An adult’s allegation of sexual misconduct against her former teacher was not judicially privileged because she made the allegation prior to commencement of a quasi-judicial proceeding and without intent that such a proceeding occur, the Pennsylvania Supreme Court held in Schanne v. Addis, __ A.3d __ (No. 106 MAP 2014, filed August 17, 2015). In November 2010, Jenna Addis, then age 26, confided in her friend, Susan O’Bannon, that Addis had been romantically involved with her teacher, Robert Schanne, while Addis was a senior at Lower Merion High School. O’Bannon, an employee of Lower Merion High School, reported Addis’s allegation to school officials. Schanne was terminated. He filed a defamation action against Addis directed to the federal court’s diversity jurisdiction. The district court (E.D. Pa.) granted Addis’s motion for summary judgment, holding that her allegations to O’Bannon were judicially privileged since they “served as the catalyst” for the quasi-judicial proceeding that resulted in Schanne’s discharge. Schanne appealed and the Third Circuit certified the issue to the Supreme Court for resolution.
The Supreme Court, in a 4-1 decision, held that Addis’s allegations would not be subject to a judicial privilege under Pennsylvania law. Writing for the majority, Chief Justice Saylor noted that the scope of the judicial privilege has been gradually extended over time. It applies not just to statements made in open court but to pleadings and less formal communications in preliminary conferences and correspondence. Nevertheless, the Court held that a case-by-case evaluation is necessary to determine whether application of the privilege will advance its underlying policy objective, which is to incentivize individuals to speak freely within a judicial or quasi-judicial proceeding, or in seeking to initiate such a proceeding. Here, Addis spoke to O’Bannon as a friend and with no intent that her allegations lead to a quasi-judicial proceeding. Accordingly, the majority held that cloaking Addis’s statements in judicial privilege would do little to advance the privilege’s objectives while undermining Schanne’s right to obtain recompense for injury to his reputation. The Court emphasized that it was not “attempting to resolve the distinct question of whether a privilege should pertain for schoolchildren who report misconduct by school employees while they are enrolled,” noting that that situation is qualitatively different from this case where Addis was 26 years old and out of school for seven years when she confided in O’Bannon.
In a concurring opinion, Justice Todd wrote that she may have reached a different result if Addis had been a student at the time she confided in O’Bannon. In a separate concurring opinion, Justice Eakin expressed concern about his colleagues reaching a different outcome had Addis been an enrolled student. Justice Eakin opined that Addis’s status was irrelevant because “[t]he applicability of the judicial privilege depends on the existence of, or potential for, judicial-related proceedings at the time of utterance.”
Justice Stevens dissented, opining that absolute judicial privilege should attach where, as here, a former student tells a school official that she was sexually victimized by another school official, “provided those details have a bearing on subsequent quasi/judicial proceedings.” In Justice Stevens’ view, Addis was the witness-declarant and O’Bannon a possible party to the proceeding, and “[t]he fact that [Addis] could not mount the courage to name her alleged perpetrator until her twenties should not be used against her.”