Unwitting Victim v. CS

• Decision Date: 31 May 2002
• Docket Number: No. 87,114.,87,114.
• Citation: 273 Kan. 937,47 P.3d 392
• Parties: UNWITTING VICTIM, Appellant, v. C.S., Appellee.
• Court: Kansas Supreme Court

273 Kan. 937

47 P.3d 392

UNWITTING VICTIM, Appellant, v. C.S., Appellee.

No. 87,114.

Supreme Court of Kansas.

Opinion filed May 31, 2002.

Benoit M.J. Swinnen, of Schroer, Rice, P.A., of Topeka, argued the cause and was on the briefs for appellant.

Nancy E. Freund, of Murphy & Freund, of Topeka, argued the cause and was on the brief for appellee.

The opinion of the court was delivered by

ABBOTT, J.:

Appellant filed a civil suit against appellee C.S. in the District Court of Shawnee County using the pseudonym "Unwitting Victim" instead of his name. C.S. immediately filed a motion to dismiss and a request for sanctions. On February 16, 2001, Shawnee County District Judge Terry L. Bullock granted C.S.'s motion to dismiss, finding that appellant's privacy interest was not of sufficient magnitude to warrant the use of an alias petition. Appellant now appeals the district court's dismissal of the civil suit. The matter is before this court pursuant to our own transfer under the authority of K.S.A. 20-3018(c).

Appellant's petition alleged four separate counts against C.S. In Count I, appellant alleged that C.S. failed to indicate that she had herpes prior to or during their intimate relationship and that it was not until after appellant developed genital sores that C.S. admitted she had contracted herpes 5 years earlier. In Count II, appellant claimed he was entitled to the return of an engagement ring given to C.S. or damages in the amount of $10,000. In Count III, appellant alleged that C.S. "enticed" appellant into placing funds into a joint checking account and then appropriated his money without his consent. Finally, in Count IV, appellant claimed that "[i]n addition to giving [appellant] herpes, the combination of [C.S.'s] drug use and sexual activity with homosexuals, has placed [appellant] in imminent fear of having contracted the deadly disease AIDS."

Appellant sought money damages of $500,000 in connection with Count I; the return of the engagement ring or $10,000 for Count II; $8,000 in damages in connection with Count III; and $500,000 in connection with Count IV.

Within 2 weeks of the date the petition was filed, C.S. filed a motion to dismiss and request for sanctions. C.S. contended that appellant's petition was inappropriately captioned contrary to K.S.A. 60-210. According to C.S., appellant filed the petition keeping his identity private "while attacking the Defendant's character, morality, etc. in the sole effort to harass, embarrass, besmirch, smear, malign and otherwise destroy the reputation of the Defendant." C.S. additionally remarked in her motion to dismiss:

"That the Defendant is a self-employed person dealing in hygiene of others, and the allegations contained in this Petition are damaging to her career and financial industry and to make such allegations as a strong armed tactic to obtain a ring purchased with joint funds is without excuse and should not be tolerated by this Court."

Judge Bullock granted C.S.'s motion to dismiss, finding that appellant's petition had been improperly filed in violation of K.S.A. 60-210(a). Judge Bullock first found that K.S.A. 60-210(a) expressly requires petitions to include the names of the parties and that there were no Kansas cases allowing the use of alias petitions. However, Judge Bullock then discussed the Tenth Circuit Court of Appeals case M.M. v. Zavaras, 139 F.3d 798 (10th Cir. 1998), which involved the issue of whether a plaintiff could use a pseudonym.

Judge Bullock quoted a portion of the Zavaras opinion, stating that the use of a pseudonym by the plaintiff is a rare procedure to be allowed only where an important privacy interest is recognized. Then, concluding that appellant had "not displayed a privacy interest of such exceptional magnitude as to warrant anonymity," Judge Bullock held that appellant's petition had been improperly filed in violation of K.S.A. 60-210(a).

Following Judge Bullock's decision, appellant filed a motion to alter or amend the judgment pursuant to K.S.A. 60-259. Appellant alternatively requested that the district court allow him to amend his petition using his real name. The district court wrote that no new arguments or authorities had been presented and summarily denied the motion. Appellant timely perfected his appeal pursuant to K.S.A. 60-2102(a). The notice of appeal indicates that appellant contests both the dismissal of the lawsuit and the denial of his motion to alter or amend.

Appellant requests this court to reverse the decision of the district court to dismiss and allow appellant to proceed using a pseudonym, or in the alternative, to permit the appellant to amend the petition using his real name.

The district court's decision granting dismissal may be broken into two distinct parts. The first part of the district court's decision involved the legal determination that under K.S.A. 60-210(a), a plaintiff may file an anonymous lawsuit where an important privacy interest exists. The second part of the court's decision involved a factual determination that appellant failed to display a privacy interest of a magnitude sufficient to warrant anonymous filing and, thus, that appellant's petition violated K.S.A. 60-210(a). Therefore, it is suitable to treat the two parts of the decision separately, applying the appropriate standard of review to each part.

The first part of the district court's decision consists of the legal conclusion that under K.S.A. 60-210(a), a plaintiff may file an anonymous lawsuit where an important privacy interest exists. We must determine whether 60-210(a) allows a plaintiff to institute a lawsuit anonymously. Such a determination entails the interpretation of K.S.A. 60-210(a). "`Interpretation of a statute is a question of law. An appellate court's review of questions of law is unlimited.'" Glassman v. Costello, 267 Kan. 509, 517, 986 P.2d 1050 (1999).

K.S.A. 60-210(a) provides:

"Caption; names of parties. Every pleading shall contain a caption setting forth the name of the court, the title of the action, the file number, and a designation as in K.S.A. 60-207(a). In the petition the title of the action shall include the names of all the parties, but in other pleadings it is sufficient to state the name of the first party on each side with an appropriate indication of other parties." (Emphasis added.)

Here, appellant simply filed his petition using the pseudonym "unwitting victim" in place of his name. Appellant did not seek an order from the district court, but simply filed his petition under a fictitious name "to preserve his anonymity and to further prevent additional damage to plaintiff." Appellant has also indicated that he wishes to avoid "the social stigma associated with venereal diseases and the grave emotional burden that results from its admission in future personal relationships."

Appellant argues in favor of interpreting 60-210(a) as allowing anonymous or pseudonymous pleading, noting that the United States Supreme Court in Roe v. Wade, 410 U.S. 113, 124, 35 L. Ed.2d 147, 93 S. Ct. 705 (1973), implicitly recognized the propriety of employing a fictitious name in anonymous pleadings. This assertion is uncontested. Appellant additionally contends that because the Kansas Rules of Civil Procedure are modeled after the Federal Rules of Civil Procedure, and because the federal courts of Kansas and the Tenth Circuit acknowledge a plaintiff's right to proceed under a fictitious name, this court should also be persuaded to recognize the practice.

Despite the United States Supreme Court's implicit recognition of the practice of proceeding under a pseudonym, neither Kansas statutory nor case law explicitly recognize the propriety of anonymous or pseudonymous pleading. However, Kansas statutes and Kansas Supreme Court rules clearly mandate anonymity for juveniles involved in court proceedings. See K.S.A. 38-1507, K.S.A. 38-1552, and K.S.A. 38-1607; Supreme Court Rule 7.043 (2001 Kan. Ct. R. Annot. 50).

In addition, various Kansas statutes provide for confidentiality for witnesses and others under specific circumstances. See e.g., K.S.A. 60-436 (providing that crime stoppers chapter member or government witness may keep the identity of an informant confidential); K.S.A. 39-1411(d) (mandating that the identity of the person reporting violations to the Kansas Department of Health and Environment not be disclosed unless it is adjudicated that the need for the information outweighs the need for confidentiality); K.S.A. 65-5603 (prohibiting treatment personnel from revealing the identity of a person that has been or is receiving mental, alcoholic, narcotic, or emotional treatment).

The Tenth Circuit Court of Appeals, however, has clearly expressed recognition of the propriety of anonymous pleading. Even so, the Tenth Circuit has narrowly defined the permissible instances where a plaintiff may be identified by a pseudonym.

In Lindsey v. Dayton-Hudson Corp., 592 F.2d 1118 (10th Cir.), cert. denied 444 U.S. 856 (1979), the plaintiff filed suit against Target Stores for false imprisonment, malicious prosecution, assault and battery, slander, and civil rights violations. Summary judgment was granted against plaintiff and he subsequently appealed. In a portion of its analysis, the Tenth Circuit Court of Appeals considered the plaintiff's contention that he should have been allowed to proceed anonymously under the fictitious name John Doe. The Lindsey court wrote:

"This use of pseudonyms concealing plaintiffs' real names has no explicit sanction in the federal rules. Indeed it seems contrary to Fed. R. Civ. P. 10(a) which requires the names of all parties to appear in the complaint. Such use obviously may cause problems to defendants engaging in discovery and establishing their defenses, and in fixing res judicata effects of judgments. Yet the Supreme Court has given the practice implicit recognition in the abortion cases, Roe v. Wade, 41 U.S. 113, 93 S. Ct. 705, 35 L.

...