Reina v. Lin Television Corp.

421 P.3d 860

Anita REINA, Plaintiff-Appellee,

v.LIN TELEVISION CORPORATION, d/b/a KRQE and Larry Barker, Defendants-Appellants.

NO. A-1-CA-36351

Court of Appeals of New Mexico.

Filing Date: June 4, 2018

Certiorari Denied, July 11, 2018, No. S-1-SC-37104

Stephen F. Lawless, P.A., Stephen F. Lawless, Albuquerque, NM, for Appellee.

Esquivel & Howington, LLC, Martin R. Esquivel, Albuquerque, NM, for Appellants.

FRENCH, Judge.

{1} This interlocutory appeal requires us to determine whether a hearing officer employed by the City of Albuquerque (the City) is a public official and therefore required to prove that Defendants acted with actual malice in broadcasting an allegedly defamatory story about her. We conclude that Plaintiff is a public official and reverse the order of the district court finding that she is a private figure plaintiff.

BACKGROUND

Factual Background

{2} Plaintiff worked exclusively as an administrative hearing officer for the Office of Administrative Hearings for the City for over one year. She then sought and acquired a second job, an action that required prior written approval from the City's human resources department per the City personnel code. Plaintiff began serving as a tribal judge for the San Felipe tribal court before receiving written approval from the City's human resources department, though by then her immediate supervisor in the Office of Administrative Hearings approved her request in a form titled "Request for Permission to Engage in Employment Outside the City of Albuquerque."

{3} Eventually, Defendant Larry Barker, an investigative reporter for KRQE News 13, began researching Plaintiff's employment arrangements with the City and the San Felipe tribal court. Barker reviewed memos that Plaintiff submitted to the City and various leave slips tracking her schedule with the tribal court and her absences from the City, and he interviewed Plaintiff's supervisor at the City, along with the chief administrative officer of the City. As a consequence of Barker's investigation, the City began its own formal investigation, for which it retained Robert Caswell Investigations. That investigation found that Plaintiff was employed with the City Monday through Friday, from 8:00 a.m. to 5:00 p.m., for a total of forty hours per week and that she possibly defrauded the City by working at times as a tribal judge at the Pueblo of San Felipe during those hours. The investigation findings also noted that Plaintiff used her City-issued computer to correspond with the San Felipe Pueblo, that she admitted working longer than her scheduled hours at San Felipe, and that she claimed to have "made up" the time with the City, but she lacked documentation showing as much.

{4} Plaintiff did not contest the findings of the investigator, and she voluntarily resigned her employment with the City. Two days after her resignation, KRQE News 13 broadcasted a report about Plaintiff, in which Plaintiff was purportedly referred to as "The Cheating Judge" in reference to her work as a tribal judge during employment hours with the City. This and other statements in the report regarding her performance of her work as a hearing officer form the basis of Plaintiff's defamation claim.

Procedural Background

{5} Plaintiff sued Defendants for defamation. Defendants moved for summary judgment, claiming (1) Plaintiff was a public official; (2) the matter reported was true; and (3) Plaintiff could not meet her burden of proof, which required her to establish that Defendants acted with actual malice. The district court concluded that Plaintiff was not a public official as a matter of law, but stated that it lacked guidance in our caselaw for the determination. After further discovery, Defendants asked that the district court certify its order determining that Plaintiff was not a public official for interlocutory review. The district court did so, and upon Defendant's application, we granted interlocutory review and assigned the matter to the general calendar. Defendants argue that the district court erred in determining that Plaintiff is not a public official.

DISCUSSION

{6} If Plaintiff—a hearing officer with the City—is a public official, then in order to prevail in a defamation cause of action, she must meet the actual malice standard of New York Times Co. v. Sullivan , 376 U.S. 254, 279-80, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). "Whether a plaintiff is a public official is a question of law that we review de novo." Young v. Wilham , 2017-NMCA-087, ¶ 10, 406 P.3d 988, cert. denied , –––-NMCERT-––––, (S-1-SC-36497, Aug. 3, 2017); Marchiondo v. Brown , 1982-NMSC-076, ¶ 24, 98 N.M. 394, 649 P.2d 462.

{7} "Ascertaining the status of [a] plaintiff is necessary since it dictates the standard of proof applicable in the law suit [sic]." Coronado Credit Union v. KOAT Television, Inc. , 1982-NMCA-176, ¶ 33, 99 N.M. 233, 656 P.2d 896. Public official and public figure plaintiffs must prove that the defendant acted with actual malice in publishing a defamatory statement, Sullivan , 376 U.S. at 279-80, 84 S.Ct. 710, but a private figure plaintiff need only prove that the defendant acted negligently. Newberry v. Allied Stores, Inc. , 1989-NMSC-024, ¶ 21, 108 N.M. 424, 773 P.2d 1231. The heavier burden on public official and public figure plaintiffs reflects "a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials." Sullivan , 376 U.S. at 270, 84 S.Ct. 710. Specifically, public official and public figure plaintiffs must prove that the defendant acted in reckless disregard of the truth and with knowledge of falsity. Newberry , 1989-NMSC-024, ¶ 17, 108 N.M. 424, 773 P.2d 1231; see Furgason v. Clausen , 1989-NMCA-084, ¶ 26, 109 N.M. 331, 785 P.2d 242 ("[W]here a plaintiff in a defamation action is either a public official or a public figure, or where an allegedly defamatory statement involved a matter of public concern, it is incumbent upon the plaintiff to prove that the defendant acted with actual malice[.]" (internal quotation marks and citation omitted) ).

{8} In Furgason , we acknowledged that the terms "public figures" and "public officials" have not been defined, but we have adopted tests for determining whether a person is to be considered one. 1989-NMCA-084, ¶ 29, 109 N.M. 331, 785 P.2d 242 (internal quotation marks omitted). The first category of plaintiffs that must prove actual malice has been generally stated to include those who, "by reason of the notoriety of their achievements or the vigor and success with which they seek the public's attention, are properly classed as public figures." Id. (internal quotation marks and citation omitted). There are two types of public figures, "those who occupy positions of such persuasive power and influence that they are deemed public figures for all purposes, and limited public figures, consisting of those who have thrust themselves to the forefront of particular public controversy in order to influence the resolution of the issues involved." Id. (alteration omitted).

{9} Regarding the latter category, the test for whether a given plaintiff is a public official turns on the degree of the person's responsibility for and control over government affairs. Id. ¶ 35. "It is clear that the ‘public official’ designation applies at the very least to those among the hierarchy of government employees who have, or appear to the public to have, substantial responsibility for or control over the conduct of governmental affairs." Id. (omission, internal quotation marks, and citation omitted). Public officials occupy positions in government that have "such apparent importance that the public has an independent interest in the qualifications and performance of the person who holds it," one that is beyond the public's general interest in the qualifications and performance of all government employees. Id. (internal quotation marks and citation omitted). The public has a special interest in persons "who are in a position significantly to influence the resolution of ... [public] issues." Rosenblatt v. Baer , 383 U.S. 75, 85, 86 S.Ct. 669, 15 L.Ed.2d 597 (1966).

{10} The district court noted that Plaintiff's position as a hearing officer "is distinguishable from positions that clearly are classified as a ‘public official,’ such as an elected city commissioner or a district court judge[,]" the positions held by the plaintiffs in two federal cases, Sullivan , 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686, and Garrison v. State of Louisiana , 379 U.S. 64, 85 S.Ct. 209, 13 L.Ed.2d 125 (1964). While that may be true, it does not eliminate the possibility that a hearing officer—hired to resolve disputes in matters of public concern in proceedings that are at the very least quasi-judicial—is also a public official. To determine whether this is the case, we apply the test for public official status articulated in Rosenblatt and adopted in Furgason , which we repeat in full below:

It is clear that the "public official" designation applies at the very least to those among the hierarchy of government employees who have, or appear to the public to have, substantial responsibility for or control over the conduct of governmental affairs.

Where a position in government has such apparent importance that the public has an independent interest in the qualifications and performance of the person who holds it, beyond the general public interest in the qualifications and performance of all government employees, ... the [actual] malice standards apply.

Furgason , 1989-NMCA-084, ¶ 35, 109 N.M. 331, 785 P.2d 242 (omissions omitted) (quoting Rosenblatt , 383 U.S. at 85-86, 86 S.Ct. 669 ). Based on the application of this test, we reverse the order of the district court determining that Plaintiff was not a public official.

{11} On appeal, Defendants argue that only one New...