Yurish v. Sinclair Broad. Grp.

• Decision Date: 19 November 2021
• Docket Number: 20-0722
• Court: Virginia Supreme Court
• Parties: JANE YURISH and KRISTEN DOUTY, Third-Party Plaintiffs Below, Petitioners v. SINCLAIR BROADCAST GROUP, INC., BARRINGTON BROADCASTING GROUP, LLC, CUNNINGHAM BROADCASTING CORPORATION, DEERFIELD MEDIA, INC., GOCOM MEDIA OF ILLINOIS, LLC, GRAY TELEVISION, INC., HOWARD STIRK HOLDINGS, LLC, ROBERTS MEDIA, LLC, NEW AGE MEDIA, NEXSTAR MEDIA GROUP, INC., TEGNA, INC., E.W. SCRIPPS COMPANY, THOMAS BROADCASTING, INC., RSV NG, LLC, and PRESTON and SALANGO, PLLC, Defendants Below, Respondents

JANE YURISH and KRISTEN DOUTY, Third-Party Plaintiffs Below, Petitioners v. SINCLAIR BROADCAST GROUP, INC., BARRINGTON BROADCASTING GROUP, LLC, CUNNINGHAM BROADCASTING CORPORATION, DEERFIELD MEDIA, INC., GOCOM MEDIA OF ILLINOIS, LLC, GRAY TELEVISION, INC., HOWARD STIRK HOLDINGS, LLC, ROBERTS MEDIA, LLC, NEW AGE MEDIA, NEXSTAR MEDIA GROUP, INC., TEGNA, INC., E.W. SCRIPPS COMPANY, THOMAS BROADCASTING, INC., RSV NG, LLC, and PRESTON and SALANGO, PLLC, Defendants Below, Respondents

No. 20-0722

Supreme Court of Appeals of West Virginia

November 19, 2021

Submitted: October 26, 2021

Appeal from the Circuit Court of Berkeley County The Honorable Laura V. Faircloth, Judge Civil Action No. CC-02-2019-C-93

Christian J. Riddell, Esq. Thomas V. Flaherty, Esq. The Riddell Law Group Flaherty Sensabaugh Bonasso PLLC Martinsburg, West Virginia Charleston, West Virginia Counsel for Petitioners

Stuart A. McMillan, Esq. J. Tyler Mayhew, Esq. Bowles Rice LLP Martinsburg, West Virginia Counsel for Respondent RSV NG, LLC

Ben Salango, Esq. Preston & Salango, PLLC Charleston, West Virginia Counsel for Respondent Preston and Salango, PLLC

SYLLABUS BY THE COURT

1. "Appellate review of a circuit court's order granting a motion to dismiss a complaint is de novo." Syllabus Point 2, State ex rel. McGraw v. Scott Runyan Pontiac-Buick, Inc., 194 W.Va. 770, 461 S.E.2d 516 (1995).

2. "A motion to vacate a judgment made pursuant to Rule 60(b), W.Va. R.C.P., is addressed to the sound discretion of the court and the court's ruling on such motion will not be disturbed on appeal unless there is a showing of an abuse of such discretion." Syllabus Point 4, Vanderpool v Hunt, 241 W.Va. 254, 823 S.E.2d 526 (2019).

3. "The constitutionality of a statute is a question of law which this Court reviews de novo." Syllabus Point 2, In re Brandi B., 231 W.Va. 71, 743 S.E.2d 882 (2013).

4. The West Virginia Wiretapping and Electronic Surveillance Act West Virginia Code §§ 62-1D-1 through 16 runs afoul of the First Amendment to the United States Constitution and Article III, Section 7 of the West Virginia Constitution and is unconstitutional as applied to the extent that it allows a civil action to be maintained against an innocent third party who publishes information of public concern that was obtained by the unlawful interception of wire, oral, or electronic communication in violation of the statute but who did not participate in the unlawful interception of the communication.

I

Armstead, Justice.

Jane Yurish and Kristen Douty ("Petitioners") appeal the Circuit Court of Berkeley County's final order denying their Rule 60(b) Motion for Relief from Final Order, in which the circuit court granted motions to dismiss pursuant to Rule 12(b)(6) of the West Virginia Rules of Civil Procedure filed by Respondents^[1] Barrington Broadcasting Group, LLC; Cunningham Broadcasting Corporation; Deerfield Media, Inc.; GOCOM Media Of Illinois, LLC; Gray Television, Inc.; Howard Stirk Holdings, LLC; Roberts Media, LLC; New Age Media; Nexstar Media Group, Inc.; Sinclair Broadcast Group, Inc.; TEGNA; Inc.; Thomas Broadcasting, Inc.; E.W. Scripps Company;^[2] and Preston and Salango, PLLC. In the case of Bartnicki v. Vopper, 532 U.S. 514 (2001), the United States Supreme Court determined that a Pennsylvania statute providing civil remedies to those aggrieved by the interception and disclosure of illegally intercepted communications was unconstitutional as applied to information of public concern that was published by those who did not engage in illegal conduct, but who knew or should have known that the communications had been illegally obtained. In this matter, we likewise find that West Virginia's similar statutory scheme is unconstitutional as applied and affirm the circuit court.

I. FACTUAL AND PROCEDURAL BACKGROUND

Because we must accept as true all allegations contained in the Third-Party Complaint, this recitation of facts derives from the Third-Party Complaint filed by Petitioners.

Petitioners were employees of the Berkeley County Board of Education at Berkeley Heights Elementary School. A.P. was a special education student in their classroom. Petitioners allege that A.P.'s mother violated both the West Virginia Wiretapping and Electronic Surveillance Act^[3] ("West Virginia Act") and its federal construct^[4] ("Federal Act") by placing a secret audio recording device in A.P.'s hair. After having the surreptitious recording device placed in her hair, A.P. went to school and the recording device picked up all ambient noise, conversations, and statements made within audible range of her hair. After the recording was made, A.P.'s mother, or someone acting on her behalf, edited approximately sixty to one hundred and twenty seconds of clips from that recording and provided it to the Respondents. The recordings that were disseminated by A.P.'s mother to Respondents purported to show Petitioners physically and verbally abusing students. ^[5]

All Respondents, except Preston and Salango, PLLC, are various media groups or outlets. The edited audio clip was played by Respondents in numerous broadcast areas nationwide, placed upon social media, and was shared on the internet. The Berkeley County Board of Education subsequently requested that Petitioners resign their employment in lieu of termination. Petitioners offered their resignations.

Petitioners' Third-Party Complaint alleged that: "It was known by all [Respondents] that the footage came from a secret recording which was placed in the hair of A.P. and for which no consenting party was present," and Respondents "violated the provisions of [the West Virginia Act] when [they] intentionally used and disclosed unlawfully intercepted communications of [Petitioners] while having reason to know that the information was obtained through the interception of oral communications in violation of" the West Virginia Act. The Third-Party Complaint also alleged that the use and disclosure of the "unlawful recording . . . further violated the provisions of" the Federal Act. Conversely, nowhere in the 321 numbered allegations contained in the Third-Party Complaint is it alleged that any Respondent had any hand in either A.P.'s classroom recording or in A.P.'s mother's subsequent edit of that recording.

Respondents filed motions to dismiss for failure to state a claim upon which relief can be granted pursuant to Rule 12(b)(6) of the West Virginia Rules of Civil Procedure^[6] arguing that the United States Supreme Court's decision in Bartnicki is controlling authority and barred all causes of action raised in the Third-Party Complaint by operation of the First Amendment to the United States Constitution. The circuit court agreed. In its Order Granting Motion to Dismiss Third-Party Complaint Against Media [Respondents] and Preston and Salango, PLLC, the circuit court, relying upon Bartnicki, found that:

[E]ven if the recording had been obtained in violation of the [West Virginia Act] and [Federal Act], the claims against the Media [Respondents] are dismissed as a matter of law as the broadcasts and recording pertained to a matter of great public importance - alleged child abuse in public schools - and the application of the provisions of the state and federal wiretap laws against the Media [Respondents] would violate their constitutional free speech rights. The same analysis applies to postings of news articles by Preston [and] Salango[, PLLC].

It is accordingly the opinion of this Court that there can be no greater matter of public concern than the manner in which our children are addressed and treated in the public school system, which is funded by taxpayer dollars. The public has a right to know what transpires in public schools and the First Amendment protects dissemination of that information. For this Court to rule otherwise would be a chilling effect on the First Amendment to the United States Constitution and to our free press and media, as well as public discussion. It would likewise serve as a shield to hide and keep secret conduct, [as] the public has a right to know what occurs in our public schools.

The publications by the Media [Respondents] and Preston [and] Salango[, PLLC] do not qualify as commercial speech because those publications do more than simply propose a commercial transaction.

After the circuit court entered its final order granting Respondents' motions to dismiss, Petitioners filed a motion below seeking relief from the final order pursuant to West Virginia Rule of Civil Procedure 60(b).^[7] In that motion, Petitioners sought clarification of the circuit court's order as it related to whether the publication of the audio recording on Preston and Salango, PLLC's webpage was commercial speech. Attached to that motion was Exhibit B, which Petitioners claimed was newly discovered and was alleged to contain the following language, "[i]f you are a parent of a special needs child who attended Berkeley Heights Elementary School between 2016 and 2019 and suspect your child may have been physically or verbally abused, please contact Preston [and] Salango[, PLLC]." We would note that Exhibit B in the Appendix is illegible.

Thereafter, the circuit court entered an order denying relief to Petitioners but did clarify the circuit court's reasoning regarding its determination that Preston and Salango, PLLC's, publication of the recording was not commercial speech. It is from the circuit court's grant of the motion to dismiss and subsequent denial of the Rule 60(b) motion that Petitioners appeal.

II. STANDARD OF REVIEW

We have previously held that "[a]ppellate review of a circuit court's order granting a motion to dismiss a complaint is de novo." Syllabus Point 2, State ex rel McGraw v. Scott Runyan Pontiac-Buick, Inc., 194...