{1} This appeal tests the defense of absolute immunity against liability for alleged defamatory statements made to news reporters. The immunity asserted is based on absolute privilege. Throughout this opinion, we refer to the immunity and the privilege as “absolute privilege.” Before and after attorney Linda Thomas filed a toxic tort action in Santa Fe County against Helena Chemical Company (Helena) on behalf of Arturo and Pamela Uribe and other plaintiffs, Ms. Thomas and Mrs. Uribe made statements to news reporters that Helena claims, in this separate action, were defamatory. The district court granted summary judgment in favor of Ms. Thomas and Mrs. Uribe holding that they were immune from liability based on their defense of absolute privilege. The issues on appeal center on whether the court erred in granting that immunity as to (1) statements made at a community meeting attended by a news reporter ten months before a judicial proceeding was initiated, and (2) statements made the day after the proceeding was initiated to news reporters who were invited to hear the statements. We hold that' the absolute privilege is unavailable under the circumstances in this case where the alleged defamatory statements were made to news reporters who had no
BACKGROUND
{2} Helena is a crop protection company that started business in Mesquite, Nеw Mexico in 1989. In October 2008, the Uribes, among other residents of Mesquite, filed an action against Helena (the October 2008 tort action) alleging personal injury and property damage from “exposure to hazardous dusts, fumes, and contaminants emanating from [Helena].” They averred, among other facts to support their claims, that the New Mexico Environment Department (NMED) had accused Helena of violating New Mexico environmental standards, had issued notices to Helena regarding violations of Helena’s air quality permit, had assessed a penalty against Helena, had confirmed contamination by Helena of underground water, and had fined Helena regarding an unreported spill.
{3} Before their October 2008 tort action, in December 2007, Mr. Uribe hosted a meeting to which the public at large was invited through public advertisements. Mr. Uribe also invited Heath Haussamen, a political news reporter, writer, editor, and publisher of a website blog called “Heath Haussamen on New Mexico Politics.” Mr. Haussamen attended the meeting solely in his “capacity as a news reporter/writer who covers New Mexico.”
{4} In addition, Mr. Uribe and Mesquite residents invited Ms. Thomas and Michelle Wan, Texas licensed attorneys, to attend the December 2007 meeting to discuss matters relating to and possible litigation against Helena, and Ms. Thomas spoke at the meeting. Residents were contemplating a lawsuit against Helena and were interested in hiring Ms. Thomas and Ms. Wan to represent them. Mr. Uribe and other residents were aware that Ms. Thomas and Ms. Wan had sued Helena in Texas. Mr. Uribe, who was president of the Mesquite Community Action Committee, and who had been involved for several years with the Helena air quality and contamination issues, opened the meeting and invited those in attendance to talk to the attorneys about how they felt as to their health and future in Mesquite. Ms. Thomas and Ms. Wan were later hired to represent the Uribes and other residents in the October 2008 tort action against Helena. On October 9, 2008, the day after that action was filed, a press conference was held by the attorneys outside of Helena’s facility to announce the filing of the actiоn (the press conference).
{5} Helena filed the present defamation action on December 8, 2008, alleging that statements made by Ms. Thomas at the December 2007 meeting and statements made by Ms. Thomas and Mrs. Uribe at the press conference were defamatory. Helena alleged that the following statement made by Ms. Thomas at the December 2007 meeting was defamatory: “[C]hildren are out here and they’re playing in the yard, they’re putting their hands in their mouth, so they’re really getting a dose that way. Kids are at a much greater risk.” Helena further alleged that Ms. Thomas defamed it when she reportedly said that Helena’s actions in Mesquite appeared to be “pretty egregious.” In addition, Helena claimed that at the press conference Ms. Thomas defamed Helena by stating that “[t]he underground water has been contaminated” and that Mrs. Uribe defamed Helena by stating that Helena caused “[u]p-per respiratory problems, pneumonia and bad allergies, bloody noses[.]”
{6} In a summary judgment proceeding filed by Ms. Thomas and Mrs. Uribe to establish their defense of absolute privilege as to Helena’s defamation claims, Ms. Thomas and Mrs. Uribe necessarily assumed for the purposes of the motion for summary judgment that their statements were defamatory. The absolute privilege defense can be asserted only against statements admittedly defamatory. We emphasize that, on appeal, the same assumption holds fоr the purposes of our analyses and determinations. We reverse.
DISCUSSION
Standard of Review
{7} “An absolute or unqualified privilege means absolute immunity from liability for defamation.” Neece v. Kantu,
The Issues at Hand
{8} Helena’s appellate points are that the defense of absolute privilege does not apply to the alleged defamatory statements because (1) Ms. Thomas’s December 2007 statements wеre made ten months before the October 2008 tort action was filed, a period “too far in advance of litigation, and/or ... at a time when she did not have any clients, and thus could not seriously have considered any claims”; and (2) the December 2007 meeting and the press conference statements made by Ms. Thomas and Mrs. Uribe were communicated to and received by news reporters who were wholly uninterested in and unrelated to the judicial proceeding.
{9} Helena emphasizes that whether absolute privilege can be applied in this case is an important matter of public policy. On the issue of public policy, Helena asks:
Does the State of New Mexico want to encourage[:]
1. trials by press?
2. attorneys defaming third parties to the general public as a means of attracting potential clients?
3. defamation so remote in time from the filing of a lawsuit or at a time when litigation is only a bare possibility?
The Law of Absolute Privilege in New Mexico
{10} This Court recognized early on that the standard for ascertaining the extent of the absolute privilege is whether the alleged defamatory matter is reasonably related to the subject of inquiry. Stryker v. Barbers Super Mkts., Inc.,
The absolute immunity of parties litigant rests upon the public policy which deems it desirable that all suitors, whether malicious and bold, or conscientious and timid, should have free access to the conscience of the State with whatever complaint they chоose to make. This is necessary to a thorough and searching investigation of the truth.... Perfect freedom to say in their pleadings whatever the parties choose to bring to the consideration of the court or jury tends obviously to promote the intelligent administration of justice.
Id. at 45,
{11} Also early on, this Court adopted the Restatement of Torts § 586 (1938), relating to absolute privilege which stated:
An attorney at law is absolutely privileged to publish false and defamatory matter of another in communications preliminary to a proposed judicial proceeding, ... or during the course and as a part of a judicial proceeding in which he participates as counsel, if it has some relation thereto.
Romero v. Prince,
{12} Section 586 was continued in the Restatement (Second) of Torts § 586 (1977), essentially unchanged from the 1938 version on which the Romero Court relied. Penny,
{13} The issue in Penny was whether the district court erroneously failed to recognize what one party interpreted Romero to require, namely, that publication to a person with a direct interest in the judicial proceeding was an essential element of the absolute-privilege defense. Penny,
{14} The Court in Penny offered a canvass of other cases, stating that “[s]everal courts have recognized absolute immunity for publication to an individual or organization without a direct interest in the relevant proceeding where the recipient nonetheless had some interest in the proceeding.” Id. Yet, citing cases involving communications with a newspaper and with a company’s customers, this Court also “reeognize[d] that courts have refused to apply the absolute privilege to communications made to recipients wholly unrelated tо the proceeding.” Id. at 521,
{15} This Court’s latest absolute-privilege ease is Gregory Rockhouse Ranch in which the defendant counterclaimed alleging slander of title.
[W]e find no authority to support extension of this privilege to communications made so far in advance of litigation. Nor do we find any indication that litigation was seriously contemplated at the time that the communications were made. We regard this as fatal to [the] claim of absolute privilege.
Id. In support of this ruling, the Court noted Restatement (Second) of Torts § 587 cmt. e (1977) as “observing that, with respect to communications which are preliminary to a judicial proceeding, the absolute privilege applies only if a proceeding is contemplated in good faith and under serious consideration at the time the communication is made.” Gregory Rockhouse Ranch,
A party to a private litigation or a privаte prosecutor or defendant in a criminal prosecution is absolutely privileged to publish defamatory matter concerning another in communications preliminary to a proposed judicial proceeding, or in the institution of or during the course and as a part of, a judicial proceeding in which he participates, if the matter has some relation to the proceeding.
{16} To summarize New Mexico defamation case law, the absolute-privilege defense is available when an alleged defamatory statement is made to achieve the objects of the litigation and is reasonably related to the subject matter of the judicial proceeding. As part of the absоlute-privilege analysis, we consider the extent to which the recipient of the statement had an interest in the judicial proceeding. When the statement precedes initiation of the judicial proceeding, the privilege is available only if the proceeding in question is contemplated in good faith and under serious consideration at the time the statement is made. We add that cases such as this must be decided on a case-by-case basis with the outcome depending on the particular facts of the case. See Asay v. Hallmark Cards, Inc.,
The Pre-Action Statements in Relation to a Contеmplated Proceeding
{17} Ms. Thomas’s pre-action statements at the December 2007 meeting raise
{18} Residents of the Mesquite community were concerned with what they believed to be a historical, existing, and continuing environmental hazard to their community caused by Helena, and they sought out Ms. Thomas. She was an attorney who was knowledgeable on the environmental issues and who had engaged Helena and others in environmentаl litigation in Texas. Residents invited Ms. Thomas to attend the December 2007 meeting to discuss the environmental issues and the possibility of filing a judicial proceeding against Helena. Residents and Ms. Thomas were aware of the history of NMED actions against Helena. The facts support the conclusion that, at the time of the December 2007 meeting, the residents responsible for holding the meeting and Ms. Thomas in good faith contemplated and gave serious consideration to initiating a judicial proceeding, thereby falling within the test in Gregory Rockhouse Ranch. See
{19} Furthermore, we see no facts indicating that the intervening time between the December 2007 meeting and the October 2008 initiation of the judicial proceeding diminished thе residents’ contemplation and consideration of filing a judicial proceeding. Following the meeting, Ms. Thomas was retained and a complaint was ultimately filed. That months passed during the processes of retaining Ms. Thomas followed by her preparation and filing of the judicial proceeding was not, in this case, a basis on which to deny the absolute-privilege defense. Good faith contemplation and serious consideration reasonably ripened into further activity toward a judicial proceeding.
Statements Made to Invited News Reporters
{20} Statements were made to news reporters both before and after the filing of the October 2008 tort action. It seems to be understood that the invitations to news reporters to attend the December 2007 meeting and the press conference were extended with the desire to inform the public through the news media about the residents’ environmental and health concerns and activities related to Helena, if not also to inform the public that a judicial proceeding was contemplated or initiated. It appears to be undisputed that the news reporters attended solely in their capacities as news reporters. The statements about which Helena complains were reported in the news media. We see no evidence in the record, and Ms. Thomas and Mrs. Uribe point to none, showing that the news persons involved were otherwise in any way related to or in any way held an interest in the judicial proceeding.
The Law Relating to Statements to the Press
{21} A considerable number of cases consider a's an element in an absolute-privilege analysis whether the recipient is in any way related to or has an interest in the proceeding. Although sometimes expressed in different ways, the rule in these cases is that statements communicated to news media recipients who are wholly unrelated to and have no interest in the judicial proceeding are not protected by absolute privilege.
{22} We start with the mainstay case of Kennedy v. Cannon,
{23} Following the Kеnnedy guideline, the court in Asay stated that “[i]n determining whether an occasion is absolutely privileged, the pivotal factor is frequently to whom the matter is published” and that “[pjublication to the news media is not ordinarily sufficiently related to a judicial proceeding to constitute a privileged occasion.” Asay,
{24} Following the Asay guideline, in Green Acres Trust, the court held that thе absolute privilege was unavailable to an attorney where a newspaper reporter at a press conference “had no relation to the proposed class action[,] ... played no role in the actual litigation[,] ... [and] lacked a sufficient connection to the proposed proceedings[.]” Green Acres Trust,
{25} In their answer briefs, Ms. Thomas and Mrs. Uribe rely on two Texas Court of Appeals cases to justify the absolute-privilege defense, namely, Dallas Independent
{26} In Finían, attorneys for the school district issued a written press release announcing that the school district had, that day, filed a suit against certain former district board of trustees members (the members) for fraud, civil conspiracy, and rаcketeering.
{27} The Texas cases do not specifically include as part of their absolute privilege
{28} In orаl argument before this Court, Ms. Thomas placed considerable weight on Simpson Strong-Tie Co. v. Stewart, Estes & Donnell,
[W]e must not lose sight of the fact that it concerns the peace of society; that the good name and repute of the citizen shall not be exposed to the malice of individuals, who, under the supposed protection of an absolute privilege, ... volunteer defamatory matter in utterances not pertinent. To hold such persons responsible in damages cannot fairly be said to hamper the administration of justice.
{29} Aso in oral argument, Ms. Thomas and Mrs. Uribe asked this Court to decide, as a matter of law based on the record before us, that the statements attributed to them were not defamatory. They asserted that if we were to examine the statements and the surrounding circumstances, under the law of defamation, we would determine that the statements were not defamatory as a matter of law. We refuse this request to address the merits of the defamation claims, and we render no opinion regarding the merits of the defamation claims. As we indicated earlier in this opinion, whether the statements on which Helenа’s claims were based constituted defamation was not at issue on summary
The Court Erred in Applying Absolute Privilege
{30} The alleged defamatory statements of Ms. Thomas and Mrs. Uribe are not entitled to absolute-privilege protection. The statements were heard by news reporters who had been invited to hear the statements but who had no relationship to or interest in the judicial proceeding. 3 To grant Ms. Thomas and Mrs. Uribe an absolute privilege in this case would be tantamount to unqualifiedly allowing defamatory statements by attorneys аnd parties to news reporters for dissemination to the general public as long as they could show that the content of the statements related to the subject matter of the judicial proceeding. In this case, the reasons for allowing absolute-privilege protection are significantly outweighed by the reasons militating against it. As the strong majority of cases portray under various rationales, more than a relationship of content to judicial proceeding had to exist.
{31} In this case, the defamatory statements to invited news media for dissemination to the general public did not serve the purpose of the judicial proceeding, enhance its function, or legitimately achieve its objects. The statements did not assist attorneys in investigating claims or in fully presenting claims in court, which are the traditional reasons for applying absolute privilege. A not insignificant effect could have been to taint prospective jurors. Even given that the persons making the statements had in mind publication and dissemination for an educational purpose, the news media dissemination of the statements was not a necessary step in the investigation or presentation of claims and defenses. In weighing the value of reputation against the value of access to the court, in this case, the value of reputation far outweighed that of court access, because the publication of defamation by intendеd use of the news media was unnecessary and excessive. The courts have a duty to control the judicial process in such instances to limit the extent to which attorneys and parties are able, with impunity, to defame.
{32} There exists enhanced risk of damage to reputation from employing the press for publication and dissemination of a defamatory statement. That enhanced risk exceeds the risk of damage that may occur when a news reporter might learn of the proceeding and develop sufficient interest to obtain from the clerk of the court a copy of a document filed in the court proceeding or sit in a court hearing. The judicial function will not be impaired by placing а limitation on application of the absolute-privilege defense in this case.
{34} We understand that a perceived need for application of absolute privilege in statements to the press stems from the concern that lawsuits with very thin or spurious grounds for asserting defamation claims will be filed for the purpose of intimidating parties and thеir attorneys who are simultaneously pursuing a lawsuit against the party asserting the defamation claims. Such lawsuits can be challenged in the district court on the merits, just as Ms. Thomas asked this Court to act on the merits of Helena’s claims in the present action. Furthermore, qualified privilege and immunity, if the elements are provable, can adequately protect those making the alleged defamatory statements. See Paul T. Hayden, Reconsidering the Litigator’s Absolute Privilege to Defame, 54 Ohio St. L.J. 985, 987 (1993) (advocating substitution of a qualified privilege for the absolute privilege for litigators). In addition, our decision today is a limiting factor in regard to retaliatory lawsuits brought to intimidate, since we are addressing only statements made by attоrneys or parties to news reporters who have no interest in or connection with the judicial proceeding and who are invited to receive the statements for the purpose of dissemination to the public.
CONCLUSION
{35} We reverse the district court’s grant of summary judgment in favor of Ms. Thomas and Mrs. Uribe based on absolute privilege, and remand for further proceedings.
{36} IT IS SO ORDERED.
Notes
. See Jones v. Clinton,
. The other cases relied on by Ms. Thomas in oral argument are Rubin v. Green,
. At oral argument, Ms. Thomas’s counsel stated that there was no evidence presented to the district court indicating that Ms. Thomas knew that the news reporter was invited to or present at the December 2007 meeting. This point was not raised in Ms. Thomas’s answer brief, and her lawyers did not there or in oral argument indicate where Ms. Thomas raised this in the district court as a possible point to support her absolute-privilege defense. In oral argument, her counsel did not argue the contention as a basis on which we should uphold absolute privilege. We have not considered the contention.