Howard v. Des Moines Register and Tribune Co.

• Decision Date: 19 September 1979
• Citation: 283 N.W.2d 289
• Parties: 5 Media L. Rep. 1667 Robbin HOWARD, Appellant, v. DES MOINES REGISTER AND TRIBUNE COMPANY, Dr. Roy C. Sloan and Margaret Engel, Appellees. 62059.
• Court: Iowa Supreme Court

Page 289

283 N.W.2d 289

5 Media L. Rep. 1667

Robbin HOWARD, Appellant, v. DES MOINES REGISTER AND TRIBUNE COMPANY, Dr. Roy C. Sloan and Margaret Engel, Appellees.

62059.

Supreme Court of Iowa.

Sept. 19, 1979.

Oscar E. Jones, Des Moines, for appellant.

Paul E. Kritzer and Glenn L. Smith, Des Moines, for appellees Des Moines Register and Tribune Co. and Margaret Engel.

Considered en banc.

McCORMICK, Justice.

The trial court entered summary judgment for defendant Des Moines Register and Tribune Company and its reporter Margaret Engel in this action for invasion of privacy. The action was brought by plaintiff Robbin Howard in an effort to obtain redress from these defendants and defendant Dr. Roy C. Sloan for a disclosure in a 1976 newspaper story that she had been involuntarily sterilized while a resident of the Jasper County Home in 1971. This appeal does not involve the claim against Dr. Sloan. The controlling questions are whether recovery from the newspaper and its reporter is precluded either because the information was already public or because the trier of fact would be unable to find it was not newsworthy. We affirm the trial court.

In Bremmer v. Journal-Tribune Publishing Co., 247 Iowa 817, 76 N.W.2d 762 (1956), this court held that a common-law action for invasion of privacy may be maintained in Iowa. We have adopted the principles of the tort delineated in Restatement (Second) of Torts § 652 (1977). See Winegard v. Larsen, 260 N.W.2d 816, 822 (Iowa 1977).

Plaintiff based this action on the theory that defendants invaded her privacy by giving unreasonable publicity to her private life. This theory of invasion of privacy is defined in Restatement section 652D:

One who gives publicity to a matter concerning the private life of another is subject to liability to the other for invasion of his privacy, if the matter publicized is of a kind that

(a) would be highly offensive to a reasonable person, and

(b) is not of legitimate concern to the public.

In moving for summary judgment, defendants relied on several grounds. The trial court rejected public record and waiver of privacy grounds but sustained the motion on the newsworthiness ground. As they are entitled to do, defendants seek affirmance on grounds rejected by the trial court as well as on the ground which was accepted. See State ex rel. Miller v. National Farmers Organization, 287 N.W.2d 905, 906 (Iowa 1979); In re Estate of Poulos, 229 N.W.2d 721, 724-25 (Iowa 1975). In deciding the appeal, we find it necessary to consider only the public record and newsworthiness grounds.

We first summarize the summary judgment record, which includes pleadings, depositions and affidavits.

In her petition, plaintiff alleged she was formerly known as Robin Woody; in 1970, while a minor, she was confined in the Jasper County Home; she was at that time sterilized against her wishes; after her release from the home she led a quiet and respectable life and made friends and acquaintances who were not aware of her surgery; defendant Roy C. Sloan told defendant Margaret Engel about the 1970 sterilization in late 1975 or early 1976; on February 15, 1976, defendant Des Moines Register and Tribune Company published an article in the Des Moines Sunday Register written by Engel which revealed the 1970 sterilization; and this article subjected her to public contempt, ridicule and "inquisitive notice," humiliated her and caused her mental pain and anguish. In separate divisions she asked actual damages of $500,000 and punitive damages of $500,000 from each defendant.

A copy of the newspaper article accompanied the petition. Under a headline which read "Scalding deaths at Jasper Home revealed," and over Margaret Engel's byline, the article was as follows:

NEWTON, IA. The Jasper County Home, under fire from the state Health Department for poor care and lax administration, has a history marred by deaths from scalding baths, sterilizations of women who are not mentally disabled, and shipments of prescription drugs that apparently were illegal.

The administrator of the home for 22 years, Riva Ripper, quit in the wake of a Jan. 30 notice from the Health Department that the home's custodial and nursing licenses will be revoked. The revocation notices accused the home of a long list of health, safety and management violations.

The home's nursing director, Ruth Broderson, also resigned. Ripper's husband, Clarence, who ran the adjoining county farm, died of a heart attack Feb. 1.

Health officials say the home has had continual problems over the years. In checking county records, The Register has learned that two of the home's residents died as a result of scalding baths.

A grand jury investigation was held in 1969 in the death of Sheryl Anthony, 18, who died that May of thermal burns. No indictments were returned and the grand jury's minutes remain secret.

On Sept. 9, 1974, there was a second death from burns at the home.

Richard Shivers, 63, died 13 days after suffering from second and third-degree burns on his back. His aunt, Kathryn Gustafson of Newton, says Shivers told her before he died that he was bathing himself and mistakenly turned on the wrong faucet.

Shivers, who was classed as a chronic schizophrenic, probably got "over nervous and slipped in the tub and could not get out," she said, adding she does not believe anyone was negligent.

Dr. John Ferguson, who visits weekly at the home, said Shivers was able to bathe himself and that he was "momentarily left" by an aide when the accident occurred.

The state Health Department did not know of the deaths until recently, despite a rule requiring nursing homes to submit reports on such accidents. Jonn Wild, director of the department's licensing section, said few reports ever have been filed by the Jasper home.

The Register also learned that an 18-year-old woman sterilized in 1970 was not retarded or mentally disabled, but an "impulsive, hair-triggered young girl," in the words of Dr. Roy C. Sloan, the home's psychiatrist.

He said the decision to sterilize the resident, Robin Woody, was made by her parents and himself. He does not recall whether Woody agreed to the operation, but a woman who was a nurse at the home at the time said "she didn't want it at all."

Forced Sterilization

"For two to three weeks when I came to work she was crying," said Collene Blakely of Newton. "She was told the only way she could be dismissed from the home is if she would agree to be sterilized."

Dr. Sloan denied that, saying, "We don't think in terms of punishment. That child she was a young girl was a very explosive, impulsive young girl largely without controls over her aggressive and, at times, irrational behavior."

He said she was sterilized because "she would be a very questionable risk as far as having and rearing a baby. The people who hold on that way are those who move on to child abuse."

Robin's mother, Mrs. Gladys Woody of Newton, said she agreed with the decision then and now. She would not discuss the matter further.

Woody was discharged from the home Dec. 29, 1971, and Mrs. Woody does not know where she is living.

6 Sterilizations

The State Board of Eugenics reports six sterilizations all of women were approved from the Jasper home in the last five years.

Officers of the board, who are trying to get it abolished by the Legislature, say they do not enforce a 1936 state law allowing sterilizations for persons believed likely to bear a child having "an inherited tendency to mental retardedness, syphilis (sic), mental illness, epilepsy, criminality, or degeneracy or who would probably become a social menace or ward of the state."

"We never approved a sterilization for anybody who was unruly or a discipline problem," said Theresa Weiser, executive secretary of the board. "They had to be severely mentally retarded."

The board approved 176 sterilizations in the last five years; 39 were denied.

Although it is not required that sterilization cases go before the board, Dr. Sloan said the home began sending its requests there in 1972.

"There was a great deal of concern and local criticism emanating from certain people that perhaps there might not have been a need for sterilizations, that there were some shenanigans going on," he said.

Dr. Sloan said he decides whether to recommend the surgery on the basis of "whether that person is capable of being able to become a parent and be responsible for a child."

Chronically Ill

"One of the very sound reasons (for surgery) is for a chronically and severely ill person whose behavior is such that it impairs their judgment so that sex and pregnancy would be considered a desirable thing to accomplish," he said.

He said he cannot recall how many residents were sterilized in his eight years at the home, but that all were women and "a number" weren't retarded. He noted that "probably three or four of the individuals did sign a statement" consenting to the operation. The women's guardians always approved the surgery, he said.

Apparent irregularities involving drugs brought the facility to the attention of another state agency. The home, and the drug firms supplying it, apparently were in violation of policies of the Iowa Board of Pharmacy Examiners for years before the home was granted its first pharmacy license in February, 1973.

Before that time, the late George Weirick, Sr., a pharmacist registered at his Colfax drugstore, would travel to the home one afternoon a week, working with the drugs that had been delivered there. Board rules say prescription drugs cannot be sent to an address other than the one at which a pharmacist is licensed.

The only exception is if a doctor registers with the state to be responsible to receive and lock up any drugs. No doctor was so registered at the Jasper home.

Paul Crews, executive secretary of the pharmacy board, said when a complaint about this situation was filed in 1972, the board insisted a license be obtained.

"We could have...