Palmer v. Olson

The absolute privilege extends to actions taken and statements made in connection with a judicial proceeding.

Appellant appealed the trial court’s decision to dismiss her counterclaims under Oregon’s Anti-Strategic Lawsuits Against Public Participation statute. Appellant argued that the litigation privilege doesn’t foreclose her counterclaims because they are not based on defamatory statements or actions taken in the filing of appellee’s complaint, but on the fact of the filing itself as a retaliatory action against her for the claims she had separately asserted in a different lawsuit. She further argued that retaliation-based counterclaims are the very type that should not be foreclosed by the litigation privilege because they are intended to prohibit conduct that “subverts the underlying purpose of the judicial process.” The court disagreed, holding that “the absolute privilege extends to actions taken and statements made in connection with a judicial proceeding.” Franson v. Radich, 84 Or App 715 (1987). Further, they determined that neither exception to the absolute privilege—wrongful use of civil proceedings and intentional interference with economic relations—applied to appellant’s claims. However, the court agreed with appellant’s alternative argument that the privilege does not apply to her federal counterclaim. REVERSED AND REMANDED AS TO DEFENDANT’S 42 USC SECTION 1983 COUNTERCLAIM; OTHERWISE AFFIRMED.