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Young v. Wilham

Court of Appeals of New Mexico

May 25, 2017

DAVID C. YOUNG, Plaintiff-Appellant,


          Stephen E. Lane Albuquerque, NM Vega Lynn Law Offices, LLC Rosario D. Vega Lynn Albuquerque, NM for Appellant

          Peifer, Hanson & Mullins, P.A. Charles R. Peifer Lauren Keefe Gregory P. Williams Albuquerque, NM for Appellees


          J. MILES HANISEE, Judge.

         {1} Plaintiff David Young brought defamation and false light invasion of privacy claims against Defendants Todd Wilham and Journal Publishing Company concerning a number of statements contained within articles written by Wilham, a reporter, and published in the Albuquerque Journal (the Journal), a local newspaper for which he worked. The articles questioned aspects of Plaintiff's dichotomous service to the Albuquerque Police Department (APD) as a paid civilian employee and an unpaid reserve officer. The district court dismissed some of Plaintiff's claims pertaining to the published statements under Rule 1-012(B)(6) NMRA and granted Defendants summary judgment on the others. Plaintiff appeals both dispositive orders. He also appeals the district court's legal conclusion that he is a public official who, under New York Times Co. v. Sullivan, 376 U.S. 254, 283-86 (1964), must prove Defendants acted with "actual malice" in publishing the challenged articles. Plaintiff also contends that rejection of his claims deprives him of heightened protections afforded only by the New Mexico Constitution. We affirm.


         Factual Background

         {2} Plaintiff was employed as a civilian by APD. Beginning in 1999, he was assigned to APD's Special Investigations Division (SID) as a fleet manager and certified technical specialist. Plaintiff was responsible for setting up and monitoring electronic surveillance in support of SID operations, during which he frequently worked alongside detectives in the field. When this sparked safety concerns, the SID commander asked that Plaintiff be trained as a reserve officer so that he could carry a gun and a badge when assisting with field operations. In 2005 Plaintiff resumed work with SID as a civilian technician, certified also to act as a reserve officer during SID operations. At the time, SID was short two detectives, so a supervisory APD lieutenant obtained authorization for Plaintiff to assist SID in a tactical capacity during enforcement activities.

         {3} In this arrangement, Plaintiff (as a civilian employee) set up and monitored electronic surveillance for SID operations, and also (as a reserve officer) performed undercover detective work when asked to do so by SID supervisors. According to one such supervisor, it was not uncommon for Plaintiff to switch between both roles in the same SID operation. Plaintiff was entitled to be paid for the work he performed as a civilian technician, but reserve officers are volunteers who receive no pay for their work. Yet there is no dispute that neither Plaintiff nor SID supervisors adequately documented the amount of time Plaintiff spent performing each of his roles. According to Plaintiff, he accounted for reserve officer time by adjusting his time sheets, deducting that time he spent performing reserve officer duties from the total time he recorded in a given shift. For example, if Plaintiff worked until one o'clock in the morning and had spent one hour performing reserve officer duties, he would record on his time sheet that he had only worked until midnight. Thus, Plaintiff explained that the civilian duties for which he was paid as an APD employee were in fact differentiated from his unpaid volunteer activities as a reserve officer. However, Plaintiff's time sheets did not show any deductions, and there were no "other contemporaneous records" reflecting the differentiation between Plaintiff's paid and unpaid overtime activities.

         {4} Reporting for the Journal, Defendant Wilham obtained Plaintiff's time sheets and payroll information through a public records request. Wilham also obtained court and arrest records from the operations in which Plaintiff participated. Upon his comparison of the documents, Wilham concluded that Plaintiff had been impermissibly paid for performing reserve officer duties, including instances in which he made arrests-a function not allowed reserve officers. That is because the dates and times when Plaintiff recorded making arrests overlapped with time periods for which Plaintiff reported and was paid overtime. To allow "time for . . . [APD] to start an independent investigation and to figure out what [Plaintiff's] status was before any story was published[, ]" Wilham provided the information he had gathered to APD's police chief, Ray Schultz, one week before the first article was published. Wilham also made three requests of APD for additional documents, but it was only after publication of his first story that APD responded. Also prior to publication, Wilham contacted APD's public information officer to request an interview with Plaintiff and unsuccessfully attempted to contact Plaintiff directly. Wilham eventually spoke with Plaintiff's attorney, but Plaintiff never responded to Wilham and no interview with Plaintiff was arranged by APD. In fact, APD ordered Plaintiff and his supervisors not to speak with Wilham and told them that "Chief Schultz was going to handle it."

         {5} Between August 19, 2009, and October 20, 2009, the Journal published a series of articles concerning Plaintiff and the APD reserve officer program. Earlier articles focused on Plaintiff's reserve officer activities-stating that Plaintiff made arrests and collected overtime pay for doing police work-in the context of explaining that state law and city ordinance prohibited reserve officers from making arrests and being paid for reserve-related work. Later articles reported on APD's reserve officer program more generally, including APD's temporary suspension of it and changes APD made to it subsequent to an internal investigation. The Journal published additional aspects of the story as its series evolved, including that many of the cases based on arrests Plaintiff made had been dismissed, the "cozy" relationship between Plaintiff and high-ranking APD officials, and the $175, 000 settlement the city paid to three women who had been arrested by Plaintiff.

         Procedural Background

         {6} In 2012 Plaintiff sued Defendants, seeking damages for defamation and false light invasion of privacy. Plaintiff claimed that the published articles defamed him by: (1) characterizing him as a "wannabe cop, " (2) stating that he fraudulently collected pay for reserve officer activities, (3) stating that he lacked proper training to perform police functions, (4) stating that he had committed illegal and unethical conduct, (5) stating that he was not a police officer, (6) asserting that he had violated APD standard operating procedures and New Mexico law in actions as a reserve officer, (7) asserting that he had engaged in misconduct in his work as a reserve officer, and (8) suggesting that he was responsible for the suspension of the APD reserve officer program. Plaintiff also claimed that Defendants "placed him before the public in a false light by . . . labeling [him as] a 'wannabe cop[, ]' . . . stating that he had collected overtime pay for perform[ing r]eserve [o]fficer duties[, ] and[] attempting to portray him as unqualified to perform police functions."

         {7} Defendants moved to dismiss the entirety of Plaintiff's complaint for failure to state a claim pursuant to Rule 1-012(B)(6). The district court granted Defendants' motion in part, allowing Plaintiff to proceed only with his claims of defamation and false light invasion of privacy "aris[ing] from Defendants' statements concerning Plaintiff's collection of overtime pay and the related statements concerning Plaintiff's collection of overtime pay while making arrests and performing police work."

         {8} Following discovery, Defendants moved for summary judgment. Finding that Plaintiff was a public official and thus applying the actual malice standard set forth in New York Times Co., the district court granted Defendants' motion because Plaintiff produced no evidence that Defendants acted with actual malice. This appeal followed.


         {9} On appeal, Plaintiff argues that the district court committed reversible error when it: (1) deemed Plaintiff a "public official" required to establish "actual malice" in order to succeed on his claims of defamation and false light, (2) applied Rule 1-012(B)(6) to dismiss Plaintiff's defamation and false light claims arising from Defendants' characterization of Plaintiff as a "wannabe cop, " (3) granted Defendants summary judgment on the remaining claims, and (4) failed to afford Plaintiff protections conferred by the New Mexico Constitution.

         I. The District Court Properly Found That Plaintiff Is a Public Official and That the New York Times Co. "Actual Malice" Standard Applies to Both His Defamation and False Light Claims

         {10} Whether a plaintiff is a public official is a question of law that we review de novo. See Marchiondo v. Brown, 1982-NMSC-076, ¶ 24, 98 N.M. 394, 649 P.2d 462; see also Davis v. Devon Energy Corp., 2009-NMSC-048, ¶ 12, 147 N.M. 157, 218 P.3d 75. "Ascertaining the status of [a] plaintiff is necessary since it dictates the standard of proof applicable in the law suit." Coronado Credit Union v. KOAT Television, Inc., 1982-NMCA-176, ¶ 33, 99 N.M. 233, 656 P.2d 896. A private plaintiff need only prove that the defendant acted negligently in publishing a defamatory statement, see Newberry v. Allied Stores, Inc., 1989-NMSC-024, ¶ 17, 108 N.M. 424, 773 P.2d 1231, whereas a public official must prove that the defendant acted with actual malice. New York Times Co., 376 U.S. at 279-80. This heavier burden on "public official" 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." Id. at 270. Notably for purposes of this appeal, plaintiffs deemed public officials "must hurdle the same constitutionally-based limitations on false light recovery as apply to defamation claims." Andrews v. Stallings, 1995-NMCA-015, ¶ 59, 119 N.M. 478, 892 P.2d 611; see also Restatement (Second) of Torts § 652E (1977) (providing that a false light claim is actionable only if "the actor had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed"); see also id. cmt. d (explaining that in Time, Inc. v. Hill, 385 U.S. 374 (1967), the United States Supreme Court "held that the rule of New York Times Co. . . . also applies to false-light cases" and that despite some uncertainty as to the state of Time, Inc. as applied to private individuals after Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974), "the reckless-disregard rule would [still] apply if the plaintiff is a public official or public figure").

         {11} While Plaintiff concedes that New Mexico case law clearly establishes that police officers are public officials for purposes of defamation claims, see Ammerman v. Hubbard Broadcasting, Inc., 1977-NMCA-127, ¶ 12, 91 N.M. 250, 572 P.2d 1258, he argues that the district court erred in classifying him as a public official because as a reserve officer, he lacked the status or authority characteristic of public officials. We are not persuaded.

         {12} In Ammerman, this Court recognized police officers "from the lowest to the highest rank" as public officials, citing with approval state court cases from across the country holding patrolmen to be public officials. Id. As one such court explained, although patrolmen are "the lowest in rank of police officials[, ]" their "duties are peculiarly governmental in character and highly charged with the public interest." Coursey v. Greater Niles Twp. Pub. Corp., 239 N.E.2d 837, 841 (Ill. 1968) (internal quotation marks omitted). The Coursey court reasoned that "[t]he abuse of a patrolman's office can have great potentiality for social harm; hence, public discussion and public criticism directed towards the performance of that office cannot constitutionally be inhibited by threat of prosecution under [s]tate libel laws." Id. And the Tenth Circuit similarly observed:

The cop on the beat is the member of the department who is most visible to the public. He possesses both the authority and the ability to exercise force. Misuse of this authority can result in significant deprivation of constitutional rights and personal freedoms . . . . The strong public interest in ensuring open discussion and criticism of his qualifications and job performance warrant the conclusion that he is a public official.

Gray v. Udevitz, 656 F.2d 588, 591 (10th Cir. 1981). Thus, it is the plaintiff officer's influence, responsibility, and control-and, critically, the potential abuse thereof-rather than his title, level of certification, or visibility that justifies his designation as a "public official" for defamation and false light purposes. See Britton v. Koep, 470 N.W.2d 518, 522-24 (Minn. 1991) (holding that a probation officer was a "public official" based on the fact that under state law, probation officers possessed authority similar to police officers and because "[t]he same opportunity to exploit the probation officer's official position exists . . . as for other peace officers").

         {13} Despite his concurrent status as a civilian employee and reserve officer, Plaintiff was a commissioned, sworn law enforcement officer who wore a department-issued uniform when performing his reserve officer duties. He was issued a detective badge and assigned by APD to perform undercover detective work. He carried a gun, made arrests, identified himself as an officer or detective in criminal complaints, and appeared in court as such. It was precisely Plaintiff's conduct as a reserve officer-specifically carrying a detective badge, announcing his status as a detective, and making arrests while appearing to be paid, all of which were beyond Plaintiff's authority-that was the subject of Defendants' reporting.

         {14} Plaintiff's view that even if Ammerman applies to him it would only be "to the times [Plaintiff] was operating as a reserve officer and not when he was operating as a civilian employed by APD" is unavailing. That is because the resolution of Plaintiff's status as a private individual or public official necessarily focuses on the subject matter of the allegedly defamatory statements, i.e., whether or not the statements concerned a matter of public interest or related to Plaintiff's "public official" conduct. See Furgason v. Clausen, 1989-NMCA-084, ¶ 33, 109 N.M. 331, 785 P.2d 242 (explaining that in determining a defamation plaintiff's status, the court's "examination focuses on whether the defamatory material concerns a public controversy or topic of legitimate public concern, together with the nature and extent of [the plaintiff's] participation in the controversy"); see also New York Times Co., 376 U.S. at 279-80 (announcing the rule that "prohibits a public official from recovering damages for a defamatory falsehood relat[ed] to his official conduct unless he proves that the statement was made with 'actual malice' " (emphasis added)). Here, Defendants' statements criticized Plaintiff's conduct as a reserve officer, not his activities as a civilian, and concerned the larger public controversy regarding management of APD's reserve officer program. Even if Defendants' interpretation of Plaintiff's time sheets was incorrect as Plaintiff alleges, it does not change the fact that the published statements related to Plaintiff's conduct as a reserve officer, i.e., that of a public official.

         {15} We hold that Plaintiff acted under the color of authority of a sworn police officer, and his use of that authority is what Defendants called into question in the series of articles they published in the Journal. As such, the district court correctly determined Plaintiff to be a public official for purposes of his defamation and false light invasion of privacy claims.

         II. The District Court Properly Dismissed Plaintiff's Claims Related to Defendants' Characterization of Him as a "Wannabe Cop"

         {16} Plaintiff argues that the district court erred when it dismissed his defamation and false light invasion of privacy claims premised upon Defendants' published characterization of Plaintiff as a "wannabe cop." Plaintiff alludes as well to other published statements he contends the district court was wrong to declare not defamatory as a matter of law. He fails, however, to develop specific arguments to support these further contentions. Just as defendants "do not bear the burden to discern how [an] article has defamed [a plaintiff, ]" we will not guess at what Plaintiff's undeveloped arguments may be. Andrews, 1995-NMCA-015, ¶ 14 (explaining that defamation plaintiffs "must plead precisely the statements about which they complain" (internal quotation marks and citation omitted)); see Headley v. Morgan Mgmt. Corp., 2005-NMCA-045, ¶ 15, 137 N.M. 339, 110 P.3d 1076 (declining to entertain a cursory argument that included no explanation of the party's argument and no facts that would allow this Court to evaluate the claim). We therefore limit our review to Plaintiff's challenge to the district court's ruling that the descriptive term "wannabe cop" was not defamatory as a matter of law.

         A. Standard of Review

         {17} We review a district court's dismissal of a claim under Rule 1-012(B)(6) de novo. Delfino v. Griffo, 2011-NMSC-015, ¶ 9, 150 N.M. 97, 257 P.3d 917. A district court's ruling that a statement is not defamatory as a matter of law is also reviewed de novo. See Knievel v. ESPN, 393 F.3d 1068, 1072 (9th Cir. 2005). Likewise, "the question of whether a statement portrays an individual in a false light . . . is a matter of law to be determined by the court[, ]" which we review de novo. Alves v. Hometown Newspapers, Inc., 857 A.2d 743, 751 (R.I. 2004).

         {18} A Rule 1-012(B)(6) motion to dismiss for failure to state a claim "tests the legal sufficiency of the complaint[.]" Derringer v. State, 2003-NMCA-073, ¶ 5, 133 N.M. 721, 68 P.3d 961. "In determining the sufficiency of a defamation pleading, [courts] consider whether the contested statements are reasonably susceptible of a defamatory connotation." Davis v. Boeheim, 22 N.E.3d 999, 1003 (N.Y. 2014) (internal quotation marks and citation omitted). "An action for defamation lies only for false statements of fact and not for statements of opinion." Mendoza v. Gallup Indep. Co., 1988-NMCA-073, ¶ 4, 107 N.M. 721, 764 P.2d 492. The same is true for false light claims. See Rinsley v. Brandt, 700 F.2d 1304, 1307 (10th Cir. 1983) (explaining that "the defense available in a defamation action that the allegedly defamatory statements are opinions, not assertions of fact, is also available in a false light privacy action"). If a statement is "unambiguously opinion, the trial court may properly rule as a matter of law." Mendoza, 1988-NMCA-073, ¶ 5.

         B. "Wannabe Cop" Is a Statement of Opinion and Therefore Absolutely Privileged Speech

         {19} The parties disagree whether "wannabe cop" reflects Defendants' opinion of Plaintiff-in which case the district court properly found it was not defamatory as a matter of law-or could be interpreted as a factual allegation-in which case a jury would have to decide whether it was defamatory. Defendants argue that their use of the term "wannabe cop" is non-actionable opinion because in conjunction with the characterization, they disclosed supporting facts. Plaintiff argues that Defendants failed to disclose why they characterized Plaintiff as a "wannabe cop, " thus making resolution of the claims fact-dependent and therefore inappropriate for dismissal under Rule 1-012(B)(6).

         {20} As this Court and many others have acknowledged, "[n]o task undertaken under the law of defamation is any more elusive than distinguishing between fact and opinion." Moore v. Sun Publ'g Corp., 1994-NMCA-104, ¶ 24, 118 N.M. 375, 881 P.2d 735 (alteration, internal quotation marks, and citation omitted); see Ollman v. Evans, 750 F.2d 970, 978 (D.C. Cir. 1984) ("While courts are divided in their methods of distinguishing between assertions of fact and expressions of opinion, they are universally agreed that the task is a difficult one."). The challenge arises from the fact that "expressions of 'opinion' may often imply an assertion of objective fact." Milkovich v. Lorain Journal Co., 497 U.S. 1, 18 (1990); cf. Abbas v. Foreign Policy Group, LLC, 783 F.3d 1328, 1338-39 (2015) (considering whether questions posed in an article may themselves be defamatory and, while acknowledging that "a question's wording or tone or context sometimes may be read as implying the writer's answer to that question[, ]" affirming dismissal under Fed.R.Civ.P. 12(b)(6) and noting its refusal to "usher D.C. law down such a new and uncertain road"). This is particularly true where the facts underlying the so-called opinion are not fully disclosed because the danger exists that "a writer could escape liability for accusations of defamatory conduct simply by using, explicitly or implicitly, the words 'I think.' " Milkovich, 497 U.S. at 19 (alteration, internal quotation marks, and citation omitted). New Mexico courts presented with this question must consider three things: "(1) the entirety of the publication[, ] (2) the extent that the truth or falsity may be determined without resort to speculation[, ] and (3) whether reasonably prudent persons reading the publication would consider the statement as an expression of opinion or a statement of fact." Marchiondo, 1982-NMSC-076, ¶ 35. "If the material as a whole contains full disclosure of the facts upon which the publisher's opinion is based and which permits the reader to reach his own opinion, the court in most instances will be required to hold that it is a statement of opinion, and absolutely privileged." Id. ¶ 56 (alteration, internal quotation marks, and citation omitted); see also Restatement (Second) of Torts § 566 (1977) ("A defamatory communication may consist of a statement in the form of an opinion, but a statement of this nature is actionable only if it implies the allegation of undisclosed defamatory facts as the basis for the opinion."). In other words, "when a speaker outlines the factual basis for his conclusion, his statement is protected by the First Amendment." Partington v. Bugliosi, 56 F.3d 1147, 1156 (9th Cir. 1995). That is because when "the bases for the conclusion are fully disclosed, no reasonable reader would consider the term anything but the opinion of the author drawn from the circumstances related." Id. (omission, internal quotation marks, and citation omitted); see Marchiondo, 1982-NMSC-076, ¶ 57 (explaining that "the crucial difference between statement of fact and opinion depends upon whether ordinary persons hearing or reading the matter complained of would be likely to understand it as an expression of the speaker's or writer's opinion, or as a statement of existing fact" (alteration, internal quotation marks, and citation omitted)); cf. Hotchner v. Castillo-Puche, 551 F.2d 910, 913 (2d. Cir. 1977) (explaining that an expression of opinion may be actionable "when a negative characterization of a person is coupled with a clear but false implication that the author is privy to facts about the person that are unknown to the general reader"). This type of opinion cannot be false and therefore is not actionable, even if defamatory. See Kutz v. Indep. Publ'g Co., 1981-NMCA-147, ¶ 7, 97 N.M. 243, 638 P.2d 1088.

         {21} In Standing Committee on Discipline of United States District Court for Central District of California v. Yagman, 55 F.3d 1430, 1439 (9th Cir. 1995), the Ninth Circuit provided a helpful discussion and illustration of the dichotomy between actionable and non-actionable opinion statements. Writing for the court, Judge Kozinski noted that the Restatement (Second) of Torts § 566 "distinguishes between two kinds of opinion statements: those based on assumed or expressly stated facts, and those based on implied, undisclosed facts." Yagman, 55 F.3d at 1439; see also Kutz, 1981-NMCA-147, ¶ 26 (Donnelly, J., specially concurring) (describing the "two kinds of expressions of opinion" as articulated in the Restatement (Second) of Torts). Judge Kozinski offered the example "I think Jones is an alcoholic, " which he described as "an expression of opinion based on implied facts . . . because the statement gives rise to the inference that there are undisclosed facts that justify the forming of the opinion[.]" Yagman, 55 F.3d at 1439 (internal quotation marks and citations omitted). Such a statement would be actionable because it fails to provide the reader or listener with the factual basis for the speaker's conclusion that Jones is an alcoholic, thus making the statement potentially defamatory. Id. By contrast, the following is a non-actionable statement: "Jones moved in six months ago. He works downtown, and I have seen him during that time only twice, in his backyard around 5:30 seated in a deck chair with a drink in his hand. I think he must be an alcoholic." Id. (alteration, omission, internal quotation marks, and citation omitted). Here, where the speaker has provided the specific factual basis for his opinion that Jones is an alcoholic, his conclusion is considered pure opinion-i.e., non-defamatory as a matter of law-because the reader or listener has the ability to draw his or her own conclusion as to whether Jones is an alcoholic.

         {22} Judge Sack's leading treatise on defamation provides additional helpful illustrations:

To say that a man is 'insane' may be defamatory; but to explain first that he, a political newcomer, is planning a campaign against the most popular politician in the county makes it clear that 'insanity' reflects no more than the speaker's view of the candidate's judgment or chances of success. The statement is hyperbolic and is not demonstrably false.

         1 Robert D. Sack, Sack on Defamation ยง 4:3.2 at 4-48 (4th ed. ...

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