ALBUQUERQUE, N.M. — A Gallup judge has dismissed the sole remaining claim against The Gallup Independent newspaper and its publisher, Robert Zollinger, in a lawsuit filed by former Mayor Harry Mendoza.
The claim was that the Independent had held Mendoza in a false light and invaded his privacy, but District Judge Louis DePauli ruled that New Mexico does not recognize that kind of claim as one that can be brought by a public figure.
DePauli’s ruling reversed his earlier decision, made at the beginning of a trial in the lawsuit Mendoza filed against longtime nemesis Zollinger. The court had earlier rejected a separate claim of defamation.
“We absolutely will appeal,” said Eric Loman, co-counsel for Mendoza.
“The trend nationwide is to recognize this claim,” Loman said, acknowledging there is not a New Mexico case on the point.
Pat Rogers, co-counsel for Zollinger, expressed appreciation for the court’s decision.
“We firmly believe that justice has been served. The First Amendment guarantees of free speech and free press do not exist for the purpose of encouraging flattering speech about the government or government officials,” he said.
Mendoza sued after the newspaper alleged he had participated in a 1948 gang rape. Mendoza was arrested and charged in the attack on a 16-year-old Gallup girl, but he enlisted in the U.S. Army in 1949 without standing trial, according to records at the time.
He says he did not take part in the alleged rape.
“A newspaper and publisher cannot call an 80-year-old mayor a gang rapist when they know there was no conviction or trial,” Mendoza’s attorney, Sam Bregman, told jurors in closing arguments in the July trial. “Isn’t that important in this country before you call somebody a gang rapist?”
Mendoza was Gallup’s mayor in 2010 when a fistfight broke out between the two men in a parking lot.
George McFall, who defended Zollinger and the newspaper, told jurors they could punish the newspaper only if they believed Mendoza had proven he had no involvement in the attack and was innocent of the “gang rapist” label. Proving the allegations false is a key element in the libel lawsuit, he said.
In the end, the six-person jury deadlocked, and DePauli declared a mistrial. He said after post-trial review and briefing that he realized he had “mistakenly ruled that New Mexico recognizes the false light invasion of privacy cause of action.”
DePauli’s ruling said Mendoza was “undoubtedly a public figure who has sought and achieved public prominence,” and the Supreme Court’s sole statement on the issue was that such a person cannot file a civil suit seeking damages for false light invasion of privacy.
The defense argued for dismissal, saying the objectionable terminology was made in the context of public discussion and analysis of local politics and that it was published on the opinion page.
The First Amendment, the defense said, protects opinions regarding the fitness of a person for public office based on past actions or based on his performance of duties.
— This article appeared on page A1 of the Albuquerque Journal