Candelaria v. Robinson

• Decision Date: 03 January 1980
• Docket Number: No. 4017,4017
• Citation: 1980 NMCA 3,93 N.M. 786,606 P.2d 196
• Parties: Gil CANDELARIA, Plaintiff-Appellant, v. Ira ROBINSON and Robert Singer, Defendants-Appellees.
• Court: Court of Appeals of New Mexico

Page 196

606 P.2d 196

93 N.M. 786

Gil CANDELARIA, Plaintiff-Appellant, v. Ira ROBINSON and Robert Singer, Defendants-Appellees.

No. 4017.

Court of Appeals of New Mexico.

Jan. 3, 1980.

James L. Brandenburg, Albuquerque, for plaintiff-appellant

Stephen M. Williams, Shaffer, Butt, Thornton & Baehr, Albuquerque, for Ira Robinson.

Robert M. Strumor, Santa Fe, Coors, Singer & Stratton, P. A., Albuquerque, for Robert N. Singer.

OPINION

WOOD, Chief Judge.

Claiming defamation, three counts of the complaint sought damages from Singer and Robinson. These counts were dismissed on the basis that the alleged defamation was absolutely privileged. Plaintiff appeals. We (1) identify the immunity (privilege) claims applicable to this case, (2) discuss the procedural posture of the appeal, and (3) discuss the duties of Singer and Robinson.

Applicable Immunity Claims

Velton (we use plaintiff's spelling) was murdered in February, 1974. The four defendants in State v. Morrison, Sup.Ct. No. 10084, were convicted of the murder. Subsequent proceedings resulted in the convictions being set aside and in the discharge of these four defendants. Lee was charged with the Velton murder in January, 1978. He was convicted of second degree murder with firearm enhancement. Sentence was imposed June 16, 1978. Lee's conviction was affirmed by memorandum opinion in State v. Lee, (Ct.App.) No. 3687 decided February 22, 1979.

The events referred to in plaintiff's complaint took place after the discharge of the four defendants in State v. Morrison, supra, and after the conviction of Lee.

The count against Singer alleged that in August and September, 1978, at the request of District Attorney Robinson, Singer prepared a report "regarding the investigation of the WILLIAM VELTON murder case in 1974"; that Singer submitted this report to Robinson; that statements by Singer in the report defamed plaintiff. One of the counts against Robinson alleged that Robinson wrote a letter to the sheriff on September 21, 1978. A copy of this letter was attached to the complaint. The letter quoted a portion of Singer's report, referred to plaintiff's investigation of the Velton case as "highly improper gestapo-type tactics," agreed with Singer that plaintiff "could not be prosecuted" due to the statute of limitations, and recommended that plaintiff's employment with the sheriff's department "be terminated immediately." This count alleged that Robinson's letter to the sheriff defamed plaintiff. The second count against Robinson alleged that comments made by Robinson at a "press conference" on September 14, 1978, defamed plaintiff.

There is no issue in this appeal concerning the sufficiency of pleading defamation; rather, the issues involve the immunity of Singer and Robinson. The trial court ruled that the alleged defamation was "absolutely privileged as a matter of law, and the New Mexico Tort Claims Act prohibits this suit . . . ." Salazar v. Bjork, 85 N.M. 94, 509 P.2d 569 (Ct.App.1973) stated that "immunity" is a more precise description than "privilege" in describing the protection afforded in this case. See Franklin v. Blank, 86 N.M. 585, 525 P.2d 945 (Ct.App.1974).

The trial court's ruling was in two parts: 1) an absolute immunity as a matter of law, and 2) immunity under the Tort Claims Act, §§ 41-4-1 through 41-4-25, N.M.S.A.1978 (Supp.1979).

The ruling of absolute immunity as a matter of law involves the concepts of judicial immunity and executive immunity. Judicial immunity is involved because the office of district attorney is a quasi-judicial office. Ward v. Romero, 17 N.M. 88, 125 P. 617 (1912). Executive immunity is involved because the office of district attorney has duties which cannot be properly classified as quasi-judicial. See § 36-1-18(B) and (C), N.M.S.A.1978.

The ruling of absolute immunity as a matter of law also involves the concepts of absolute immunity and qualified immunity. Robinson was the district attorney and Singer was his special assistant. On the basis of these positions, Robinson and Singer contend they have an absolute immunity; plaintiff contends their immunity is qualified. Involved in this aspect of the immunity argument is the fact that Robinson and Singer are attorneys; they claim an absolute privilege on that basis as well as on the basis of their official positions.

Attorney immunity is not involved. Absolute immunity is accorded to attorneys for defamation reasonably related to communication preliminary to, in the institution of, or during the course and as a part of judicial proceedings in which the attorney participates as counsel. Romero v. Prince, 85 N.M. 474, 513 P.2d 717 (Ct.App.1973). This immunity does not apply to defamation on the attorney's part which occurs after final disposition of the judicial proceeding. Prosser, Law of Torts (4th ed 1971) page 780. There is nothing indicating the alleged defamation involved judicial proceedings; the only showing is to the contrary. The alleged defamation occurred after the Lee conviction in 1978, involved the 1974 investigation of the Velton murder and, according to Robinson's letter, occurred after any criminal offense by plaintiff was barred by the statute of limitations.

It is unnecessary to determine whether the immunity involved in the first part of the trial court's ruling was judicial, executive, absolute or qualified. No immunity under these categories is involved unless the alleged defamation occurred during the performance of some duty by Robinson and by Singer. Restatement of The Law, Torts 2d (1977), §§ 585, 591, 593; see Adams v. Tatsch, 68 N.M. 446, 362 P.2d 984 (1961); Mahona-Jojanto, Inc., N. S. L. v. Bank of New Mexico, 79 N.M. 293, 442 P.2d 783 (1968); Salazar v. Bjork, supra; Neece v. Kantu, 84 N.M. 700, 507 P.2d 447, 60 A.L.R.3d 1030 (Ct.App.1973). Compare Torres v. Glasgow, 80 N.M. 412, 456 P.2d 886 (Ct.App.1969).

Section 41-4-4, supra, was amended in 1978 and this amendment was in effect at the time of the defamation alleged in the complaint. As amended, § 41-4-4(A) provided:

A governmental entity and any public employee while acting within the scope of duty are granted immunity from liability for any tort except as waived by Sections 41-4-5 through 41-4-12 NMSA 1978.

The only waiver section, remotely applicable, was § 41-4-12, supra, which pertains to law enforcement officers. Neither Robinson nor Singer was a "law enforcement officer" as that term is defined in § 41-4-3(D), supra. Robinson and Singer were public employees under § 41-4-3(E), N.M.S.A.1978.

"(I)mmunity from liability for any tort" § 41-4-4(A), supra, applies to Robinson and Singer if their alleged defamation occurred "while acting within the scope of duty . . . ." Section 41-4-3(F), supra, states:

"(S)cope of duties" means performing any duties which a public employee is requested, required or authorized to perform by the governmental entity regardless of the time and place of performance(.)

If either Robinson or Singer was acting within the scope of his duty as a public employee at the time of his alleged defamation, he is immune from liability under the Tort Claims Act regardless of any other immunity afforded to a district attorney or assistant district attorney. The question of judicial, executive, absolute or qualified immunity need not be decided because in this case, such immunity involves no duty different than the duty defined in the Tort Claims Act.

The applicable immunity claim, in this case, is the immunity provided by the Tort Claims Act. This holding is not to be taken as a suggestion that the converse is true. Section 41-4-2(A), supra, limits the liability of public employees; however, § 41-4-14, supra, preserves "any defense available . . . ."

The Procedural Posture

At oral argument, counsel agreed that depositions included in the record were not before the trial court, that the defamation counts were dismissed for failure to state a claim upon which relief can be granted. Rule of Civ.Proc. 12(b)(6). In considering such a motion, all facts well pleaded must be accepted as true; the motion may be granted only when the plaintiff cannot be entitled to relief under any state of facts provable under the claim. Runyan v. Jaramillo, 90 N.M. 629, 567 P.2d 478 (1977).

Robinson points out that the complaint "alleges no tort committed by Ira Robinson outside the scope of his duties." Robinson seems to assert that the absence of such an allegation brings the complaint within the immunity of the Tort Claims Act. We disagree. Immunity is a defense. Prosser, supra, page 776. Plaintiff was not required to anticipate this defense. Jamison v. McMillen, 26 N.M. 231, 190 P. 726 (1920); Pople v. Orekar, 22 N.M. 307, 161 P 1110 (1916); see Rule of Civ.Proc. 8(a) and (c).

Plaintiff asserts the complaint contains no allegation that Robinson and Singer "were acting within the scope of their duties at the time the remarks and statements were made." On the basis of an absence of allegations concerning the duties of Robinson and Singer, plaintiff asserts that there was no basis for an immunity ruling and no basis for a ruling that the defamation allegations failed to state a claim upon which relief could be granted. We agree only in part with this contention. The specific allegations of the complaint are discussed in the next point.

Duties of Singer and Robinson

A. Singer

The complaint alleges that Robinson was the district attorney, that Singer "acting as a Special Assistant District Attorney . . . prepared a report at the request of . . . (Robinson) regarding the investigation of the . . . (Velton) murder case in 1974 and this report was submitted to . . . (Robinson)." Singer's alleged defamation was based on statements made by Singer in the report.

The district attorney may appoint assistant district attorneys and assign their duties. Section 36-1-5, N.M.S.A.1978. The allegation that Singer was a "special" assistant district attorney has no legal...