Young v. Wilham

• Citation: 406 P.3d 988
• Decision Date: 25 May 2017
• Docket Number: NO. A-1-CA-34379,A-1-CA-34379
• Parties: David C. YOUNG, Plaintiff-Appellant, v. Todd J. WILHAM and Journal Publishing Company, Defendants-Appellees.
• Court: Court of Appeals of New Mexico

406 P.3d 988

David C. YOUNG, Plaintiff-Appellant,

v.Todd J. WILHAM and Journal Publishing Company, Defendants-Appellees.

NO. A-1-CA-34379

Court of Appeals of New Mexico.

Filing Date: May 25, 2017

Certiorari Denied, August 3, 2017, No. S-1-SC-36497

Stephen E. Lane, Albuquerque, NM, Vega Lynn Law Offices, LLC, Rosario D. Vega Lynn, Albuquerque, NM, for Appellant.

Peifer, Hanson & Mullins, P.A., Charles R. Peifer, Lauren Keefe, Gregory P. Williams, Albuquerque, NM, for Appellees.

J. MILES HANISEE, Judge

{1} Plaintiff David Young brought defamation and false light invasion of privacy claims against Defendants Todd Wilham and Journal Publishing Company concerning a number of statements contained within articles written by Wilham, a reporter, and published in the Albuquerque Journal(the Journal), a local newspaper for which he worked. The articles questioned aspects of Plaintiff's dichotomous service to the Albuquerque Police Department (APD) as a paid civilian employee and an unpaid reserve officer. The district court dismissed some of Plaintiff's claims pertaining to the published statements under Rule 1-012(B)(6) NMRA and granted Defendants summary judgment on the others. Plaintiff appeals both dispositive orders. He also appeals the district court's legal conclusion that he is a public official who, under New York Times Co. v. Sullivan, 376 U.S. 254, 283-86, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), must prove Defendants acted with "actual malice" in publishing the challenged articles. Plaintiff also contends that rejection of his claims deprives him of heightened protections afforded only by the New Mexico Constitution. We affirm.

BACKGROUND

Factual Background

{2} Plaintiff was employed as a civilian by APD. Beginning in 1999, he was assigned to APD's Special Investigations Division (SID) as a fleet manager and certified technical specialist. Plaintiff was responsible for setting up and monitoring electronic surveillance in support of SID operations, during which he frequently worked alongside detectives in the field. When this sparked safety concerns, the SID commander asked that Plaintiff be trained as a reserve officer so that he could carry a gun and a badge when assisting with field operations. In 2005 Plaintiff resumed work with SID as a civilian technician, certified also to act as a reserve officer during SID operations. At the time, SID was short two detectives, so a supervisory APD lieutenant obtained authorization for Plaintiff to assist SID in a tactical capacity during enforcement activities.

{3} In this arrangement, Plaintiff (as a civilian employee) set up and monitored electronic surveillance for SID operations, and also (as a reserve officer) performed undercover detective work when asked to do so by SID supervisors. According to one such supervisor, it was not uncommon for Plaintiff to switch between both roles in the same SID operation. Plaintiff was entitled to be paid for the work he performed as a civilian technician, but reserve officers are volunteers who receive no pay for their work. Yet there is no dispute that neither Plaintiff nor SID supervisors adequately documented the amount of time Plaintiff spent performing each of his roles. According to Plaintiff, he accounted for reserve officer time by adjusting his time sheets, deducting that time he spent performing reserve officer duties from the total time he recorded in a given shift. For example, if Plaintiff worked until one o'clock in the morning and had spent one hour performing reserve officer duties, he would record on his time sheet that he had only worked until midnight. Thus, Plaintiff explained that the civilian duties for which he was paid as an APD employee were in fact differentiated from his unpaid volunteer activities as a reserve officer. However, Plaintiff's time sheets did not show any deductions, and there were no "other contemporaneous records" reflecting the differentiation between Plaintiff's paid and unpaid overtime activities.

{4} Reporting for the Journal, Defendant Wilham obtained Plaintiff's time sheets and payroll information through a public records request. Wilham also obtained court and arrest records from the operations in which Plaintiff participated. Upon his comparison of the documents, Wilham concluded that Plaintiff had been impermissibly paid for performing reserve officer duties, including instances in which he made arrests—a function not allowed reserve officers. That is because the dates and times when Plaintiff recorded making arrests overlapped with time periods for which Plaintiff reported and was paid overtime. To allow "time for ... [APD] to start an independent investigation and to figure out what [Plaintiff's] status was before any story was published [,]" Wilham provided the information he had gathered to APD's police chief, Ray Schultz, one week before the first article was published. Wilham also made three requests of APD for additional documents, but it was only after publication of his first story that APD responded. Also prior to publication, Wilham contacted APD's public information officer to request an interview with Plaintiff and unsuccessfully attempted to contact Plaintiff directly. Wilham eventually spoke with Plaintiff's attorney, but Plaintiff never responded to Wilham and no interview with Plaintiff was arranged by APD. In fact, APD ordered Plaintiff and his supervisors not to speak with Wilham and told them that "Chief Schultz was going to handle it."

{5} Between August 19, 2009, and October 20, 2009, the Journal published a series of articles concerning Plaintiff and the APD reserve officer program. Earlier articles focused on Plaintiff's reserve officer activities—stating that Plaintiff made arrests and collected overtime pay for doing police work—in the context of explaining that state law and city ordinance prohibited reserve officers from making arrests and being paid for reserve-related work. Later articles reported on APD's reserve officer program more generally, including APD's temporary suspension of it and changes APD made to it subsequent to an internal investigation. The Journal published additional aspects of the story as its series evolved, including that many of the cases based on arrests Plaintiff made had been dismissed, the "cozy" relationship between Plaintiff and high-ranking APD officials, and the $175,000 settlement the city paid to three women who had been arrested by Plaintiff.

Procedural Background

{6} In 2012 Plaintiff sued Defendants, seeking damages for defamation and false light invasion of privacy. Plaintiff claimed that the published articles defamed him by: (1) characterizing him as a "wannabe cop," (2) stating that he fraudulently collected pay for reserve officer activities, (3) stating that he lacked proper training to perform police functions, (4) stating that he had committed illegal and unethical conduct, (5) stating that he was not a police officer, (6) asserting that he had violated APD standard operating procedures and New Mexico law in actions as a reserve officer, (7) asserting that he had engaged in misconduct in his work as a reserve officer, and (8) suggesting that he was responsible for the suspension of the APD reserve officer program. Plaintiff also claimed that Defendants "placed him before the public in a false light by ... labeling [him as] a ‘wannabe cop[,]’ ... stating that he had collected overtime pay for perform[ing r]eserve [o]fficer duties [,] and[ ] attempting to portray him as unqualified to perform police functions."

{7} Defendants moved to dismiss the entirety of Plaintiff's complaint for failure to state a claim pursuant to Rule 1-012(B)(6). The district court granted Defendants' motion in part, allowing Plaintiff to proceed only with his claims of defamation and false light invasion of privacy "aris[ing] from Defendants' statements concerning Plaintiff's collection of overtime pay and the related statements concerning Plaintiff's collection of overtime pay while making arrests and performing police work."

{8} Following discovery, Defendants moved for summary judgment. Finding that Plaintiff was a public official and thus applying the actual malice standard set forth in New York Times Co., the district court granted Defendants' motion because Plaintiff produced no evidence that Defendants acted with actual malice. This appeal followed.

DISCUSSION

{9} On appeal, Plaintiff argues that the district court committed reversible error when it: (1) deemed Plaintiff a "public official" required to establish "actual malice" in order to succeed on his claims of defamation and false light, (2) applied Rule 1-012(B)(6) to dismiss Plaintiff's defamation and false light claims arising from Defendants' characterization of Plaintiff as a "wannabe cop," (3) granted Defendants summary judgment on the remaining claims, and (4) failed to afford Plaintiff protections conferred by the New Mexico Constitution.

I. The District Court Properly Found That Plaintiff Is a Public Official and That the New York Times Co. "Actual Malice" Standard Applies to Both His Defamation and False Light Claims

{10} Whether a plaintiff is a public official is a question of law that we review de novo. See Marchiondo v. Brown, 1982-NMSC-076, ¶ 24, 98 N.M. 394, 649 P.2d 462 ; see also Davis v. Devon Energy Corp., 2009-NMSC-048, ¶ 12, 147 N.M. 157, 218 P.3d 75. "Ascertaining the status of [a] plaintiff is necessary since it dictates the standard of proof applicable in the law suit." Coronado Credit Union v. KOAT Television, Inc., 1982-NMCA-176, ¶ 33, 99 N.M. 233, 656 P.2d 896. A private plaintiff need only prove that the defendant acted negligently in publishing a defamatory statement, see Newberry v. Allied Stores, Inc., 1989-NMSC-024, ¶ 17, 108 N.M. 424, 773 P.2d 1231, whereas a public official must prove that the defendant acted with actual malice. New York Times Co., 376 U.S. at 279-80, 84 S.Ct. 710. This heavier burden on "public official" plaintiffs reflects "a...