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«INTRODUCTION According to a complaint filed in Bernalillo County, an Albuquerque attorney contacted a reporter for the Albuquerque Journal concerning ...»

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A QUARTER CENTURY LATER: REVISITING

DEFAMATION IN NEW MEXICO

PHILIP R. HIGDON* & ABIMAN RAJADURAI**

INTRODUCTION

According to a complaint filed in Bernalillo County, an Albuquerque attorney

contacted a reporter for the Albuquerque Journal concerning University of New

Mexico Head Football Coach Michael Locksley. During that communication, the lawyer allegedly told the reporter that Coach Locksley had fired her client, a former football administrative assistant, “because she was not a ‘young gal’ who could entice recruits.”1 The complaint further alleged that this and similar statements “were made with the sole purpose to force a settlement or early resolution to [the former administrator’s] EEOC claim.”2 The Journal published a front page article reporting the attorney’s alleged remarks.3 The very next day, Coach Locksley filed a suit for defamation against not the Journal, but rather against the lawyer and her client.4 This lawsuit illustrates several reasons why defamation can be a fun area of the law to follow: it can involve both locally prominent people and issues that are literally off the front page of the newspaper. Moreover, if it had gone anywhere, the case would have presented some classic libel issues (Were the lawyer’s alleged comments privileged from a defamation claim? To what extent would the lawyer be held responsible for the republication of her alleged remarks by the newspaper?) and some rather novel ones (Can a client be liable for conspiring with her lawyer to commit libel?).

Alas, this case was evidently resolved by the parties fairly quickly,5 so that these and other questions raised by this complaint went unanswered. Nonetheless, the case illustrates that defamation claims are alive and well in New Mexico and can present challenging issues.

In 1984, an author of this article published an article in the New Mexico Law Review that summarized the state of defamation law in New Mexico up to then, and posed questions to be addressed by New Mexico courts in the future.6 Perhaps not surprisingly, all of those questions have not been answered in the quarter century since that article was published. In fact, developments in New Mexico defamation law have been rather limited. However, as this article notes in Part I, a new set of uniform jury instructions provides depth and coverage to the common law of * Partner, Perkins Coie LLP, Member of Arizona and New Mexico Bars; J.D., University of Texas Law School, 1972; M.A., University of Kansas, 1970; B.S., University of Kansas, 1969.

** Associate, Perkins Coie LLP, Member of Arizona Bar; J.D., University of Michigan, 2008; A.B.

University of Michigan, 2005.

1. Complaint for Defamation, Defamation Per Se, Intentional Infliction of Emotional Distress, Civil Conspiracy, Prima Facie Tort and Punitive Damages [hereinafter “Locksley Complaint”] 13(a), Locksley v.

Warner, No. D-202-CV-200909659 (N.M. 2d Jud. Dist. Ct. Aug. 18, 2009).

2. Id. 14.

3. Greg Archuleta, Lawyer: Locksley Wanted Pretty Office Girls, ALBUQUERQUE J., Aug. 17, 2009, available at 2009 WLNR 16000778.

4. Locksley Complaint, supra note 1, at 1; SPORTING NEWS TODAY, Locksley Files Defamation Suit Against Lawyer, Aug. 19, 2009, http://www.sportingnews.com/college-football/article/2009-08-19/locksley-filesdefamation-suit-against-lawyer (last visited May 1, 2010).

5. ESPN.com, EEOC Complaint Resolved for New Mexico Coach Mike Locksley, http:// sports.espn.go.com/ncf/news/story?id=4554794 (last visited May 5, 2010).

6. Philip R. Higdon, Defamation in New Mexico, 14 N.M. L. REV. 321 (1984).

198 NEW MEXICO LAW REVIEW [Vol. 40 defamation claims. Nonetheless, New Mexico’s appellate courts have struggled with uncertainties left to them by federal precedent, especially in issues involving privileges and defenses. Part II discusses actions taken by New Mexico’s appellate courts to develop and refine defenses and privileges in defamation in the wake of new federal interpretations. Finally, Part III speculates on what developments to expect in New Mexico law in the next quarter century.

I. ELEMENTS OF A DEFAMATION ACTION

The common law elements of a defamation claim7 have not changed since 1984.

However, New Mexico cases today reference the New Mexico Statutes Annotated Civil Uniform Jury Instructions (UJI) 13-1001 to 13-10014 (and more specifically UJI 13-1002).8 The UJI lists the elements a plaintiff must prove to succeed in a

defamation action, as follows:

(1) The defendant published the communication; and (2) The communication contains a statement of fact; and (3) The communication was concerning the plaintiff; and (4) The statement of fact was false; and (5) The communication was defamatory; and (6) The person[s] receiving the communication understood it to be defamatory; and (7) The defendant [knew the communication was false or negligently failed to recognize that it was false] [or] [acted with malice]; and (8) The communication caused actual injury to the plaintiff’s reputation;

and (9) The defendant abused or [its] privilege to publish the communication.9 The Uniform Jury Instructions, since their adoption, have been utilized by attorneys to formulate their cases and by the courts to determine whether a defamation claim exists.10





II. DEFENSES TO DEFAMATION ACTION

While the elements of a defamation claim have not materially changed since 1984, New Mexico’s appellate courts and legislature have been at work in developing and refining defenses and privileges in defamation cases. Two particular asThe elements of defamation include a defamatory communication published by the defendant, to a third person, of an asserted fact, of and concerning the plaintiff, and proximately causing actual injury to the plaintiff.” Clough v. Adventist Health Sys., Inc., 108 N.M. 801, 806, 780 P.2d 627, 632 (1989); see also Trujillo v.

City of Albuquerque, 211 F. App’x 670, 671–72 (10th Cir. 2006) (quoting Clough, 108 N.M. at 806, 780 P.2d at 632); Higdon, supra note 6, at 322.

8. See Clough, 108 N.M. at 806, 780 P.2d at 632; Newberry v. Allied Stores, Inc., 108 N.M. 424, 429, 773 P.2d 1231, 1236 (1989).

9. UJI 13-1002 NMRA 2008 (brackets indicating optional parts omitted).

10. Moore v. Sun Publ’g Corp., 118 N.M. 375, 379, 881 P.2d 735, 739 (Ct. App. 1994) (“As the parties note, our Supreme Court has adopted new Uniform Jury Instructions covering the law of libel and slander.

The parties based their arguments on the new Uniform Jury Instructions, and in ruling on the motion for summary judgment the district court relied on those instructions.”) (citation omitted); Cowan v. Powell, 115 N.M. 603, 604, 856 P.2d 251, 252 (Ct. App. 1993) (discussing UJI 13-1002 and 13-1010 to determine damages issue resulting from defamation action); Furgason v. Clausen, 109 N.M. 331, 339, 785 P.2d 242, 250 (Ct. App.

1989) (citing UJI 13-1003 and 13-1009 to provide framework for how to determine whether appellant has proven defamation claim).

Spring 2010] A QUARTER CENTURY LATER 199 pects of privilege have merited the most attention. The first addresses the sources of information on which a defamation defendant may rely to claim an absolute privilege from liability. The second concerns whether an alleged defamatory statement is one of opinion, and thus protected, or fact, and thus subject to liability.

A. Absolute and Qualified Privileges While “[t]he traditional rule in New Mexico is that truth is an affirmative defense to an action for defamation,”11 it is not the only way defendants can protect themselves from liability. In New Mexico, amongst other available defenses, claiming “[a]n absolute or unqualified privilege means absolute immunity from liability for defamation.”12 The absolute privilege applies to protect those “few situations in which there is an obvious policy in favor of complete freedom of expression regardless of the defendant’s motives.”13 Absolute privilege specifically protects statements made in judicial proceedings14 or simply those proceedings which are related to achieving the objects of litigation.15 This privilege also protects comments made during quasi-judicial proceedings, such as administrative actions,16 and also certain communications made within the executive branch of government.17 Because the Locksley action has been resolved, it is unknown what defenses the defendant’s attorney may have pursued to avoid defamation liability. The alleged defamatory statements upon which Locksley based his claim against the attorney were apparently details of an age discrimination and sexual harassment complaint related to a lawsuit filed against Locksley by a former football administrative assistant.18 Perhaps the most evident defense available for the defendant’s attorney to assert would have been that her comments were absolutely privileged because, even though it appears her statements were made outside of a courtroom, they were made in the course of judicial proceedings.

11. Newberry, 108 N.M. at 430, 773 P.2d at 1237; see also NMRA, Civ. UJI 13-1013 (“Truth is a defense to this action.”).

12. Neece v. Kantu, 84 N.M. 700, 705, 507 P.2d 447, 452 (Ct. App. 1973).

13. Baker v. Bhajan, 117 N.M. 278, 281, 871 P.2d 374, 377 (1994).

14. See Superior Constr., Inc. v. Linnerooth, 103 N.M. 716, 719, 712 P.2d 1378, 1381 (1986) (observing that a notice of lis pendens was “merely a republication of the pleadings filed in the pending judicial proceeding and it should enjoy the same absolute privilege accorded those proceedings”).

15. Romero v. Prince, 85 N.M. 474, 477, 513 P.2d 717, 720 (Ct. App. 1973) (“It is not absolutely essential, in order to obtain the benefits of absolute privilege, that the language claimed to be defamatory be spoken in open court or contained in a pleading, brief, or affidavit. If the alleged defamatory statement is made to achieve the objects of the litigation, the absolute privilege applies even though the statement is made outside the courtroom and no function of the court or its officers is invoked.”) (citation and quotations omitted);

Penny v. Sherman, 101 N.M. 517, 520, 684 P.2d 1182, 1185 (Ct. App. 1984) (noting that statements made in relation to “an ongoing or contemplated judicial proceeding” could receive absolute privilege protection); but see Gregory Rockhouse Ranch, L.L.C. v. Glenn’s Water Well Serv., Inc., 2008-NMCA-101, 19, 191 P.3d 548, 554 (denying absolute privilege defense as to particular communications because they were made at a time well before litigation was seriously contemplated).

16. Hollars v. S. Pac. Transp. Co., 110 N.M. 103, 108, 792 P.2d 1146, 1151 (Ct. App. 1989) (“The parties agree that any statements made during the formal hearings conducted by the Company and the Special Adjustment Board were absolutely privileged.”).

17. Baker, 117 N.M. at 281, 871 P.2d at 377.

18. See Locksley Files Defamation Suit Against Lawyer, supra note 4.

200 NEW MEXICO LAW REVIEW [Vol. 40 While “‘[t]he application of an absolute privilege is confined to very few situations,’ qualified privileges apply to a broader array of circumstances.”19 The qualified privilege serves to protect those communications which consist “of a good faith publication in the discharge of a public or private duty.”20 In Gregory Rockhouse Ranch, the defendant sought application of the qualified privilege to protect comments made to two government entities involving a slander of title action.21 There, the comments were not absolutely privileged even though they involved an administrative agency because the court found that the permit application process was not a quasi-judicial proceeding.22 The court adopted the reasoning found in the Restatement23 to determine whether to invoke a qualified privilege. The Restatement recommends a two-step process. First, the analysis considers the publisher’s viewpoint by stating that protection applies if the publisher had a sufficiently important interest at stake and the receiver of the statement would need the information to protect that interest.24 Second, section 598 of the Restatement provides a standard from the recipient’s perspective, stating that the communication is conditionally privileged if the communication contains information affecting an important public interest, and that interest requires communication of the information to an individual authorized to take action if the information is true.25 Under both sections, the analysis of the qualified privilege requires “evaluation of the audience and the apparent utility of the communications.”26 Thus, in Gregory Rockhouse Ranch, this prong was satisfied as the recipients of the alleged defamatory statements, the Federal Bureau of Land Management and New Mexico Office of the State Engineer, were entities in a position to affect the interest at issue.27 The process for determining the application of the qualified privilege, however, does not end after this “Restatement” inquiry. After the elements required by the “publisher-recipient” analysis are deemed satisfied, there must be a finding that the privilege was not abused.28 Abuse of privilege can occur if the publisher lacks belief that the communication was true, if the publication of the information is for an improper use, or if the publisher provides the statement to a recipient who is not in a position to accomplish the purpose behind the statement.29 Thus, in GregGregory Rockhouse Ranch, 2008-NMCA-101, 25, 191 P.3d at 555 (alteration in original) (quoting Baker, 117 N.M. at 281, 871 P.2d at 377); see also Hagebak v. Stone, 2003-NMCA-007, 17, 61 P.3d 201, 206 (“Traditionally, New Mexico courts have been very circumspect in recognizing absolute privilege.”).

20. See UJI 13-1012 NMRA; Hagebak, 2003-NMCA-007, 13, 61 P.3d at 205.

21. Gregory Rockhouse Ranch, 2008-NMCA-101, 17–19, 191 P.3d at 554.

22. Id. 22, 191 P.3d at 555 (“Although we may reasonably assume that the permit applications precipitated some sort of administrative activity, we find no indication in the record that quasi-judicial proceedings took place” and “therefore decline... to extend an absolute privilege to the communications at issue in this case....”).



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