Doe v. Brown ( 2015 )

 Having reviewed the parties' briefs and appendix, we affirm the district
court's order.
The district court properly found that Doe did not meet the requirements of
NRS 41.660
At the time of the district court's ruling, the anti-SLAPP
statute protected actions "brought against a person based upon a good
faith communication in furtherance of the right to petition." NRS
41.660(1) (1997).' A good faith communication is one that is "truthful or
made without [the] knowledge of falsehood." John, 125 Nev. at 761, 219
P.3d at 1286. "[T]he moving party must first make a threshold showing
that the lawsuit is based on good faith communications made in
1 In 2013, the Legislature amended Nevada's anti-SLAPP statutes.
As part of those amendments, NRS 41.660(1) was amended to also include
protection for "good faith communication in furtherance of ... the right to
free speech in direct connection with an issue of public concern." 2013
Nev. Stat., ch. 176, § 3, at 623. On appeal, neither Doe nor the Browns
specifically address the amendments to the statute; however, Doe raises
arguments under the new version and the Browns address only the old
version. Doe's posted comments and the special motion to dismiss
preceded the 2013 legislative amendment to NRS 41.660(1). Because
there is no indication that the Legislature intended any retroactive
application of the 2013 amendments, we apply the 1997 version to this
case. See Sandpointe Apartments, LLC v. Eighth Judicial Dist. Court, 129
Nev., Adv. Op. 87, 313 P.3d 849, 853 (2013) ("[S]tatutes are presumed to
only operate prospectively, unless it is clear that the drafters intended the
statute to be applied retroactively."); Pub. Emps.' Benefits Program v. Las
Vegas Metro. Police Dep't, 124 Nev. 138, 155, 179 P.3d 542, 553 (2008)
("[W]hen the Legislature intends retroactive application, it is capable of
stating so clearly."). Thus, whether Doe's posted comments were protected
as "an issue of public concern," NRS 41.660(1) (2013), is irrelevant here,
and we consider only the protections afforded "in furtherance of the right
to petition." NRS 41.660(1) (1997).
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furtherance of the right to petition the government." Id. at 754, 219 P.3d
at 1282 (internal quotations omitted).
Here, appellants John or Jane Doe, as an anonymous poster
on the Las Vegas Review Journal's (RJ) website using the pseudonym
"Lawyer," posted several comments about respondents Mary and Phil
Brown. At the time of these articles, Mary was a Chief Deputy District
Attorney in the Juvenile Division of the Clark County District Attorney's
office; the comment suggested she was promoted due to intimate relations.
Doe argues that his comments meet the threshold burden of
good faith because there is "an interest in the credibility of the witnesses
and the selection of a new district attorney." But nothing in the record
supports this contention. Instead of referring to support in the record, Doe
simply insists that the statements are true because the Browns did not
previously deny them. We conclude that this is not enough to shift the
burden to the Browns, as Doe has failed to sufficiently prove that the
comments in question were in fact "truthful or made without [the]
knowledge of falsehood." John, 125 Nev. at 761, 219 P.3d at 1286.
Doe further argues that the comments in question are
protected as they were in furtherance of the right to petition.' A Iglood
faith communication in furtherance of the right to petition" includes a
'Doe also argues that the anti-SLAPP statute protects his comments
even if "no formal proceeding was scheduled for any of the actors," and,
instead, comments such as his are protected when issues are merely
"under review by legislative and judicial bodies." However, Doe provides
no evidence in the record to support these contentions, and thus, this
argument need not be addressed by this court. See Edwards v. Emperor's
Garden Rest., 122 Nev. 317, 330 n.38, 130 P.3d 1280, 1288 n.38 (2006)
(noting that this court need not consider claims that are not cogently
argued or supported by relevant authority).
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"[w]ritten or oral statement made in direct connection with an issue under
consideration by a legislative, executive or judicial body, or any other
official proceeding authorized by law." NRS 41.637(3) (1997). Because we
see no ambiguity in the statute, we give effect to the statute's plain
meaning, D.R. Horton, Inc. v. Eighth Judicial Dist. Court, 123 Nev. 468,
476, 168 P.3d 731, 737 (2007), and conclude that Doe's comments were not
made in direct connection with any issue under consideration by any
governmental body, or in connection with any other official legal
proceeding. The comments have no connection to any actions being
considered by the Clark County Commission, the State Bar of Nevada, or
the Commission on Judicial Discipline.
The Browns are not public figures
Doe argues that the Browns are, at a minimum, limited-
purpose public persons because of their professions and consequently, the
Browns must prove actual malice in their defamation suit. We disagree.
Whether a plaintiff is a public figure or a limited-purpose
public figure is a question of law that this court reviews de novo. Bongiovi
v. Sullivan, 122 Nev. 556, 572, 138 P.3d 433, 445 (2006) (citing Schwartz
v. Am. Coll. of Emergency Physicians, 215 F.3d 1140, 1145 (10th Cir.
2000)). The United States Supreme Court has created two categories of
public figures: "[t]hose who, by reason of the notoriety of their
achievements or the vigor and success with which they seek the public's
attention, . . . and those who hold governmental office." Gertz v. Robert
Welch, Inc., 418 U.S. 323, 342 (1974). Recognizing that a victim of
defamation would look to "self-help," the court noted that "[Aublic officials
and public figures usually enjoy significantly greater access to• the
channels of effective communication and hence have a more realistic
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opportunity to counteract false statements than private individuals
normally enjoy." Id. at 344.
Here, Doe argues that the Browns are, at a minimum, limited-
purpose public persons because of their professions and because they
"thrust themselves into the spotlight by swearing out an affidavit [about
Judge Jones's inappropriate relationship with a prosecutor] and then
making it public by talking to the media." Consequently, the Browns
must prove actual malice in their defamation suit. We disagree.
As deputy district attorneys, the Browns were government
employees, not elected public officials. The Browns likely did not have
access to "self-help"—the record neither indicates that the Browns
accessed the media nor counteracted Doe's comments in any way aside
from initiating the instant case. We conclude that the Browns are not
public figures.
Nor were the Browns limited-purpose public figures. "A
limited-purpose public figure is a person who voluntarily injects himself or
is thrust into a particular public controversy or public concern, and
thereby becomes a public figure for a limited range of issues." Pegasus v.
Reno Newspapers, Inc., 118 Nev. 706, 720, 57 P.3d 82, 91 (2002). To
determine whether a person becomes a limited-purpose public figure, this
court "examin[es] the 'nature and extent of an individual's participation in
the particular controversy giving rise to the defamation." Bongiovi, 122
Nev. at 572, 138 P.3d at 445 (quoting Gertz, 418 U.S. at 352). "The test for
determining whether someone is a limited public figure includes
examining whether a person's role in a matter of public concern is
voluntary and prominent." Pegasus, 118 Nev. at 720, 57 P.3d at 91 (citing
Gertz, 418 U.S. at 351-52).
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Doe contends that, as prosecutors, the Browns placed
themselves in the public by addressing the media multiple times
throughout their careers, which included purposefully thrusting
themselves into the spotlight in the ongoing controversy involving Judge
Jones. However, there is no indication in the record to evince that the
Browns voluntarily sought out the media or purposely thrust themselves
into a public controversy. Thus, we conclude that the district court did not
err in finding that the Browns are not limited-purpose public figures.
The district court did not abuse its discretion when it did not entertain
Doe's spoliation of evidence argument
In Doe's special motion to dismiss, Doe claimed that the
Browns had a duty to preserve the posted comments. However, Doe failed
to argue this point during the district court hearing on Doe's special
motion to dismiss. Presumably, the district court did not consider this
argument, as it was not discussed during the hearing nor was it part of
the district court's order. "A point not urged in the trial court, unless it
goes to the jurisdiction of that court, is deemed to have been waived and
will not be considered on appeal." Old Aztec Mine, Inc. v. Brown, 97 Nev.
49, 52, 623 P.2d 981, 983 (1981). Thus, we do not consider this argument
on appeal.
For the reasons set forth above, we ORDER the judgment of
the district court AFFIRMED.
Gibbons
0.110A a , J.
Pickering
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cc: Hon. Gloria Sturman, District Judge
Chasey Law Offices
Gregory L. Denue
Eighth District Court Clerk
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