*1 Appellant, MONTESANO, DONREY KENT RONALD REVIEW JOUR- dba LAS GROUP, VEGAS MEDIA Respondents. VOLEK, and SUE NAL No.
September [Rehearing denied December 1983] Hecht, Lehman and Nelson and Harold M. Vegas, Las Appellant. Pico,
Dickerson, Miles & Vegas, Respondents. Las
OPINION Court, Manoukian, By J.:1 C. tortious disclosure appeal the claimed concerns This wrong Appellant contends actionable private facts. respondents’ publication of his involvement from the resulted twenty years police earlier in which a
in a hit-and-run accident Respondents argue that news because the was killed. officer records because was drawn from article directly related to a of current misdeeds interest, twenty years the hit-and-run accident occurred “newsworthy” publication. Being at time of earlier persuaded privacy fade interests of when the infor- “the already appears on the record” and mation involved *3 intimately was con- conviction hit-and-run that story, of to the matter the news we conclude that nected respondents’ publication. actionable tort resulted from no Accordingly, dismissing we the lower court’s order affirm complaint prejudice. with April dispute was when a Las The seed of this sown call, officer, police responding emergency to an
Vegas who was Montesano, Appellant, in a Ronald killed collision. Kent was passenger in the car which collided with the officer’s was a motorcycle. appellant and the driver of the car in which Both time, riding appel- At fled the scene of the accident. that he was adjudicated juvenile years was seventeen old. He was as a lant delinquent spent in the several weeks State Industrial at Elko. School history Appellant’s criminal did not end the hit-and-run nineteen, Vegas appellant apart- was his conviction. When Las raid, target raid. As a ment was the of a narcotics result of the charged felony possession was with and convicted for he marijuana. Appellant was as an sentenced adult offender years at two the Nevada State Prison. February 24, 1978, respondents printed story
On newspaper describing policeman. murder recent of a The history Vegas Las also recounted the law enforcement article Zenoff, Justice, designated 1The Honorable David Senior was to sit Batjer. place The in this case Const., Honorable Cameron Nev. 19; 10. § art. SCR duty. specifics in the line of who had lost their lives officers detailed, as well as appellant’s hit-and-run conviction marijuana. Appellant possession of was his conviction by name in the article.2 identified
Appellant brought grounded an action on two claims for First, alleged relief. he a claim for disclosure of Appellant twenty year span contended that the facts. between respondents’ publication the hit-and-run and the eroded may his misfortunes “newsworthiness” have had because dur- married, ing period family he raised a and became lawa Secondly, alleged abiding newspaper citizen. he vio- statutory privilege confidentiality provided by lated NRS juvenile 62.200(3) (now 62.211(3)) NRS because he was a when the collision occurred.3 complaint NRCP under to dismiss
Respondents moved upon relief can be a claim to state 12(b)(5) for failure appel- information of They that the relevant granted. noted parole in a was contained conviction hit-and-run lant’s February 24, 1978, Vegas Review Journal article of under the 2The Las pertinent part: byline read in of Sue Volek years motorcycle police- it had been more than 11 since [In 1966] Sgt. Dula was struck and killed a car as he was rush- man ing Robert April emergency to an call Bray, Marlin then and Ronald Kent Records indicate that Montesano, 17, allegedly had beaten a Airman at Fifth then Nellis As Dula and another officer answered that and Fremont Street. emergency regained call, by Bray. Dula was hit the car driven He never reaching hospital. died after consciousness and juveniles ran from the records incidate the two accident Police scene, bragging at a later about the incident drive-in restaurant. The morning. following pair was arrested Bray were sent to the State Industrial School at and Montesano time, parole a few later. At that were back home on weeks Elko but probably were made because the two had said the releases officials plans to leave the state. later, Vegas apartment exactly years Las Montesano’s But two pleaded guilty charges posses- target raid. He of a narcotics prison. marijuana was sentenced to two sion of *4 part provided 1955, 62.200(3) in relevant that: NRS 3In any pro- any in with such child connection name or race of [T]he any published be in ceedings newspaper Court Act shall not] under Juvenile [the § the court. 1943 N.C.L. written order of without a 1038.19. part 1978, 62.200(3) provided that: in relevant
In NRS any in such child connection the race of name ... or [T]he pub- Court Act shall be any proceedings not] Juvenile under [The by any without writ- aired news medium in or broadcasted lished ten Stats, 9, § ch. 309 1. § Nev. ch. 531 1977 order of the court. report prepared in to assist the court’s sentenc- probation Respondents alleged possession ing conviction. decision on public court record.” Because report “a matter of that the appellant’s record, respondents con- were of misdeeds protections could not avail himself tended that he he an action for dis- 62.211(3), nor could maintain NRS Additionally, respondents argued that private facts. closure appellant’s hit-and-run conviction was relevant to an because interest, passage mere did contemporary of time issue appellant’s criminal his- “newsworthiness” of not erode the tory. complaint ruled that the failed to state a
The lower court granted upon can be because no which relief claim complaint “private was dismissed with facts” occurred. challenges ruling. prejudice. Appellant now the lower court’s Review. 1. Standard of argue plead- that appeal, respondents matters outside On 12(b)(5) ings to their Rule motion which were not were attached that, pursuant 12(b), to Rule the court excluded summary judgment and treated as one for dis- motion [was] Cummings posed provided in Rule 56. . . .” See also of as v. 479, Corp., City Vegas 88 Nev. P.2d of Las Mun. 488, Snowden, (1972); 87 Nev. Kellar respondents Appellant that because did not seems to contend motion, support of their the trial court submit affidavits summary judgment. did not treat it as one for accompanied by Respondents’ motion was court records copy offenses and news article. rely generally determining Appellate on two factors courts summary judgment rendered rather than whether a trial court First, failure to state a claim. dismissed the cause for reviewing court looks for indications the lower court affirmatively pleading. Lodge excluded material outside the Dennis, Ry., (9th Broth. of etc. v. 625 F.2d Cir. case, 1980). the lower court relied on In the instant “matters pleading” arriving when at its decision to dismiss outside appellant’s claim for relief. The second factor is whether the did, fact, court reason for dismissal indicates district complaint. Lodge matters outside the 625 F.2d consider Here, that, law, the trial court found as a matter of no at 825. cause of action existed for invasion because the facts ruling were not facts. This indicates that the disclosed allegations judge complaint trial transcended the bare Therefore, pleadings. matters outside the and considered *5 649 summary be treated as a action should of dismissal judgment. however, opposition in his
Appellant, has conceded to appeal that the relevant facts herein to and on motion dismiss Thus, purely a undisputed. we can rule on this issue as are question law. of
2. The Public Record Ground.
recognized
impliedly
an action for
of
court has
invasion
This
38,
Vegas,
City
177
v.
of Las
64 Nev.
P.2d
privacy in Norman
case, appellant has
(1947). In the instant
based
claim
442
pri
of the tort of invasion of
relief on the fourth branch
for
vacy. The
Law of Torts has named
Second Restatement
“Publicity
to Private Life.”
the tort of
Given
that branch
(1977).
(Second) of Torts
652D
To maintain a
§
Restatement
private
one
disclosure
facts
must
cause
action
disclosure of
facts has occurred
prove that a
objectionable
be offensive and
to a reasonable
which would
ordinary
Bugliosi,
v.
608
person of
sensibilities. Forsher
P.2d
716,
(Second)
(Cal. 1980); Restatement
of Torts §
725
652D
present
publicity
case is whether
con
(1977). At issue
life,
private,
distinguished
as
from
cerned
appellant
publicized
kind
whether the matter
is of a
that is
public.
See
v. Des
legitimate
concern
Howard
not
289,
Co.,
(Iowa
Register
283
& Tribune
N.W.2d
298
Moines
denied,
(1980).
1979), cert.
Section 1038.19 of relevant any name or such child in that “the race connection with *6 proceedings Juvenile pub- under Court Act shall be [the not] any newspaper lished in without a written order of the court.” equivalent or its substantial was in This statute effect in 1955 and when the accident occurred in 1978 when the article was published. appellant adjudicated The records indicate that was juvenile delinquent. as a It follows that his conviction for “hit- published newspaper.4 and-run” should have never been in a Nevertheless, 62.211(3). NRS some of the information con- cerning way the 1955 found its a accident into State Parole and report prepared judge Probation which was the for who sen- possession appellant charge. tenced on the This information incorporated regarding was into official court records a crimi- charge appellant nal for as an which was tried adult. the It is publication prompted litiga- of this information which this tion.5 62.211(3) predecessors plainly
Although
and
NRS
its
state
any
published
shall not
name of a child
be
news
that
the
juvenile
proceeding,
the
with a
court
medium connection
published by
appeal,
respond-
material
the
purpose of this
the
“public
The tort
be
facts.”
of invasion
ents should
considered
juvenile
4Respondents
jurisdiction
contend
because a
that
court loses
years old,
juvenile
pro
over an individual who is 21
court
21,
ceedings once the defendant is older than
does not violate NRS
predecessors.
protective goals
62.211(3)
62.211(3),
or its
Given the
of NRS
encourage
youthful offender,
to
rehabilitation of the
seek
a
such
wholly
without merit.
construction
complaint
allege
5Appellant’s
separate
did not
NRS 213.1098as a
statu
tory
privilege
confidentiality. Nevertheless,
to a
claim
in an over
caution, respondents
abundance of
the
obtained
officer or
in their
addressed
motion to dismiss
applicability
provides
of that statute which
information
discharge
duty by parole
probation
of an official
a
and
employee
Appellant’s
privileged.
Opening
shall be
the board
respondents’
Brief contends that because
news article was based on infor
discharge
duty by parole
proba
mation obtained in the
tion officer
of an official
employee,
respondents
statutory
privilege
the
violated his
confidentiality. Arguments
appeal
for the
raised
first time on
need not be
Zellhoefer,
579,
(1973).
considered. Williams v.
89 Nev.
Appellant even if the information police officer conviction for the death marijuana properly possession of facts contained records, lapse of 20 between the “hit-and- in court *7 public publication the conviction and the eroded nature run” Specifically, appellant contends that he those facts. because unexciting by life led private, to the lawful the has returned community, the great bulk of the facts and circumstances sur- identity longer rounding his are no crimes and matters legitimate concern. provides h of 652D that:
Comment Section legitimate public determining a matter of In what is inter- est, the account be taken of customs and must conventions analysis community; proper and in the last what is of the community The line a of the mores. is to becomes matter publicity giving drawn ceases to be the be when entitled, is and becomes a information to which prying private into lives its morbid sensational sake, public, member of the own with which reasonable standards, say would had no with decent that he concern. words, limitations, those of in other are common
decency, having regard press to due the freedom leeway to what it will its reasonable choose tell the regard feelings public, but of the individual also due by exposure. harm will be done to him the and the proportion is be also to maintained Some reasonable activity the event or that makes individual a between figure publicity and the facts to is given. time, course, factor,
Passage relevant other facts, determining publicity whether the involves a matter of legitimate public (Second) concern. of Torts § Restatement
652D Comment k
Howard, supra,
Supreme
In
the Iowa
Court ruled on an
involuntary
article which concerned the
sterilization of the
plaintiff
county
while a resident of a
home. The article was
drawn from records accessible under Iowa’s Freedom of Infor-
Although
printed
mation Act.
it was
in the defendant’s news-
paper
occurred,
five
after the sterilization
was held not actionable. The Howard court determined that
although
plaintiff
defendant identified the
her maiden
article,
name
plaintiff’s
the disclosure of the
sterilization
identity
legitimate
and her
they
public concern, i.e.,
were matters of
“newsworthy.”
published
The article was
response
county
to the revocation
home’s license
Department
poor
State Health
care and lax administration.
Floward,
good good family man,” workman and a the Barbieri court held that legitimate the incident was still of concern. Id. at publication, 775. At the time of the the matter of the corporal punishment article—the use of to deter crime—was of acute interest because a state senator had introduced a whipping bill which would have mandatory made punishment 773, for certain crimes. at plaintiff’s Id. 775. The experience bearing issue, had a real though on the even the court
653
judgment
identifying
plaint
questioned the defendant’s
the
Nevertheless,
crediting him with his
iff and not
rehabilitation.
rejected
plaintiff’s argument,
the
the Delaware court
which was
Reid,
(Cal.App. 1931),
premised on Melvin v.
nition that defendants Reid, (Cal.App. 1931), P. 91 concerned suit for inva 6Melvin v. by prostitute brought who had been tried a former sion trial, exemplary acquitted. lived After the she married and an murder and later, the defendants distributed a life. Seven film and honorable plaintiffs story her life which identified her maiden name. based on the plaintiffs held that because the incidents trial The California court surrounding appeared the facts the trial in the official records court privacy. support an not action invasion Id. at could Nevertheless, plaintiffs true held that the use name the court justified by any coupled not standard of morals or with those facts “was privacy. of her Id. Aside from the criti was a direct invasion ethics” and court, employed Melvin Melvin cism of nebulous standard Melvin, readily distinguishable In on facts. its decision is suggestive issue made a medium was unrelated to current N.W,2d Howard, at See entertainment. constitutionality challenged of NRS 7Respondents not have 62.211(3).
654 records, Supreme prevail- the Court stated that
court
ing
“even the
privacy generally recognizes
of invasion of
law
privacy
already
interests of
fade when the information involved
appears
public
compelling
The
on the
record.
conclusion is
in
and
when viewed terms
First
Fourteenth Amendments
light
public
press.”
interest in a free
and in
Id. at 494-
added.) Following
(Emphasis
Broadcasting
the Cox
deci-
sion,
rejected
Supreme
the Kansas
Court
the test of “current
required
a case
newsworthiness”
case evaluation of
public
published
public
the current
interest where the facts
are
concerning present
public
former
facts
or
official. The Kansas
impose
a test would
an
court reasoned
intolerable
“[s]uch
press
publish
peril
having
burden on the
at the
its news
faulty
judgment
damages.”
later declared
an action for
Co.,
Publishing
Rawlins v. Hutchinson
543 P.2d
(Kan. 1975).8
balancing process
inherent in the Restatement test is
responsive
conflicting
more
to the
press
interests of a free
and
right
an individual’s
than
position
the absolute
adopted by
Supreme
Nevertheless,
the Kansas
Court.
light
Supreme
holding
Court’s
Broadcasting
Cox
and the
purpose
fact that the
protect
of this tort is to
an individual
against
publication
facts,
unwarranted
the balance
weighted
should be
speech
favor of free
pub-
when the
public
lication involves
public
spread
facts which have
upon
been
record.9
appellant,
The case relied on
Briscoe v.
Digest Ass’n,
Reader’s
483 P.2d
(Cal.
57 ALR3d 1
1971),
8Although
Broadcasting
publication
public
Cox
concerned a
of a
fact
contemporaneously
trial,
rape
with the
can be no doubt that
“[t]here
one
quite legitimate
press
educating
reminding
function of the
is that of
history,
past
public figures,
as to
and that the recall of former
news,
past
properly
revival of
events that once were
can
be a matter of
present public
Prosser, Privacy,
(1960),
interest.”
48 Cal.L.Rev.
in,
quoted
approval
Co.,
Cal.Rptr. 208,
Werner v. Times-Mirror
(Cal.App. 1961).
Broadcasting,
Supreme
9In Cox
Court stated its reluctance to
“embark on a
generally
course that would make
records
available
to the media but forbid their
if offensive to the sensibilities of
supposed
very
reasonable man. Such a rule would make it
difficult for
yet
media to inform
stay
citizens about the
business and
within
timidity
the law. The rule
self-censorship
very
would invite
likely
suppression many
lead to the
published
items that would otherwise be
public.
very least,
that should be made available to the
At the
the First
exposing
press
Fourteenth Amendments will
liability
not allow
truthfully publishing
information released to the
in official
Id.,
court records.”
for “hit-and-run” was many daily story. hazards It documented the the news police duty. killing police in the line The of officers face of and, grave public unfortunately, of interest officers is of the item of concern because recent was an current history police police The of fatalities in the of a officer. murder Vegas equal legitimate City was of interest. While of Las function, serving appropriate news the disclosure of the an impact identity constructively of contributed credibility report specificity to the It lent the article. grav- accuracy public perception strengthened the of ity problem. the information Because all the disclosed records, per- we hold that a reasonable contained in case was not of not find that the disclosure this son could under the Restatement standard legitimate concern applied light in the of the First and Fourteenth Amendments. though occurred 20 after even
This is so Howard, reported N.W.2d at therein. See 303- the incident Therefore, summary judgment and order the lower court’s 304. dismissing appellant’s
complaint prejudice is affirmed. JJ., Mowbray,
Springer and concur.
Gunderson, J., dissenting: respectfully, I must dissent. Most that, pursuant majority to the appear to bal- understand The Torts, by the the trier ancing Restatement test articulated normally jury, decide whether not this court—should fact—the appellant by referring name constituted a tortious invasion Nonetheless, instance, major- privacy. in this right of his law, ity as one of in favor of decide issue have elected to Vegas Donrey Group Media and the Las Review- respondents Journal. others, however, apply I believe we should In this case as Restatement, in the and should
the law as delineated allow day appellant in court. to have his J., Zenoff, dissenting: Sr. rights majority’s espousal speech, press the sacred everyone, religion and no one has a corner on shared freedoms of the
America’s devotion to those ment, First Amend- inception, longer, but since its the courts have main- beyond expressions which some tained boundaries become privacy. invasion of unlawful Welch, Inc., 323, 345, Gertz v. Robert 418 U.S. 94 S.Ct. majority opinion, (1974), said cited “there is no constitutional value false statements fact. Neither the materially intentional society’s lie nor the careless error advance ‘uninhibited, open’ interests robust and wide *11 (Emphasis added.) debate on issues.” Here, killing policemen the news article centered on the duty, sparked by the line of which in turn was the recent mur- policeman in der of a law officer. The our case was killed in a passenger That Montesano traffic accident. was in the car motorcycle speeding which collided with the officer in answer chasing to a call was coincidental. He was not the car in which riding; Montesano was the death was not a criminal murder. majority opinion scarcely brushes the commitment of help youngster will the state of Nevada that attempts state in his ways. Confidentiality by to correct the error of his juvenile probation reports promises statute offenses are youngster i.e., purpose, provide with a culprit incentive that if a life, straighten up will out and clean his the state will give security past that his offenses will be behind him and family not used as a cloud over him or his forever. Cox, by majority, progress. cited involves a case then in twenty years old, Montesano’s offense was over Usually, time the article written was old news. time erodes public figure Digest Association, a Inc., status. Wolston v. Reader’s old,
443 U.S. 99 S.Ct. The accident was point identity was unrelated to the of the news article and the Gertz, appellant story. was irrelevant to the supra; Wol- ston, supra; Digest Association, Inc., Briscoe v. Reader’s 1971). Major (Cal. may bring lasting P.2d 34 incidents noto- criminals, riety pub- to some but most criminal incidents are of only, slip while obscurity. lic interest a short and then into those, publication As to of an ex-offender’s name serves no purpose. useful jury present to a permitted to his case be
Appellant should figure time status at the (a) decide: article; respondents acted in a reckless disre- whether (b) ensue; (c) might to determine the gard for the harm any. damages, if of Montesano’s extent TOM ROSS JOHN Matter
In the Attorneys FLANGAS, Law. PETER at No.
September *12 Bar, O’Brien, President, Vegas; State Las and Kent D. John Robison, Reno, Bar. for State Jemison, DeLanoy Vegas; Beckley, Singleton, & Las City, John Grayson, Carson Tom Ross. A. Robert Goldwater, Flangas proper person, and Peter L. David Vegas, Flangas. L. Las for Peter