Birmingham Broad. (WVTM-TV) LLC v. Hill

• Decision Date: 28 February 2020
• Docket Number: 1180343,1180370
• Citation: 303 So.3d 1148
• Parties: BIRMINGHAM BROADCASTING (WVTM-TV) LLC v. Leslie Wayne HILL Leslie Wayne Hill v. Sheriff Mike Hale, Lieutenant Jacob Reach, and Deputy Jason Orr
• Court: Alabama Supreme Court

303 So.3d 1148

BIRMINGHAM BROADCASTING (WVTM-TV) LLC

v.Leslie Wayne HILL

Leslie Wayne Hill

v.Sheriff Mike Hale, Lieutenant Jacob Reach, and Deputy Jason Orr

1180343

1180370

Supreme Court of Alabama.

February 28, 2020

Dennis R. Bailey, J. Evans Bailey, and Katie E. Davis of Rushton, Stakely, Johnston & Garrett, P.A., Montgomery, for appellant Birmingham Broadcasting (WVTM-TV) LLC.

John C. Robbins of Robbins Law Firm, Birmingham, for appellee/cross-appellant Leslie Wayne Hill.

Bruce L. Gordon, John G. Dana, Jason E. Gilmore, and James A. Stewart of Gordon, Dana & Gilmore, LLC, Birmingham, for appellees Sheriff Mike Hale, Lieutenant Jacob Reach, and Deputy Jason Orr.

STEWART, Justice.

In appeal no. 1180343, Birmingham Broadcasting (WVTM-TV) LLC ("WVTM") appeals from a $250,000 judgment entered on a defamation verdict against it and in favor of Leslie Wayne Hill in the Jefferson Circuit Court ("the trial court"). In appeal no. 1180370, Hill appeals from an order of the trial court dismissing all the claims Hill asserted against three members of the Jefferson County Sheriff's Department ("the Sheriff's Department"), including former Sheriff Mike Hale, Deputy Sheriff Jason Orr, and Lieutenant Jacob Reach (hereinafter referred to collectively as "the sheriff defendants"), on the basis of state immunity. For the reasons expressed below, we reverse the judgment in appeal no. 1180343 and render a judgment in favor of WVTM, and we affirm the judgment in appeal no. 1180370.

Facts and Procedural History

In 1992, Hill pleaded guilty in the Jefferson Circuit Court to five misdemeanor counts of distributing obscene material, see § 13A-12-200.2(a)(1), Ala. Code 1975, for renting adult videos at a video-rental store he owned. In November 2013, Hill was arrested in Homewood on a misdemeanor charge of harassing communications. Pursuant to that arrest, the Sheriff's Department conducted a criminal-history check on Hill and determined that, based on Hill's 1992 convictions of distributing obscene material, Hill was required to register as a sex offender under the Sex Offender Registration and Community Notification Act, § 15-20A-1 et seq., Ala. Code 1975 ("SORNA").¹ Deputy Orr, who worked in the sex-offender unit of the Sheriff's Department, informed Hill that he had to register as a sex offender. Hill refused to do so on the ground that the 1992 convictions did not qualify as sex offenses under SORNA. Deputy Orr eventually completed an Alabama Uniform Incident/Offense Report concerning Hill's failure to register and submitted the report to the Jefferson County District Attorney's Office. An assistant district attorney concluded that probable cause existed that Hill was in violation of SORNA and approved the Sheriff's Department's request to seek warrants for Hill's arrest. After determining that probable cause existed, a Jefferson County magistrate issued warrants for Hill's arrest for failing to register as a sex offender under SORNA, see § 15-20A-7, Ala. Code 1975, and for maintaining a residence within 2,000 feet of a school, in violation of § 15-20A-11(a), Ala. Code 1975.

In 2013, the Sheriff's Department was collaborating with WVTM on a weekly televised news segment entitled "To Catch a Predator." Deputy Orr testified at trial regarding the role of the Sheriff's Department in creating the "To Catch a Predator" segments:

"In 2013, our unit averaged 25 to 30 ... warrants a month and we would go through and we would select somebody that we were either having trouble finding or somebody that had refused to come register or whatever the case may be. And we would type up a script for the Sheriff. It was either me or Lieutenant Reach that did it. It was one of us that did it 99.9 percent of the time. And we would type up a script for the Sheriff to read, and then we would take it over to his office and he would read it basically in front of one of the TV cameras in his office to run on TV."

Deputy Orr testified that the scripts for the segments were based on incident and offense reports created by the Sheriff's Department. The segments were video-recorded by a WVTM employee at the sheriff's office on Wednesday mornings and were aired Friday nights at 10:00 p.m. on WVTM.

Hill was featured on the December 6, 2013, segment of "To Catch a Predator" ("the December 6 broadcast"). The December 6 broadcast began with an introduction from a WVTM news anchor person, who stated: "A local sex offender is back in trouble with the law tonight and investigators need your help in tracking him down. Here's tonight's ‘To Catch a Predator.’ " A graphic was then displayed showing the name of the segment -- "To Catch A PREDATOR" -- for approximately three seconds. A photograph of Hill was then displayed with the title of the segment -- "TO CATCH A PREDATOR" -- immediately above the photograph and Hill's full name directly below the photograph. Lieutenant Reach, who worked in the sex-offender unit of the Sheriff's Department, testified that the graphic was created by WVTM. As Hill's photograph was displayed, Sheriff Hale began reading the following script:

"We're looking for Leslie Wayne Hill. Hill is a convicted sex offender with five counts of distribution of obscene material in 1992 right here in Jefferson County. The Jefferson County Sheriff's Office Sex Offender Unit received information in regards to Hill never registering. The Unit confirmed Mr. Hill's convictions and also contacted him, and we gave him an opportunity to register. He refused to register as a sex offender. The Sex Offender Unit obtained two warrants on the offender on November 26 of this year. One for violation of the Sex Offender Act for failure to register and the second one –– violation of the Sex Offender Act –– residing within 2,000 feet of a school or day care. The offender was advised that he could not reside at his current address.... The address is within 2,000 feet of Integrity Christian Academy."

During Sheriff Hale's dialogue, which lasted approximately one minute, the video alternated between Hill's photograph and video of Sheriff Hale sitting at a desk reading the script. After Sheriff Hale's portion of the segment concluded, Hill's name and photograph were again displayed along with the segment title, and a background announcer stated: "Take another look at this convicted sex offender. If you've seen him, call [the telephone number for the sex-offender unit of the Sheriff's Department]. Your call will remain anonymous." The segment concluded with the WVTM news anchor person stating: "Remember, you can help to catch a predator every Friday night on Alabama's 13 News at 10 and again here on Saturday morning." The entire portion of the December 6 broadcast pertaining to Hill lasted approximately 1 minute and 20 seconds. The December 6 broadcast re-aired on WVTM on the morning of December 7, 2013.

After the December 6 broadcast, Hill, through his attorney, contacted the Jefferson County deputy district attorney to convey his opinion that his 1992 convictions did not constitute a sex offense under SORNA. The deputy district attorney agreed and requested that the warrants be recalled. On December 10, 2013, both warrants issued against Hill were recalled. Neither Hill nor his attorney contacted WVTM after the December 6 broadcast to inform it that the warrants against Hill had been recalled, to otherwise request a retraction of the December 6 broadcast, or to provide an explanation for or a contradiction of the December 6 broadcast.

On December 13, 2013, WVTM aired another "To Catch a Predator" segment ("the December 13 broadcast"). During the December 13 broadcast, Sheriff Hale addressed a case that was unrelated to Hill's, but, at the conclusion of that broadcast, a WVTM news anchor person stated: "And here's a follow up to last week's ‘To Catch a Predator’ report. The Jefferson County Sheriff's Office told us Friday that earlier this week, two charges were recalled against Leslie Wayne Hill, the man profiled in our story last Friday night." During that portion of the December 13 broadcast, the same photograph of Hill that was shown during the December 6 broadcast was displayed along with Hill's full name immediately below the photograph and the headline "CHARGES DROPPED" immediately above the photograph. The portion of the December 13 broadcast pertaining to Hill lasted approximately 13 seconds.

Hill sued Sheriff Hale, Deputy Orr, Lieutenant Reach, and WVTM in the trial court, alleging state-law claims of defamation, false light, negligent training and supervision, and the tort of outrage against all defendants.² The trial court granted the sheriff defendants' motion to dismiss on the basis of state immunity, finding that the sheriff defendants were working within the line and scope of their employment when they sought warrants against Hill and when they participated in WVTM's broadcasts and concluding that Article I, § 14, Ala. Const. 1901, barred Hill's claims against them.

WVTM filed a motion for a summary judgment, arguing that its broadcasts were privileged as fair reports under § 13A-11-161, Ala. Code 1975, discussed infra; that it broadcast truthful information about Hill; and that Hill could not prove any recoverable special damages. The trial court granted WVTM's motion for a summary judgment on Hill's tort-of-outrage claim but denied it on Hill's claims of defamation, false light, and negligent training and supervision. In its summary-judgment order, the trial court stated that WVTM "established a conditional fair-report privilege" under § 13A-11-161 and that the December 6 broadcast was a "fair and impartial report" because "the Sheriff's office created the video segment" and WVTM "did not substantially alter it in any way." The trial court also found that WVTM "did not publish the [December 6 broadcast] with malice." The trial court, however, concluded that an exception to the fair-report privilege under § 13A-11-161 could apply. The trial court stated that, in the ...