judicial statements privilege in Kentucky

2025“The doctrine behind the judicial statements privilege rests upon public policy which looks to the free and unfettered administration of justice, though, as an incidental result, it may, in some instances, afford an immunity to the evil-disposed and malignant slanderer.” Id. (quoting Schmitt, 163 S.W.2d at 284 ) 4 As such, when discussing Kentucky law we refer to it as the “judicial statements privilege,” but we refer to it as the “litigation privilege” when discussing other jurisdictions. -7- (internal quotation marks omitted).

2025See Maggard v. Kinney, 576 S.W.3d 559, 568-69 (Ky. 2019) (discussing the judicial statements privilege and the “confusion with one parallel, and sometimes intersecting legal rule, . . . so-called ‘witness immunity.’” The Court ultimately decided that neither the judicial statements privilege nor witness immunity met “the collateral order exception to the final judgment rule[.]”); see also Curd v. Kentucky State Bd. of Licensure for Prof’l Eng’rs. & Land Surveyors, 433 S.W.3d 291, 298 (Ky. 2014) (internal quotation marks and citation omitted) (stating that “absolute immunity is a judicially cre

2025“The doctrine behind the judicial statements privilege rests upon public policy which looks to the free and unfettered administration of justice, though, as an incidental result, it may, in some instances, afford an immunity to the evil-disposed and malignant slanderer.” Id. (quoting Schmitt, 163 S.W.2d at 284 ) 4 As such, when discussing Kentucky law we refer to it as the “judicial statements privilege,” but we refer to it as the “litigation privilege” when discussing other jurisdictions. -7- (internal quotation marks omitted).

2023The doctrine behind the judicial statements privilege “rests upon public policy ‘which looks to the free and unfettered administration of justice, though, as an incidental result, it may, in some instances, afford an immunity to the evil-disposed and malignant slanderer.’” Schmitt, 163 S.W.2d at 284 (quoting Bartlett v. Christhilf, 69 Md. 219 , 14 A. 518, 520 (1888)). 5 1.

2014Morgan & Pottinger, 348 S.W.3d 599 , relied upon by appellants and, although distinguishable, nevertheless lends insight into whether conduct is privileged or, as it name implies, the judicial statements privilege is limited to communications.

2014In Morgan & Pottinger, Attorneys, P.S.C. v. Botts, 348 S.W.3d 599, 601 (Ky.2011), the Court extended the exception to claims of immunity under the judicial statements privilege.

2022See Smith v. Hodges, 199 S.W.3d 185, 189-93 (Ky. App. 2005) (recounting the history of the judicial statements privilege in Kentucky).

2011See also Smith v. Hodges, 199 S.W.3d 185, 189 (Ky. App.2005) ("The absolute immunity afforded to defamatory statements made in the course of a judicial proceeding has a long history in this Commonwealth...."); Morgan v. Booth, 76 Ky. 480 (1877). *602 A communication must fulfill two requirements in order to fall within the ambit of the judicial statements privilege.

2025That said, “[l]ittle has been written in Kentucky regarding the scope of the privilege beyond defamation actions[,] . . . [and] the judicial statements privilege, although vital to the administration of justice, should not be an exception to the general rule that privileges are to be narrowly construed.” Halle, 453 S.W.3d at 185 (citations omitted).

2025The answer to that question requires us to examine the reasoning that has led our courts to expand the privilege beyond defamation in some circumstances and to refrain from expansion in other circumstances.5 The judicial statements privilege “does not bar the cause of action but only renders it unsustainable if based exclusively on statements privileged under the law.” Halle, 453 S.W.3d at 184 (emphasis added).

2025Forbes v. Johnson, 11 B.Mon. 48, 50 Ky. 48, 51 (1850).

2025Forbes v. Johnson, 11 B.Mon. 48, 50 Ky. 48, 51 (1850).

2025Kentucky Rule of Appellate Procedure 41. -9- Willow Council of Co-Owners, Inc., 430 S.W.3d 229, 238 (Ky. 2013) (concluding “that the filing of a lis pendens is protected [only] by a qualified privilege[,]” as opposed to the typical absolute privilege afforded to pleadings).

2014The most recent case from our Supreme Court to discuss the scope of the judicial statements privilege is Ballard v. 1400 Willow Council of Co-Owners, Inc., 430 S.W.3d 229 (Ky.2013).

2023A. Judicial Statements Privilege “In certain circumstances . . . otherwise defamatory-per-se communications are allowed because the societal interest in the unrestricted flow of communication is greater than the private interest.” Toler v. Sud- Chemie, Inc., 458 S.W.3d 276, 282 (Ky. 2014).

2022They assert that the existence of possible, additional statements means they did not fail to state a claim for relief, and that the circuit court should not have granted Appellees’ motion to dismiss, which was predicated on the affirmative defense of judicial privilege. -6- “The requisite elements for a defamation claim are: (a) a false and defamatory statement concerning another; (b) an unprivileged publication to a third party; (c) fault amounting at least to negligence on the part of the publisher; and (d) either actionability of the statement irrespective of special harm or the existence o

2025See Maggard v. Kinney, 576 S.W.3d 559, 568-69 (Ky. 2019) (discussing the judicial statements privilege and the “confusion with one parallel, and sometimes intersecting legal rule, . . . so-called ‘witness immunity.’” The Court ultimately decided that neither the judicial statements privilege nor witness immunity met “the collateral order exception to the final judgment rule[.]”); see also Curd v. Kentucky State Bd. of Licensure for Prof’l Eng’rs. & Land Surveyors, 433 S.W.3d 291, 298 (Ky. 2014) (internal quotation marks and citation omitted) (stating that “absolute immunity is a judicially cre

2025See Maggard v. Kinney, 576 S.W.3d 559, 568-69 (Ky. 2019) (discussing the judicial statements privilege and the “confusion with one parallel, and sometimes intersecting legal rule, . . . so-called ‘witness immunity.’” The Court ultimately decided that neither the judicial statements privilege nor witness immunity met “the collateral order exception to the final judgment rule[.]”); see also Curd v. Kentucky State Bd. of Licensure for Prof’l Eng’rs. & Land Surveyors, 433 S.W.3d 291, 298 (Ky. 2014) (internal quotation marks and citation omitted) (stating that “absolute immunity is a judicially cre

2024The judicial statements privilege applies with equal force to statements in pleadings filed in judicial proceedings.” Deal v. First & Farmers Nat’l Bank, Inc., 518 S.W.3d 159, 173 (Ky. App. 2017).

2023The doctrine behind the judicial statements privilege “rests upon public policy ‘which looks to the free and unfettered administration of justice, though, as an incidental result, it may, in some instances, afford an immunity to the evil-disposed and malignant slanderer.’” Schmitt, 163 S.W.2d at 284 (quoting Bartlett v. Christhilf, 69 Md. 219 , 14 A. 518, 520 (1888)). 5 1.

2023The doctrine behind the judicial statements privilege “rests upon public policy ‘which looks to the free and unfettered administration of justice, though, as an incidental result, it may, in some instances, afford an immunity to the evil-disposed and malignant slanderer.’” Schmitt, 163 S.W.2d at 284 (quoting Bartlett v. Christhilf, 69 Md. 219 , 14 A. 518, 520 (1888)). 5 1.

2022Since they have no stake in the case and cannot be paid more than a nominal fee for testifying, they would be highly reluctant to testify if the 10 See, e.g., Mattco Forge, Inc. v. Arthur Young & Co., 5 Cal. App. 4th 392, 405 (Cal. Ct. App. 1992) (stating that the privilege protects adverse witnesses from suit by opposing parties); Darragh v. Superior Court In and For County of Maricopa, 900 P.2d 1215, 1217 (Ariz. Ct. App. 1995) (concluding that expert’s appraisals and testimony were absolutely privileged); Aequitron Medical, Inc. v. Dyro, 999 F. Supp. 294, 298-99 (E.D.N.Y. 1998) (recognizing

2022See, e.g., Belcher v. Kentucky Parole Bd., 917 S.W.2d 584, 589 (Ky. App. 1996) (concluding that parole board officials perform quasi-judicial tasks that are functionally comparable to those of judges); Sangster v. Kentucky Bd. of Medical Licensure, 454 S.W.3d 854, 862 (Ky. App. 2014) (concluding that board members performed quasi-judicial functions); Compton v. Romans, 869 S.W.2d 24, 28 (Ky. 1993) (concluding that the chairman of the State Racing Commission was exercising quasi-judicial powers). -15- the Kentucky Bar Association, a quasi-judicial proceeding over which the Kentucky Supreme Cour

2022Since they have no stake in the case and cannot be paid more than a nominal fee for testifying, they would be highly reluctant to testify if the 10 See, e.g., Mattco Forge, Inc. v. Arthur Young & Co., 5 Cal. App. 4th 392, 405 (Cal. Ct. App. 1992) (stating that the privilege protects adverse witnesses from suit by opposing parties); Darragh v. Superior Court In and For County of Maricopa, 900 P.2d 1215, 1217 (Ariz. Ct. App. 1995) (concluding that expert’s appraisals and testimony were absolutely privileged); Aequitron Medical, Inc. v. Dyro, 999 F. Supp. 294, 298-99 (E.D.N.Y. 1998) (recognizing

2022Since they have no stake in the case and cannot be paid more than a nominal fee for testifying, they would be highly reluctant to testify if the 10 See, e.g., Mattco Forge, Inc. v. Arthur Young & Co., 5 Cal. App. 4th 392, 405 (Cal. Ct. App. 1992) (stating that the privilege protects adverse witnesses from suit by opposing parties); Darragh v. Superior Court In and For County of Maricopa, 900 P.2d 1215, 1217 (Ariz. Ct. App. 1995) (concluding that expert’s appraisals and testimony were absolutely privileged); Aequitron Medical, Inc. v. Dyro, 999 F. Supp. 294, 298-99 (E.D.N.Y. 1998) (recognizing

2022Since they have no stake in the case and cannot be paid more than a nominal fee for testifying, they would be highly reluctant to testify if the 10 See, e.g., Mattco Forge, Inc. v. Arthur Young & Co., 5 Cal. App. 4th 392, 405 (Cal. Ct. App. 1992) (stating that the privilege protects adverse witnesses from suit by opposing parties); Darragh v. Superior Court In and For County of Maricopa, 900 P.2d 1215, 1217 (Ariz. Ct. App. 1995) (concluding that expert’s appraisals and testimony were absolutely privileged); Aequitron Medical, Inc. v. Dyro, 999 F. Supp. 294, 298-99 (E.D.N.Y. 1998) (recognizing

2022Since they have no stake in the case and cannot be paid more than a nominal fee for testifying, they would be highly reluctant to testify if the 10 See, e.g., Mattco Forge, Inc. v. Arthur Young & Co., 5 Cal. App. 4th 392, 405 (Cal. Ct. App. 1992) (stating that the privilege protects adverse witnesses from suit by opposing parties); Darragh v. Superior Court In and For County of Maricopa, 900 P.2d 1215, 1217 (Ariz. Ct. App. 1995) (concluding that expert’s appraisals and testimony were absolutely privileged); Aequitron Medical, Inc. v. Dyro, 999 F. Supp. 294, 298-99 (E.D.N.Y. 1998) (recognizing

2022See, e.g., Belcher v. Kentucky Parole Bd., 917 S.W.2d 584, 589 (Ky. App. 1996) (concluding that parole board officials perform quasi-judicial tasks that are functionally comparable to those of judges); Sangster v. Kentucky Bd. of Medical Licensure, 454 S.W.3d 854, 862 (Ky. App. 2014) (concluding that board members performed quasi-judicial functions); Compton v. Romans, 869 S.W.2d 24, 28 (Ky. 1993) (concluding that the chairman of the State Racing Commission was exercising quasi-judicial powers). -15- the Kentucky Bar Association, a quasi-judicial proceeding over which the Kentucky Supreme Cour

2022Since they have no stake in the case and cannot be paid more than a nominal fee for testifying, they would be highly reluctant to testify if the 10 See, e.g., Mattco Forge, Inc. v. Arthur Young & Co., 5 Cal. App. 4th 392, 405 (Cal. Ct. App. 1992) (stating that the privilege protects adverse witnesses from suit by opposing parties); Darragh v. Superior Court In and For County of Maricopa, 900 P.2d 1215, 1217 (Ariz. Ct. App. 1995) (concluding that expert’s appraisals and testimony were absolutely privileged); Aequitron Medical, Inc. v. Dyro, 999 F. Supp. 294, 298-99 (E.D.N.Y. 1998) (recognizing

2022See, e.g., Belcher v. Kentucky Parole Bd., 917 S.W.2d 584, 589 (Ky. App. 1996) (concluding that parole board officials perform quasi-judicial tasks that are functionally comparable to those of judges); Sangster v. Kentucky Bd. of Medical Licensure, 454 S.W.3d 854, 862 (Ky. App. 2014) (concluding that board members performed quasi-judicial functions); Compton v. Romans, 869 S.W.2d 24, 28 (Ky. 1993) (concluding that the chairman of the State Racing Commission was exercising quasi-judicial powers). -15- the Kentucky Bar Association, a quasi-judicial proceeding over which the Kentucky Supreme Cour

2022See Yeung v. Maric, 232 P.3d 1281, 1283 (Ariz. Ct. App. 2010); Bushell v. Caterpillar, Inc., 683 N.E.2d 1286, 1289 (Ill.

2022See Yeung v. Maric, 232 P.3d 1281, 1283 (Ariz. Ct. App. 2010); Bushell v. Caterpillar, Inc., 683 N.E.2d 1286, 1289 (Ill.

2017See id. (citing Massengale v. Lester, 403 S.W.2d 701 -02 (Ky. 1966)).

2014O’Connell v. Cowan, 332 S.W.3d 34, 39 (Ky.2010).