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Reina v. Lin Television Corp.

Court of Appeals of New Mexico

June 4, 2018

ANITA REINA, Plaintiff-Appellee,
v.
LIN TELEVISION CORPORATION, d/b/a KRQE and LARRY BARKER, Defendants-Appellants.

          APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY Denise Barela Shepherd, District Judge

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

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

          OPINION

          STEPHEN G. 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 (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-, ...


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