Kocontes v. McQuaid

that when Bormann pointed and fired his high-powered rifle at
Williams, he possessed the intent to kill.
VI. CONCLUSION
The trial court did not err in admitting Bormann’s statements
into evidence or in its instructions to the jury. The convictions
and sentences are affirmed.
A ffirmed.
kOCONTeS v. mcqUaId 	335
Cite as 279 Neb. 335
L onnie L. Kocontes , AppeLLAnt, v.
seAn K. mc Q uAid And edwArd t.
BujAnowsKi , AppeLLees.
778 N.W.2d 410
Filed January 29, 2010. 	No. S-09-235.
1. Libel and Slander. Whether a communication is privileged by reason of its char-
acter or the occasion on which it was made is a question of law.
2. Appeal and Error. an appellate court resolves questions of law independently of
the determination reached by the court below.
3. Pleadings: Appeal and Error. an appellate court reviews de novo a lower
court’s dismissal of a complaint for failure to state a claim.
4. Pretrial Procedure: Appeal and Error. On appellate review, decisions regarding
discovery are generally reviewed under an abuse of discretion standard.
5. Judges: Words and Phrases. a judicial abuse of discretion exists when reasons
or rulings of a trial judge are clearly untenable, unfairly depriving a litigant of a
substantial right and denying just results in matters submitted for disposition.
6. Rules of the Supreme Court: Pleadings. dismissal under Neb. Ct. R. Pldg.
§ 6-1112(b)(6) should be granted only in the unusual case in which a plaintiff
includes allegations that show on the face of the complaint that there is some
insuperable bar to relief.
7. Pleadings: Appeal and Error. When analyzing a lower court’s dismissal of a
complaint for failure to state a claim, an appellate court accepts the complaint’s
factual allegations as true and construes them in the light most favorable to
the plaintiff.
8. Libel and Slander. an absolutely privileged communication is one for which, by
reason of the occasion on which it was made, no remedy exists in a civil action
for libel or slander.
9. ____. absolute privilege attaches to defamatory statements made incident to, and
in the course of, judicial or quasi-judicial proceedings if the defamatory matter
has some relation to the proceedings.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:47 AM CST

10. Libel and Slander: Trial. The relevancy of the defamatory matter is not a techni-
cal legal relevancy but instead a general frame of reference and relationship to the
subject matter of the action.
11. Libel and Slander: Public Policy. absolute privilege stems from a public policy
determination that weighs the public interest in free disclosure against the harm
to individuals who may be defamed.
12. Pretrial Procedure: Public Officers and Employees. When the law commits
to any officer the duty of looking into facts and acting upon them, not in a way
which it specifically directs, but after a discretion in its nature judicial, the func-
tion is quasi-judicial.
13. Board of Pardons: Libel and Slander. The Nebraska Board of Pardons should be
considered a quasi-judicial body for the purpose of applying absolute privilege.
14. Pretrial Procedure. The evaluation and investigation of facts and opinions for
the purpose of determining what, if anything, is to be raised or used in pending
litigation is as integral a part of the search for truth as is the presentation of such
facts and opinions during the course of the trial.
15. Libel and Slander: Public Policy. The great underlying principle upon which
the doctrine of privileged communications rests is public policy.
16. Convictions. a pardon affects the public interest in the conviction.
17. Board of Pardons: Convictions: Public Policy. Before a convicted person bene-
fits from the clemency power of the Board of Pardons, public policy demands full
disclosure of any and all pertinent information.
18. Torts: Libel and Slander: Public Policy: Damages. For purposes of public
policy, a defamation suit is indistinguishable from other tort-related claims seek-
ing money damages for the statement.
19. Pretrial Procedure: Proof: Appeal and Error. The party asserting error in
a discovery ruling bears the burden of showing that the ruling was an abuse
of discretion.
appeal from the district Court for Lancaster County: john
A. coLBorn, Judge. affirmed.
James 	L. 	Beckmann, 	of 	Beckmann 	Law 	Offices, 	for
appellant.
Raymond e. Walden, of Walden Law Office, and William R.
Johnson, of Lamson, dugan & murray, L.L.P., for appellees.
wright, connoLLy, gerrArd, stephAn, mccormAcK, and
miLLer-L ermAn, jj.
mccormAcK, j.
NaTURe OF CaSe
Lonnie L. kocontes filed a claim for libel per se against Sean
k. mcquaid and edward T. Bujanowski after they submitted
336 	279 NeBRaSka RePORTS

a letter to the Nebraska Board of Pardons discouraging it
from granting kocontes’ application. The district court granted
mcquaid and Bujanowski’s motion to dismiss based on the
absolute privilege protecting participants in judicial or quasi-
judicial proceedings from the prospect of defamation actions.
We consider whether the Board of Pardons is a quasi-judicial
body such that absolute privilege applies to communications
relating to its proceedings.
BaCkGROUNd
kocontes is an attorney licensed in the State of California.
Occasionally, kocontes has represented clients on a pro hac
vice basis in Florida. He has apparently been unable to obtain
a license to practice law in Florida. This is at least in part
because of drug-related felony convictions that occurred in
Nebraska approximately 30 years ago. In the hopes of obtain-
ing a license in Florida, kocontes filed an application with the
Nebraska Board of Pardons to pardon his prior convictions.
kocontes’ relationship with Bujanowski began sometime
around September 2007, when kocontes entered into a pro hac
vice arrangement to represent him as the plaintiff in an action
in Florida. By November, however, kocontes’ pro hac vice
status had been revoked by the court. kocontes asserts that the
court had erroneously concluded that he was a Florida resident.
Bujanowski retained mcquaid, a Florida attorney, to continue
his lawsuit.
On January 28, 2008, kocontes filed a complaint against
mcquaid with the Florida State Bar, alleging that mcquaid
had solicited Bujanowski at a time when kocontes still repre-
sented Bujanowski. He also initiated a civil action in Florida
against mcquaid and Bujanowski for defamation, alleging that
mcquaid had made defamatory statements to Bujanowski in
the process of soliciting his business and that both mcquaid
and Bujanowski had made defamatory statements to an investi-
gator in Bujanowski’s lawsuit.
mcquaid and Bujanowski learned that kocontes had a pend-
ing application for a pardon before the Nebraska Board of
Pardons. They opposed the pardon, allegedly out of vindic-
tiveness for kocontes’ suits against them. On march 6, 2008,
kOCONTeS v. mcqUaId 	337
Cite as 279 Neb. 335

mcquaid sent a letter on Bujanowski’s behalf to the Board of
Pardons. The letter described the relationship between the par-
ties and alleged that (1) kocontes’ pro hac vice status in Florida
was removed due to kocontes’ misrepresentations to the court,
(2) kocontes had lied about his convicted felon status when
registering to vote in Florida, and (3) kocontes was illegally
practicing law in Florida and had charged exorbitant fees.
Finally, the letter suggested that the Board of Pardons investi-
gate specific rumors of illegal behavior for which kocontes had
not been charged or convicted. In the present action, kocontes
alleges that all of these statements to the Board of Pardons
were false and that mcquaid and Bujanowski either knew of
their falsity or acted with reckless disregard as to their truth
or falsity.
kocontes’ application for a pardon was denied by the Board
of Pardons on June 5, 2008. That same day, kocontes filed
suit against mcquaid and Bujanowski in the district court for
Lancaster County seeking damages for the alleged libelous
statements in the letter.
mcquaid and Bujanowski filed a motion to dismiss the
action, alleging that Nebraska lacked personal jurisdiction over
them and that the action was barred by absolute privilege.
mcquaid and Bujanowski were granted a protective order
delaying the need to respond to kocontes’ discovery requests
until the motion to dismiss was disposed of. The court denied
kocontes’ motion to compel discovery to prove additional
contacts and defamatory statements in Nebraska. Ultimately,
the motion to dismiss was granted, with the district court’s
reasoning that an absolute privilege protected the statements.
kocontes appeals.
aSSIGNmeNTS OF eRROR
kocontes assigns that the district court erred when it (1)
granted the motion to dismiss and (2) overruled kocontes’
motion to compel discovery.
STaNdaRd OF ReVIeW
[1,2] Whether a communication is privileged by reason of its
character or the occasion on which it was made is a question
338 	279 NeBRaSka RePORTS

of law.1 an appellate court resolves questions of law indepen-
dently of the determination reached by the court below.2
[3] an appellate court reviews de novo a lower court’s dis-
missal of a complaint for failure to state a claim.3
[4,5] On appellate review, decisions regarding discovery are
generally reviewed under an abuse of discretion standard.4 a
judicial abuse of discretion exists when reasons or rulings of a
trial judge are clearly untenable, unfairly depriving a litigant of
a substantial right and denying just results in matters submitted
for disposition.5
aNaLYSIS
[6,7] dismissal under Neb. Ct. R. Pldg. § 6-1112(b)(6)
should be granted only in the unusual case in which a plaintiff
includes allegations that show on the face of the complaint
that there is some insuperable bar to relief.6 When analyzing
a lower court’s dismissal of a complaint for failure to state a
claim, an appellate court accepts the complaint’s factual allega-
tions as true and construes them in the light most favorable to
the plaintiff.7 In this case, the court determined that the state-
ments were absolutely privileged and that therefore, even if the
allegations in the complaint were true, the statements could not
form the basis of a defamation action. The court also found that
no reasonable possibility existed that kocontes would be able
to correct the deficiency in his petition.
On appeal, kocontes asserts that absolute privilege should
not apply to complaints to the Board of Pardons. He argues
that the Board of Pardons is not a quasi-judicial body and that,
in any event, letters by strangers to the proceedings should not
1 Sullivan v. Smith, 925 So. 2d 972 (ala. Civ. app. 2005).
2 Tolliver v. Visiting Nurse Assn., 278 Neb. 532, 771 N.W.2d 908 (2009).
3 Crane Sales & Serv. Co. v. Seneca Ins. Co., 276 Neb. 372, 754 N.W.2d
607 (2008).
4 See Greenwalt v. Wal-Mart Stores, 253 Neb. 32, 567 N.W.2d 560 (1997).
5 Id.
6 Crane Sales & Serv. Co. v. Seneca Ins. Co., supra note 3.
7 Id.
kOCONTeS v. mcqUaId 	339
Cite as 279 Neb. 335

be protected by the privilege. even if the letter was protected,
kocontes asserts he should have been allowed to amend his
complaint to assert the tortious interference with a business
expectancy. Finally, he asserts he should have been allowed to
discover any possible nonprivileged communications made by
mcquaid and Bujanowski with Nebraska.
ABsoLute priviLege
[8-10] an absolutely privileged communication is one for
which, by reason of the occasion on which it was made, no
remedy exists in a civil action for libel or slander.8 absolute
privilege attaches to defamatory statements made incident to,
and in the course of, judicial or quasi-judicial proceedings if
the defamatory matter has some relation to the proceedings.9
The relevancy of the defamatory matter is not a technical legal
relevancy but instead a general frame of reference and relation-
ship to the subject matter of the action.10
[11] absolute privilege stems from a public policy determi-
nation that weighs the public interest in free disclosure against
the harm to individuals who may be defamed.11 There are cer-
tain relations of life in which it is so important that the persons
engaged in them should be able to speak freely that the law
takes the risk of their abusing the occasion and speaking mali-
ciously as well as untruly.12 as will be illustrated further below,
the privilege applies to witness testimony in a judicial proceed-
ing, but it also applies to statements preliminary or ancillary to
judicial or quasi-judicial proceedings.
[12] In Shumway v. Warrick,13 we defined what is quasi-
judicial for purposes of applying absolute privilege and held
8 Regan v. Guardian Life Ins. Co., 140 Tex. 105, 166 S.W.2d 909 (1942).
9 See, Kloch v. Ratcliffe, 221 Neb. 241, 375 N.W.2d 916 (1985); Sinnett v.
Albert, 188 Neb. 176, 195 N.W.2d 506 (1972); Shumway v. Warrick, 108
Neb. 652, 189 N.W. 301 (1922); Restatement (Second) of Torts §§ 587 and
590a (1977).
10 Sinnett v. Albert, supra note 9.
11 See, e.g., Adams v. Peck, 288 md. 1, 415 a.2d 292 (1980).
12 Sinnett v. Albert, supra note 9.
13 Shumway v. Warrick, supra note 9, 108 Neb. at 656, 189 N.W. at 302.
340 	279 NeBRaSka RePORTS

that “‘[w]hen the law commits to any officer the duty of look-
ing into facts and acting upon them, not in a way which it spe-
cifically directs, but after a discretion in its nature judicial, the
function is quasi-judicial.’” We note that several other courts
use a similarly broad definition that focuses on the ability of a
board or tribunal to decide matters based on the application of
human judgment to some sort of factual investigation.14
Nevertheless, it has been said that there is “‘“no clear defi-
nition” of what constitutes a quasi-judicial proceeding before a
quasi-judicial body.’”15 In addition to the definition set forth in
Shumway, we also find useful six principal attributes consid-
ered by other courts in making a determination as to whether a
body is quasi-judicial: (1) the power to exercise judgment and
discretion; (2) the power to hear and determine or to ascertain
facts and decide; (3) the power to make a binding order and
judgment; (4) the power to affect the personal or property
rights of private persons; (5) the power to examine witnesses,
to compel the attendance of witnesses, and to hear the litiga-
tion of the issues at a hearing; and (6) the power to enforce
decisions or impose penalties.16 a quasi-judicial body need not
possess all six powers, but the more powers it does possess, the
more likely it is to be acting in a quasi-judicial manner.17
We have considered a wide variety of entities as quasi-
judicial bodies for purposes of absolute privilege, although we
have never before specifically addressed the Board of Pardons.
For example, in Shumway,18 we held the privilege applied to a
14 Fedderwitz v. Lamb, 195 Ga. 691, 25 S.e.2d 414 (1943); Parker v.
Kirkland, 298 Ill. app. 340, 18 N.e.2d 709 (1939); Cole v. Star Tribune,
581 N.W.2d 364 (minn. app. 1998); Lane v. Port Terminal R.R. Ass’n, 821
S.W.2d 623 (Tex. app. 1991).
15 Vultaggio v. Yasko, 215 Wis. 2d 326, 341, 572 N.W.2d 450, 456 (1998).
16 See, e.g., Craig v. Stafford Const., Inc., 271 Conn. 78, 856 a.2d 372
(2004); Adco Services, Inc. v. Bullard, 256 Ill. app. 3d 655, 628 N.e.2d
772, 195 Ill. dec. 308 (1993).
17 Illinois College of Optometry v. Labombarda, 910 F. Supp. 431 (N.d.
Ill. 1996). See, also, Craig v. Stafford Const., Inc., supra note 16; Adco
Services, Inc. v. Bullard, supra note 16.
18 Shumway v. Warrick, supra note 9.
kOCONTeS v. mcqUaId 	341
Cite as 279 Neb. 335

letter written by a banker to the state banking board. The board
was considering a businessman’s application for a charter
to start a new bank. In concluding that the board was quasi-
judicial, we observed that it was charged with making the
ultimate decision as to whether to grant a banking charter and
it was charged with investigating and determining the integrity
and responsibility of parties applying for the same.
We concluded that the banker’s protest was relevant and that
it was covered by the privilege, because statements addressing
the integrity and responsibility of the applicant were pertinent
to the board’s inquiry. We held that the banker was protected
by the privilege regardless of whether his rights and inter-
ests were directly involved in the matter before the board or
whether his opinion was compelled by the board.19 It was the
banker’s right to appear before the banking board and protest
the issuance of the charter.20 Thus, “it would be paradoxical to
hold that he was merely an interloper, a stranger to the pro-
ceedings, and therefore denied the privileges and immunities
granted a party litigant.”21
In Sinnett v. Albert,22 we held that absolute privilege applied
to a complaint to the Nebraska State Bar association against
an attorney by a former client. We held that the complaint was
privileged regardless of whether it was ever admitted into evi-
dence at a subsequent investigatory proceeding. Furthermore,
the protection extended to statements in the complaint that per-
tained to an attorney who was not, in fact, the ultimate subject
of the disciplinary proceedings, so long as the statements were
incidental or explanatory to the complaint.
We said that proceedings for the discipline or disbarment
of attorneys have traditionally been regarded as judicial in
character. and we described in some detail how “[r]easonable
demands of sound public policy require[d] the imposition of
19 Id.
20 Id.
21 Id. at 657, 189 N.W. at 303.
22 Sinnett v. Albert, supra note 9.
342 	279 NeBRaSka RePORTS

absolute privilege”23 to complaints about professional mis-
conduct. We explained that the exercise of the right to lodge
a complaint against an attorney “should not be discouraged
by fear on the part of the complainant that he may have to
defend a lawsuit for defamation by anyone who deems himself
defamed by relevant statements made in the complaint.”24
In other jurisdictions, absolute privilege has likewise been
applied to complaints before a wide variety of entities, rang-
ing from a police department’s internal affairs division25 to a
council of optometric education.26 Closer to the situation at
hand, communications to states’ boards of parole are almost
universally considered protected by absolute privilege.27 For
instance, in Pulkrabek v. Sletten,28 the court applied the privi-
lege to a letter written by the prosecuting attorney questioning
the competency of defense counsel who had agreed to a plea
bargain. The court held that the privilege applied to the letter
regardless of whether it was actually used in the parole meeting
so long as it was drafted with the intent that it be considered by
the parole board in its investigation of the inmate’s application
for parole.
In Sullivan v. Smith,29 the court held that absolute privilege
applied to the testimony of the victim’s parents at a parole
board meeting. In concluding that the parole board was a
quasi-judicial body, the court explained that the parole board
did not normally act in a ministerial manner, but, instead, its
23 Id. at 179, 195 N.W.2d at 509.
24 Id.
25 Craig v. Stafford Const., Inc., supra note 16.
26 Illinois College of Optometry v. Labombarda, supra note 17.
27 See, Sullivan v. Smith, supra note 1; Neal v. McCall, 134 Ga. app. 680,
215 S.e.2d 537 (1975); Hartford v. Hartford, 60 mass. app. 446, 803
N.e.2d 334 (2004); Burgess v. Silverglat, 217 mont. 186, 703 P.2d 854
(1985); Pulkrabek v. Sletten, 557 N.W.2d 225 (N.d. 1996); Vasquez v.
Courtney, 276 Or. 1053, 557 P.2d 672 (1976). See, also, Inmates of Neb.
Penal & Correctional v. Greenholtz, 436 F. Supp. 432 (d. Neb. 1976).
28 Pulkrabek v. Sletten, supra note 27.
29 Sullivan v. Smith, supra note 1.
kOCONTeS v. mcqUaId 	343
Cite as 279 Neb. 335

decisions were “completely discretionary.”30 The board, the
court explained, made decisions akin to those of a trial judge
in determining the propriety of probation. In both instances,
the determinations were effectively “not reviewable on appeal
due to the complete discretion.”31 The court defined a “judicial”
action for purposes of absolute privilege as an “‘“‘“[o]fficial
action, the result of judgment or discretion . . . .”’”’”32
Not many cases have specifically considered whether pro-
ceedings to obtain a pardon are quasi-judicial in this context.33
as kocontes points out, at least one case, decided in 1918,
has denied the privilege.34 In Andrews v. Gardiner,35 the New
York Court of appeals considered whether a physician’s appli-
cation to the governor for a pardon of a prior conviction was
absolutely privileged. The court explained that the application
was not a proceeding in court, nor one before an officer hav-
ing attributes similar to a court.36 Instead, it was “a petition for
mere grace and mercy”:
It may be made by any one, and without the convict’s
knowledge. It grows out of the action of the courts, but it
seeks to reverse their action by an appeal to motives and
arguments which are not those of jurisprudence. There
are no clearly defined issues. There is often a most infor-
mal hearing. Sometimes there is argument by counsel.
as often, the plea for mercy is made by wife or kin or
friends. . . . It is not necessary that reason be convinced;
it is enough that compassion is stirred.37
The court reasoned that “[w]here the test of the pertinent
is so vague, there must be some check upon calumny.”38
30 Id. at 975.
31 Id.
32 Id. (emphasis omitted).
33 annot., 45 a.L.R.2d 1296 (1956).
34 Andrews v. Gardiner, 224 N.Y. 440, 121 N.e. 341 (1918).
35 Id.
36 Id.
37 Id. at 447, 121 N.e. at 343.
38 Id. at 447-48, 121 N.e. at 343.
344 	279 NeBRaSka RePORTS

Furthermore, the court found a distinction between a witness
required to attend a hearing and voluntary complainants. The
court concluded that there was “no license, under cover of such
an occasion, to publish charges known to be false or put for-
ward for revenge.”39
In several other cases, however, courts have found that
absolute privilege does apply to communications to a par-
dons board. In Cole v. Star Tribune,40 the minnesota Court
of appeals held that letters sent by the victim’s nieces to the
board of pardons were absolutely privileged. The board of par-
dons was considering an inmate’s application for early release.
The board consisted of the governor, the attorney general, and
the chief justice. The court noted certain formalities, including
the fact that the public had been informed of the meeting of
the board. The victim’s nieces, particularly, were informed and
given the right to be present or to submit a written statement.
The board was required by statute to consider the victim’s
nieces’ statements, although there was apparently no further
instruction as to the manner in which it was to do so. The court
concluded the board of pardons was quasi-judicial because it
applied “‘deliberate human judgment based upon evidentiary
facts of some sort commanding the exercise of . . . discretion-
ary power.’”41
In Brech v. Seacat et al.,42 the Supreme Court of South
dakota held that the privilege applied to a sentencing judge’s
letter to the board of pardons, regardless of whether the let-
ter was required of him. It was customary for the sentencing
judge to forward such a letter to the board. and in Connellee
v. Blanton,43 the court held that absolute privilege applied to
allegedly libelous statements in a prisoner’s application for
pardon to the governor. The court in Connellee noted that the
right to apply for redress of grievances was one embedded in
39 Id. at 448, 121 N.e. at 344.
40 Cole v. Star Tribune, supra note 14.
41 Id. at 369.
42 Brech v. Seacat et al., 84 S.d. 264, 170 N.W.2d 348 (1969).
43 Connellee v. Blanton, 163 S.W. 404 (Tex. Civ. app. 1913).
kOCONTeS v. mcqUaId 	345
Cite as 279 Neb. 335

the state constitution. and while it observed that some classes
of communication to heads of governmental departments were
considered only conditionally privileged, the court concluded
that this was a quasi-judicial proceeding. The court explained
that the same principle of public policy which supports abso-
lute privilege in judicial proceedings should apply with equal
force to petitions for the exercise of the pardoning power—a
power which was “superior to that of the court which ren-
dered the judgment of conviction.”44 The court reasoned: “If
the judicial proceedings which culminated in the conviction
were absolutely privileged, why should not the same immu-
nity be extended to the petition to a higher power to annul
that judgment . . . ?”45
[13] We conclude that the cases applying the privilege
to 	communications 	before 	boards 	of 	pardons 	provide 	the
better-reasoned authority. In light of our definition set forth in
Shumway,46 the six-factor test applied by other courts, and the
public policy reasons for absolute privilege, we conclude that
the Nebraska Board of Pardons should be considered a quasi-
judicial body for this purpose.
The Board of Pardons was created by Neb. Rev. Stat.
§ 83-1,126 (Reissue 2008). It consists of the Governor, the
attorney General, and the Secretary of State. By majority
vote, the board has the statutory authority to remit fines
and forfeitures and to grant respites, reprieves, pardons, or
commutations for all criminal offenses except treason and
impeachment.47 applications requesting specific relief must
be considered by the board at its next regularly scheduled
meeting.48 The Board of Pardons must consult with the Board
of Parole concerning the applications.49 also, pursuant to arti-
cle I, § 28, of the Nebraska Constitution and Neb. Rev. Stat.
44 Id. at 407.
45 Id.
46 Shumway v. Warrick, supra note 9.
47 Neb. Rev. Stat. §§ 83-1,127(1) and 83-170(10) (Reissue 2008).
48 Neb. Rev. Stat. §§ 83-1,129(3) and 83-1,130(1) (Reissue 2008).
49 § 83-1,127(4).
346 	279 NeBRaSka RePORTS

§ 81-1848 (Reissue 2008), any victim of a crime committed by
the applicant must be informed of the pardon application and
be allowed to submit a written statement for consideration at
pardon proceedings.
The current policy and procedure guidelines of the Board of
Pardons state that it is the board’s policy to hold its hearings
in accordance with the Open meetings act.50 “The purpose of
any such hearing is to afford the members of the Board [of
Pardons] the opportunity to question the applicant or others,
or to hear such statements and review such information as the
Board believes may be helpful to it . . . .”51 The guidelines
explain that the board may review information concerning the
crime, the seriousness of the crime, the impact upon the victim,
and other issues, but it is not the function of the board to retry
the case for purposes of determining guilt or innocence.52 On
“Presentation of information, testimony, and argument,” the
guidelines state in relevant part:
The Board [of Pardons] may hear testimony, whether or
not offered under oath, and may received [sic] written
statements and other information which the Board deems
useful in the exercise of it’s [sic] authority. . . . Ordinarily
the applicant, or a representative of the applicant, will
first present testimony, statements, or other information
in support of the application, followed by the presenta-
tion of those appearing in opposition to the applica-
tion. Correspondence received by any Board member
shall be shared with the other members through Pardon
Board staff.53
Section 83-1,129(3) states that while the hearings before the
board are conducted “in an informal manner,” a record of the
proceedings must be made and preserved.
50 See, Neb. Rev. Stat. §§ 84-1407 through 84-1414 (Reissue 2008 & Supp.
2009); Nebraska Pardons Board Policy and Procedure Guidelines § 003.03
(1994).
51 Nebraska Pardons Board Policy and Procedure Guidelines, supra note 50,
§ 004.03.
52 Id., § 004.03C.
53 Id.
kOCONTeS v. mcqUaId 	347
Cite as 279 Neb. 335

In its investigation of the facts relevant to the application,
Neb. Rev. Stat. § 83-1,128 (Reissue 2008) provides that the
Board of Pardons, “in the same manner as similar process in the
district court” has the power to issue subpoenas; to compel the
attendance of witnesses and the production of books, papers,
and other documents pertinent to the subject of an inquiry; and
to administer oaths and take the testimony of persons under
oath. The statute further provides that witnesses are subject
to contempt for failure to attend or provide requested material
when subpoenaed. and the statute provides that any person
who knowingly testifies falsely or submits any false affidavit or
deposition is “subject to the same orders and penalties to which
a person before the district court is subject.”
Thus, the law commits to the Board of Pardons the duty of
looking into facts and acting upon them, and the board does not
make decisions in a way which the law specifically directs, but
in its discretion.54 and regardless of whether it always sees fit
to exercise them, the board clearly has all six powers consid-
ered indicative of a quasi-judicial body.
kocontes argues that the Board of Pardons should not be
considered quasi-judicial because its exercise of discretion is
completely unconstrained. kocontes points out that there are
no specific facts it is directed by law to find, nor are there
specified legal principles the board must apply to the facts
it determines. In support of this argument, kocontes makes
reference to the reasoning of the court in Andrews.55 But he
also relies heavily on cases where we have considered if an
administrative decision was made in the exercise of “judicial”
functions such that it is reviewable by petition in error. In those
cases, we stated that a board, tribunal, or officer exercises a
judicial function “if it decides a dispute of adjudicative fact or
if a statute requires it to act in a judicial manner.”56 We have
defined “‘[a]djudicative facts’” as those “which relate to a
54 Shumway v. Warrick, supra note 9.
55 Andrews v. Gardiner, supra note 34.
56 See, e.g., Kropp v. Grand Island Pub. Sch. Dist. No. 2, 246 Neb. 138, 140,
517 N.W.2d 113, 115 (1994). See, also, Thomas v. Lincoln Public Schools,
228 Neb. 11, 421 N.W.2d 8 (1988).
348 	279 NeBRaSka RePORTS

specific party and are adduced from formal proof.”57 Little has
been said about “judicial manner.”
In Sarpy Cty. Bd. of Comrs. v. Sarpy Cty. Land Reutil.,58 the
Nebraska Court of appeals held that a decision by a county
land reutilization commission to sell a piece of property was
not subject to review by petition in error because the decision
was too discretionary. The court noted that the statutes grant-
ing the commission its power59 did not list the facts which
must be determined or upon which its determination must
depend. It was thus neither ministerial, judicial, nor quasi-
judicial; “[r]ather, the decision . . . can only be seen as a
matter of Commission policy or as a political decision of the
Commission.”60 Later, in Ditter v. Nebraska Bd. of Parole,61 the
Court of appeals similarly held that a decision by the Board of
Parole during its review of an inmate’s parole eligibility was
not a “judicial” act subject to petition in error review, because
it held no hearing and no “adjudicative facts” were determined
by the board.
We note that more recently, in Nicholson v. Red Willow Cty.
Sch. Dist. No. 0170,62 we held that a school district superintend-
ent’s determination, without a hearing, of the sufficiency of
signatures in a petition to transfer real property from one dis-
trict to another was a quasi-judicial function subject to petition
in error review. and we overruled the prior case of Kosmicki v.
Kowalski,63 in which we had held that an action was not judi-
cial because it involved no “adjudicative facts.”
57 Hawkins v. City of Omaha, 261 Neb. 943, 953, 627 N.W.2d 118, 127
(2001).
58 Sarpy Cty. Bd. of Comrs. v. Sarpy Cty. Land Reutil., 9 Neb. app. 552, 615
N.W.2d 490 (2000).
59 See Neb. Rev. Stat. §§ 77-3205 and 77-3206(4) (Reissue 2009).
60 Sarpy Cty. Bd. of Comrs. v. Sarpy Cty. Land Reutil., supra note 58, 9 Neb.
app. at 561, 615 N.W.2d at 497.
61 Ditter v. Nebraska Bd. of Parole, 11 Neb. app. 473, 481, 655 N.W.2d 43,
49 (2002).
62 Nicholson v. Red Willow Cty. Sch. Dist. No. 0170, 270 Neb. 140, 699
N.W.2d 25 (2005).
63 Kosmicki v. Kowalski, 184 Neb. 639, 171 N.W.2d 172 (1969).
kOCONTeS v. mcqUaId 	349
Cite as 279 Neb. 335

But regardless of whether the Board of Pardons’ decisions
would or would not qualify as “judicial” under our petition
in error analysis, we find kocontes’ reliance on these cases
misplaced. Whether a decision can be reviewed by petition
in error involves different considerations than those involved
in the question of whether participants in the proceedings
should be protected by an absolute privilege. One of the con-
siderations for a petition in error is whether the decision being
reviewed has taken place in a way that would create a record
for meaningful appellate review.64 For absolute privilege, in
contrast, policy considerations encouraging full disclosure are
paramount. at least one court has expressly held that the test
for whether an entity is quasi-judicial for the purpose of abso-
lute privilege is a different test than the one used to determine
if a decision is quasi-judicial for the purpose of a method
of review.65
We find no support for kocontes’ argument that the facts to
be considered by the board must be delineated by law in order
for the entity to act in a quasi-judicial manner. We do agree
that the board must be bound to apply its judgment to some
form of factual determinations so that its decision is more than
simply an arbitrary game of chance. But the Nebraska Board
of Pardons is so bound. Section 83-1,127(4) states that the
board must consult with the Board of Parole, and § 81-1848
implies that it must also consider written statements by the
victim. extensive powers are granted to the Board of Pardons
to investigate all facts it deems relevant. Thus, although not
bound by jurisprudence, the Board of Pardons clearly endeav-
ors to exercise its discretion in a “judicial” manner insofar
as it exercises its discretion in conjunction with a careful
determination of relevant facts. and, as the court pointed out
in Sullivan,66 when it comes to certain sentencing decisions,
judges themselves are allowed virtually unfettered discretion
not only in the decision itself, but in what facts it considers
64 See Hawkins v. City of Omaha, supra note 57.
65 Parker v. Kirkland, supra note 14. But see Vogel v. State, 187 misc. 2d
186, 721 N.Y.S.2d 901 (N.Y. Cl. 2000).
66 Sullivan v. Smith, supra note 1.
350 	279 NeBRaSka RePORTS

relevant to that decision. Yet such actions are still consid-
ered “judicial.”
kocontes also argues that absolute privilege should not
apply because proceedings of the Board of Pardons fail to pro-
vide any counterbalancing guarantees of truthfulness. kocontes
asserts that the key factor in deciding if absolute privilege
applies is whether other safeguards exist that would encour-
age truthful statements and reveal and punish untruthful state-
ments. He notes that in judicial proceedings, witnesses that are
protected by absolute privilege are also subjected to discovery,
cross-examination, and potential perjury charges.
First, we find that such guarantees are not, as kocontes
suggests, wholly absent from proceedings before the Board of
Pardons. While any hearing is an informal one, the applicant’s
version of events is given fair consideration. Furthermore, the
board has the power to subpoena any witness it chooses. as
already noted, any person subjected to this power is “subject
to the same orders and penalties to which a person before the
district court is subject”67 for knowingly testifying falsely or
submitting any false affidavit or deposition.
[14] That the Board of Pardons did not exercise its subpoena
powers in this instance or that it does not normally choose to
exercise these powers is not decisive. anyone presenting infor-
mation to the board should be aware of the possibility that his
or her statements may ultimately be subjected to this scrutiny.
as such, untruthful, malicious statements are still discour-
aged. even in the traditional litigation context, preliminary
information by potential witnesses is covered by the privilege,
regardless of whether the information is ultimately brought
forth through sworn testimony and subjected to truth-seeking
protections. To hold otherwise, the courts have explained,
would defeat the purpose of the privilege, for there would be a
chilling effect on potential witnesses’ revealing what they know
during the investigatory stages, and litigants would never know
whether they should be called.68 The evaluation and investi-
gation of facts and opinions for the purpose of determining
67 § 83-1,128.
68 See, e.g., Adams v. Peck, supra note 11.
kOCONTeS v. mcqUaId 	351
Cite as 279 Neb. 335

what, if anything, is to be raised or used in pending litigation
is as integral a part of the search for truth as is the presenta-
tion of such facts and opinions during the course of the trial.69
The preliminary, investigatory stage of proceedings before the
Board of Pardons is no less important.
Second, we disagree with kocontes’ emphasis on due proc-
ess in determining whether the privilege applies. many courts
will consider the presence or absence of due process as a fac-
tor.70 at least one court considers the “‘“trappings required by
due process”’” to be the primary consideration.71 But this has
never been the test in our court. although we find the presence
of other guarantees of trustworthiness relevant, we consider
the guarantees provided by the Nebraska Board of Pardons
sufficient in light of the other factors weighing in favor of
absolute privilege.
[15-17] as already discussed, “[t]he great underlying prin-
ciple upon which the doctrine of privileged communications
rests is public policy.”72 We conclude that there are very unique
public policy reasons supporting absolute privilege for commu-
nications to the Board of Pardons. a pardon is an act of “offi-
cially nullifying punishment or other legal consequences of a
crime.”73 We have said that a pardon affects “the public interest
in the conviction.”74 This is likewise true for the original trial.
Society has an interest in the criminal justice system because it
is what protects society from harm. and, as stated by the court
in Connellee, “[i]f the judicial proceedings which culminated
69 Reichardt v. Flynn, 374 md. 361, 823 a.2d 566 (2003); Rabinowitz v.
Wahrenberger, 406 N.J. Super. 126, 966 a.2d 1091 (2009).
70 Boice v. Unisys Corp., 50 F.3d 1145 (2d Cir. 1995); Kidwell v. General
Motors Corp., 975 So. 2d 503 (Fla. app. 2007); Reichardt v. Flynn, supra
note 69; Imperial v. Drapeau, 351 md. 38, 716 a.2d 244 (1998); Hartford
v. Hartford, supra note 27.
71 Gregory Rockhouse v. Glenn’s Well Serv., 144 N.m. 690, 697, 191 P.3d
548, 555 (N.m. app. 2008).
72 martin L. Newell, The Law of Slander and Libel in Civil and Criminal
Cases § 493 at 477 (mason H. Newell ed., 3d ed. 1914).
73 Black’s Law dictionary 1221 (9th ed. 2009).
74 Campion v. Gillan, 79 Neb. 364, 372, 112 N.W. 585, 588 (1907).
352 	279 NeBRaSka RePORTS

in the conviction were absolutely privileged, why should not
the same immunity be extended to the petition to a higher
power to annul that judgment . . . ?”75 Stated another way, all
the same reasons for applying the privilege to the proceedings
that resulted in the conviction would also apply to proceedings
to remove it. Before a convicted person benefits from the clem-
ency power of the Board of Pardons, public policy demands
full disclosure of any and all pertinent information. absolute
privilege helps ensure that the board gets the information it
needs to make this important decision affecting the public
interest in convictions.
Having determined that the Board of Pardons is a quasi-
judicial body, we consider mcquaid’s and Bujanowski’s state-
ments to the board as relevant and protected by absolute
privilege. While kocontes points out that they are not “parties”
to the proceedings, it is the policy of the Board of Pardons to
consider any statements or correspondence received.76 as noted
in Shumway, it would be “paradoxical”77 to consider a citizen
complainant a stranger to proceedings when the board grants
the right to lodge complaints in relation to the proceedings.
A mendment to pLeAdings
kocontes next argues that even if he stated no claim for a
cause of action for defamation, the district court abused its dis-
cretion in concluding that an amendment to his pleading could
not cure the defect. His principal argument in this regard is that
he should have been allowed to assert a claim for interference
with a business expectancy. The district court implicitly deter-
mined that absolute privilege also barred such a claim.
[18] The applicability of absolute privilege to the tort of
interference with a business expectancy is an issue of first
impression for this court. We observe, however, that the Court of
appeals has applied absolute privilege to claims of intentional
infliction of emotional distress and to medical malpractice
75 Connellee v. Blanton, supra note 43, 163 S.W. at 407.
76 Nebraska Pardons Board Policy and Procedure Guidelines, supra note 50,
§ 004.03.
77 Shumway v. Warrick, supra note 9, 108 Neb. at 657, 189 N.W. at 303.
kOCONTeS v. mcqUaId 	353
Cite as 279 Neb. 335

claims revolving around an allegedly false statement.78 most
other jurisdictions to address this issue hold that the privilege
applies as equally to defamation as it does to other tortious
behavior, so long as the injury pleaded stemmed from the alleg-
edly defamatory statement.79 For purposes of public policy,
a defamation suit is indistinguishable from other tort-related
claims seeking money damages for the statement.80 If the pol-
icy which affords an absolute privilege in defamation actions
“is really to mean anything[,] then [a court] must not permit
its circumvention by affording an almost equally unrestricted
action under a different label.”81 “The privilege would be lost
if the [plaintiff] could merely drop the defamation causes of
action and creatively replead a new cause of action.”82 We
agree. We therefore conclude that the district court did not
abuse its discretion in determining that no amendment to the
pleadings would cure the defect in kocontes’ petition.
discovery
Finally, kocontes asserts that the district court erred in deny-
ing his request for discovery. The court had postponed judg-
ment on kocontes’ request pending determination of mcquaid
and Bujanowski’s motion to dismiss. kocontes argues on appeal
78 Drew v. Davidson, 12 Neb. app. 69, 667 N.W.2d 560 (2003).
79 McLaughlin v. Copeland, 455 F. Supp. 749 (d. del. 1978); Sweet v.
Middlesex Mutual Insurance Company, 397 F. Supp. 1101 (d.N.H. 1975);
People ex rel. Gallegos v. Pacific Lumber, 158 Cal. app. 4th 950, 70 Cal.
Rptr. 3d 501 (2008); Buckhannon v. U.S. West Communications, 928 P.2d
1331 (Colo. app. 1996); Levin, Middlebrooks v. U.S. Fire Ins. Co., 639
So. 2d 606 (Fla. 1994); Geick v. Kay, 236 Ill. app. 3d 868, 603 N.e.2d
121, 177 Ill. dec. 340 (1992); Jarvis v. Drake, 250 kan. 645, 830 P.2d
23 (1992); Gray v. Central Bank & Trust Co., 562 S.W.2d 656 (ky. app.
1978); Visnick v. Caulfield, 73 mass. app. 809, 901 N.e.2d 1261 (2009);
Wild v. Rarig, 302 minn. 419, 234 N.W.2d 775 (1975); Rainier’s Dairies v.
Raritan Valley Farms, Inc., 19 N.J. 552, 117 a.2d 889 (1955); Hernandez
v. Hayes, 931 S.W.2d 648 (Tex. app. 1996); Price v. Armour, 949 P.2d
1251 (Utah 1997).
80 See McLaughlin v. Copeland, supra note 79.
81 Rainier’s Dairies v. Raritan Valley Farms, Inc., supra note 79, 19 N.J. at
564, 117 a.2d at 895.
82 Hernandez v. Hayes, supra note 79, 931 S.W.2d at 654.
354 	279 NeBRaSka RePORTS

that he wanted to discover whether the defendants had made
other defamatory statements in Nebraska that might not have
been in a privileged context.
kocontes refers to an affidavit submitted in support of his
request. But the only indication of other communications in
the affidavit is the following: “at the hearing I attended before
the Nebraska Pardons Board in march 2008, the Nebraska
attorney General commented that he would be speaking to
. . . mcquaid about me, apparently at . . . mcquaid’s request.”
We find no reason why such a communication would not also
be covered by the privilege. although not written, it clearly
involves communications with the Board of Pardons relevant
to its ongoing proceedings. The district court apparently con-
cluded the same.
[19] The party asserting error in a discovery ruling bears the
burden of showing that the ruling was an abuse of discretion.83
We find no abuse of discretion in this case.
CONCLUSION
For the foregoing reasons, we affirm the judgment of the
district court.
A ffirmed.
heAvicAn, C.J., not participating.
83 In re Interest of R.R., 239 Neb. 250, 475 N.W.2d 518 (1991).
stAte of neBrAsKA, AppeLLee , v.
thomAs edwArd nesBitt, AppeLLAnt.
777 N.W.2d 821
Filed January 29, 2010. 	No. S-09-350.
1. Postconviction: Proof: Appeal and Error. a defendant requesting postconvic-
tion relief must establish the basis for such relief, and the findings of the district
court will not be disturbed unless they are clearly erroneous.
2. Effectiveness of Counsel: Appeal and Error. a claim that defense counsel
provided ineffective assistance presents a mixed question of law and fact. When
reviewing a claim of ineffective assistance of counsel, an appellate court reviews
the factual findings of the lower court for clear error. With regard to the questions
of counsel’s performance or prejudice to the defendant as part of the two-pronged
STaTe v. NeSBITT 	355
Cite as 279 Neb. 355