson and Ernie Helmer were best friends.  Lawson

and his former girlfriend, Tammy Reynolds, lived with the Helmers

while  Tammy  was pregnant with his daughter Ariel.  The  Helmers

were  present  when  the  child was born  in  January  1999,  and

consider  themselves  her  de facto grandparents.   In  May  1999

Lawson   and  Reynolds  separated,  thereafter  engaging   in   a

protracted child custody dispute.1

          After    Lawsons   and   Reynoldss   separation,    the

relationship between Lawson and the Helmers deteriorated.   Linda

Helmer  sought a long-term protective order against Lawson before

Magistrate  John  W.  Sivertsen,  Jr.  in  November  1999.    She

testified that Lawson sexually assaulted her in 1991 or 1992  and

had   threatened   her   with  violence  on  several   occasions.

Magistrate  Sivertsen found by a preponderance  of  the  evidence

that Lawson committed a crime involving domestic violence against

Linda Helmer and granted the protective order.  The Helmers  also

became  involved  in  the custody dispute before  Superior  Court

Judge Patricia A. Collins.  They testified in the custody dispute

between  Lawson  and  Reynolds and made statements  to  a  court-

appointed custody investigator who filed a report with the court.

Over  the  course  of  the  custody proceeding  (1)  the  Helmers

testified at trial that prior to Ariels birth, Lawson planned  to

kidnap   Kevin,  his  son  from  a  relationship  with  a  former

girlfriend,  Valerie  Lawson; (2)  Ernie  Helmer  stated  to  the

custody  investigator  that  Lawson admitted  to  Ernie  that  he

obtained an X-rated video of Valerie during their custody dispute

over Kevin, by breaking into her storage locker; (3) Linda Helmer

stated  her  opinion  that a gunshot wound  sustained  by  Lawson

during  his  custody  dispute  with Valerie  was  probably  self-

inflicted;  (4)  Ernie Helmer stated to the custody  investigator

that Lawson had a handgun of the type used to inflict the gunshot

wound  and had asked Ernie not to tell anyone about it;  and  (5)

Linda  Helmer  testified that Lawson sexually  assaulted  her  in

          1992.

          The  superior court entered its findings  of  fact  and

conclusions  of law and a custody decree continuing  joint  legal

custody  and  granting  primary  physical  custody  of  Ariel  to

Reynolds in December 2000.2  We upheld that decision.3

     B.   Proceedings

          Lawson  sued the Helmers for defamation based on  their

statements  during the custody proceedings before  Judge  Collins

and the protective order proceedings before Magistrate Sivertsen.

He claimed that the Helmers statements on the above five subjects

were  false  and  defamatory.   He sought  nominal  and  punitive

damages against the Helmers, as well as an order forbidding  them

from having any contact with Ariel.

          On  January  11, 2001 Judge Collins ruled that  Lawsons

claims fail as a matter of law.  She also ordered him to pay  the

Helmers  $6,174  in  attorneys fees.   Lawson  appeals  both  the

dismissal  of  his claims and the award of attorneys  fees.   The

Helmers declined to file a brief.

III. STANDARD OF REVIEW

          We  exercise  our independent judgment  when  reviewing

issues  of  law,   adopt[ing]  the  rule  of  law  that  is  most

persuasive  in  light of precedent, reason, and  policy.  4   The

superior courts decision  that Lawsons claims fail as a matter of

law due to the Helmers witness immunity  concerns an issue of law

that is subject to de novo review.

          We also review constitutional questions de novo.5

IV.  DISCUSSION

     A.   The  Helmers Testimony and Statements in Prior Judicial
          Proceedings Are Absolutely Privileged and the Helmers Are
          Accordingly Immune from this Action for Defamation.
          
          Lawson  asserts  that  the  superior  courts  grant  of

immunity  to  the Helmers was improper, claiming that  the  court

used  immunity as a means to avoid admitting that it had  made  a

mistake  in  the  custody dispute after Lawson  proved  that  the

Helmers  had  committed  perjury  in  that  proceeding.    Lawson

          misunderstands the superior courts application of absolute

privilege  and  the resulting witness immunity  for  the  Helmers

testimony and statements to the custody investigator.6

          As  we  said  almost thirty years ago  in  Nizinski  v.

Carrington:7

               The  authorities are virtually unanimous
          that  defamatory testimony by a witness in  a
          judicial  proceeding, which is  pertinent  to
          the   matter  under  inquiry,  is  absolutely
          privileged.  In such instances an action  for
          libel or slander will not lie even though the
          testimony  is  given  maliciously  and   with
          knowledge of its falsity.[8 ]
          
Because  testimony that is pertinent to the matter under  inquiry

is absolutely privileged, the witness is immune from later suit.9

The Restatement (Second) of Torts  588 provides that:

          A witness is absolutely privileged to publish
          defamatory   matter  concerning  another   in
          communications  preliminary  to  a   proposed
          judicial  proceeding  or  as  a  part  of   a
          judicial proceeding in which [the witness] is
          testifying,  if it has some relation  to  the
          proceeding.[10]
          
          Even  defamatory  testimony  is  privileged,  and   the

witness  granted immunity, because of the public policy rationale

that  the  privilege leads to more just trials by (1) encouraging

more  witnesses  to come forward and (2) ensuring that  witnesses

will  be  more  open and honest in testifying.11  The  widespread

recognition  of  the privilege is predicated  on  the  idea  that

parties  are  protected  from witness  misconduct  by  (1)  their

ability  to  reveal any deficiencies in testimony through  cross-

examination  and  (2) the threat of prosecution  for  perjury  or

other sanctions against the witness.12

          While  Nizinski  v. Currington is dispositive  of  this

case,  our  recognition of the privilege and  resultant  immunity

from  suit  for  defamation  in   Zamarello  v.  Yale13  is  also

instructive  here.   In  Zamarello we held  that  a  party  to  a

property dispute is immune from suit for slander or disparagement

of  title when the party files a quitclaim deed that has a direct

          relation to [the] claim of an interest in the property.14  In

recognizing  the  privilege for the filing of  a  quitclaim  deed

related  to  judicial proceedings, Zamarello effectively  adopted

the Restatement (Second) of Torts  587,15 which provides:

          A  party to a private litigation or a private
          prosecutor   or  defendant  in   a   criminal
          prosecution   is  absolutely  privileged   to
          publish  defamatory matter concerning another
          in  communications preliminary to a  proposed
          judicial proceeding, or in the institution of
          or  during  the course and as a  part  of,  a
          judicial proceeding in which he participates,
          if  the  matter  has  some  relation  to  the
          proceeding.
          
          In  sum,  the Helmers testimony and related  statements
made  during  the course of the prior litigation were  absolutely
privileged and the superior court correctly determined  that  the
Helmers were immune from Lawsons defamation action.
     B.   The  Alaska  and Federal Constitutions Do  Not  Require
          that the Helmers Be Found Liable for Defaming Lawson.
          
          Lawson  claims  that  the superior courts  decision  to
grant  the  Helmers civil immunity when other  people  have  been
sentenced  to serve time in jail and fined after being  convicted
of  perjury violates the equal protection clauses of the  state16
and federal17 constitutions.  He further argues that the superior
courts  granting of immunity based on tort law should be reversed
because  it  elevated  tort  law over  the  constitution.   These
constitutional claims are without merit.
          Lawson  does  not  state a cognizable equal  protection
claim,  as  the basis of any equal protection claim is  disparate
treatment  of  similarly  situated persons.18   Lawson  fails  to
establish   this  fundamental  aspect  of  an  equal   protection
violation because his civil defamation case is so dissimilar to a
criminal  perjury  case.  The purpose of the perjury  statute  is
primarily to protect the integrity of court proceedings,19 not to
protect  the object of the perjury, and we have never  allowed  a
party  to  sue a witness for defamation.  Furthermore,  the  fact
that other citizens have been convicted of perjury in the past is
irrelevant  because the Helmers were not prosecuted for  perjury.
          Lawsons equal protection claims must be denied because he fails
to  establish the most fundamental aspect of an equal  protection
claim:   that  he has been treated differently than  a  similarly
situated person.
          Lawson  also contends that his right to relief in  this
case is supported by Alaskas constitutional qualification of  the
right to free speech. He argues that we must reverse the superior
courts  decision  because the Alaska Constitution  provides  that
everyone  is  responsible for the abuse of their  right  to  free
speech.20  In providing that citizens are responsible for abusing
their  right  to  free  speech, the Alaska Constitution  did  not
create   an   absolute  right  to  sue  others  for   defamation.
Additionally,  Alaskas perjury statute, AS 11.56.200,  adequately
fulfills  any constitutional requirement that witnesses  be  held
responsible for abusing their free speech rights.21
     C.   Lawson Has Waived His Claim That the Superior Court Erred by
          Awarding Attorneys Fees to the Helmers.
          
          Lawson  contends  that  the  superior  court  erred  by
awarding  $6,174  in  attorneys fees  to  the  Helmers  under  AS
09.30.065(a)(1).  We have previously declined to reach  an  issue
when a party mentioned it only in passing in his statement of the
case,  failed to discuss it in the argument portion of his brief,
and devoted one sentence to arguing the issue in his reply brief.22
In  this case, Lawson fails to offer any support for his claim in
the  statement  of  the  issues for  review  that  the  award  of
attorneys fees was unconstitutional because it places a deterrent
on  his  right  to  petition  the government  for  a  redress  of
grievances.  Though we relax some procedural requirements  for  a
pro  se litigant where the litigant has made a good faith attempt
to  comply  with judicial procedures,23 Lawson has not  met  this
standard  here.   We decline to reach this issue  because  Lawson
presented no argument at all in support of his claim.
V.   CONCLUSION
          A.   Because immunity from derivative defamation suits is
necessary  to  encourage  the full and uninhibited  testimony  of
witnesses  such  as  the Helmers, and because  Lawson  was  fully
protected  from any alleged misconduct of the Helmers by  several
          procedural safeguards, we AFFIRM the superior courts decision
dismissing  the  defamation suit as a matter  of  law.   We  also
affirm  the  award  of attorneys fees because Lawson  waived  the
issue by failing to brief it adequately.
_______________________________
     1     See  generally Lawson v. Reynolds, Mem. Op. &  J.  No.
10053, 2002 WL 1486484 (Alaska July 10, 2002).

     2    Id. at *2.

     3    Id. at *10.

     4     Robles v. Shoreside Petroleum, Inc., 29 P.3d 838,  841
(Alaska  2001)  (quoting  Guin v. Ha, 591  P.2d  1281,  1284  n.6
(Alaska 1979)).

     5     Brandon  v.  Corrs. Corp. of Am.,  28  P.3d  269,  273
(Alaska 2001) (quoting Peter v. Progressive Corp., 986 P.2d  865,
867 (Alaska 1999)).

     6     Lawson attempts to extend his defamation complaint  in
his  appellate brief by asserting that the Helmers  made  several
false  criminal allegations to many peers and government  people.
But  Lawsons  brief  to  the trial court claimed  only  that  the
Helmers had defamed him through their testimony and statements to
the  custody  investigator.   Accordingly,  the  superior  courts
decision  was  confined  to  those allegations.   Because  Lawson
failed  to properly raise the Helmers alleged defamation  outside
of  the  child custody and protective order proceedings, we  will
not  consider  it on appeal.  We note that our decision  in  this
case  does  not treat as privileged any defamatory statements  by
the Helmers that were unconnected to either the child custody  or
protective order proceedings.

     7    517 P.2d 754 (Alaska 1974).

     8    Id. at 756 (citation omitted).

     9    Id.

     10    Restatement (Second) of Torts  588 (1977).

     11     See, e.g., Briscoe v. LaHue, 460 U.S. 325, 333 (1983)
(recognizing  that without immunity witnesses might be  reluctant
to  come  forward  to testify and that once  on  the  stand,  his
testimony might be distorted by the fear of subsequent liability,
while  holding  that 42 U.S.C.  1983 does not  abrogate  absolute
witness  immunity); Couch v. Schultz, 483 N.W.2d 684, 686  (Mich.
App.  1992) (stating that the privilege ensures that participants
in  judicial  proceedings are free to express themselves  without
fear of retaliation); Provencher v. Buzzell-Plourde Assocs.,  711
A.2d 251, 255 (N.H. 1998) (recognizing that [t]he purpose of this
privilege is to encourage witnesses to testify and to ensure that
their  testimony  is  not altered or distorted  by  the  fear  of
potential liability); Binder v. Triangle Publns, Inc.,  275  A.2d
53, 56 (Pa. 1971) (stating that immunity is extended to witnesses
to  encourage  their  complete  and  unintimidated  testimony  in
court);  Deatherage  v. State, Examining Bd. of  Psychology,  948
P.2d  828,  830 (Wash. 1997) (recognizing that the administration
of  justice requires witnesses in a legal proceeding be  able  to
discuss their views without fear of a defamation lawsuit).

     12     See, e.g., Overman v. Klein, 654 P.2d 888, 893 (Idaho
1982)  (stating  that there is minimal need for civil  defamation
suits regarding statements made in course of judicial proceedings
because  witnesses are subject to the rigors of cross-examination
and  the penalty of perjury); Binder, 275 A.2d at 56 (recognizing
that  the privilege exists because the courts have other internal
sanctions  against  defamatory statements,  such  as  perjury  or
contempt  proceedings); Bruce v. Byrne-Stevens & Assocs.  Engrs.,
Inc.,  776  P.2d  666, 667 (Wash. 1989) (stating that  witness[s]
reliability  is  ensured  by [the] oath,  the  hazard  of  cross-
examination and the threat of prosecution for perjury).

     13    514 P.2d 228 (Alaska 1973).

     14    Id. at 231.

     15     Id.  at 230-31 (citing Albertson v. Raboff, 295  P.2d
405, 409 (Cal. 1956)).

     16    Alaska Const. art. I,  1 provides in relevant part that
all   persons   are   equal  and  entitled   to   equal   rights,
opportunities, and protection under the law; and that all persons
have corresponding obligations to the people and to the State.

     17     U.S. Const. amend. XIV,  1 provides in relevant  part
that  [n]o  state  shall  . . . deny to  any  person  within  its
jurisdiction the equal protection of the laws.

     18    Shearer v. Mundt, 36 P.3d 1196, 1199 (Alaska 2001).

     19     Harrison  v.  State, 923 P.2d 107, 109  (Alaska  App.
1996).

     20     Alaska Const. art. I,  5 provides that [e]very person
may  freely  speak,  write, and publish on  all  subjects,  being
responsible for the abuse of that right.

     21     Lawson  makes  a related argument that  the  superior
courts decision should be overturned in order to allow the Juneau
Police  Department to pursue perjury charges against the Helmers.
Lawson  contends  that  the Juneau Police Department  refused  to
pursue  [the Helmers] for perjury because of the superior  courts
grant of immunity.  In order to clear up any misunderstanding, we
note that the grant of immunity in this case does not protect the
Helmers from prosecution for perjury.

     22    Bishop v. Clark, 54 P.3d 804, 815 n.32 (Alaska 2002).

     23    Kaiser v. Sakata, 40 P.3d 800, 803 (Alaska 2002).