Dunn v. Brandt

• Citation: 450 P.3d 398
• Decision Date: 18 July 2019
• Docket Number: No. A-1-CA-36299,A-1-CA-36299
• Parties: A. Blair DUNN, Plaintiff-Appellant, v. Kathy BRANDT, Guardian Ad Litem for Second Judicial District Court, and Second Judicial District Court, Defendants-Appellees.
• Court: Court of Appeals of New Mexico

450 P.3d 398

A. Blair DUNN, Plaintiff-Appellant,

v.Kathy BRANDT, Guardian Ad Litem for Second Judicial District Court, and Second Judicial District Court, Defendants-Appellees.

No. A-1-CA-36299

Court of Appeals of New Mexico.

Filing Date: JULY 18, 2019

Western Agriculture, Resource and Business Advocates, LLP, A. Blair Dunn, Albuquerque, NM, Pro Se Appellant

Brant & Hunt, Attorneys, John M. Brant, Albuquerque, NM, for Appellee Kathy Brandt

Hector H. Balderas, Attorney General, Ari Biernoff, Assistant Attorney General, Joseph Dworak, Assistant Attorney General, Santa Fe, NM, for Appellee Second Judicial District Court

Martinez, Hart, Thompson & Sanchez, P.C., F. Michael Hart, Julio C. Romero, Albuquerque, NM

Peter Klages, Albuquerque, NM, for Amici Curiae Advocacy, Inc., Pegasus Legal Services for Children, Martha Kaser, Sarah Armstrong, and Tiffany Oliver Leigh

VANZI, Judge.

{1} Plaintiff A. Blair Dunn appeals the dismissal of his enforcement action under the Inspection of Public Records Act (IPRA). NMSA 1978, §§ 14-2-1 to -12 (1947, as amended through 2019). We affirm because disclosure of the records to Plaintiff is barred by a protective order or by the judicial deliberation privilege recognized in Pacheco v. Hudson , 2018-NMSC-022, ¶ 39, 415 P.3d 505.

BACKGROUND

{2} Plaintiff is the petitioner in a domestic relations matter in the Second Judicial District Court (the SJDC) that involves his child, now ten years old. See Dunn v. Dunn , No. D-202-DM-2011-00839. On Plaintiff’s motion, the district court appointed Defendant Kathleen Brandt (Brandt) as guardian ad litem to the child. See NMSA 1978, § 40-4-8 (1993) (permitting appointments of guardians ad litem); see also Rule 1-053.3 NMRA (governing appointment of guardians ad litem in domestic relations cases).¹ Consistent with Rule 1-053.3(F), the order required Brandt to:

a. interview the child face-to-face outside the presence of both parents and counsel i[f] the child is [six] (6) years of age or older;

b. interview all parties and any available parent subject [to] Rule[ ] 16-402 NMRA;

c. interview each mental health professional treating the child after obtaining any necessary authorization[;]

d. interview any other person[s] and/or review any relevant records the [guardian ad litem] deems reasonably necessary after obtaining any necessary authorization;

e. determine the child’s wishes, if appropriate;

f. submit, but do not file, a written report of investigation and separate written recommendations to all parties and counsel at least ten days before the recommendations are filed with the court, except in the case of emergency;

g. file the recommendations, but not the report, with the [c]ourt; perform the duties to the child as set forth in Rule 1-053.3(H) and (I) NMRA [;] and[ ]

....

i. [i]nvestigate any health/medical issues affecting the minor child.

Plaintiff served Brandt with a discovery request seeking "all correspondence received by you or produced by you—whether transmitted by electronic means or by USPS—with either party or any other person in relation to the [domestic relations] case." In response, Brandt sought a protective order, in which she asserted that she "serves as an arm of the [district c]ourt and assists the [district] court in discharging its duty to adjudicate the child’s best interests and as such should not have to disclose her work prior to the submission of a report" and that "P[laintiff]’s discovery request is overbroad, oppressive and unduly burdensome. Moreover it appears to be calculated as part of a litigation strategy to intimidate [Brandt] or otherwise force her to withdraw." Plaintiff apparently did not respond to Brandt’s motion, and the district court issued a protective order on March 3, 2016 (the protective order), stating, "The Guardian ad Litem’s Motion for Protective Order is granted. The Guardian ad Litem shall not be required to respond to P[laintiff]’s Interrogatories or Request for Production."

{3} Four days later, Plaintiff emailed Brandt a request to "produce all records of communications sent or received by you in any form in the [domestic relations] case." Plaintiff stated, "As ... you are an arm of the [district c]ourt please treat this [as] an IPRA request ... to you in your official capacity." Brandt did not respond to this request. On March 11, 2016, Plaintiff sent a copy of the request to the designated custodian of records at the SJDC. After first requesting additional time to respond, the records custodian denied Plaintiff’s request on March 30, 2016. See § 14-2-10 (permitting the records custodian to request additional time to respond to broad requests); § 14-2-11 (governing denial of IPRA requests). The records custodian based the denial on its conclusion that (1) Brandt’s records were not public records as defined by IPRA; (2) the SJDC records custodian is not the proper custodian of the records; (3) the records are subject to the protective order issued in the domestic relations case; and (4) Brandt is entitled to quasi-judicial immunity under Kimbrell v. Kimbrell , 2014-NMSC-027, 331 P.3d 915.

{4} Plaintiff filed the instant action for a declaratory judgment ordering production of the records, naming both Brandt and the SJDC as defendants. All parties moved for summary judgment. After hearing argument, the district court granted summary judgment in favor of Brandt and the SJDC (collectively, Defendants) and denied Plaintiff’s motion. Plaintiff appealed.

DISCUSSION

{5} Summary judgment is appropriate where "there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Rule 1-056(C) NMRA. On appeal, Plaintiff does not argue that the presence of a "genuine issue as to any material fact" requires reversal of the district court’s judgments. Instead, he maintains that the district court erred in ruling that, assuming records responsive to his IPRA request exist, Defendants nevertheless did not violate IPRA by withholding them. "We review an order granting summary judgment de novo." Associated Home & RV Sales, Inc. v. Bank of Belen , 2013-NMCA-018, ¶ 22, 294 P.3d 1276.

{6} "Our democratic system of government necessarily ‘assumes the existence of an informed citizenry. ... Without some protection for the acquisition of information about the operation of public institutions ... the process of self-governance contemplated by the Framers would be stripped of its substance.’ " Republican Party of N.M. v. N.M. Taxation & Revenue Dep’t , 2012-NMSC-026, ¶ 1, 283 P.3d 853 (quoting Houchins v. KQED, Inc. , 438 U.S. 1, 31-32, 98 S.Ct. 2588, 57 L.Ed.2d 553 (1978) (Stevens, J., Brennan, J. & Powell, J. dissenting)). IPRA "give[s] practical effect to this principle[.]" Republican Party of N.M ., 2012-NMSC-026, ¶ 1, 283 P.3d 853. "Recognizing that a representative government is dependent upon an informed electorate," the Legislature declared "that all persons are entitled to the greatest possible information regarding the affairs of government[.]" Section 14-2-5. Any analysis of IPRA actions therefore "begin[s] ... with the strong presumption that the public has a right to inspect the [records] at issue." Cox v. N.M. Dep’t of Pub. Safety , 2010-NMCA-096, ¶ 16, 148 N.M. 934, 242 P.3d 501. "This right is limited only by the Legislature’s enumeration of certain categories of records that are excepted from inspection." Republican Party of N.M. , 2012-NMSC-026, ¶ 13, 283 P.3d 853. The statutory exceptions conclude with a catch-all category: "as otherwise provided by law." Section 14-2-1(H). This category "includes statutory and regulatory bars to disclosure, constitutionally mandated privileges, and privileges established by our rules of evidence." Pacheco , 2018-NMSC-022, ¶ 39, 415 P.3d 505 (internal quotation marks and citation omitted).

{7} On appeal, Plaintiff argues that a guardian ad litem’s records are subject to IPRA because a guardian ad litem acts as an "arm of the court." In support of this proposition, Plaintiff argues that the nine factors set forth in State ex rel. Toomey v. City of Truth or Consequences , 2012-NMCA-104, 287 P.3d 364, indicate that Brandt functioned as a public entity whose records fall within IPRA’s reach. Plaintiff further argues that the quasi-judicial immunity recognized in Kimbrell does not immunize Brandt from IPRA actions, and that none of the exceptions to IPRA apply to Brandt’s records. Plaintiff does not address Brandt’s argument that the protective order precludes disclosure here, except to state that "[t]he protective order does not provide a shield because it is rooted in the same flawed logic as the IPRA denial" and that "[i]t is beyond argument that [Plaintiff] is allowed to accept the reasoning of the [d]istrict [c]ourt that [Brandt] was an agent of the [district c]ourt, and upon that basis assert that [Brandt] was potentially subject to IPRA."

{8} IPRA does not address the effect of a protective order on disclosure of public records, nor did we locate, after diligent search, a New Mexico case considering whether a protective order falls within IPRA’s "as otherwise provided by law" exception. Compare § 14-2-1(H), with 65 Pa. Stat. and Cons. Stat. Ann. § 67.305(a)(3) (West 2009) (providing that records may be exempt from public "disclosure under any ... Federal or State law or regulation or judicial order or decree " (emphasis added)). See Pacheco , 2018-NMSC-022, ¶ 39, 415 P.3d 505. Without deciding that question, we nevertheless conclude that the district court properly granted summary judgment to Defendants because the protective order precludes disclosure of Brandt’s records to Plaintiff under the circumstances here. We also conclude that, to the extent the SJDC is in possession of communications between the district court and Brandt, the judicial deliberation privilege recognized in Pacheco protects those records from public disclosure.

I. The Protective Order Precludes Disclosure of Brandt’s Records to Plaintiff Under the...