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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,
Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,
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).
