Marchiondo v. New Mexico State Tribune Co., s. 5059

• Citation: 1981 NMCA 156,648 P.2d 321,98 N.M. 282
• Decision Date: 22 December 1981
• Docket Number: 5061,Nos. 5059,s. 5059
• Parties: William C. MARCHIONDO, Plaintiff-Appellant, v. NEW MEXICO STATE TRIBUNE COMPANY, Defendant-Appellee, and Robert A. Brown, et al., Defendants-Appellees and The Republican Party of the State of New Mexico, Third Party Defendant- Appellee.
• Court: Court of Appeals of New Mexico

Page 321

648 P.2d 321

98 N.M. 282

William C. MARCHIONDO, Plaintiff-Appellant, v. NEW MEXICO STATE TRIBUNE COMPANY, Defendant-Appellee and Robert A. Brown, et al., Defendants-Appellees and The Republican Party of the State of New Mexico, Third Party Defendant- Appellee.

Nos. 5059, 5061.

Court of Appeals of New Mexico.

Dec. 22, 1981.

Rehearing Denied Jan. 6, 1982.

Certiorari Quashed June 29, 1982.

Michael E. Vigil, Albuquerque, for plaintiff-appellant

Robert H. Clark, John B. Tittmann, Keleher & McLeod, Albuquerque, for New Mexico State Tribune Co., defendant-appellee.

Eric D. Lanphere, Michael A. Gross, Johnson & Lanphere, Albuquerque, for Robert A. Brown, et al., defendants-appellees.

Thomas F. McKenna, Albuquerque, for third party defendant-appellee.

OPINION

DONNELLY, Judge.

Plaintiff, William Marchiondo, filed two separate actions seeking damages against the Albuquerque Tribune, the Albuquerque Journal, its editor Robert Brown, and certain other Journal employees, alleging publication of one count of libel by the Tribune and four counts of libel by the Journal and its employees. The defendants have denied that any of the publications were defamatory, and have raised the defenses of constitutional privilege, fair comment and failure to state a claim. The Tribune filed a third-party complaint against the Republican Party of New Mexico, as originator of one of the alleged defamatory publications, seeking indemnity in the event the publication printed by the Tribune is determined to be libelous.

The trial court granted motions of the Tribune and Republican Party for summary judgment for the publication that appeared in the Tribune, granted motions of the Journal and its employees for summary judgment and failure to state a claim on two counts, and denied the Journal's motions on two remaining counts of plaintiff's complaint. From orders of the trial court dismissing these two causes of action, we granted plaintiff's two applications for interlocutory appeals, which have been consolidated. We affirm the rulings of the trial court involved in these appeals.

The publications which gave rise to the litigation involved in these appeals concern: (1) a paid political advertisement entitled "Cronies," one of a series of political publications prepared by the Republican Party which appeared in editions of both the Tribune and Journal, and (2) a column entitled "McBride Might Not Be Eligible," written by defendant Bob Brown, a Journal editor, which appeared only in the Journal.

Although the Journal has been sued for two other allegedly libelous publications concerning the plaintiff, these claims are presently pending trial and are not involved in the appeal. Additionally, two other interlocutory appeals arising out of the two counts pending trial are presently before the New Mexico Supreme Court. Marchiondo v. Brown, 95 N.M. 651, 625 P.2d 580 (1981).

Each of the alleged defamatory publications referred to Democratic gubernatorial candidate Jerry Apodaca and discussed possible political appointments he might make if elected governor. The "Cronies" advertisement asserted that Apodaca had a lot of cronies and that, if elected, he would appoint such individuals to positions in state government; that such cronies were part of the political spoils system, dependent upon state jobs and state contracts to keep their "political muscle;" and that they would expect "a piece of the action" if Apodaca was elected governor. The advertisement also alleged that, if elected, Apodaca would be the "kind of governor who would appoint Billy Marchiondo as Chairman of the New Mexico Racing Commission."

The editorial column "McBride Might Not Be Eligible" was published by the Journal on December 26, 1974, after the election of Governor Apodaca, but prior to his taking office officially. The article discussed the governor-elect's proposed appointment of State Senator Robert McBride to a position as district judge in Bernalillo County. The article questioned the legality of the appointment because Senator McBride was then serving as a state senator, and the New Mexico Constitution prohibits the appointment of a state legislator to a state civil office during the term for which he was elected. Included in the article was a paragraph specifically referring to plaintiff. The reference provided in part, "The political implications in McBride's appointment bother us as does his having received financial support in at least one past election from well known defense attorney, William Marchiondo."

The trial court, dismissing with prejudice all causes of action based upon the "McBride" column and the "Cronies" advertisement, entered specific written findings that:

1. Editorial-McBride may not be eligible. Defendants' Motion to Dismiss should be granted. The reference to plaintiff is not libelous per se; the contribution to McBride is admitted by plaintiff; is a matter of public record and publication thereof is privileged. The statement complained of is an idea or opinion and is constitutionally protected.

3. Paid political advertisement-Cronies. The Motion to Dismiss and/or for Summary Judgment should be granted. The advertisement is not libelous; is a statement of opinion, and is constitutionally protected.

If matters outside the pleadings are presented and accepted by the trial court in deciding a motion for failure to state a claim under N.M.R.Civ.P. 12(b)(6), the motion is treated as one for summary judgment.

On appeal, plaintiff asserts that: (1) the "Cronies" advertisement was not an expression of constitutionally protected opinion and is libelous per se; (2) the McBride editorial column was not a constitutionally protected opinion and was libelous per se.

I. The "Cronies" Advertisement :

The political advertisement entitled "Cronies," occupied a quarter page of both the Tribune and Journal newspapers. It was written and paid for by the Republican Party of New Mexico. The thrust of the advertisement was directed against the Democratic gubernatorial candidacy of Jerry Apodaca, and appeared just prior to the state general election in 1974. The concluding three paragraphs of the publication, although primarily directed at the Democratic Party's candidate for governor, specifically referred to the plaintiff in the final paragraph. It provided in part:

What kind of Governor would Jerry Apodaca be? He'd be the kind of Governor who puts his cronies in state government-who bends the law to accommodate them, or who changes the law to make room for them.

Jerry Apodaca would be the kind of Governor who would listen to his cronies-especially the ones who supported him so heavily in this campaign. He would make his decisions based on political expediency.

Jerry Apodaca would be the kind of Governor who would appoint Billy Marchiondo as Chairman of the New Mexico Racing Commission. That's why we say he's the man nobody can afford.

Plaintiff asserts that the trial court erred in its determination that the "Cronies" advertisement was not defamatory, and erred in ruling that the publication was constitutionally protected speech or privileged as a statement or opinion. Plaintiff contends that the publication imputed that plaintiff was a person who could coerce the governor to "bend the law to accommodate him," that he would encourage such actions and attempt to profit thereby, that he was alleged to be unqualified for an appointment to the State Racing Commission, that he was a "political hack who has tried to control New Mexico politics for years," and that the publication falsely imputed that he was not a qualified and reputable attorney.

Defendants pled as affirmative defenses that the advertisement was a statement of constitutionally protected opinion and fair comment; that even if the publication were deemed to be libelous, the material was not libel per se, but only libel per quod; and that plaintiff failed to properly plead a claim of special damages, essential to support a claim of libel per quod.

We discuss: (a) whether the publication was libelous per se; (b) whether the complaint properly pled a cause of action in libel per quod; (c) whether the advertisement is constitutionally protected as a statement of opinion; and (d) the defense of fair comment.

a) Claim of Libel Per Se :

Consideration of whether published material is capable of a defamatory meaning is initially a question of law. Southard v. Forbes, Inc., 588 F.2d 140 (5th Cir.), cert. denied, 444 U.S. 832, 100 S.Ct. 62, 62 L.Ed.2d 41 (1979); Fogel v. Forbes, Inc., 500 F.Supp. 1081 (E.D.Pa.1980); Westby v. Madison Newspapers, Inc., 81 Wis.2d 1, 259 N.W.2d 691 (1977). It is a matter of law for the court to determine if a publication is libelous per se, as opposed to a fact determination for the fact finder as to the publication being libelous per quod. Akins v. Altus Newspapers, Inc., 609 P.2d 1263 (Okl.1977); McKenney v. Carpenter, 42 Okl. 410, 141 P. 779 (1914).

The test of whether a publication is libelous per se was set forth in Colbert v. Journal Publishing Co., 19 N.M. 156, 142 P. 146 (1914), where the court enunciated the rule that "(a)ny false and malicious writing published of another is libelous per se, when its tendency is to render him contemptible or ridiculous in public estimation, or expose him to public hatred or contempt, or hinder virtuous men from associating with him." This test was followed in McGaw v. Webster, 79 N.M. 104, 440 P.2d 296 (1968); Chase v. New Mexico Publishing Co., 53 N.M. 145, 203 P.2d 594 (1949); Wood v. Hannett, 35 N.M. 23, 289 P. 590 (1930); Ward v. Ares, 29 N.M. 418, 223 P. 766 (1924); Thomas v. Frost, 79 N.M. 125, 440 P.2d 800 (Ct.App.1968).

In Monnin v. Wood, 86 N.M. 460, 525 P.2d 387 (Ct.App.1974), it was stated:

To be libelous per se, the (publication) alone, without any reference to extrinsic facts, stripped of all insinuations, innuendos and explanatory circumstances, must tend to render the plaintiff...