Montesano v. Donrey Media Group

• Decision Date: 06 September 1983
• Docket Number: No. 12275,12275
• Citation: Montesano v. Donrey Media Group, 668 P.2d 1081, 99 Nev. 644 (Nev. 1983)
• Parties: , 9 Media L. Rep. 2266 Ronald Kent MONTESANO, Appellant, v. DONREY MEDIA GROUP, d/b/a Las Vegas Review Journal and Sue Volek, Respondents.
• Court: Nevada Supreme Court

Page 1081

668 P.2d 1081

99 Nev. 644, 9 Media L. Rep. 2266

Ronald Kent MONTESANO, Appellant, v.DONREY MEDIA GROUP, d/b/a Las Vegas Review Journal and Sue Volek, Respondents.

No. 12275.

Supreme Court of Nevada.

Sept. 6, 1983.

Lehman and Nelson and Harold M. Hecht, Las Vegas, for appellant.

Dickerson, Miles & Pico, Las Vegas, for respondents.

OPINION

MANOUKIAN, Chief Justice¹:

This appeal concerns the claimed tortious public disclosure of private facts.Appellant contends that the actionable wrong resulted from the respondents' publication of his involvement in a hit-and-run accident twenty years earlier in which a police officer was killed.Respondents argue that because the news article was drawn from public records and because appellant's misdeeds were directly related to a subject of current public interest, the hit-and-run accident which occurred twenty years earlier was "newsworthy" at the time of publication.Being persuaded that "the interests of privacy fade when the information involved already appears on the public record" and that appellant's conviction for hit-and-run was intimately connected to the subject matter of the news story, we conclude that no actionable tort resulted from respondents' publication.Accordingly, we affirm the lower court's order dismissing the complaint with prejudice.

The seed of this dispute was sown in April 1955, when a Las Vegas police officer, who was responding to an emergency call, was killed in a collision.Appellant, Ronald Kent Montesano, was a passenger in the car which collided with the officer's motorcycle.Both appellant and the driver of the car in which he was riding fled the scene of the accident.At that time, appellant was seventeen years old.He was adjudicated as a juvenile delinquent and spent several weeks in the State Industrial School at Elko.

Appellant's criminal history did not end with the hit-and-run conviction.When appellant was nineteen, his Las Vegas apartment was the target of a narcotics raid.As a result of the raid, he was charged with and convicted for felony possession of marijuana.Appellant was sentenced as an adult offender to two years at the Nevada State Prison.

On February 24, 1978, the respondents printed a story describing the recent murder of a policeman.The newspaper article also recounted the history of Las Vegas law enforcement officers who had lost their lives in the line of duty.The specifics of appellant's hit-and-run conviction were detailed, as well as his conviction for possession of marijuana.Appellant was identified by name in the article.²

Appellant brought an action grounded on two claims for relief.First, he alleged a claim for public disclosure of private facts.Appellant contended that the twenty year span between the hit-and-run and the respondents' publication eroded any "newsworthiness" his misfortunes may have had because during that period he married, raised a family and became a law abiding citizen.Secondly, he alleged that the newspaper violated his statutory privilege of confidentiality provided by NRS 62.200(3)(now NRS 62.211(3)) because he was a juvenile when the collision occurred.³

Respondents moved to dismiss the complaint under NRCP 12(b)(5) for failure to state a claim upon which relief can be granted.They noted that the relevant information of appellant's hit-and-run conviction was contained in a parole and probation report prepared in 1955 to assist the court's sentencing decision on his possession conviction.Respondents alleged that the report was "a matter of public court record."Because appellant's misdeeds were of public record, respondents contended that he could not avail himself of the protections of NRS 62.211(3), nor could he maintain an action for public disclosure of private facts.Additionally, respondents argued that because appellant's hit-and-run conviction was relevant to an issue of contemporary public interest, mere passage of time did not erode the "newsworthiness" of appellant's criminal history.

The lower court ruled that the complaint failed to state a claim upon which relief can be granted because no publication of "private facts" occurred.The complaint was dismissed with prejudice.Appellant now challenges the lower court's ruling.

1.Standard of Review.

On appeal, respondents argue that matters outside the pleadings were attached to their Rule 12(b)(5) motion which were not excluded by the court and that, pursuant to Rule 12(b), "the motion [was] treated as one for summary judgment and disposed of as provided in Rule 56...."See alsoCummings v. City of Las Vegas Mun. Corp., 88 Nev. 479, 499 P.2d 650(1972);Keller v. Snowden, 87 Nev. 488, 489 P.2d 90(1971).Appellant seems to contend that because respondents did not submit any affidavits in support of their motion, the trial court did not treat it as one for summary judgment.

Respondents' motion was accompanied by the court records of appellant's offenses and by a copy of the news article.Appellate courts generally rely on two factors in determining whether a trial court rendered summary judgment rather than dismissed the cause for failure to state a claim.First, the reviewing court looks for indications that the lower court affirmatively excluded material outside the pleading.Lodge 1380, Broth. of Ry., etc. v. Dennis, 625 F.2d 819, 824(9th Cir.1980).In the instant case, the lower court relied on "matters outside the pleading" when arriving at its decision to dismiss appellant's claim for relief.The second factor is whether the reason for dismissal indicates that the district court did, in fact, consider matters outside the complaint.Lodge 1380, 625 F.2d at 825.Here, the trial court found that, as a matter of law, no cause of action existed for invasion of privacy because the facts disclosed were not private facts.This ruling indicates that the trial judge transcended the bare allegations in the complaint and considered matters outside the pleadings.Therefore, the dismissal of appellant's action should be treated as a summary judgment.

Appellant, however, has conceded in his opposition to the motion to dismiss and on appeal that the relevant facts herein are undisputed.Thus, we can rule on this issue as purely a question of law.

2.The Public Record Ground.

This court has impliedly recognized an action for invasion of privacy in Norman v. City of Las Vegas, 64 Nev. 38, 177 P.2d 442(1947).In the instant case, appellant has based his claim for relief on the fourth branch of the tort of invasion of privacy.The Second Restatement of the Law of Torts has named that branch the tort of "Publicity Given to Private Life."Restatement (Second) of Torts§ 652D(1977).To maintain a cause of action for public disclosure of private facts one must prove that a public disclosure of private facts has occurred which would be offensive and objectionable to a reasonable person of ordinary sensibilities.Forsher v. Bugliosi, 26 Cal.3d 792, 163 Cal.Rptr. 628, 637, 608 P.2d 716, 725(1980);Restatement (Second) of Torts§ 652D(1977).At issue in the present case is whether the publicity concerned the private, as distinguished from public life, of the appellant and whether the matter publicized is of a kind that is not of legitimate concern to the public.SeeHoward v. Des Moines Register & Tribune Co., 283 N.W.2d 289, 298(Iowa1979), cert. denied, 445 U.S. 904, 100 S.Ct. 1081, 63 L.Ed.2d 320(1980).

As noted in Comment b to Section 652D, "[t]here is no liability when the defendant merely gives further publicity to information about the plaintiff that is already public."AccordHoward, 283 N.W.2d at 298;Winegard v. Larsen, 260 N.W.2d 816, 823(Iowa1977).SeeWarren & Brandeis, The Right to Privacy, 4 Harv.L.Rev. 193, 214(1890).The courts have universally recognized that, for the purposes of the tort of invasion of privacy, materials properly contained in a court's official records are public facts.Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 95 S.Ct. 1029, 43 L.Ed.2d 328(1975);Melvin v. Reid, 112 Cal.App. 285, 297 P. 91, 93(1931);Bell v. Courier Journal and Louisville Times Co., 402 S.W.2d 84, 88(Ky.1966);Hubbard v. Journal Publishing Co., 69 N.M. 473, 368 P.2d 147, 148(1962);Schnabel v. Meredith, 378 Pa. 609, 107 A.2d 860, 862-863(1954).To resolve this issue, we must determine whether the information which the respondents printed in the Las Vegas Review Journal was properly contained in the court's official record.SeeHoward, 283 N.W.2d at 299.

Section 1038.19 of the 1943 NCL provides, in relevant part, that "the name or race of any such child in connection with any proceedings under [the Juvenile Court Act shall not] be published in any newspaper without a written order of the court."This statute or its substantial equivalent was in effect in 1955 when the accident occurred and in 1978 when the article was published.The records indicate that appellant was adjudicated as a juvenile delinquent.It follows that his conviction for "hit-and-run" should have never been published in a newspaper.⁴NRS 62.211(3).Nevertheless, some of the information concerning the 1955 accident found its way into a State Parole and Probation report which was prepared for the judge who sentenced appellant on the possession charge.This information was incorporated into official court records regarding a criminal charge for which appellant was tried as an adult.It is the publication of this information which prompted this litigation.⁵

Although NRS 62.211(3) and its predecessors plainly state that the name of a child shall not be published in any news medium in connection with a juvenile court proceeding, for the purpose of this appeal, the material published by the respondents should be considered "public facts."The tort of invasion of privacy by publication of private facts pits society's interest in a free press against an individual's right to privacy.SeeCox Broadcasting...