 1      IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

 2 Opinion Number:

 3 Filing Date:      June 4, 2018

 4 NO. A-1-CA-36351

 5 ANITA REINA,

 6       Plaintiff-Appellee,

 7 v.

 8 LIN TELEVISION CORPORATION,
 9 d/b/a KRQE and LARRY BARKER,

10       Defendants-Appellants.

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

13 Stephen F. Lawless, P.A.
14 Stephen F. Lawless
15 Albuquerque, NM

16 for Appellee

17 Esquivel & Howington, LLC
18 Martin R. Esquivel
19 Albuquerque, NM

20 for Appellants
 1                                        OPINION

 2 FRENCH, Judge.

 3   {1}   This interlocutory appeal requires us to determine whether a hearing officer

 4 employed by the City of Albuquerque (the City) is a public official and therefore

 5 required to prove that Defendants acted with actual malice in broadcasting an

 6 allegedly defamatory story about her. We conclude that Plaintiff is a public official

 7 and reverse the order of the district court finding that she is a private figure plaintiff.

 8 BACKGROUND

 9 Factual Background

10   {2}   Plaintiff worked exclusively as an administrative hearing officer for the Office

11 of Administrative Hearings for the City for over one year. She then sought and

12 acquired a second job, an action that required prior written approval from the City’s

13 human resources department per the City personnel code. Plaintiff began serving as

14 a tribal judge for the San Felipe tribal court before receiving written approval from

15 the City’s human resources department, though by then her immediate supervisor in

16 the Office of Administrative Hearings approved her request in a form titled “Request

17 for Permission to Engage in Employment Outside the City of Albuquerque.”

18   {3}   Eventually, Defendant Larry Barker, an investigative reporter for KRQE News

19 13, began researching Plaintiff’s employment arrangements with the City and the San
 1 Felipe tribal court. Barker reviewed memos that Plaintiff submitted to the City and

 2 various leave slips tracking her schedule with the tribal court and her absences from

 3 the City, and he interviewed Plaintiff’s supervisor at the City, along with the chief

 4 administrative officer of the City. As a consequence of Barker’s investigation, the

 5 City began its own formal investigation, for which it retained Robert Caswell

 6 Investigations. That investigation found that Plaintiff was employed with the City

 7 Monday through Friday, from 8:00 a.m. to 5:00 p.m., for a total of forty hours per

 8 week and that she possibly defrauded the City by working at times as a tribal judge

 9 at the Pueblo of San Felipe during those hours. The investigation findings also noted

10 that Plaintiff used her City-issued computer to correspond with the San Felipe Pueblo,

11 that she admitted working longer than her scheduled hours at San Felipe, and that she

12 claimed to have “made up” the time with the City, but she lacked documentation

13 showing as much.

14   {4}   Plaintiff did not contest the findings of the investigator, and she voluntarily

15 resigned her employment with the City. Two days after her resignation, KRQE News

16 13 broadcasted a report about Plaintiff, in which Plaintiff was purportedly referred

17 to as “The Cheating Judge” in reference to her work as a tribal judge during

18 employment hours with the City. This and other statements in the report regarding her




                                              2
 1 performance of her work as a hearing officer form the basis of Plaintiff’s defamation

 2 claim.

 3 Procedural Background

 4   {5}    Plaintiff sued Defendants for defamation. Defendants moved for summary

 5 judgment, claiming (1) Plaintiff was a public official; (2) the matter reported was true;

 6 and (3) Plaintiff could not meet her burden of proof, which required her to establish

 7 that Defendants acted with actual malice. The district court concluded that Plaintiff

 8 was not a public official as a matter of law, but stated that it lacked guidance in our

 9 caselaw for the determination. After further discovery, Defendants asked that the

10 district court certify its order determining that Plaintiff was not a public official for

11 interlocutory review. The district court did so, and upon Defendant’s application, we

12 granted interlocutory review and assigned the matter to the general calendar.

13 Defendants argue that the district court erred in determining that Plaintiff is not a

14 public official.

15 DISCUSSION

16   {6}    If Plaintiff—a hearing officer with the City—is a public official, then in order

17 to prevail in a defamation cause of action, she must meet the actual malice standard

18 of New York Times Co. v. Sullivan, 376 U.S. 254, 279-80 (1964). “Whether a plaintiff

19 is a public official is a question of law that we review de novo.” Young v. Wilham,


                                                3
 1 2017-NMCA-087, ¶ 10, 406 P.3d 988, cert. denied, ___-NMCERT-___, (S-1-SC-

 2 36497, Aug. 3, 2017); Marchiondo v. Brown, 1982-NMSC-076, ¶ 24, 98 N.M. 394,

 3 649 P.2d 462.

 4   {7}   “Ascertaining the status of [a] plaintiff is necessary since it dictates the

 5 standard of proof applicable in the law suit [sic].” Coronado Credit Union v. KOAT

 6 Television, Inc., 1982-NMCA-176, ¶ 33, 99 N.M. 233, 656 P.2d 896. Public official

 7 and public figure plaintiffs must prove that the defendant acted with actual malice in

 8 publishing a defamatory statement, Sullivan, 376 U.S. at 279-80, but a private figure

 9 plaintiff need only prove that the defendant acted negligently. Newberry v. Allied

10 Stores, Inc., 1989-NMSC-024, ¶ 21, 108 N.M. 424, 773 P.2d 1231. The heavier

11 burden on public official and public figure plaintiffs reflects “a profound national

12 commitment to the principle that debate on public issues should be uninhibited,

13 robust, and wide-open, and that it may well include vehement, caustic, and sometimes

14 unpleasantly sharp attacks on government and public officials.” Sullivan, 376 U.S.

15 at 270. Specifically, public official and public figure plaintiffs must prove that the

16 defendant acted in reckless disregard of the truth and with knowledge of falsity.

17 Newberry, 1989-NMSC-024, ¶ 17; see Furgason v. Clausen, 1989-NMCA-084, ¶ 26,

18 109 N.M. 331, 785 P.2d 242 (“[W]here a plaintiff in a defamation action is either a

19 public official or a public figure, or where an allegedly defamatory statement


                                             4
 1 involved a matter of public concern, it is incumbent upon the plaintiff to prove that

 2 the defendant acted with actual malice[.]” (internal quotation marks and citation

 3 omitted)).

 4   {8}   In Furgason, we acknowledged that the terms “public figures” and “public

 5 officials” have not been defined, but we have adopted tests for determining whether

 6 a person is to be considered one. 1989-NMCA-084, ¶ 29 (internal quotation marks

 7 omitted). The first category of plaintiffs that must prove actual malice has been

 8 generally stated to include those who, “by reason of the notoriety of their

 9 achievements or the vigor and success with which they seek the public’s attention, are

10 properly classed as public figures.” Id. (internal quotation marks and citation

11 omitted). There are two types of public figures, “those who occupy positions of such

12 persuasive power and influence that they are deemed public figures for all purposes,

13 and limited public figures, consisting of those who have thrust themselves to the

14 forefront of particular public controversy in order to influence the resolution of the

15 issues involved.” Id. (alteration omitted).

16   {9}   Regarding the latter category, the test for whether a given plaintiff is a public

17 official turns on the degree of the person’s responsibility for and control over

18 government affairs. Id. ¶ 35. “It is clear that the ‘public official’ designation applies

19 at the very least to those among the hierarchy of government employees who have,


                                               5
 1 or appear to the public to have, substantial responsibility for or control over the

 2 conduct of governmental affairs.” Id. (omission, internal quotation marks, and citation

 3 omitted). Public officials occupy positions in government that have “such apparent

 4 importance that the public has an independent interest in the qualifications and

 5 performance of the person who holds it,” one that is beyond the public’s general

 6 interest in the qualifications and performance of all government employees. Id.

 7 (internal quotation marks and citation omitted). The public has a special interest in

 8 persons “who are in a position significantly to influence the resolution of . . . [public]

 9 issues.” Rosenblatt v. Baer, 383 U.S. 75, 85 (1966).

10   {10}   The district court noted that Plaintiff’s position as a hearing officer “is

11 distinguishable from positions that clearly are classified as a ‘public official,’ such

12 as an elected city commissioner or a district court judge[,]” the positions held by the

13 plaintiffs in two federal cases, Sullivan, 376 U.S. 254, and Garrison v. State of

14 Louisiana, 379 U.S. 64 (1964). While that may be true, it does not eliminate the

15 possibility that a hearing officer—hired to resolve disputes in matters of public

16 concern in proceedings that are at the very least quasi-judicial—is also a public

17 official. To determine whether this is the case, we apply the test for public official

18 status articulated in Rosenblatt and adopted in Furgason, which we repeat in full

19 below:


                                               6
 1          It is clear that the “public official” designation applies at the very least
 2          to those among the hierarchy of government employees who have, or
 3          appear to the public to have, substantial responsibility for or control
 4          over the conduct of governmental affairs.

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

10 Furgason, 1989-NMCA-084, ¶ 35 (omissions omitted) (quoting Rosenblatt, 383 U.S.

11 at 85-86). Based on the application of this test, we reverse the order of the district

12 court determining that Plaintiff was not a public official.

13   {11}   On appeal, Defendants argue that only one New Mexico case squarely

14 addresses the public official status of Plaintiff, citing Ammerman v. Hubbard

15 Broadcasting, Inc., 1977-NMCA-127, 91 N.M. 250, 572 P.2d 1258, and that the

16 plaintiff in that case was employed by the police department, unlike the situation in

17 this case. Id. ¶ 1. Defendants then argue that the quasi-judicial character of Plaintiff’s

18 position as a hearing officer and the work performed by a hearing officer qualify

19 Plaintiff as a public official.

20   {12}   We describe with some detail the work that Plaintiff performed as a hearing

21 officer and agree with Defendants: Plaintiff is a public official for purposes of her

22 defamation suit because she possessed substantial responsibility for and control over

23 governmental affairs.

                                                 7
 1   {13}   Plaintiff was an employee of the City. She was appointed as an administrative

 2 hearing officer under Chapter 2, Article 7 of the City’s ordinance in June 2009.

 3 Albuquerque, N.M., City Ordinance ch. 3, art. VII, § 2-7-8-5(B) (2009, amended

 4 2012) At the time of her hiring, Section 2-7-8-5(B) of the ordinance stated that

 5 hearing officers are to “be appointed by the Presiding Judge of the Civil Division of

 6 the Second Judicial [District] Court.” Plaintiff’s interview for the hearing officer

 7 position took place before three district court judges.

 8   {14}   The creation of the position that Plaintiff occupied sheds further light on its

 9 public nature. Section 2-7-8-2 provides context, explaining that the City established

10 the Independent Office of Hearings, a division of the City that independently

11 conducts the hearings that the City requires, because the use of city employees as

12 hearing officers “has created a perception that the independence of hearing officers

13 has been or can be compromised.” Section 2-7-8-2(D). “To ensure confidence in the

14 hearing officer process it has become necessary to create an Independent Office of

15 Hearings to protect employees acting as hearing officers from actual or perceived

16 influence from the city’s administration.” Section 2-7-8-2(E).

17   {15}   The role that a hearing officer plays in the administration of city ordinances and

18 the adjudication of disputes over city ordinances, which are governmental affairs,

19 carries with it such weight and responsibility that the city council undertook, by its


                                                 8
 1 creation of the Independent Office of Hearings, specific measures to ensure “that any

 2 city hearing officer act[s] in a fair and impartial manner” and is “perceived as acting

 3 in a fair and impartial manner.” Section 2-7-8-2(C). The parties present during a

 4 hearing are members of the public, and it is the public’s perception of hearing officers

 5 that led the city council to establish the Independent Office of Hearings. We find the

 6 establishment of the Independent Office of Hearings indicative of the public’s special

 7 interest in the qualifications and performance of hearing officers, one that exceeds the

 8 interest it has in the qualifications and performance of any government employee

 9 given the City’s heightened sensitivity to public perception. See Furgason, 1989-

10 NMCA-084, ¶ 35 (explaining that public officials occupy positions in government

11 that have “such apparent importance that the public has an independent interest in the

12 qualifications and performance of the person who holds it,” one that is beyond the

13 public’s general interest “in the qualifications and performance of all government

14 employees” (internal quotation marks and citation omitted)).

15   {16}   Plaintiff’s performance in her role as a hearing officer was extensive in both

16 the scope of her authority and in the subject matter to which her authority extended.

17 For example, hearing officers are required to determine whether the City could prove

18 by a preponderance of the evidence that a member of the public violated a city

19 ordinance. They also occasionally rule on the constitutionality of city ordinances.


                                               9
 1 They preside over hearings and swear in witnesses as needed. Hearing officers are

 2 responsible for conducting all of the City’s hearings concerning its ordinances, which

 3 include land use, zoning, liquor licenses, and personnel hearings. Moreover,

 4 determinations of a hearing officer are subject to judicial review, and like most any

 5 court ruling, can be appealed by the non-prevailing party.

 6   {17}   Functionally, Plaintiff was the decision making authority in semi-formal, quasi-

 7 judicial proceedings that involved the application of law, including city ordinances,

 8 to the conduct of members of the public. And the subject matter of the ordinances

 9 varied. Plaintiff said that she handled vehicle seizure issues and carport zoning issues,

10 and she was also asked “to do work on proposal language on [a] new ordinance,” and

11 “to do work on two seizure provisions and asked to do some firearms cases[.]”

12 Plaintiff said that she initially presided over hearings addressing the use of red light

13 cameras, but later she accepted more work, including zoning hearings, when her red

14 light docket slowed. She handled as many as 35-60 zoning hearings in one day, which

15 dealt with “proposed brick walls, special variance exceptions, [and] parking space

16 variances, etc.” She described the zoning hearings as “a completely different type of

17 hearing.” All of her decisions had to be written. Once each case closed, she made a

18 decision based on the zoning codes and prepared written findings and conditions of

19 approval. Plaintiff also said that up to sixty members of the public attended some of


                                               10
 1 these hearings. The number of hearings, the breadth of the subject matter of the

 2 hearings, and the attendance of and participation by the public in these hearings

 3 bolsters the importance of Plaintiff’s position such that the public has an interest in

 4 her qualifications and performance of the work, and evinces Plaintiff’s responsibility

 5 for and control over the conduct of governmental affairs.

 6   {18}   Finally, we briefly address Plaintiff’s arguments that (1) hearing officers cannot

 7 be considered public officials because they are unelected, and (2) one of our statutes

 8 defines “ ‘public official’ as ‘a person elected to an office in an election covered by

 9 the Campaign Reporting Act[.]’ ” NMSA 1978, § 1-19-26(P) (2015) Running for

10 office, hiring a campaign manager, or “putting yourself in the public eye to let people

11 know what you think[]” are not conditions of public official status in the context of

12 defamation lawsuits. Whether the government employee plaintiff was a politician or

13 subject to election may suffice to conclude that the plaintiff is a public official, but

14 it is not necessary to reach that conclusion. The test for public official status hinges

15 on whether the defamation plaintiff has “substantial responsibility for or control over

16 the conduct of governmental affairs.” Furgason, 1989-NMCA-084, ¶ 35 (internal

17 quotation marks and citation omitted). Such authority at times exists in the absence

18 of elections and politics. Additionally, we do not look to state statutes to inform our

19 understanding of who constitutes a public official. See Rosenblatt, 383 U.S. at 84


                                                11
 1 (rejecting the suggestion that the determination of public official status should be

 2 answered by reference to state law standards because states “have developed

 3 definitions of ‘public official’ for local administrative purposes, not the purposes of

 4 a national constitutional protection”).

 5 CONCLUSION

 6   {19}   We reverse the order of the district court concluding that Plaintiff is a private

 7 figure and hold that she is a public official, and we remand for further proceedings

 8 consistent with this opinion.

 9   {20}   IT IS SO ORDERED.


10                                                  ______________________________
11                                                  STEPHEN G. FRENCH, Judge


12 WE CONCUR:


13 ___________________________________
14 J. MILES HANISEE, Judge


15 ___________________________________
16 EMIL J. KIEHNE, Judge




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