Pratt v. Nelson

2007 UT 41
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
----oo0oo----
Nevin Pratt and Denise Pratt, No. 20051167
Plaintiffs and Petitioners,
v.
Mary Ann Nelson (Roe); Douglas F.
White; John Dustin Morris;
William A. Mark; McKay, Burton, F I L E D
& Thurman, P.C.; and Does 1-200,
Defendants and Respondents. May 18, 2007
---
Second District, Farmington
The Honorable Michael G. Allphin
No. 040700075
Attorneys: Carl E. Kingston, F. Mark Hansen, Salt Lake City, for
plaintiffs
John Dustin Morris, Salt Lake City, Douglas F. White,
Bountiful, William A. Mark, North Salt Lake, for
defendants
---
On Certiorari to the Utah Court of Appeals
DURRANT, Justice:
INTRODUCTION
¶1 The plaintiffs, Nevin and Denise Pratt (the “Pratts”),
filed a defamation claim against the defendants, Mary Ann Nelson
and her attorneys (the “Nelsons”). The Pratts’ claim arose from
statements the Nelsons made and distributed to the media during
the course of a press conference.
¶2 We granted certiorari in this case and are presented
with three issues: (1) whether the invited error doctrine
precluded the Pratts on appeal from raising their argument
concerning the judicial proceeding privilege; (2) whether the
Nelsons’ statements were absolutely privileged under the judicial
proceeding privilege and, if so, whether they lost that privilege

1 She is currently known as Mary Ann Nichols.
No. 20051167 2
through excessive publication; and (3) whether the group
defamation rule precluded the Pratts’ defamation claim.
¶3 First, we hold that appellate review of the Pratts’
argument regarding judicial privilege was not precluded by the
invited error doctrine. Second, we hold that the Nelsons’
statements, even if privileged, lost any immunity they may have
had under the judicial proceeding privilege through excessive
publication. Third, we hold that the group defamation rule does
not preclude the Pratts’ defamation claim. Therefore, we remand
to the district court for further consideration of the Pratts’
defamation claim.
BACKGROUND
¶4 On October 15, 1997, when Mary Ann Nelson1 was sixteen
years old, her father, Daniel Kingston, allegedly forced her to
marry her uncle, David Kingston. On August 1, 2003, Mary Ann and
her counsel filed a complaint (the “Kingston Complaint”) in
Utah’s Third District Court against her father, her uncle, and
various other defendants, including Nevin and Denise Pratt, as
well as the attorneys representing the Pratts in this case,
F. Mark Hansen and Carl E. Kingston. In its opening caption, the
Kingston Complaint named the Pratts, among nearly 400 other
defendants–-including individuals, businesses, churches, and
associations--all of which allegedly had ties with the polygamous
Kingston family and organization. Further, the body of the
Kingston Complaint named the Pratts in a list with 240 other
defendants known as “Order Individuals,” and referred to these
Order Individuals, along with 97 “Order Businesses,” as “Order
Members.” The Kingston Complaint contained allegations of
intentional and negligent sexual abuse of a child, assault,
battery, false imprisonment, intentional and negligent infliction
of emotional distress, negligence, and civil conspiracy. The
Kingston Complaint alleged that Order Members, a group which
specifically included the Pratts, were negligent and had
assisted, encouraged, conspired, or knew of and failed to prevent
or report the abuses alleged to have been committed by Mary Ann’s
father and uncle.
¶5 On August 28, 2003, Mary Ann and her counsel held a
press conference concerning the lawsuit to which they invited
members of both the Utah local press and the Associated Press.
Ultimately, the press conference made local, national, and
international news, reaching various media throughout the world
via newspaper, television, and the internet. At that press

2 Mary Ann’s Prepared Statement read as follows:
My name is Mary Ann and I was raised in the
Kingston Polygamist Family. I escaped when I
was 16 years old. I am pursuing this lawsuit
with the hope that other young girls and boys
in the same position that I was in will see
that the leaders of the Kingston Organization
are not above the law, even though they tell
us that they are, that they can be punished
for what they do to us, and that we can
escape and seek recovery for the harm that
was done to us. I also hope that the people
that we are bringing this lawsuit against
will realize the harm they have caused and
continue to cause, and that they will change
their ways.
3 No. 20051167
conference, Mary Ann and at least two of her attorneys made
several statements regarding the defendants listed in the
Kingston Complaint. These statements did not specifically
mention the Pratts by name, but instead made general reference to
the “society,” the “organization,” and “the Order.”
Additionally, Mary Ann’s attorneys provided copies of the
previously filed Kingston Complaint to members of the press.
They also gave copies of Mary Ann’s prepared written statement
(the “Prepared Statement”) to two or three reporters.2 One of
Mary Ann’s attorneys told reporters that the individuals
identified by name in the complaint were “the key members of the
Kingston organization” and that the Nelsons were trying to punish
and “make an example of them.”
¶6 On February 11, 2004, the Pratts filed a complaint
alleging, among other claims, that the Nelsons had defamed the
Pratts at the press conference and through the publicity that
resulted from it. In response, the Nelsons filed a motion to
dismiss for failure to state a claim. The Pratts filed a
memorandum in opposition to the motion to dismiss, and the
Nelsons responded with a reply memorandum in support of their
motion to dismiss. In their reply memorandum, the Nelsons argued
for the first time that the judicial proceeding privilege
precluded any of the Pratts’ defamation claims that were founded
on the Kingston Complaint. In addition, the Nelsons included
with their reply memorandum the affidavit of William Mark, one of
Mary Ann’s attorneys who were present at the press conference.
Mark’s affidavit averred that the Nelsons had only generally
referred to the defendants named in the Kingston Complaint, never
mentioning the Pratts by name. The district court entered an
order converting the Nelsons’ motion to dismiss into one for

No. 20051167 4
summary judgment and allowing the parties to file supplemental
pleadings.
¶7 On May 7, 2004, the district court issued an order
stating that the Nelsons’ reply memorandum had raised the
judicial proceeding privilege for the first time. In the
interest of fairness, the district court granted the Pratts eight
days to respond solely to that issue. But the Pratts did not
file their responsive memorandum until over a month after the
district court’s deadline for filing had passed. The Pratts
offered no explanation for their late filing, nor did they seek
an extension of the deadline. The Nelsons moved to strike the
Pratts’ late response. The Pratts filed a memorandum opposing
the Nelsons’ motion to strike and moved to strike the Nelsons’
judicial privilege argument as improperly raised for the first
time in a reply memorandum.
¶8 On August 17, 2004, the district court entered its
ruling on all pending motions. The district court granted the
Nelsons’ motion to strike the Pratts’ late memorandum, ruling
that the memorandum would not be considered because it was
unauthorized under rule 7 of the Utah Rules of Civil Procedure.
The district court also denied the Pratts’ motion to strike the
Nelsons’ judicial privilege argument, reasoning that the Pratts
had been given the opportunity to address the argument but had
chosen not to respond within the allotted time and were “solely
to blame for their own late filing” and could not “complain of
unfairness.” The district court then considered the Nelsons’
motion for summary judgment.
¶9 The district court concluded that the Kingston
Complaint was protected by the judicial proceeding privilege,
which “acts as an absolute bar to the Pratts’ claim of defamation
arising from allegations made in [the Kingston C]omplaint.” The
district court also held that the Prepared Statement was not
defamatory toward the Pratts, as a matter of law, because the
statement never specifically mentioned the Pratts, but only
referred to a larger group of persons, such as the “leaders of
the Kingston organization,” “the people that we are bringing this
lawsuit against,” and “the Kingston Family Organization.”
The district court concluded that “no reasonable jury could
interpret the [Prepared S]tatement to refer to [the Pratts]
specifically.”

3 Pratt v. Nelson, 2005 UT App 541, ¶ 24, 127 P.3d 1256.
4 Id.
5 Id.
6 Id.
7 Id.
8 Hansen v. Eyre, 2005 UT 29, ¶ 8, 116 P.3d 290 (internal
quotation marks omitted).
9 Dowling v. Bullen, 2004 UT 50, ¶ 7, 94 P.3d 915.
5 No. 20051167
¶10 The Pratts appealed to the Utah Court of Appeals, which
affirmed the district court’s grant of summary judgment.3 The
court of appeals did not reach the merits of the Pratts’
challenge to the district court’s application of the judicial
proceeding privilege because the Pratts “invited any error in the
trial court’s ruling.”4 The court of appeals held that the
invited error doctrine precluded the Pratts from arguing this
issue on appeal and, as a result, affirmed the district court’s
ruling “dismissing the Pratts’ claims that [were] founded upon
their names appearing in the Kingston Complaint.”5 Consequently,
the Pratts could not “rely on any references to them in the
Kingston Complaint to support their claims based on statements
the [Nelsons] made at the press conference.”6 Thus, the court of
appeals concluded that under the group defamation rule “the
[Nelsons’ other] statements cannot, therefore, be reasonably
understood to refer to the Pratts without the aid of the Kingston
Complaint.”7
¶11 We granted certiorari as to the issues presented above
and have jurisdiction pursuant to Utah Code section 78-2-2(5).
STANDARD OF REVIEW
¶12 “On certiorari, we review the court of appeals’
decision for correctness, focusing on whether that court
correctly reviewed the trial court’s decision under the
appropriate standard of review.”8 “In the context of a summary
judgment motion, which presents a question of law, we employ a
correctness standard and view the facts and all reasonable
inferences drawn therefrom in the light most favorable to the
non-moving party.”9

10 Brookside Mobile Home Park, Ltd. v. Peebles, 2002 UT 48,
¶ 14, 48 P.3d 968 (citing Badger v. Brooklyn Canal Co., 966 P.2d
844, 847 (Utah 1998)).
11 Id. (quoting Badger, 966 P.2d at 847).
12 State v. Cruz, 2005 UT 45, ¶ 33, 122 P.3d 543 (internal
quotation marks omitted).
No. 20051167 6
ANALYSIS
¶13 We are presented with three issues regarding the
Pratts’ defamation claim. We will first discuss our invited
error doctrine and its application to this and other cases.
Next, we will discuss the judicial proceeding privilege and the
excessive publication rule, specifically with respect to
statements made and distributed during a press conference.
Finally, we will discuss the group defamation rule and its
application to the statements at issue in this case.
I. THE INVITED ERROR DOCTRINE
¶14 This case initially turns on whether the Pratts may
make an argument on appeal regarding the judicial proceeding
privilege. The court of appeals held that the “invited error”
doctrine precluded the Pratts from doing so. We now use this
occasion to discuss our invited error doctrine and to clarify its
application to this and other cases. We hold that invited error
did not preclude the Pratts from advancing their judicial
privilege argument on appeal and therefore the issue is now
properly before us.
A. Preserving an Issue for Appeal
¶15 Generally, “in order to preserve an issue for appeal
the issue must be presented to the trial court in such a way that
the trial court has an opportunity to rule on that issue.”10 We
have set forth three factors that help determine whether the
trial court had such an opportunity: “‘(1) the issue must be
raised in a timely fashion; (2) the issue must be specifically
raised; and (3) a party must introduce supporting evidence or
relevant legal authority.’”11 In short, a party may not claim to
have preserved an issue for appeal by “merely mentioning . . . an
issue without introducing supporting evidence or relevant legal
authority.”12 Ultimately, the preservation requirement “is based
on the premise that, ‘in the interest of orderly procedure, the

13 Id. (quoting State v. Holgate, 2000 UT 74, ¶ 11, 10 P.3d
346).
14 State v. Powell, 2007 UT 9, ¶ 11, __ P.3d __; see State
v. Winfield, 2006 UT 4, ¶ 14, 128 P.3d 1171 (“When a party raises
an issue on appeal without having properly preserved the issue
below, we require that the party articulate an appropriate
justification for appellate review, specifically, the party must
argue either plain error or exceptional circumstance.” (internal
quotation marks and citations omitted)); see also State v. Casey,
2003 UT 55, ¶ 40, 82 P.3d 1106 (stating that “in most
circumstances the term ‘manifest injustice’ is synonymous with
the ‘plain error’ standard expressly provided in Utah Rule of
Evidence 103(d)” (internal quotation marks omitted)).
15 Casey, 2003 UT 55, ¶ 41 (internal quotation marks
omitted).
16 Winfield, 2006 UT 4, ¶ 14 (quoting State v. Hamilton,
2003 UT 22, ¶ 54, 70 P.3d 111 (alterations in original)); accord
State v. Pinder, 2005 UT 15, ¶ 62, 114 P.3d 551; State v.
Geukgeuzian, 2004 UT 16, ¶ 9, 86 P.3d 742.
7 No. 20051167
trial court ought to be given an opportunity to address a claimed
error and, if appropriate, correct it.’”13
B. A “Plain Error” Review May Be Available in Cases Where a
Party Has Failed to Preserve an Issue for Appeal
¶16 In cases where a party raises an issue on appeal, but
the party did not properly preserve the issue below, “we review
it under the manifest injustice or plain error standard.”14
Under plain error review, we may reverse the lower court on an
issue not properly preserved for appeal when a party can show the
following: “(i) [a]n error exists; (ii) the error should have
been obvious to the trial court; and (iii) the error is harmful,
i.e., absent the error, there is a reasonable likelihood of a
more favorable outcome for the [party], or phrased differently,
our confidence in the verdict is undermined.”15 Nevertheless,
under the invited error doctrine, “we have declined to engage in
even plain error review when ‘counsel, either by statement or
act, affirmatively represented to the [trial] court that he or
she had no objection to the [proceedings].’”16
C. “Invited Error” Precludes Appellate Review of an Issue
¶17 “Our invited error doctrine arises from the principle
that a party cannot take advantage of an error committed at trial

17 Winfield, 2006 UT 4, ¶ 15 (internal quotation marks and
citation omitted).
18 Id. (quoting Geukgeuzian, 2004 UT 16, ¶ 12); see State v.
King, 2006 UT 3, ¶ 13, 131 P.3d 202 (“This rule is designed to
. . . inhibit a defendant from foregoing . . . an objection with
the strategy of enhancing the defendant’s chances of acquittal
and then, if that strategy fails, . . . claiming on appeal that
the court should reverse.” (internal quotation marks omitted)).
19 King, 2006 UT 3, ¶ 13 (internal quotation marks omitted).
20 Winfield, 2006 UT 4, ¶ 15 (internal quotation marks and
citation omitted).
21 Id. ¶ 16; see State v. Medina, 738 P.2d 1021, 1023 (Utah
1987) (“[T]he fact remains that counsel consciously chose not to
assert any objection that might have been raised and
affirmatively led the trial court to believe that there was
nothing wrong with the instruction.”).
22 2003 UT 22, 70 P.3d 111.
No. 20051167 8
when that party led the trial court into committing the error.”17
By precluding appellate review, “the doctrine furthers this
principle by ‘discouraging parties from intentionally misleading
the trial court so as to preserve a hidden ground for reversal on
appeal.’”18 Further, parties are “not entitled to both the
benefit of not objecting at trial and the benefit of objecting on
appeal.”19 Thus, “[e]ncouraging counsel to actively participate
in all proceedings and to raise any possible error at the time of
its occurrence fortifies our long-established policy that the
trial court should have the first opportunity to address a claim
of error.”20
1. Invited Error Generally Requires an Affirmative
Representation to the Court
¶18 We have recently stated, “Affirmative representations
that a party has no objection to the proceedings fall within the
scope of the invited error doctrine because such representations
reassure the trial court and encourage it to proceed without
further consideration of the issues.”21 The following cases
illustrate affirmative representations that can properly be
characterized as leading the court into error.
¶19 In State v. Hamilton,22 the defendant argued on appeal

23 Id. ¶ 55.
24 Id.
25 Id. (internal quotation marks omitted).
26 Id.
27 Id. ¶ 54.
28 2006 UT 3, 131 P.3d 202.
29 Id. ¶¶ 7-8.
30 Id. ¶ 20.
31 Id. ¶ 20 n.2.
32 Id.; see State v. Casey, 2003 UT 55, ¶ 39 n.10, 82 P.3d
1106) (noting that while the invited error doctrine “may preclude
application of the plain error analysis,” the court will refuse
to consider invited error when “neither party raised this
question below or in their briefs or at oral argument”).
The Pratts argue that the Nelsons did not raise the invited
error issue before the court of appeals and, therefore, according
to the Pratts, the court of appeals improperly addressed the
(continued...)
9 No. 20051167
that instructions given to the jury were prejudicial.23 But
before the trial court instructed the jury on the law, defense
counsel had approved the disputed language.24 The trial court
specifically required “counsel to confirm on the record, that the
State takes no exception to the instructions . . . nor does the
Defense.”25 Defense counsel did so by affirmatively indicating
that they had no objections to the jury instructions.26 Thus, we
held that the manifest injustice exception did not apply because
invited error precluded review of the jury instructions.27
¶20 In State v. King,28 defense counsel made an affirmative
representation to the trial court, both during and after voir
dire, that he had no objection to the jury panel that was
selected.29 We held that the defendant had failed to preserve
the issue of whether the jury was impartial for appellate review
and stated that the defendant must demonstrate plain error.30 We
recognized, however, that defense counsel’s affirmative
representations to the court that he had no objections to the
jury panel implicated the invited error doctrine.31 But we
declined to apply invited error only because the State had failed
to raise the issue in its brief.32

32 (...continued)
issue sua sponte. But the Nelsons argued “that because of the
Pratts’ failure to timely file their memorandum presenting their
legal arguments to the trial court, [the Pratts] cannot now ask
[the court of appeals] to consider their judicial privilege
arguments for the first time on appeal.” Pratt v. Nelson, 2005
UT App 541, ¶ 15, 127 P.3d 1256. While the Nelsons may not have
specifically called this an invited error argument, the court of
appeals could properly deem it as such. As a result, the issue
of invited error is properly before us.
33 850 P.2d 1201 (Utah 1993).
34 Id. at 1220.
35 Id.
36 Id. at 1221.
37 Id. at 1220-21.
38 Id. at 1221.
39 Id.
No. 20051167 10
¶21 In State v. Dunn,33 the defendant argued that “the
trial court committed reversible error when it reversed its
pretrial ruling and allowed questioning about his prior
conviction.”34 He argued that “if he had known that the prior
conviction was going to be admissible, he would not have taken
the stand or, at the very least, he would have deflected the
impact of the prior conviction by disclosing it during his case-
in-chief.”35 We held that the defendant was precluded from
raising this claim of error because of the invited error
doctrine.36
¶22 In Dunn, defense counsel moved to exclude the evidence
of the prior conviction, “providing the trial court with
citations to the authority on which the court based its pretrial
ruling.”37 But “contrary to [the defendant’s] position before
the trial judge, the law at the time clearly allowed evidence of
prior convictions to be admitted for impeachment purposes without
any restriction.”38 We concluded that “[defense] counsel’s
actions in making the motion in limine without informing the
trial judge of the controlling law had led the trial court into
error.”39 We therefore held that the defendant was “precluded

40 Id.
41 One certain consequence of filing the late memorandum is
that the transcript attached to the memorandum of the press
conference was not included in the record and therefore will not
be considered by us in this appeal.
11 No. 20051167
from asserting that the pretrial ruling misled him into taking
the stand.”40
2. Invited Error Has No Application to the Pratts’ Untimely
Memorandum
¶23 We have yet to apply the invited error doctrine in a
situation, such as here, where a party files an untimely
responsive memorandum concerning an issue in the case. We are
disinclined to do so now. In this case, the Pratts did not make
an affirmative representation that led the court into error. The
Pratts’ late response in addressing the issue of judicial
privilege is not enough on its own to fall within the realm of
invited error. As the above cases illustrate, invited error
generally occurs in a more affirmative manner, such as where
counsel stipulates to the court’s instruction, states directly
that there is no objection to a specific ruling of the court, or
provides the court with erroneous authority upon which the court
relies. In this case, the Pratts did not, by statement or act,
affirmatively represent to the district court that they had no
objection to application of the judicial proceeding privilege
and, thereby, cannot be said to have led the court into
committing any alleged error.41
¶24 Ultimately, the district court was aware of the
judicial privilege argument and resolved the issue in a
deliberate manner. While it is true that the district court did
not have the benefit of the Pratts’ argument, the issue was
preserved for appeal when the district court was given notice of
the issue (in this case, by the Nelsons) and when the court in
response to such notice made a specific ruling on the issue.
Regardless of the Pratts’ lack of participation in the court’s
decision-making process, the judicial privilege issue was
presented in such a way that the court had an opportunity to rule
on that issue; therefore, plain error review does not apply in
this case. Accordingly, we now consider the judicial privilege
issue on appeal as well as the Pratts’ accompanying argument.
II. THE JUDICIAL PROCEEDING PRIVILEGE AND EXCESSIVE PUBLICATION

42 DeBry v. Godbe, 1999 UT 111, ¶ 10, 992 P.2d 979.
43 Id.
44 Allen v. Ortez, 802 P.2d 1307, 1311 (Utah 1990).
No. 20051167 12
¶25 We must now determine whether the judicial proceeding
privilege applies to the statements the Nelsons made during the
press conference, which include the Kingston Complaint, the
Prepared Statement, and any other oral statements. And if the
privilege generally applies, we must then determine whether the
Nelsons lost the privilege through excessive publication of their
various statements.
A. The Judicial Proceeding Privilege Clearly Applies to the
Kingston Complaint, but as to the Prepared Statement and Other
Oral Statements Made by the Nelsons It Is Doubtful the Privilege
Applies
¶26 As to the law of defamation, we have stated that
false and defamatory statements are not
actionable if they are protected by a legal
privilege. A number of legal privileges are
recognized in circumstances where
communication must be wholly open, frank, and
unchilled by the possibility of a defamation
action. This is so even though the
reputation of a person may be harmed by such
statements.42
¶27 The common law judicial proceeding privilege immunizes
certain statements that are made during a judicial proceeding
from defamation claims. The privilege is “intended to promote
the integrity of the adjudicatory proceeding and its truth
finding processes.”43 It does so by facilitating the “free and
open expression by all participants . . . [that] will only occur
if they are not inhibited by the risk of subsequent defamation
suits.”44
¶28 In order to establish absolute immunity under the
judicial proceeding privilege, the “statements must be (1) ‘made
during or in the course of a judicial proceeding’; (2) ‘have some
reference to the subject matter of the proceeding’; and (3) be

45 DeBry, 1999 UT 111, ¶ 11 (quoting Price v. Armour, 949
P.2d 1251, 1256 (Utah 1997)).
46 Id. ¶ 14.
47 Id. (internal quotation marks omitted).
48 See Beezley v. Hansen, 286 P.2d 1057, 1058 (Utah 1955)
(“The publication of defamatory matter by an attorney is
protected not only when made in the institution of the
proceedings or in the conduct of litigation before a judicial
tribunal, but in conferences and other communications preliminary
thereto. The institution of a judicial proceeding includes all
pleadings and affidavits necessary to set the judicial machinery
in motion.” (quoting Restatement (Second) of Torts § 586
(1977))).
49 See DeBry, 1999 UT 111, ¶ 14 (stating that “[n]umerous
types of rulings and events that occur post-trial can affect the
final disposition of a case” and thus the privilege may cover
such statements).
50 Krouse v. Bower, 2001 UT 28, ¶ 9, 20 P.3d 895 (citing
DeBry, 1999 UT 111, ¶¶ 12-14).
51 Id. ¶ 10.
13 No. 20051167
‘made by someone acting in the capacity of judge, juror, witness,
litigant, or counsel.’”45
¶29 We have held that the first requirement, that a
statement must be made “during or in the course of a judicial
proceeding,” is interpreted broadly.46 Indeed, “[t]he privilege
applies to every step in the proceeding until final
disposition,”47 including certain pretrial48 and posttrial
statements.49 “[W]e have indicated that a statement may qualify
as made during or in the course of a judicial proceeding [even]
if the communication is preliminary to a proposed judicial
proceeding.”50 Thus, “[t]he judicial proceeding privilege
extends to statements made prior to the filing of a lawsuit
because it is intended to encourage reasonable efforts to resolve
disputes prior to the filing of a complaint.”51
¶30 As to the second requirement, a statement must have
“some relationship to the cause or subject matter involved,”
although it “need not be relevant or pertinent to the judicial
proceeding from an evidentiary point of view for the privilege to

52 DeBry, 1999 UT 111, ¶ 16 (internal quotation marks and
citation omitted).
53 Id.
54 Id. ¶ 21.
No. 20051167 14
apply.”52 Thus, if doubt as to relevancy exists, it “should be
resolved in favor of the statement having reference to the
subject matter of the proceeding.”53
¶31 The third requirement is relatively straightforward.
The statement must be made by someone acting, with respect to the
case at hand, in the capacity of judge, juror, witness, litigant,
or counsel.
¶32 The Kingston Complaint was, at the time it was filed,
clearly protected by the judicial proceeding privilege. It
inarguably qualified as a statement made in the course of a
judicial proceeding that had reference to the subject matter of
the proceeding and was made by a litigant or counsel. Thus all
three requirements for application of the judicial proceeding
privilege were met with respect to the Complaint. While the
Prepared Statement and other oral statements did have reference
to the subject matter of the proceeding and were made by a
litigant or counsel, it is doubtful statements made at a press
conference qualify as having been made in the course of a
judicial proceeding, even given our broad interpretation of that
requirement. Regardless, even were we to assume that the
Prepared Statement and other oral statements were otherwise
privileged under the judicial proceeding privilege, that
privileged status was lost through excessive publication.
B. Any Privilege that the Nelsons’ Statements May Have Otherwise
Enjoyed Was Lost Through Excessive Publication
¶33 A party may lose the absolute immunity afforded by the
judicial proceeding privilege through “excessive publication.”
We have stated, “Case law generally holds that communications
that are otherwise privileged lose their privilege if the
statement is excessively published, that is, published to more
persons than the scope of the privilege requires to effectuate
its purpose.”54 Indeed, a publication is excessive if the
statement
was published to more persons than necessary
to resolve the dispute or further the
objectives of the proposed litigation, in

55 Krouse, 2001 UT 28, ¶ 15.
56 Id.
57 Id. ¶¶ 15, 18.
15 No. 20051167
other words, if the [statement] was published
to those who did not have a legitimate role
in resolving the dispute, or if it was
published to persons who did not have an
adequate legal interest in the outcome of the
proposed litigation.55
Thus, the purpose of the excessive publication rule “is to
prevent abuse of the privilege by publication of defamatory
statements to persons who have no connection to the judicial
proceeding.”56
¶34 When deciding if a statement was excessively published,
we look to the “overall circumstances” of the publication and
determine if the purpose of the judicial proceeding privilege,
which is to “promote candid and honest communication between the
parties and their counsel in order to resolve disputes,” is
furthered by the statement’s publication.57
¶35 We hold that the Nelsons’ statements made during the
press conference, including the Kingston Complaint, the Prepared
Statement, and other oral statements, lost through excessive
publication any privileged status they may have otherwise
enjoyed. In explaining the basis for this holding, we will first
discuss our caselaw and the application of the excessive
publication rule as it relates to press conferences and
statements made or distributed by parties to the media.
1. Utah Cases Discussing the Application of the Excessive
Publication Rule
¶36 In the case before us, the Nelsons organized a press
conference to discuss publicly their lawsuit filed against
various alleged members and associations of the Kingston Order.
During the press conference, the Nelsons made several statements
to reporters concerning the nature and purposes of their lawsuit.
Additionally, the Nelsons distributed the Kingston Complaint and
the Prepared Statement to several reporters, and those statements
were later disseminated through various media outlets, including
newspaper, television, and the internet. Although no Utah case
discusses the application of the excessive publication rule with
respect to press conferences and the media, several cases

58 2001 UT 28, 20 P.3d 895.
59 Id. ¶¶ 16-19.
60 Id. ¶ 3.
61 Id.
62 Id. ¶¶ 4-5.
63 Id. ¶ 1.
64 Id. ¶ 16.
65 Id. ¶ 17.
No. 20051167 16
illustrate that when looking at excessive publication we consider
(1) whether the recipients of the publication have a sufficient
connection to the judicial proceeding and (2) whether the purpose
of the judicial proceeding privilege would be furthered by
protecting the publication. If the recipients of the publication
are not sufficiently connected to the judicial proceeding and the
purpose of the privilege would not be furthered by protecting the
publication, then the statements in question lose their absolute
immunity and privileged status.
¶37 In Krouse v. Bower,58 we held that a demand letter was
not excessively published even though it was sent to people who
at the time were not directly involved in a lawsuit.59 In that
case, counsel for two condominium owners sent a demand letter to
counsel for the condominium owners’ association.60 The letter
indicated that courtesy copies of the letter were to be delivered
to the individual condominium owners within the association, and,
indeed, these copies were later distributed to the other
owners.61 Although the plaintiffs, who were mentioned in the
letter, later sued for defamation, the trial court held that the
letter fell within the judicial proceeding privilege.62
¶38 On appeal, we affirmed the privileged status of the
demand letter and reviewed the issue of whether it was
excessively published.63 In doing so, we expressed concern that
delivery of the letter directly to the individual owners, rather
than to just their counsel, was not “necessary to effectuate the
purpose of pursuing settlement,” which was the alleged purpose of
the letter.64 Nevertheless, we held that the individual owners
had a “clear legal interest” in the letter’s subject matter.65
We noted the overall circumstances of the letter’s publication
and pointed out that the association members were clients of the

66 Id.
67 Id.
68 Id.
69 Id. ¶ 18.
70 1999 UT 111, 992 P.2d 979.
71 Id. ¶¶ 22-24.
72 Id. ¶ 1.
73 Id. ¶¶ 11-20.
74 Id. ¶¶ 22-24.
75 Id. ¶ 22.
76 Id. ¶ 23.
17 No. 20051167
attorney who was the addressed recipient of the letter.66
Further, we noted that the owners’ association was a potential,
and later named, party to the threatened lawsuit.67 In light of
these facts, we held that the individual owners would have likely
received a copy of the letter or known of its substance and
existence.68 Because the purpose of the judicial proceeding
privilege is to encourage “open, forthright discussion” and to
promote “honest communication between the parties and their
counsel in order to resolve disputes,” we concluded that
publication of the letter to the individual owners was not
excessive.69
¶39 In DeBry v. Godbe,70 we held that a letter sent to six
people discussing out-of-court occurrences was not excessively
published.71 The letter was sent by Ms. Godbe, Mr. DeBry’s
counsel during his divorce proceedings.72 In that case, we first
held that the judicial proceeding privilege applied to the
letter.73 Next, we determined which of the people who received
the letter had a sufficient connection to the judicial
proceedings.74 We held that four of the people, including the
trial judge, Mr. DeBry, Ms. Godbe’s co-counsel, and Ms. DeBry’s
counsel, were all “directly involved in the judicial
proceeding.”75 We noted that the letter was not published to a
fifth person because she never received or read it.76 Finally,
we held that the sixth person, Ms. Godbe’s own attorney, was
sufficiently connected to the judicial proceeding because he had
originally advised her to send the letter and therefore had a

77 Id. ¶ 24 (internal quotation marks omitted).
78 Id. ¶ 22.
79 509 U.S. 259 (1993).
80 Id. at 277.
81 Id.
82 Id. (emphasis added). Further, the Court added in a
footnote that
[absolute immunity] does not apply to or
(continued...)
No. 20051167 18
“legally justified reason for receiving the letter.”77
Accordingly, we held that Ms. Godbe’s letter did not lose the
judicial proceeding privilege through excessive publication.78
¶40 Consistent with these cases, to determine whether the
Nelsons’ statements were excessively published, we must decide
whether the reporters and media outlets to whom the Nelsons
published their statements had a sufficient connection to the
judicial proceedings. Then we must determine whether the purpose
of the judicial proceeding privilege would be furthered by
protecting such publication to the press.
2. The Press Generally Lack a Sufficient Connection to Judicial
Proceedings
¶41 In Buckley v. Fitzsimmons,79 the United States Supreme
Court held that Fitzsimmons, a prosecutor who allegedly made
defamatory statements in a pretrial press conference, was not
entitled to absolute immunity.80 The Court noted that while “the
speech of a counsel is privileged by the occasion on which it is
spoken,” “[c]omments to the media have no functional tie to the
judicial process just because they are made by a prosecutor.”81
¶42 Although the Court never discusses an excessive
publication exception to the judicial proceeding privilege, it
appears that, in Buckley, the Court was of the view that, at the
very least, statements made by counsel to the press concerning a
case are not per se covered by an absolute privilege. And while
Buckley arose in a criminal context and concerned state
officials, the Court stated that “prosecutors, like all
attorneys, were entitled to absolute immunity from defamation
liability for statements made during the course of judicial
proceedings and relevant to them, [while] most statements made
out of court received only good-faith immunity.”82 It appears

82 (...continued)
include any publication of defamatory matter
before the commencement, or after the
termination of the judicial proceeding
(unless such publication is an act incidental
to the proper initiation thereof, or giving
legal effect thereto); nor does it apply to
or include any publication of defamatory
matter to any person other than those to
whom, or in any place other than that in
which, such publication is required or
authorized by law to be made for the proper
conduct of the judicial proceedings.
Id. at 277 n.8 (internal quotation marks and citation omitted)
(alteration in original).
But we have stated, somewhat to the contrary, that certain
statements even preliminary to the initiation of a lawsuit may be
protected by the judicial proceeding privilege. Krouse v. Bower,
2001 UT 28, ¶ 10, 20 P.3d 895. This is in accord with the
Restatement (Second) of Torts section 586 (1977), which states
that the privilege includes statements made “preliminary to” or
“in the institution of” a judicial proceeding. Comment e to that
section states the following:
[The privilege] stated in this Section
applies only when the communication has some
relation to a proceeding that is contemplated
in good faith and under serious
consideration. The bare possibility that the
proceeding might be instituted is not to be
used as a cloak to provide immunity for
defamation when the possibility is not
seriously considered.
83 See Prosser & Keeton on Torts § 114, 816-20 (5th ed.
1984) (stating that “[a]bsolute immunity has been confined to
very few situations where there is an obvious policy in favor of
permitting complete freedom of expression” such as a judicial
proceeding and that, although a judicial proceeding “has not been
defined very exactly,” it “is clear . . . that statements given
to the newspapers concerning the case are no part of a judicial
proceeding, and are not absolutely privileged”).
19 No. 20051167
that the Court was unwilling to provide the privilege to
statements made to people or in places that have no functional or
legal tie to the judicial proceedings.83

84 688 P.2d 617 (Ariz. 1984).
85 Id. at 622-23.
86 Id. at 619.
87 Id. at 619-20.
88 Id. at 620.
89 Id.
90 Id.
91 Id. at 622.
92 Id. at 622-23.
No. 20051167 20
¶43 In Green Acres Trust v. London,84 the Arizona Supreme
Court determined that the press generally lack a “relationship to
the proposed or pending judicial proceeding,” and therefore the
judicial proceeding privilege did not apply to statements made by
counsel during a press conference.85 In that case, the attorney
defendants were preparing to file a class action lawsuit against
Green Acres on behalf of various clients.86 The attorneys met to
review the draft of their complaint, and one of the attorneys
invited a reporter to their law offices to learn about the basis
for the class action.87 The attorneys gave the reporter a draft
of the complaint, and at least one attorney discussed the case
with her.88 Based in part on information obtained from the draft
of the complaint and the conversation held with the attorneys,
the reporter wrote an article describing the grounds of the class
action suit and unfavorably characterizing the manner in which
Green Acres did business.89
¶44 Green Acres sued the attorneys for defamation regarding
the statements made and distributed to the reporter.90 The
attorneys claimed that there was an absolute privilege for
statements made to the press by attorneys concerning pending
litigation.91 But the Arizona Supreme Court held that the
reporter “had no relation to the proposed class action” and
“played no role in the actual litigation other than that of a
concerned citizen.”92 The court concluded that because the
reporter “lacked a sufficient connection to the proposed
proceedings, public policy would be ill served if [the court]
immunized the communications made to the reporter by the lawyer

93 Id. at 623.
94 Id.
95 594 F.2d 692 (8th Cir. 1979).
96 Id. at 699.
97 Id. at 697; see Penobscot Indian Nation v. Key Bank, 112
F.3d 538, 560-61 (1st Cir. 1997) (holding that the judicial
proceeding privilege did not apply to statements made at a press
conference).
21 No. 20051167
defendants.”93 Moreover, “[t]he press conference simply did not
enhance the judicial function and no privileged occasion
arose.”94
¶45 In Asay v. Hallmark Cards, Inc.,95 the Eighth Circuit
Court of Appeals also declined to extend the judicial proceeding
privilege to statements, including a previously filed complaint,
made and distributed to the media.96 The court stated, “In
determining whether an occasion is absolutely privileged, the
pivotal factor is frequently to whom the matter is published.
Publication to the news media is not ordinarily sufficiently
related to a judicial proceeding to constitute a privileged
occasion.”97
¶46 We are inclined to agree with the Arizona Supreme Court
and the Eighth Circuit in this matter. We hold that the press
generally lack a connection to judicial proceedings sufficient to
warrant an extension of the judicial privilege to statements made
by parties to the press. Thus, in this case, the Nelsons’
statements, when made to the press, were not protected by the
judicial proceeding privilege. Their statements were published
to more persons than necessary to resolve the dispute or further
the objectives of the proposed litigation. The press had neither
any relation to the pending litigation nor any clear legal
interest in the outcome of the case. At most, the reporters at
the press conference were acting only in the capacity of
concerned citizens. Further, the reporters played no legitimate
role in resolving the dispute between the parties. As a result,
the press in this case clearly lacked a sufficient connection to
the pending proceedings.
3. The Purpose of the Judicial Proceeding Privilege Is Not
Furthered by Protecting Statements Made to the Press
¶47 Extending the judicial proceeding privilege to
statements made or distributed during a press conference would

98 Asay, 594 F.2d at 698 (internal quotation marks and
citations omitted).
99 DeBry v. Godbe, 1999 UT 111, ¶ 10, 992 P.2d 979.
100 Krouse v. Bower, 2001 UT 28, ¶ 18, 20 P.3d 895.
No. 20051167 22
ill-serve the public policy underlying the privilege. In Asay,
the Eighth Circuit stated that
[a]llowing defamation suits for
communications to the news media will not
generally inhibit parties or their attorneys
from fully investigating their claims or
completely detailing them for the court or
other parties. Also, the important factor of
judicial control is absent. The salutary
policy of allowing freedom of communication
in judicial proceedings does not warrant or
countenance the dissemination and
distribution of defamatory accusations
outside of the judicial proceeding. No
public purpose is served by allowing a person
to unqualifiedly make libelous or defamatory
statements about another . . . . The scope
of the privilege is restricted to
communications such as those made between an
attorney and client, or in the examination of
witnesses by counsel, or in statements made
by counsel to the court or jury. Thus, while
a defamatory pleading is privileged, that
pleading cannot be a predicate for
dissemination of the defamatory matter to the
public or third parties not connected with
the judicial proceeding. Otherwise, to cause
great harm and mischief a person need only
file false and defamatory statements as
judicial pleadings and then proceed to
republish the defamation at will under the
cloak of immunity.98
¶48 We have also stated that the purpose of the judicial
proceeding privilege is “intended to promote the integrity of the
adjudicatory proceeding and its truth finding processes.”99
Moreover, the privilege is meant to encourage “open, forthright
discussion” and to promote “honest communication between the
parties and their counsel in order to resolve disputes.”100
Statements made and distributed to the press concerning pending

23 No. 20051167
or ongoing litigation do little, if anything, to promote the
truth finding process in a judicial proceeding. Further,
statements made to the press do not generally encourage open and
honest discussion between the parties and their counsel in order
to resolve disputes; indeed, such statements often do just the
opposite. Certainly, parties to a proceeding, whether attorneys,
litigants, or witnesses, are free to speak their minds without
fear of reprisal in the form of a defamation suit so long as
their statements concern the subject matter involved and are made
during or in the course of the judicial proceeding. And we
generally have interpreted “during or in the course of a judicial
proceeding” broadly to include certain statements made before,
during, or even after the proceeding. But we are disinclined to
extend this broad requirement to statements made directly to the
press, especially in a case such as this where a party called a
press conference and distributed various statements to the media
for widespread dissemination.
III. GROUP DEFAMATION
¶49 We now turn to whether the group defamation rule
precludes the Pratts from pursuing their defamation claim.
Generally, the group defamation rule precludes defamation suits
based solely on statements made referring to groups or classes of
people. We hold in this case that the Pratts, who were
specifically named in the Kingston Complaint, are not precluded
from pursuing their defamation claim.
A. The Kingston Complaint May Be Considered for Defamation
Purposes
¶50 Because the Kingston Complaint lost its privileged
status through excessive publication, it may properly be
considered for alleged defamation alongside the other statements
made by the Nelsons. Thus, the Nelsons’ combined statements made
and distributed at the press conference may provide a sufficient
basis for a defamation claim.
B. The Nelsons’ Statements Specifically Named the Pratts
¶51 In order to establish a claim for defamation, a party
“must show that [the] defendants published the statements
concerning [the party], that the statements were false,
defamatory, and not subject to any privilege, that the statements
were published with the requisite degree of fault, and that their

101 West v. Thomson Newspapers, 872 P.2d 999, 1007-08 (Utah
1994).
102 Lynch v. Standard Publ’g Co., 170 P. 770, 773 (Utah
1918).
103 Id.
104 Id. (explaining Fenstermaker v. Tribune Publ’g Co., 43 P.
112 (Utah Terr. 1895)).
105 Fenstermaker, 43 P. at 114.
106 Lynch, 170 P. at 774 (internal quotation marks and
citation omitted).
No. 20051167 24
publication resulted in damage.”101 We must determine whether the
Nelsons “published statements concerning” the Pratts.
¶52 Before defamatory statements may be regarded as
actionable, a party must show that the statements “refer to some
ascertained or ascertainable person.”102 A party may show this
“by directly being named, or so intended from the extrinsic facts
and circumstances.”103 Where defamatory statements appear to
apply “to a particular class of individuals, and are not
specifically defamatory of any particular member of the class, an
action can [still] be maintained by any individual of the class
who may be able to show the words referred to himself.”104
Ultimately, a party must “satisfy the jury that the words
referred especially to himself.”105
¶53 On the other hand, a party may defend itself from
allegations of defamation with the group defamation rule. If
“the defamatory matter has no special application and is so
general that no individual damages can be presumed, and the class
referred to is so numerous that great vexation and oppression
might grow out of a multiplicity of suits, no private suit can be
maintained.”106 Furthermore, section 564(a) of the Restatement
(Second) of Torts provides the following:
One who publishes defamatory matter
concerning a group or class of persons is
subject to liability to an individual member
of it if, but only if, (a) the group or class
is so small that the matter can reasonably be
understood to refer to the member, or (b) the
circumstances of publication reasonably give
rise to the conclusion that there is
particular reference to the member.

107 Pratt v. Nelson, 2005 UT App 541, ¶ 21, 127 P.3d 1256.
108 Id. ¶ 22.
109 Id. ¶ 19 n.8.
110 Id.
111 Id. ¶ 22.
112 Id. In Fawcett Publications, Inc. v. Morris, 377 P.2d 42
(Okla. 1962), the Oklahoma Supreme Court held that a single
member of a football team consisting of “sixty or seventy
members” could maintain a defamation claim even though he was not
specifically mentioned. Id. at 47, 52. The court noted that the
plaintiff was “well known and identified in connection with the
group.” Id. at 51. Moreover, the plaintiff had “sufficiently
established his identity as one of those libeled by the
publication.” Id. at 52.
25 No. 20051167
¶54 We agree with the court of appeals that “without the
aid of the Kingston Complaint, the [Nelsons’] statements at the
press conference cannot be reasonably understood to refer, with
any particularity, to the Pratts.”107 Indeed, “[w]ithout the
Kingston Complaint, the Pratts can only point to the [Nelsons’]
group references and argue that such statements defame them as
individuals.”108 “[N]one of [the Nelsons’] allegedly defamatory
statements ever directly mentioned the Pratts by name and, aside
from the Kingston Complaint, none of the extrinsic facts and
circumstances demonstrated that the statements were intended to
specifically refer to the Pratts.”109 The Nelsons’ statements
“merely referred generally to large groups of people [such as]
‘the Kingston Polygamist Family,’ ‘leaders of the Kingston
Organization,’”110 and “the people we are bringing this lawsuit
against.”
¶55 We also acknowledge, as the court of appeals noted,
that “under the right circumstances the references to a group
such as ‘the Kingston Polygamist Family’ might reasonably be
understood to refer to an individual surnamed Kingston.”111 “In
fact, if the Pratts were widely known as members of ‘the Kingston
Polygamist Family,’ the Pratts might very well be able to
maintain an action on such statements, even without referring to
the Kingston Complaint.”112 But in this case, as the court
determined, the statements made outside of the Kingston
Complaint, including the Prepared Statement, “do not lend

113 Pratt, 2005 UT App 541, ¶ 23.
114 The Nelsons cite 50 Am. Jur. 2d Libel and Slander § 349
(2006), where the group defamation rule is reiterated in a manner
similar to the Restatement version. Section 349 also
specifically discusses group size, citing a case from California
and stating the following:
[I]t has been said that when statements
concern large groups–-in general any group
numbering over 25 members–-the individual
members of that group cannot show that the
statements were “of and concerning them.”
This rule embodies two important public
policies: (1) where the group referred to is
large, the courts presume that no reasonable
reader would take the statements as literally
applying to each member; and (2) the
limitation on liability safeguards freedom of
speech by effecting a sound compromise
(continued...)
No. 20051167 26
themselves to any reasonable understanding that they have
personal application to the Pratts.”113
¶56 Yet the Kingston Complaint, which we may now consider
for defamation purposes, specifically named the Pratts on two
occasions. In its opening caption, the Kingston Complaint named
the Pratts among nearly 400 other defendants. Further, the
Kingston Complaint named the Pratts in a list with 240 other
defendants known as “Order Individuals,” and referred to these
“Order Individuals” as “Order Members.” The Kingston Complaint
then accuses these “Order Members” of negligence and assisting,
encouraging, conspiring, or knowing of and failing to prevent or
report the abuses alleged to have been committed by Mary Ann’s
father and uncle. There is no question that the Kingston
Complaint specifically refers to ascertainable persons, including
the Pratts. Additionally, it is now arguable that the Nelsons’
other statements, in light of the Kingston Complaint and given
the extrinsic circumstances, may have also made reference to the
Pratts.
C. The Size of the Group Referred to Is Irrelevant if
Individuals Within that Group Are Specifically Identified by Name
¶57 The Nelsons argue that, under the group defamation
rule, the large size of the groups referenced in their
statements, including in the Kingston Complaint, precludes a
defamation claim.114 We disagree. In the Kingston Complaint the

114 (...continued)
between the conflicting interests involved in
libel cases.
But in Fawcett, the Oklahoma Supreme Court held that under
the group defamation rule, there is “no substantial reason why
size alone should be conclusive.” 377 P.2d at 51. Rather, the
court stated that “the primary consideration would properly seem
to be whether the plaintiff was in fact defamed, although not
specifically designated.” Id. at 52 (internal quotation marks
and citation omitted). We agree.
27 No. 20051167
Pratts were specifically named. As a result, even the Nelsons’
other statements might be viewed as referring to the Pratts as
well. When statements explicitly refer to individuals by name,
regardless of whether the individuals are part of a general group
or larger listing of names, a party cannot rely on the group
defamation rule as a defense. For example, if a party generally
refers to a group of people that happens to include 400
individuals, then the group defamation rule may have application;
but to the extent that a party identifies people in that group by
their individual names, the group defamation rule no longer
applies.
CONCLUSION
¶58 We hold that appellate review of the Pratts’ judicial
privilege argument is not precluded by the invited error
doctrine. We also hold that the Nelsons’ statements lost through
excessive publication any immunity they may have otherwise
enjoyed under the judicial proceeding privilege. Finally, we
hold that the group defamation rule does not preclude the Pratts’
defamation claim. Therefore, we remand to the district court for
further consideration of the Pratts’ defamation claim.
---
¶59 Chief Justice Durham, Associate Chief Justice Wilkins,
Justice Parrish, and Justice Nehring concur in Justice Durrant’s
opinion.