Nicholson v. McClatchy Newspapers

• Decision Date: 11 February 1986
• Citation: 223 Cal.Rptr. 58,177 Cal.App.3d 509
• Court: California Court of Appeals Court of Appeals
• Parties: , 12 Media L. Rep. 2009 George NICHOLSON, Plaintiff and Appellant, v. McCLATCHY NEWSPAPERS, Claire Cooper, Daily Journal Company and Larry Sokoloff, Defendants and Respondents. Civ. 24370.

Page 58

223 Cal.Rptr. 58

177 Cal.App.3d 509, 12 Media L. Rep. 2009

George NICHOLSON, Plaintiff and Appellant, v. McCLATCHY NEWSPAPERS, Claire Cooper, Daily Journal Company and Larry Sokoloff, Defendants and Respondents.

Civ. 24370.

Court of Appeal, Third District, California.

Feb. 11, 1986.

Greve, Clifford, Diepenbrock & Paras, Thomas S. Knox, Sacramento, for plaintiff and appellant.

Diepenbrock, Wulff, Plant & Hannegan, Charity Kenyon, Sacramento, Munger, Tolles & Rickershauser, Allen M. Katz, Anne H. Egerton and Diane M. Johnson, Los Angeles, for defendants and respondents.

SPARKS, Associate Justice.

Plaintiff George Nicholson brought suit against the State Bar of California and two newspapers and their reporters for damages and other relief. The action arose out of the publication of the unauthorized disclosure Although plaintiff's complaint set forth ten causes of action against the media defendants, the primary thrust of the complaint was that the media defendants violated his right to privacy by obtaining and publishing information which by law was confidential. The trial court found that publication of the information was constitutionally privileged and consequently sustained the demurrers of the media defendants without leave to amend. On appeal plaintiff attempts to distinguish between publication of confidential information lawfully obtained by the press and that obtained tortiously. He argues that the publication of legally confidential information obtained by tortious conduct is not protected by the First Amendment. We agree that illegal conduct by a reporter is not privileged simply because the ultimate purpose is to obtain information to publish. But the First Amendment protects the ordinary news gathering techniques of reporters and those techniques cannot be stripped of their constitutional shield by calling them tortious. Since the complaint did not allege any impermissible reporting techniques, the demurrers were properly sustained.

of the confidential fact that the Commission on Judicial Nominees Evaluation had found plaintiff was not qualified for judicial appointment. Defendants McClatchy Newspapers, Claire Cooper, Daily Journal Company, and Larry Sokoloff ("media defendants") demurred to the complaint on the grounds that the publication was privileged under the First Amendment.

FACTUAL AND PROCEDURAL HISTORY

Before the Governor can appoint a person to a judicial office he is statutorily required to submit the names of all potential appointees or nominees to a designated agency of the State Bar of California for an evaluation of their judicial qualifications. (Gov.Code, § 12011.5, subd. (a).) The State Bar is required to employ appropriate confidential procedures to evaluate and determine the qualifications of each candidate with regard to his or her ability to discharge the judicial duties of the office to which the appointment or nomination shall be made. (Gov.Code, § 12011.5, subd. (c).) "Within 90 days of submission by the Governor of the name of a potential appointee for judicial office, the State Bar shall report in confidence to the Governor its recommendation whether the candidate is exceptionally well-qualified, well-qualified, qualified or not qualified and the reasons therefor, and may report, in confidence, such other information as the State Bar deems pertinent to the qualifications of the candidate." (Ibid.)

The evaluation of the State Bar, with two exceptions, is required to be kept confidential. Confidentiality is mandated by section 12011.5, subdivision (f), which provides: "All communications, written, verbal or otherwise, of and to the Governor, the Governor's authorized agents or employees, including, but not limited to, the Governor's Legal Affairs Secretary and Appointments Secretary, or of and to the State Bar in furtherance of the purposes of this section are absolutely privileged from disclosure and confidential, and any communication made in the discretion of the Governor or the State Bar with a candidate or person providing information in furtherance of the purposes of this section shall not constitute a waiver of such privilege or a breach of confidentiality." The first exception is when the Governor has appointed a person found not qualified to a trial court in which case the State Bar may make its evaluation public after due notice to the appointee. The second exception arises when the Governor appoints a person to an appellate court, in which case the evaluation and the reasons therefor may be submitted to the Commission on Judicial Appointments. (Gov.Code, § 12011.5, subds. (g), (h).)

In April 1983, the Governor submitted plaintiff's name to the State Bar and its designated agency known as the Commission of Judicial Nominees Evaluation. The Commission rated plaintiff unqualified for judicial office and he was not thereafter appointed to judicial office. Although the fact that the State Bar rated plaintiff unqualified for judicial office was required to be kept absolutely confidential, that fact Plaintiff filed his complaint against the media defendants and the State Bar in March 1984. He alleged that the defendants "conspired and agreed among themselves to disclose to unauthorized persons and for unauthorized purposes, and to publish and advertise to the public at large, the results of the Commission's evaluation of Plaintiff's qualifications for judicial office." Plaintiff set forth 15 causes of action, only the first 10 of which are against the media defendants. ¹ Those causes of action are for: (1) breach of Government Code section 12011.5; (2) breach of Civil Code section 1798 et seq.; ² (3) breach of the common law right of privacy in the public disclosure of private facts; (4) breach of the common law right of privacy by intrusion; (5) breach of the right of privacy under the California Constitution; (6) breach of the right of privacy under the United States Constitution; (7) intentional infliction of emotional distress; (8) negligent infliction of emotional distress; (9) violation of equal protection under the California Constitution; and (10) violation of the right of equal protection under the federal Constitution. Although the legal theories asserted are different, all of the causes of action against the media defendants are based upon the fact that they obtained and published the fact that the State Bar rated plaintiff unqualified for judicial appointment.

was in some manner communicated to the media defendants who published it in their newspapers, the Sacramento Bee and the Los Angeles Daily Journal, in July 1983.

The media defendants demurred to the complaint. The trial court sustained the demurrers, ruling that the publications in question were privileged under the First Amendment of the United States Constitution. ³ The court held that as to the fourth cause of action, breach of the right of privacy through intrusion, the damages caused were due to publication of the information obtained through intrusion and since the publication itself was privileged no cause of action could be stated. The demurrers were sustained without leave to

amend and a judgment of dismissal was entered as to the media defendants. The State Bar was not involved in the demurrers to the complaint, and we are not concerned here with the complaint as it relates to the State Bar.

DISCUSSION

"The right to keep information private often clashes with the First Amendment right to disseminate information to the public. Sensitive to this conflict and the privacy tort's potential encroachment on the freedoms of speech and the press, decisional law recognizes a broad privilege cloaking the truthful publication of newsworthy matters." (McCall v. Oroville Mercury Co. (1983) 142 Cal.App.3d 805, 807, 191 Cal.Rptr. 280, citations omitted.) At the time of the publications in this case plaintiff had recently campaigned unsuccessfully for the office of Attorney General of the State of California, and was being considered for appointment to judicial office. He was thus a "public figure," and the State Bar's evaluation of his judicial qualifications must be considered "newsworthy." (See Briscoe v. Reader's Digest Association, Inc. (1971) 4 Cal.3d 529, 535, esp. fn. 5, 93 Cal.Rptr. 866, 483 P.2d 34.) Plaintiff does not contend otherwise, nor does he allege that the media defendants reported their information falsely or even inaccurately. The truthful reporting of newsworthy matters is prima facie privileged. (Ibid. See also Forsher v. Bugliosi (1980) 26 Cal.3d 792, 811-813, 163 Cal.Rptr. 628, 608 P.2d 716.) Thus, the allegation that defendants published a truthful account of a newsworthy event about a public figure merely alleges a constitutionally privileged publication.

But plaintiff goes beyond that allegation. He notes that since he was not appointed to a judicial office the Government Code provides that the State Bar's evaluation and communications with the Governor were to remain "absolutely privileged." (Gov.Code, § 12011.5, subd. (f).) Pursuant to this provision plaintiff had the right to expect the State Bar's negative evaluation would remain confidential and, undoubtedly, someone acted in violation of this law in disclosing the evaluation to the media defendants. But this factor alone, as we shall demonstrate, does not operate to render the media defendants liable for civil sanctions or monetary damages in lawsuits. ⁴

We begin with Cox Broadcasting Corp. v. Cohn (1975) 420 U.S. 469, 95 S.Ct. 1029, 43 L.Ed.2d 328. There the Supreme Court considered whether a cause of action for breach of privacy could be maintained for the publication of the name of a deceased rape victim. The victim's father brought a civil action against the defendant broadcaster based upon a state statute which made it a misdemeanor to publish or broadcast the name of a rape victim and upon the common law action for violation of the right of privacy recognized in his state. The Supreme...