Hanrahan v. Horn, 54286

• Decision Date: 14 January 1983
• Docket Number: No. 54286,54286
• Citation: 657 P.2d 561,232 Kan. 531
• Parties: , 9 Media L. Rep. 1216 John L. HANRAHAN & Carol J. Hanrahan, Appellants, v. Charles D. HORN and Kansas Association of Realtors, Inc., Appellees.
• Court: Kansas Supreme Court

Page 561

657 P.2d 561

232 Kan. 531, 9 Media L. Rep. 1216

John L. HANRAHAN & Carol J. Hanrahan, Appellants, v. Charles D. HORN and Kansas Association of Realtors, Inc., Appellees.

No. 54286.

Supreme Court of Kansas.

Jan. 14, 1983.

Syllabus by the Court

In an action for slander against a private citizen it is held: (1) Slander actions generally must be brought by the slandered party; (2) A realtor whose name is mentioned many times in connection with his son's disappearance and murder does not thereby become a public figure excusing all but malicious statements; (3) A court is not bound by agreements and admissions of parties as to matters of law or legal conclusions; (4) The slander in good faith qualified privilege is not applicable to these facts; and (5) If spoken, words suggesting someone's arrest or questioning in connection with a murder investigation do not constitute outrageous conduct.

Donald R. Hoffman, of Humpage, Berger & Hoffman, Topeka, argued the cause and was on the briefs for appellants.

Gerald L. Goodell, of Goodell, Stratton, Edmonds, Palmer & Wright, Topeka, argued the cause, and Marla J. Luckert, Topeka, was with him on the brief for appellees.

WILLIAM D. CLEMENT, District Judge, Assigned:

The trial court granted summary judgment for the defendants on Mr. and Mrs. John Hanrahan's claims of slander, outrage, defamation of character, and invasion of privacy. This is an appeal from summary judgment.

The sequence of events relevant to this action began on May 20, 1979, when twelve-year-old John "Jack" Hanrahan disappeared, having last been seen at Gage Bowl in Topeka. His body was found 10 days later and William R. Gautney was charged with murder. Almost 70 news stories appeared in Topeka newspapers through August. The names of the murdered boy's parents, appellants, or references to the Hanrahan family, were mentioned in virtually every story.

On June 20, 1979, Charles Horn, as part of his employment with the Kansas Association of Realtors, Inc., was conducting a prelicensure class for prospective realtors. During a break in the afternoon session he received a call from his wife. She told him she had heard that Mr. Hanrahan was being held for questioning by police concerning Jack Hanrahan's death. Charles Horn returned to his class and said, "Have you heard the most up-to-the-minute news in the Hanrahan case? They have a suspect in custody. And it is the boy's own father." That evening Charles Horn told the class: "Regarding the information I gave you earlier today, that information is not for public knowledge. Or it is not for publication." In his deposition, Charles Horn stated his announcement to the class, which he could not remember word for word, was to demonstrate his earlier statement was wrong. He said he apologized for making the earlier statement. Mr. Hanrahan was at no time questioned as a suspect for the murder of his son. The Hanrahans sought redress by filing a suit against Charles Horn and the Kansas Association of Realtors, Inc. The suit was dismissed after summary judgment was granted to all defendants on all claims.

Summary judgment is proper when the only question or questions presented are questions of law. In considering a motion for summary judgment, the party against whom the motion is directed is entitled to the benefit of all reasonable inferences and doubts that may be drawn from the facts. When genuine issues of material fact remain undetermined, the granting of summary judgment is improper. Griffin v. Rogers, 232 Kan. 168, 653 P.2d 463 (1982).

The trial court ruled the appellant, John Hanrahan, was a public figure when Horn's statements were made. The standard of actual malice, defined as knowledge the statement was false or made with reckless disregard to whether it was false, was found not to be met. Appellants contend the trial court erred in finding John Hanrahan a public figure. The question of whether there is a qualified privilege based on the status of the appellant is one of law. See Schulze v. Coykendall, 218 Kan. 653, 545 P.2d 392 (1976); Dobbyn v. Nelson, 2 Kan.App.2d 358, 579 P.2d 721, aff'd 225 Kan. 56, 587 P.2d 315 (1978).

There is a delicate balance between First Amendment freedoms of speech and press and the legitimate interest in redressing wrongful injury resulting from defamatory statements. "Public figure" status is an attempt to fine tune this balance. See Curtis Publishing Co. v. Butts, 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1094, reh. denied 389 U.S. 889, 88 S.Ct. 11, 19 L.Ed.2d 197 (1967).

Justice Powell, in the case of Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974), elaborated on public figure status:

"In some instances an individual may achieve such pervasive fame or notoriety that he becomes a public figure for all purposes and in all contexts. More commonly, an individual voluntarily injects himself or is drawn into a particular public controversy and thereby becomes a public figure for a limited range of issues. In either case such persons assume special prominence in the resolution of public questions." p. 351, 94 S.Ct. at 3012.

"Hypothetically, it may be possible for someone to become a public figure through no purposeful action of his own, but the instances of truly involuntary public figures must be exceedingly rare." p. 345, 94 S.Ct. at 3009.

In Time, Inc. v. Firestone, 424 U.S. 448, 96 S.Ct. 958, 47 L.Ed.2d 154 (1976), a case similar to the present case, Justice Rehnquist wrote:

"Petitioner contends that because the Firestone divorce was characterized by the Florida Supreme Court as a 'cause celebre,' it must have been a public controversy and respondent must be considered a public figure. But in so doing petitioner seeks to equate 'public controversy' with all controversies of interest to the public. Were we to accept this reasoning, we would reinstate the doctrine advanced in the plurality opinion in Rosenbloom v. Metromedia, Inc., 403 U.S. 29 [91 S.Ct. 1811, 29 L.Ed.2d 296] (1971), which concluded that the New York Times [Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964) ] privilege should be extended to falsehoods defamatory of private persons whenever the statements concern matters of general or public interest. In Gertz, however, the Court repudiated this position, stating that 'extension of the New York Times test proposed by the Rosenbloom plurality would abridge [a] legitimate state interest to a degree that we find unacceptable.' 418 U.S. at 346 [94 S.Ct. 2997 at 3010, 41 L.Ed.2d 789 (1974) ]." p. 454, 96 S.Ct. at 965.

Justice Rehnquist further discussed public figures in Wolston v. Reader's Digest Assn., Inc., 443 U.S. 157, 99 S.Ct. 2701, 61 L.Ed.2d 450 (1979):

"In Gertz, we held that an attorney was not a public figure even though he voluntarily associated himself with a case that was certain to receive extensive media exposure. 418 U.S. at 352 [94 S.Ct. 2997 at 3013, 41 L.Ed.2d 789 (1974) ]. We emphasized that a court must focus on the 'nature and extent of an individual's participation in the particular controversy giving rise to the defamation.' " p. 167, 99 S.Ct. at 2707.

See also Hutchinson v. Proxmire, 443 U.S. 111, 99 S.Ct. 2675, 61 L.Ed.2d 411 (1979); Annot., 61 L.Ed.2d 975; Annot., 75 A.L.R.3d 616; Eaton, The American Law of Defamation through Gertz v. Robert Welch, Inc. and Beyond: An Analytical Primer, 61 Va.L.Rev. 1349 (1975); Ashdown, Gertz and Firestone: A Study in Constitutional Policy-Making, 61 Minn.L.Rev. 645 (1977).

Appellees contend community concern for children is the public controversy in this case, and that John Hanrahan is a public figure. The trial court concluded, as a matter of law, that in the summer months of 1979, during the intense publicity surrounding the disappearance and death of their son, the appellants became public figures.

The appellants were not public figures. The trilogy of cases quoted, Gertz, Firestone and Wolston, limits the status of public figure to those who seek to influence the resolution of public questions. Wolston, 443 U.S. at 168, 99 S.Ct. at 2707. The parents of the murdered young boy only sought to find their son. No public questions were involved. The parents did not call for better police protection or any other means of protecting Topeka children. The parents did not draw attention to themselves to influence the public. See Wolston, 443 U.S. at 168, 99 S.Ct. at 2707. The appellants did not engage in criminal conduct, which alone does not automatically make one a public figure anyway. Wolston, 443 U.S. at 168, 99 S.Ct. at 2707. The appellants' search for their son was a matter of public interest, but this is not enough to create a public figure. Gertz altered the public interest standard stated in Rosenbloom v. Metromedia, Inc., 403 U.S. 29, 91 S.Ct. 1811, 29 L.Ed.2d 296 (1971). The focus is on the nature and extent of an individual's participation in the particular controversy giving rise to the defamation. Wolston, 443 U.S. at 167, 99 S.Ct. at 2707. There was not the requisite participation in a public controversy, or even the public controversy itself. A "controversy" is a difference marked especially by the expression of opposing views. Webster's Third New International Dictionary, p. 497 (1967).

Kansas has followed the standards set by the United States Supreme Court. The Kansas Supreme Court has cited, and quoted from, the cases already mentioned. See Steere v. Cupp, 226 Kan. 566, 602 P.2d 1267 (1979); Gleichenhaus v. Carlyle, 226 Kan. 167, 597 P.2d 611 (1979). In Steere, an attorney's representation of a criminal defendant did not elevate him to public figure status. The court quoted language from Gertz noting Steere did not thrust himself into the vortex of a public issue, nor did he engage the public's attention in an attempt to influence its outcome. Steere, 226 Kan. at 574, 602 P.2d 1267. Chief Justice Schroeder, in Gleichenhaus, referred to Wolston and Proxmire as...