State v. Powell

lack resulting from the of an find no error record.

additional argues that Lastly, Petitioner license was decision to revoke his driver’s present was not someone who hearing. He states that Board Edu Municipal Melrose Schools v. cation of Education, State Board New Mexico (Ct.App.1987), 740 P.2d 123 that the decision maker review all requires hearing presented to the officer. evidence held disagree. Board Education could not only that the state reverse board fact-findings by hearing officer without

reviewing transcript proceedings. contrast,

Here, maker the decision con hearing by the offi in the decision curred cer, had available the the decision maker sustaining the

documentary evidence hear ruling, and Petitioner concedes officer’s that no was offered appeal evidence proceeding to dis him at the administrative presented pute documentary evidence by the Division. Petitioner failed to resulting pro any prejudice show employed by Division herein. cedures CONCLUSION affirming order of the district court the Division’s revocation of Petitioner’s license is affirmed.

driver’s IT IS SO ORDERED. JJ., PICKARD,

HARTZ and concur. 839 P.2d 139 Mexico, of New STATE Plaintiff-Appellant, POWELL, David William Defendant-Appellee.

No. 13398. Appeals of New Mexico. July Gen., Jacobsen, Udall, Atty. K.

Tom Joel Fe, Gen., plaintiff- Atty. Asst. Santa appellant. Figart, Systems

Thomas R. Law of Las P.A., Cruces, Cruces, Las for defendant- appellee. Simmons,

Hal Albuquerque, amicus curiae Mexico Ass’n & Press New Mexico Broadcasters Ass’n.

OPINION

HARTZ, Judge. Defendant, a teacher at Western New University, Mexico convicted crimi- magistrate nal libel in court because of against he had accusations the uni- versity’s acting vice-president for academic affairs. then statutory He his exercised right court, appeal to district where he was entitled to a trial novo. de NMSA 35-13-1, -2(A) (Repl.Pamp.1988). §§ Defendant moved the court to district dis- complaint miss the him against on the grounds that New Mexico’s criminal libel statute is unconstitutional on face and is applied charge unconstitutional as against granted him. district court motion; judgment (1) the court’s held that face, the statute is unconstitutional on its (2) the ap- statute unconstitutional as it plies to libel of or officials (3) figures, alleged crime public figure. Defendant was libel of a We do decide whether our crimi nal libel unconstitutional on its face, nor do we decide victim public figure was a rely separate official. We aon ground to in opinion by alluded the letter the district par court addressed appellate ties’ briefs.1 Naranjo v. Cf. Pauli, P.2d (Ct.App.1990) (appellate can court affirm judgment ground upon by not relied court). lower We hold that the statute is applies unconstitutional insofar pub- a matter of 1. The argued, State's briefs do not contend that this concern test. The State has not nor do ground contrary, discern, was not raised below. On that our consideration of this issue complains the State’s Brief-in-Chief is unfair the State. erroneously public- district applied court alleged public that the to whom refers concern and that the lie offenses; guilty penal been case involved a matter of in this therefore affirm district concern. We guilty that he has been some act which, the ap- We first discuss though penal court’s dismissal. omission offense, apply disgraceful law then it to case. him as mem- plicable society, of natural

ber the conse- quence bring is him of which to LAW APPLICABLE among persons; contempt honorable statute, The New Mexico criminal libel (3) moral vice or that he 30-11-1 NMSA physical defect or disease which renders entirety: (Repl.Pamp.1984), reads in its respecta- him unfit with for intercourse writing, pub- making, Libel consists him society, ble and as such should cause circulating lishing, selling or avoided; to be generally ends, justifiable any good motives notoriously that he is of bad or affecting false and malicious statement character; infamous or reputation, occupation the business or person a in office or candi- another, to exposes another ha- or which date is and therefore therefor dishonest ridicule, tred, degradation contempt, or office, that while in unworthy of such or disgrace. guilty office he has been of some malfea- guilty of Whoever commits libel is a unworthy rendering sance him of the misdemeanor. place. “malicious,” The word as used E. It shall be sufficient constitute article, signifies act evil done with or the natural conse- crime libel design and it mischievous is neces- quence publication same is sary prove any special showing facts injure person although no defamed ill-feeling part person who injury reputation to his need be making, publish- printing, is concerned in proven. ing circulating a statement or libelous F. statement made course No thereby. person injured judicial proceeding, a or legislative person a A. A is the maker of libel false, although true or made whether originally contrived and either exe- who injure for malicious with intent to by writing, printing, it en- cuted himself purposes, comes within the definition of dictated, or or caused graving painting, libel. procured by it to be done others. or statute was enacted person publisher A of a B. is the libel N.M.Laws, ch. statu- § either of his own will or tory is taken almost verbatim dictation, persuasion or or at the solicita- enacted the territorial from statute another, employment tion or hire of N.M.Laws, ch. 11 legislature in 1889. 1889 in any same of the modes executes the (codified at NMSA Rev. as amended libel; constituting a but if pointed out as -24). provisions Stat. 40-27-1 Some §§ compelled anyone force or threats is in the 1963 in the 1889 law are included guilty is to execute such he only The substantive additions to version. crime. early insertion of Section 30-11-1 and the paragraph first guilty circulating A

C. “falsely” para- contents, the word who, insertion of knowing its either (soD who, graph libelous statement sells, gives, or -with distributes or five convey must one falsely it now reads exhibits design, malicious paragraph). in that ideas listed others. year written, was enacted one printed Section 30-11-1

D. Supreme States Court’s definition before the United to come within the Times idea decision New York Co. falsely convey the ei- seminal of libel must Sullivan, ther: opinion breathing space provided In that This qualified privilege

Supreme fig- Court created a constitutional rule that allows defamatory relating make to recover for libel or ures defamation official conduct of a official. both only they prove can when “pro Court ruled that the Constitution statement was false and that the state- recovering official hibits level requisite ment was with the for a falsehood relat culpability. proves to his official conduct unless he hand, other On the does defamation that the statement was made with ‘actual not come within the New York Times privi- is, knowledge malice’ —that lege hardly protection. entitled to As disregard false or with reckless Court stated in Id. at 279- was false or not.” Louisiana, Corp. Bose v. 80, 725-26; see 84 S.Ct. at 216, (1964): 13 L.Ed.2d 125 States, Inc., Union United Consumers Although utterance, honest if inac even 1949, 485, 30, 511 n. 104 1965 466 U.S. S.Ct. curate, may further the exercise fruitful 30, (1984) (Plaintiff 80 must n. L.Ed.2d 502 right speech, of the of free it does demonstrate “that the defendant realized lie, the knowingly follow and delib his statement or that he was false official, erately public about a subjectively entertained serious doubt as to enjoy a like immunity____ should [T]he statement.”). years truth of Three the his use of the known lie as a at once tool is after New York Times qualified privi premises at odds of democratic defamatory lege was extended to criticism government and with orderly manner Publishing “public figures.” Curtis economic, social, political which or Butts, v. 130, 1975, 18 S.Ct. Co. 388 U.S. 87 change is to be effected. Calculated 1094 L.Ed.2d falsehood falls into that utter class of adopting qualified privilege, any part ances which “are no essential Supreme recognized profound na- Court “a ideas, exposition slight and are of such principle tional commitment to the that de- step any value as a social truth that public uninhibited, on issues should bate be may benefit be derived them is robust, wide-open, and that well clearly outweighed by the social interest vehement, caustic, include and sometimes ****’’ Chaplin morality in order and unpleasantly sharp government attacks on Hampshire, New 568, sky v. 315 U.S. Times, officials.” New York public 572, 766, 769, 1031], S.Ct. 86 L.Ed. [62 270, Hustler at 376 U.S. 84 S.Ct. at knowingly Hence the false statement and Magazine Falwell, 46, 52, 485 108 U.S. the false statement made with reckless 876, 880, (1988), 41 S.Ct. 99 L.Ed.2d ex- truth, disregard of the enjoy do not con plains: protection. stitutional [Ejven though have little val- falsehoods qualified privilege The established themselves, they ue and of are “never- New York Times has not limited to been debate,” theless inevitable in free [Gertz brought by public defamation actions offi- Welch, Inc., v. Robert 323, 340, public figures. Supreme cials and 2997, 3007, 41 L.Ed.2d 789 required private per- Court has also that a (1974),] impose and a rule would is, public one son —that who is neither a liability publisher strict for a figure must, official nor least at factual assertions have an would un- — circumstances, prove in some actual malice “chilling” speech doubted effect on relat- presumed punitive damages to recover or public figures that does have con- Supreme for expres- defamation. stitutional value. “Freedoms of ” Inc., Welch, Court in Gertz v. Phila- Robert require 418 ‘breathing space.’ sion delphia Newspapers, Hepps, 94 Inc. U.S. S.Ct. 789 L.Ed.2d 767, 772, 1558, 1561, (1974), per- U.S. rejected private the view that a S.Ct. [106 (quoting New York son must prove L.Ed.2d actual malice to recover 783] Times, supra, 721]). compensatory damages S.Ct. for false defamato- [84 decisions, however, concerning Subsequent have not an issue of ry statements scope privilege interest, explored general the Court held that or of criminal libel. v. Ken context Ashton proved pri- be malice must tucky, 384 U.S. S.Ct. puni- person presumed to recover vate (1966), Supreme the only other opinion may damages. Gertz tive Court decision since York Times stating that actual malice must be read statute, did not ad review a criminal libel presumed punitive proved recover privilege; dress New York Times suit, any defamation but Dun statute under held that criminal libel Builders, 472 v. Greenmoss & Bradstreet unconstitutionally vague. consideration was 751, 761, Thus, explicit instructions from we have (1985), 86 L.Ed.2d 593 clarified that regarding the extent of requirement applies only the actual-malice privilege against constitutional crimi private person when defamation prosecution nal of public involves matter concern. See matters of concern when Co., Milkovich v. Lorain Journal defamed offi neither 2695, 2704, 111 L.Ed.2d public figure. nor a cial holding (reading that “for Gertz Nevertheless, reasoning of person attempting prove he was private compels and Gertz conclusion that interest,” on matters of defamed prohibits a of crimi- Constitution conviction recovery permit pre- states “could not of for nal libel defamation with- punitive damages or on less than sumed on a matter of out actual malice malice”). showing of New York Times infer from those decisions concern. We protecting speech the interest in free The task us is to translate this before imposition in outweighs any interest prose- of a law to context criminal libel criminal) (civil liability for such defama- supplied cution. The Court compensating except the interest in tion performance guidance substantial private injury. To persons for reach itself, after of this task. New York Times conclusion, compare on the one we universally recognized noting the unconsti- penalties on the other hand criminal tutionality Act of the Sedition damages punitive presumed hand publish a crime to which made it by per- the interests served respect to government accusations the federal injury mitting imposition their bring disrepute, it then with intent to imposition may cause to First Amend- their wrote, may “What a State constitution- ment interests. bring of a criminal ally about means message that crimi- One beyond the reach of likewise little, any, very pur- libel laws serve nal civil law of libel.” following pose. opinion approved implication was that the at 724. The clear reporters of the then- applied privilege that decision announced proposed draft of the American official prosecutions. criminal Code, ex- Model Penal which Law Institute implication explicit in was made Gar- plains the absence the Code opinion held that rison. That provision for criminal libel: power to rule “limits state York Times saying penal sanc- goes “It impose criminal sanctions for criticism merely justified by the tions cannot be public officials.” official conduct of damaging that defamation evil fact 212. The 379 U.S. at 85 S.Ct. at Court ways that entitle him to said, officials is criticism of “Where Usually we reserve maintain civil suit. concerned, argument see we merit for harmful behavior the criminal law statutes serve interests that criminal libel exceptionally disturbs the commu- which * * * * by civil libel security distinct from those secured nity’s sense laws, subject calumny personal not be evident therefore should seems classes in the in neither of these falls to the same limitations.” U.S.A., inappropriate that it is therefore libel statutes are substantial- not entitled to ly greater weight. control, and penal probably that this paucity prosecutions accounts for the Moreover, penalties certainly criminal private and the near desuetude of crimi- pose much threat First as of a Amend- legislation in this country. nal punitive damages. ment Al- interests as do * * * ” Code, though Model Penal Tent.Draft and New Gertz 13, 1961, 250.7, Comments, suggest otherwise, York Times No. at 44. § are confident the Supreme S.Ct. at 213. The quarrel proposi- would have no with that that all Court did hold criminal libel jury tion. Gertz stated discretion— rights laws violate constitutional to free punitive both to damages wholly “assess all, noted, expression. already After unpredictable “selectively amounts” and said that false statements made with actual punish expressions unpopular views”— enjoy protection. malice no constitutional “unnecessarily danger exacerbates the clearly Id. at 85 S.Ct. at 216. But it self-censorship.” media Id. But deter- signalled weight given the small “unpredictable” rent damage effect interest prosecution. claimed possibility very awards arises from the States, See Tollett v. United 485 F.2d high penalty awards. A criminal if—even (8th Cir.1973) (“A argument strong statutory there are clear per- limits on the may be made that there remains little con- punishment missible extent of well —could laws.”). vitality criminal libel stitutional foreboding high seem damage as a similarly denigrated any public Gertz in- Also, award. it would be unrealistic to punishment terest in and deterrence of that a assume a criminal trial— defamation uttered without actual malice. in a unlike one civil trial —could not be explaining why private a defamed indi- swayed by the unpopularity of the views compensatory vidual could obtain expressed by libeler. for meeting defamation the without New The of concern in New York standard, York Times the Court wrote: explicitly compares Times the threat of approach recogni- endorse this in penalties [W]e the of damage criminal to threat strong tion of the legitimate state Supreme awards. The Court said that compensating private interest individu- of damage fear awards under a rule “[t]he injury reputation. als for to such as that invoked the Alabama may markedly courts here be more inhibit- at U.S. S.Ct. 2997 3011. ing prosecution the than fear of under a “strong The Court found legit- no such criminal statute.” 376 U.S. at 84 S.Ct. imate in punitive damages: state interest” at 724. The Court noted the lesser burden [Pjunitive damages wholly are irrelevant cases, proof in civil threat multi- justifies negli- state interest that ple lawsuits for the same article adver- gence private standard for defamation tisement, and the any absence of maximum They compensation actions. are not punitive damage awards. at 277- injury. Instead, they private are fines point, 84 S.Ct. at 724. The Court’s juries punish reprehensi- levied civil to however, denigrate was not to the threat of ble conduct and deter to its future occur- criminal emphasize sanctions but short, private rence. In defamation liability. event, any threat of civil In even plaintiff liability who establishes under a defendants, prospective such as a demanding less standard that than stated corporation owning newspaper, may be only New York Times recover punitive more damages concerned about such as are sufficient to com- sanctions, than criminal the converse sure- pensate him injury. for actual individuals, ly they holds for most be news- Id. at punish- citizens, 3012. The paper employees or other such as purposes ment and Perhaps deterrent of criminal here.2 Defendant there is no cer- the United States draw a distinction between media and nonme- occasionally judgment regard reserved dia on defendants with to First Amendment showing chilling prove any special facts way compare sary effect tain ill-feeling high punitive damage part on the awards with making, printing, publish- imposition criminal sanc- is concerned in that from the tions, say hard-pressed circulating be a libelous statement but one would thereby. person injured of criminal sanctions would threat self-censorship. less undesirable create concedes, statutory defini As State malice” equivalent tion is not the “actual short, we infer from Garrison York Times and its defined New those circumstances and Gertz Baer, 383 progeny. v. See Rosenblatt qualified privi the New York Times when 669, 675, punitive precludes the lege assessment (1966)(“ill will, motive, intention to evil [or] defamation, precludes damages for it also malice). injure” to actual does not amount A penalties.3 criminal Nevertheless, contends State pub matter of public statement defect in the statute constitutional subject penal lic concern can be by simply requiring can cured trial only if malice.4 ty made with actual Cf. jury court to instruct the on “actual mal Wadzinski, 492 Pa. Commonwealth requires. ice” when Constitution so (actual malice required 422 A.2d 124 position to three The State’s boils down speech political impose sanctions arguments. arguments per The are not Schwartz, campaign); Vanasco suasive. (S.D.N.Y.1975), F.Supp. 87 aff'd 763, 46 opinion, 423 U.S. First, argues jury the State (1976) (same). L.Ed.2d 630 procedural, are not substan instructions apply now this law to the case before We tive, fully within the law and therefore us. judiciary’s power. disagree. addi offense tion of an element to a criminal TO THIS CASE APPLICATION adopt of substantive law. To matter criminal libel statute Mexico say argument would be to State’s requires offending that the statement be jury, judiciary is every matter tried to a “false and malicious.” a statement that Is setting forth to not bound statutes necessarily is “malicious” under applicable law. A made with “actual malice”? if it is made is made with “actual malice” Second, correctly points the State it knowledge that false or with “with [is] susceptible a statute is to out that “[w]here disregard of it reckless [is] constructions, it and supporting one two 280, Times, not.” York 376 U.S. at New void, rendering it a court should the other at 30-11-1 84 S.Ct. 726. Section states: upholds which adopt the construction its “malicious,” Bd. constitutionality.” used in New Mexico State The word this 588, Educ., N.M. article, 95 signifies an with Educ. v. Board act done evil of of 592, (1981). Yet, 530, P.2d 534 design it is not neces- 624 mischievous Milkovich, 6, argument by the defendant in protections, at 3. was raised see 20 n. This 137, 546, Heinrich, 6, People v. 104 Ill.2d 83 Ill.Dec. at n. White noted 2706 Justice 966, (1984), dismissed, appeal 470 N.E.2d 971 cases such a that tion; of our affords distinc "[n]one 2010, 85 L.Ed.2d 294 105 contrary, rejected at to the the Court has it (1985). did not reach the merits But the court Bradstreet, every turn.” & 472 U.S. at Dun issue, apparently was because it not of that (White, J., concurring). Fur 2952 punitive would have convinced thermore, only even if concern ourselves prohibited in the circumstances. More been impact a libel with the on media of criminal case, over, although statute in that the criminal law, prosecution private person pro of a statute, defamation” was as a "criminal labeled surely affect the media’s vides information can "fighting words.” Id. Ill.Dec. at to restricted on matters of con access information 970; see 470 N.E.2d at note impact on that this the media cern. assume why groups punishment have a substantial reason media is 4. We do not address criminal may “fighting a briefs this case both the words” that contain libelous submitted amicus Heinrich, component. supra note 3. See this district court and court. requirement statutory “actual malice” cannot be definition the offense. Rather, recognizing was a found in rational construction of the constitutional charge. Section defense This is defining 30-11-1 judicial practice recog- keeping with the requisite intent criminal libel. Because duress, nizing entrap- intent, defenses —such as requisite the statute defines the ment, insanity appear do argue a where one can case —that required by statutes but common statutory on the state-of-mind silence ele- law or E.g., constitutional mandates. Es- an ambiguity. ment of the offense creates State, 498, 501, quibel 91 N.M. 576 P.2d Ortega, N.M. State v. (1978) (duress is “an historical (1991). Moreover, P.2d it would defense”). recognized and widely imagination beyond stretch human lim- ambiguity say that there is an upon by The second case relied the State permits criminal libel statute that it to State, is Reese v. 745 P.2d require construed to actual malice when (1987). pertinent holding in that requires the Constitution so but not re- opinion knowledge is that “a defendant’s quire identity malice Nothing peace otherwise. in to the officer assault- necessary [aggravated ed distinguish statute could be read element of [is] peace public figures battery assault on libel of and officials and officer on peace Id. at 745 P.2d on concern from officer].” matters other opinion, represented 1147. The lead which respect to cases of libel with an actual- views two the three members requirement. malice majority, the court’s states: interesting Finally, the State makes the pertinent] sections do not [the argument asking this court require knowledge of the victim’s identi- “merely together read the ty crimes, respective as an element of the the Constitution.” The State cites two we nonetheless conclude that scienter sup- Mexico cases which it contends necessary crimes, element of these port this view. indispensable jury’s thus consider- Elder, The first is State v. N.M. ation of the case. baseWe this conclu- 143 P. that case the court reading pertinent sion not our original considered the 1889 criminal libel statutes, requirements but on of consti- statute. 22 of the statute lists four process. tutionally mandated due circumstances which the truth of a state- majority, The third member justification. ment be shown in Ransom, knowledge Justice stated that concludes, section “In other cases the truth required statutory as a matter of construc- of stated in facts can not be tion; rely upon he found need to consti- inquired limiting into.” Elder held that grounds. tutional members of Two inquiry the truth in certain cases vio- Thus, court majority dissented. lated Article Section 17 the Constitu- adopt court did not the view that judi- tion, which declared: cial branch could add an element to an libel, “In prosecutions all criminal for required by offense if so the Constitution. may given the truth be in evidence to the Clark, 588, 594-95, v. Primus jury; appear and shall 963, (1954) (it 273 P.2d 967 is not accurate charged that the matter as libelous is plurality opinion characterize as reflect- good true and was mo- court). Moreover, the views of the justifiable ends, tives and for party two adopted members court who acquitted.” shall be authority, that cited no view either from 402, Id. at P. Essentially, 143 at 484. all jurisdiction, or from any Mexico other Elder did strike unconstitutional lan- support position. their Because re- our guage Moreover, from the 1889 statute. jurisdictions view of the law other re- recognized insofar application as Elder power veals courts have no to add an 2, of Article offense, Section 17 to criminal libel element to an we assume that prosecutions, adding it was not an element such is also law New Mexico.

403 have The effect of the authorities we authority is the United principal Our may point clear to the we quoted The matter was Supreme Court. States gener- its length by Taft in in a criminal statute reduce Chief Justice not reviewed limit its Trinidad, ally 46 inclusive terms so as to Eng v. 271 U.S. Cong Yu (1926). Speaking only that class of cases application 70 L.Ed. 1059 S.Ct. court, power of the Justice Taft it was within the a unanimous Chief which enact, Philippine legislature statute in and thus save to construe refused invalidity. from it constitutional. He wrote: statute order to render duty fully concede that it is 522, 46 S.Ct. at 624-25. Id. at considering validity an a court support proposition As additional for this give it such construc- act to reasonable specific context of libel stat- criminal bring it as can be reached to within tion utes, jurisdictions we note that when other very But it is the fundamental law. question of what to do have confronted may clear that amendment not be substi- does not a criminal libel statute that about construction, that a court tuted malice, require proof of actual none legislative exercise functions to requirement inserted an actual-malice constitu- save the law conflict with The debate whether the statute. has been tional limitation. entirety, as in to strike the statute quoted 46 He Id. at S.Ct. at 623. State, (Alaska 575 v. P.2d 289 Gottschalk v. Chief Justice Waite United States State, 1978), 528 v. 258 Ark. Weston (1875), Reese, L.Ed. 563 92 U.S. 23 (1975), Municipal S.W.2d Eberle as follows: Court, Cal.Rptr. Cal.App.3d Armao, (1976),and are, therefore, directly Commonwealth v. called

“We (1972), Pa. 286 A.2d 626 or wheth- upon penal to decide statute whether only that the is unconsti- er to hold Congress, limited enacted with its applied that can- as to defamation tutional is in powers, general which constitutionally punished be without enough wrongful acts to cover broad malice, People proof of actual as well as within the constitu- (en banc), (Colo.) cert. 806 P.2d 935 Ryan, by judi- jurisdiction, can limited tional be — -, denied, operate so as make it cial construction (1991). The four decisions right- only Congress may that which on * * * in their criminal libel statutes struck the punish. fully prohibit rejected entirety explicitly the invitation all certainly dangerous if the “It would render the statutes so as to to construe anough large legislature could set a net them constitutional. offenders, possible catch all [sic] step to the courts to inside leave it short, power have to revise detained, and say rightfully who could be language of New Mexico large.” should be set at insert element of statute and present not been since the that has offense at 623-24. a cen initial enactment more than statute’s quoted Justice Miller in Trade- He also 30-11-1 is ago. We hold tury Cases, L.Ed. 550 Mark charge of applied unconstitutional (1879): predicated judicial province is not within “[I]t concern. involve matters Congress a words give to the used meaning mani- they than narrower Finally, we consider festly intended to bear order charge Defendant are not punished which crimes public predicated on brings them described therefore public concern and matters of power constitutional of within the Whether a statement dismissed. must be body.” public matters of concern is involved by the court. 520-21, law to be decided at 624. issue of 271 U.S. at 331, Clausen, Furgason Taft Justice concluded: Chief 404

334, 242, (“De- form, (Ct.App.1989) 785 245 P.2d and context” of the statement. Dun Bradstreet, 761, privilege applies termination of whether a 472 105 & U.S. at S.Ct. alleged (quoting Myers, material to be is a 461 Connick v. question of law to be decided

Court.”) (1983)). Although L.Ed.2d 708 sometimes one cannot determine a statement considering “In a defense motion to dis public involves a matter of concern until all complaint], miss the district court ac [a trial, the evidence has been offered at cf cepts allegations as true factual set Myers, Connick v. 461 U.S. at [complaint].” forth in the United States v. (questions employee S.Ct. at 1689 of (3rd Besmajian, 910 F.2d Cir. attorney district about morale office and 1990). complaint alleges: The criminal only personal other matters of do interest undersigned complains says and public concern), not address matters of following day that on or the 25th of easy require in- cases and little GRANT, July[,] County of depth inquiry. Mexico, State of New the above-named Pierre, example, For in Coats v. 890 F.2d (here defendants) did state the essential (5th Cir.1989), the court said mere- facts): Publically accused me as fol- [sic] ly: lows: Dr. he Coats maintains that was termi- illegally changed 1. grades; part nated because of assertions performed unprofes- 2. and dishonest professors him that Prairie View act; sional grading showed favoritism in toward ath- activities; illegal 3. concealed pre-med letes and students ex- 4. undermined the administration of grades changed for sex. Indiscreet or Gomez; President not, allegations go beyond such do indi- sabotaged 5. President Gomez’ ad- personal disputes grievances vidual ministration; upon public to touch matters of concern. party illegal 6. abuses and activi- City Chicago, In F.Supp. Pollard v. ties; (N.D.Ill.1986), the court de apologist protector 7. for and clared: wrongdoers; topic speech The second identified protector lawbreaking athletes; 8. public Pollard is also a matter of replacement 9. bogus unethical alleges spoke concern. Pollard he grades; supervisors Depart- Dickinson responsible for academic treason positions. ment abused their Pol- William David Powell 1) spoke mileage 2) lard reports, damaged me[,] the above and has con- City 3) equipment, misuse of misuse of Sections(s) trary to 30-11-1 NMSA 1978. 4) City log selling funds an unusual complaint identify does not clearly implicate venture. These matters involved, persons Brief-in- State’s public interest in pocket- Complainant Chief acting describes Taxpayers book. have an undeniable in- vice-president for academic affairs terest in the efficient execution of University Western New Mexico and De- business without waste and illegality. fendant as a teacher at that institu- Similarly, Appeals the Minnesota tion. recently wrote in University Hunt v. At the complaint outset we note Minnesota, (Minn.Ct. 465 N.W.2d alleges public complaint libel. The states App.1991): “[p]ublically the Defendant ac- [sic] Kegler’s argues Hunt regard- cused me.” integrity her is actionable because Does the libel involve a mat does not relate issue to an ter of concern? general, the an concern reasonably interpret- can be requires swer “content, stating examination ed as facts about Hunt. We dis- ar- part upon grounds not its in available information decision agree. Readily gued court. I would any public em- before the district qualifications of the about Here, arguments present- to limit our decision the public in interest. ployee is the ed and affirm the dis- a to the district court Intergovernmental Coordinator was the ruling upon its determi- represent trict court’s based who would high level official our criminal libel statute The Inter- nation that County legislature. the the to as it relates Defendant would be re- unconstitutional governmental Coordinator herein, protec- with the and that conflicts persuading legislature the sponsible First Amendment accorded under the dollars in Henne- tions spend millions of tax to United States Constitution. County. Speech regarding quali- the the pin posi- for this fications candidate striking court The order of the district public be in the interest. tion would found, among other Section 30-11-1 down Thus, qualifications posi- for the Hunt’s this state’s criminal libel stat- things, that Intergovernmental Coordinator tion ute “is unconstitutional on face * * * public a matter of concern. were [Cita- it applies is unconstitutional tions omitted.] figures public public officials or Here, complaint alleges state charged herein a alleged crime involved * * relating performance majority public figure opinion ments public upon institution grounds administration a relied does not address learning. subject court, is a This matter instead higher the district concludes When criminal public concern. insofar matter “that the statute unconstitutional proof require public does of actu applies statute as it malice, prose prohibits al Constitution concern matter of state cution under libel in this ease involved alleged matters of con ments that involve concern.” Id. matter of against De Because the accusation 140-141. cern. 839 P.2d at cannot constitu is of fendant conduct hearing district in the court At the tionally prosecuted under Section 30-11- mag- from the appeal de novo Defendant’s the criminal prejudice dismiss with court, the of the material al- istrate text charge Defendant. libel was not leged constitute criminal evidence, stipulations introduced CONCLUSION offered, testimony pres- and no was were court’s dismissal affirm district best, glean some conces- At we can ented. charge against Defen- prejudice with concerning facts the briefs sions dant. allegations the crimi- filed herein. insight complaint provide nal also ORDERED. IT IS SO However, nei- alleged factual issues. J., BLACK, herein con- nor the record concurs. ther the briefs alleged text libelous tain the full DONNELLY, J., part, concurs provide publication nor sufficient evidence part. dissents permit a factual determination DONNELLY, Judge (concurring part; falsity ques- the statement truth or dissenting .part). Similarly, is insufficient to tion. the record al- of whether the affirming permit a determination I the decision concur statement, false, leged which dismissed of the district court order required malice” published with “actual against Defen- charge of criminal libel Louisiana, 379 under Garrison that New Mexico’s and determined dant More- statute, NMSA criminal libel over, text absent full (Repl.Pamp.1984), unconstitu- 30-11-1 however, defamatory material record and disagree, I on its face. tional publica- of its as to the manner indication upon major- the rationale relied as matter tion, to determine it is difficult and which ity arrive at its decision bases publication question published in Defendant such of law whether knowing publish an issue of concern. involved See either that it was false or Clausen, v. 109 N.M. Furgason disregard ed the statement a reckless with (whether publication (Ct.App.1989) P.2d 242 of whether such statement was false. public concern is a involves a matter of Thus, the statute Garrison v. Louisiana. law). question Under Dun Brad- & permits prosecution as worded criminal Builders, v. street Greenmoss constitutionally protected speech as well as 749, 761, 2939, 2946, 86 L.Ed.2d 105 S.Ct. unprotected speech. libel statutes Criminal (1985), speech addresses a subject limi to the same constitutional matter of concern must be deter- tations as civil criticism of libel laws where “ form, ‘content, by and con- mined figures officials or is con ” publication by the text’ of the as revealed id.; cerned. People See see also v. Hein (Quoting Myers, record. v. Connick rich, 104 Ill.2d 83 Ill.Dec. N.E.2d 966 court, (1983).) In the district L.Ed.2d 708 “malice,” The definition of as used in our only legal argument presented sup- was in statute, upon criminal libel was based port Defendant’s constitutional chal- common-law definition of malice as set lenge to Section 30-11-1. Constitution, forth the New Mexico Arti- Despite my disagreement with the ratio II, provides, cle part: Section upon by majority nale relied to affirm libels, prosecutions In all criminal court, the result reached the district given truth to the evidence analysis of the of our criminal jury; appear it shall to the statute, 30-11-1, conclude, I Section charged the matter as libelous is correctly indicates that the district court published good true and was with mo- facially determined that the statute is in ends, justifiable party tives and for protections consistent with accorded acquitted. shall be First under the Amendment United States Constitution. A statute is constitu Const, II, (Repl.Pamp.1992). N.M. art. 17§ tionally facially if it overbroad invalid Although “malice” is an element re- encompasses constitutionally protected, as quired proven to be under our criminal libel unprotected, speech. well as v. State statute, the term “malicious” as embodied Gattis, (Ct.App. 730 P.2d 497 Section 30-11-1 at odds with the re- 1986); City Huff, v. 111 Wash.2d Seattle quirement proof of “malice” set forth (1989)(en banc); P.2d 572 see also the United States Court in State, (Alaska 575 P.2d 289 Gottschalk v. in criminal proceedings. 1978); (Colo. People Ryan, 806 P.2d 935 Section 30-11-1 defines the term “mali- 1991) banc). (en signifying cious” as “an act done with evil principal defect in 30-11-1 is design.” or mischievous In contrast with permits that the statute an individual to be definition, the Court held in Garrison convicted of the offense of criminal libel that, in order to establish offense of showing .that the statement to be libel, prosecution prove must publica- was false and that the question that the statement was false good tion Defendant “without and that the statement was justifiable motives and ends.” 30-11-1. § “ ” malice,’ i.e., ‘actual pub- the defendant The term “malicious” defined the stat- “ knowing lished the statement ‘that it was ute act as an done “with an evil or mischie- disregard false or with reckless of whether design.” statutory provi- vous Id. These ” it was false or not.’ Id. 379 U.S. at any requirement sions omit that the state- (quoting at 212 New York Times Co. proven published by ment be to have been Sullivan, 254, 279-80, Defendant with “actual malice.” The con- 710, 725-26, (1964)). 11 L.Ed.2d 686 requirement stitutional of “actual malice” proof beyond necessitates The common-law definition reasonable of “malice” publication doubt that the statement was false and which involves of a false state- by pur- protection accorded under ment motivated ill-willor evil while by the First Amendment freedom pose has been overtaken decisions of the press protect every speech and does not Supreme Court in New York United States obscene, fraudulent or Sullivan, publication, such as Times Co. v. U.S. published (1964) untrue 11 L.Ed.2d 686 Garri- malice, with actual Court Kentucky, 384 son. See also Ashton v. makes clear that “actual malice” Garrison 16 L.Ed.2d 469 U.S. necessary proof prosecu- is a element of recognize These decisions that the complain- tions for criminal libel where the by First protection accorded Amend- public public figure ant is a official or pre- States Constitution ment United public the statement involves a matter of imposition cludes the of either criminal or concern. 379 U.S. at 85 S.Ct. at 212. liability proof alleged that the civil us, (1) In the case before as shown defamatory statement involved a matter concern, complaint, complainant “public is a offi- the statement was false, (3) malice, cial.” the courts in some states in While validity determining the of their criminal person alleged that the to be de- applied differ- libel statutes have such laws public figure. famed was a official or ently depending upon v. Louisiana. As observed Garrison “public Garrison, to have been libeled was the Court in the “actual malice” official,” “public figure,” “private per- necessary requirement to establish a claim son,” Jones, Annotation, Boeth applicable charge see Janet of civil libel is also Validity Criminal Stat- criminal libel: Defamation utes, (1989), I 68 A.L.R.4th 1014 conclude Times,] held that the York [New II, that Article Section 17 of the New Mexi- power, in a Constitution limits state civil requires proof co Constitution of the same brought by official for action any prosecution malice in standard of conduct, criticism of his official to an publication in- libel when the for a award concern, irrespec- a matter of volves is, “made with ‘actual malice’—that with person alleged to tive of the status of the knowledge that it was false or with reck- have been defamed. disregard less of whether it was false or U.S., not.” 376 S.Ct. at upholding [84 I concur in the decision outset, At the we must decide determining 725-26]. district court that Section 30- whether, differing history in view of the constitutionally 11-1 is invalid. libel, purposes of criminal the New power

York Times rule al..c limits state impose criminal for criticism sanctions of the official conduct of officials. 839 P.2d 151 We hold that it does. WILSON, McKinney depen- Donna as the Louisiana, 379 Garrison v. Roger surviving widow of D. Wil- dent 212. S.Ct. at son, Deceased, Claimant-Appellant, type of mal- The distinction between prove required ice under Section 30-11-1 recog- SYSTEMS, charge of criminal libel and that a self- FREIGHT YELLOW insured, Respondent-Appellee. clearly nized Court Mexico’scriminal libel statute renders New No. 13516. agree I variance facially invalid. that this Appeals of New Mexico. by promulgation of a cannot be cured urged by Jury instruction as the state. Aug. modify properly instructions elements of elements of a crime where the prescribed

the offense have been legislature. People Ryan.

Case Details

Case Name: State v. Powell

Court Name: New Mexico Court of Appeals

Date Published: Jul 27, 1992

Citation: 839 P.2d 139

Docket Number: 13398

Court Abbreviation: N.M. Ct. App.