January 25, 2021- Joann Chavez-Neal v. Shannon L. Kennedy, No. A-1-CA-36745

Corrections to this opinion/decision not affecting the outcome, at the Court's discretion, can occur up to the time of publication
with NM Compilation Commission. The Court will ensure that the electronic version of this opinion/decision is updated accordingly
in Odyssey.
IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO	1
Opinion Number: ________________	2
Filing Date: January 25, 2021	3
NO. A-1-CA-36745	4
JOANN CHAVEZ-NEAL,	5
Plaintiff-Appellee,	6
v.	7
SHANNON L. KENNEDY	8
and KENNEDY KENNEDY	9
& IVES, LLC,	10
Defendants-Appellants.	11
APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY	12
James T. Martin, District Judge	13
Chavez Law Firm	14
Enrique Chavez, Jr.	15
El Paso, TX	16
for Appellee	17
Kennedy Kennedy & Ives, LLC	18
Adam C. Flores	19
Joseph P. Kennedy	20
Albuquerque, NM	21
for Appellant Shannon L. Kennedy	22
Court of Appeals of New Mexico
Filed 1/25/2021 9:08 AM

Almanzar & Youngers, P.A.	1
Joleen K. Youngers	2
Santa Fe, NM	3
for Appellant Kennedy Kennedy & Ives, LLC	4

OPINION	1
DUFFY, Judge.	2
{1} 	Plaintiff Joann Chavez-Neal sued Shannon Kennedy and her law firm,	3
Kennedy Kennedy & Ives, LLC, (collectively, Defendants) for defamation, alleging	4
that Kennedy made defamatory statements about Ms. Chavez-Neal during a	5
television news interview. Defendants moved for summary judgment on the ground	6
that the absolute privilege doctrine barred the lawsuit. After the district court denied	7
Defendants’ motion, this Court granted Defendants’ petition for a writ of error	8
pursuant to Rule 12-503 NMRA and we now reverse, holding that Kennedy’s	9
statements to the media about an ongoing judicial proceeding were absolutely	10
privileged, thus entitling Defendants to immunity from suit for defamation.	11
BACKGROUND	12
{2} 	Defendants represented D.G., a young woman who had worked as an intern	13
for the Las Cruces Police Department when she was seventeen years old. In April	14
2014, Defendants filed suit on behalf of D.G. against the City of Las Cruces and	15
individual officers, alleging that a police department detective had raped D.G. while	16
she was at work. The complaint included a count for municipal liability, which	17
alleged that the rape resulted from “a sexualized culture” that existed within the	18
police department. Defendants argued that the culture was one in which it was	19
acceptable for officers to “engage in sexual harassment of women and girls” and that	20

2
the police department failed to implement sexual harassment policies or otherwise	1
address reports of sexual misconduct.	2
{3} 	During the course of litigation, Defendants deposed Ms. Chavez-Neal, a	3
detective with the Las Cruces Police Department. When attorney Joseph Kennedy	4
asked Ms. Chavez-Neal about the “nature of the culture in law enforcement”	5
regarding sexual harassment, she responded, “You have to keep up.” Mr. Kennedy	6
asked her what she meant by that and the following exchange took place:	7
A: 	You have to be able to joke with—the same as they do. You have	8
to be able to put up with certain things that you wouldn’t	9
necessarily put up with otherwise.	10
Q. 	All right.	11
A. 	You have to be bigger, better, faster, stronger, or you’re seen as	12
inferior and weak, and you get talked about, you get belittled. It’s	13
humiliating.	14
Q: 	Are there any specific examples you can give me of that, or is	15
that just a general sense you get when you talk about the culture	16
of the employment?	17
A: 	I know women in the department have been called names. I’ve	18
been personally called names, had things written on sign-up	19
sheets, put in your mailbox, rumors spread about you to different	20
agencies, things of that nature.	21
Q: 	Okay. What types of names have you been called personally?	22
A: 	My call sign is 704. I have been referred to as “7-0-whore.”	23
{4} 	The City of Las Cruces eventually moved for summary judgment on the	24
municipal liability claim. Defendants’ response discussed the sexually charged	25

3
atmosphere in the department and noted that “male officers also gave female officers	1
sexualized 	nick-names.” 	Citing 	to 	Ms. 	Chavez-Neal’s 	deposition 	testimony,	2
Defendants wrote, “For example, Ms. Chavez[-Neal]’s call number is 704, but she	3
has been referred to as ‘7-0-whore[.]’ ” Defendants attached portions of Ms. Chavez-	4
Neal’s deposition transcript as an exhibit to the filing.	5
{5} 	In January 2016, while D.G.’s lawsuit was still pending, the television station	6
KOB-TV, LLC (KOB) aired a five-minute story about the case. Defendant Shannon	7
Kennedy agreed to be interviewed and the KOB story broadcasted four of her	8
statements:	9
Had there been a leader at the police department that had said we do	10
not tolerate this kind of behavior, [D.G.] would not have been raped.	11
[D.G.] was subjected to inappropriate comments, like they called her	12
mother a MILF, and she overheard the male sex crimes detectives	13
including Garcia call women ‘sucia’ in the workplace.	14
And so there’s a continuum of sexual assault that starts with sexual	15
harassment by degrading women and dehumanizing women, by calling	16
them whores [and other derogatory names].	17
And he thought the guys would understand and that he could minimize	18
what he had done to [D.G.] by just degrading women as he did on a	19
daily basis while being a detective.	20

4
These statements are the entirety of Kennedy’s televised comments.1
1
{6} 	In December 2016, Ms. Chavez-Neal sued Defendants, alleging a single count	2
of defamation related to the news interview.2 In her complaint, Ms. Chavez-Neal	3
asserted that during the interview with KOB, Kennedy had identified her as being	4
“ ‘commonly referred to as 7-0-whore’ because her call number is ‘704.’ ” Ms.	5
Chavez-Neal also alleged that Kennedy referred to Ms. Chavez-Neal as a “whore”	6
1 The KOB story also included a voiceover in between Kennedy’s second and
third comments where the reporter stated:
A number of detectives described the workplace banter in recorded
interviews 	with 	attorneys. . . . During 	these 	interviews, 	detectives
revealed a female officer whose call number is 704 was commonly
referred to as “7-0-whore.” A woman with the initials of V.D. was
routinely called VD as in “venereal disease.” Male detectives were seen
grabbing their penises in front of female secretaries asking to be
touched. And a woman the male detectives considered to be unshapely
was routinely referred to as “Sponge Bob.”
Throughout the voiceover, at the top of the screen, the story cited “Court docs[.]”
KOB represented that it obtained this information from documents filed in the
underlying court proceedings.
2 Ms. Chavez-Neal also named KOB as a Defendant. KOB filed a motion for
summary judgment, arguing that the defamation claim should fail because it was
based on statements that were both true and privileged. The district court granted
KOB’s motion, stating that it “determined that the absolute fair report privilege is
applicable to KOB[], and determin[ed] that KOB’s broadcast was based upon
documents filed in the United States District Court, for the District of New
Mexico[.]” See Stover v. Journal Pub. Co., 1985-NMCA-113, ¶ 14, 105 N.M. 291,
731 P.2d 1335 (stating that the “essence of the fair report privilege is that no liability
will attach for the republication of the defamatory statements so long as the
republication is a fair and accurate report of an official or public proceeding”).

5
to the public. These statements, Ms. Chavez-Neal claimed, caused damage to her	1
reputation and credibility because they implied that she, a married woman, is	2
sexually promiscuous and had engaged in sexual misconduct.	3
{7} 	Defendants filed a motion for summary judgment concurrently with their	4
answer and asserted that Kennedy’s statements were absolutely privileged, thus	5
precluding the lawsuit as a matter of law. During the hearing, Defendants played a	6
video of the full five-minute news story for the court and noted that Kennedy had	7
not made the statements alleged in Ms. Chavez-Neal’s complaint. The district court	8
nevertheless denied the motion, stating that if the statements “had simply remained	9
as part of a pleading filed with the court, I believe the privilege would apply, but	10
because it comes up in the context of a TV broadcast interview, my reading of	11
Helena Chemical [Co. v.] Uribe[,2012-NMSC-021, 281 P.3d 237,] is that there is	12
no absolute privilege when it comes up as part of an interview or media interview.”	13
The district court further stated that if “Ms. Kennedy [were] simply quoting from a	14
pleading, the privilege might apply. But from my review of the transcript and now	15
watching the video, Ms. Kennedy is not careful enough to couch it in those terms.	16
She appears to be republishing the statements. So the absolute privilege of litigation	17
would not apply.” The district court also denied Defendants’ request to include	18
interlocutory language in the order.	19

6
DISCUSSION	1
{8} 	Because the absolute privilege doctrine “grants immunity to litigants and their	2
attorneys from being sued for defamation,” Helena Chem. Co., 2012-NMSC-021,	3
¶ 1, we granted Defendants’ petition for writ of error. See Campos de Suenos, Ltd.	4
v. Cnty. of Bernalillo, 2001-NMCA-043, ¶ 15, 130 N.M. 563, 28 P.3d 1104 (“We	5
issue writs of error to review immunity from suit cases because we consider them	6
collateral orders affecting interests that would be irretrievably lost if the case	7
proceeded to trial.” (alteration, internal quotation marks, and citation omitted)). “We	8
review motions for summary judgment and the question of whether a privilege exists	9
de novo.” Helena Chem. Co., 2012-NMSC-021, ¶ 11.	10
{9} 	This Court has long recognized that “defamatory matter in judicial pleadings,	11
even if false and malicious, is absolutely privileged” as long as the defamatory	12
matter is “reasonably related to the subject of inquiry.” Stryker v. Barbers Super	13
Mkts., Inc., 1969-NMCA-119, ¶ 13, 81 N.M. 44, 462 P.2d 629. Following our	14
holding in Stryker, we adopted the approach set forth in Restatement (First) of Torts	15
§ 586 (1938) (current version at Restatement (Second) of Torts § 586 (1977)), which	16
states:	17
An attorney at law is absolutely privileged to publish false and	18
defamatory matter of another in communications preliminary to a	19
proposed judicial proceeding, or in the institution of, or during the	20
course and as a part of a judicial proceeding in which he [or she]	21
participates as counsel, if it has some relation thereto.	22

7
See Romero v. Prince, 1973-NMCA-122, ¶ 12, 85 N.M. 474, 513 P.2d 717. The	1
doctrine “is based upon a public policy of securing to attorneys as officers of the	2
court the utmost freedom in their efforts to secure justice for their clients.” Penny v.	3
Sherman, 1984-NMCA-073, ¶ 13, 101 N.M. 517, 684 P.2d 1182.	4
{10} 	Although “[t]he Romero [C]ourt summarized the absolute privilege doctrine	5
to mean that a defamatory statement of an attorney is absolutely privileged if the	6
statement is made during the course of and as a part of judicial proceedings and is	7
related to those proceedings[,]” it also “clarified that the privilege applies even when	8
the statement is not spoken in open court or contained within a court pleading.”	9
Helena Chem. Co., 2012-NMSC-021, ¶ 13 (internal quotation marks and citation	10
omitted) (noting that Romero applied the privilege to a lawyer’s settlement letter and	11
explaining that “if the out-of-court statement is made to achieve the objects of the	12
litigation, the statement is related to the judicial proceeding”).	13
{11} 	Our Supreme Court confronted the scope of extrajudicial statements in Helena	14
Chemical Co., addressing the very situation presented in this appeal—statements to	15
the media after a complaint is filed. 2012-NMSC-021, ¶¶ 28-35. Recognizing that	16
“[a] complaint filed in court is absolutely privileged[,]” the Court held that	17
“statements made by litigants or their attorneys to the press after the lawsuit has been	18
filed are absolutely privileged if the statements are a repetition or an explanation of	19
the allegations in the pleading.” Id. ¶¶ 2, 30. The Court reasoned that	20

8
republishing, repeating, or explaining a complaint that has been filed in	1
good faith should be absolutely privileged because in the age of digital	2
communication, it is illogical to protect allegations in a publicly filed	3
complaint but not repetition or explanation of those same allegations	4
outside the courthouse. Allegations of interest to the public or even to	5
a single competitive industry will inevitably reach interested parties,	6
and an explanation limited to the scope of the complaint only narrows	7
the potential harm of statements that would be defamatory but for the	8
privilege.	9
Id. ¶ 30 (alteration, internal quotation marks, and citation omitted).	10
{12} 	Whether the absolute privilege doctrine applies is determined on a case-by-	11
case basis. Id. ¶ 16. “The question of the relationship between the alleged defamatory	12
matter and the proposed or existing judicial proceeding is a question of law.” Penny,	13
1984-NMCA-073, ¶ 14. “All doubt should be resolved in favor of recognizing the	14
privilege.” Id. ¶ 13. “Only in extreme cases will a publication made in connection	15
with a judicial proceeding serve as the basis for a defamation action.” Id.	16
{13} 	In this case, the twenty-page complaint filed by Defendants in the underlying	17
civil 	lawsuit 	against 	the 	City 	of 	Las 	Cruces 	included 	numerous 	allegations	18
describing a “pervasive atmosphere of sexual harassment and abuse . . . within the	19
police department.” The complaint alleged that “[i]n practice, the City of Las Cruces	20
has cultivated and encouraged a sexualized culture within its police department	21
which has created an acceptance and expectation that law enforcement officers will	22
engage in sexual harassment of women and girls.” The complaint further alleged that	23
“[t]he objectification and dehumanization of women has caused Las Cruces police	24

9
officers to engage in sexual harassment, sexual batteries, and sexual misconduct	1
while on duty” and that “[t]he City of Las Cruces’ silence on sexual misconduct	2
within 	the 	police 	department 	has 	promoted 	the 	sexualized 	environment 	and	3
normalized sexual harassment.” The normalization of this “sexualized culture,” the	4
complaint alleged, “created a policy and practice [that] encourages officers to	5
sexually exploit women while acting within the course and scope of their duty as	6
officers.”	7
{14} 	Kennedy’s statements in the interview all related to these allegations in the	8
complaint. She stated that “[t]here’s a continuum of sexual assault that starts with	9
sexual harassment by degrading women and dehumanizing women, by calling them	10
whores [and other derogatory names].” She further explained that her client was	11
subjected to a number of inappropriate comments and but for the sexualized culture	12
and the police department’s tolerance of it, her client “would not have been raped.”	13
Although Kennedy did not repeat the allegations of the complaint verbatim during	14
the interview, her statements clearly echoed the claims at issue and explained, by	15
way of specific, limited examples, the allegations of harassment, objectification, and	16
dehumanization underlying the municipal liability claim. These statements are	17
analogous in scope to the statements at issue in Helena Chemical Co., and because	18
they were similarly limited to reiteration and explanation of the allegations of the	19
complaint, we conclude that the absolute privilege doctrine applies. See 2012-	20

10
NMSC-021, ¶ 32 (holding that a party’s statements describing her children’s	1
medical condition were “an explanation of the damages portion of the complaint”	2
such that the absolute privilege applied).	3
{15} 	Although 	Ms. 	Chavez-Neal 	essentially 	conceded 	as 	much 	during 	the	4
proceeding below, writing in her response to Defendants’ motion for summary	5
judgment that “it is true that [Kennedy’s] statements to KOB[] generally are an	6
explanation of the allegations of the suit against the City of Las Cruces,” she	7
continues to allege, incorrectly, that Kennedy specifically referred to Ms. Chavez-	8
Neal during the KOB interview by her call number and republished the phrase “7-0-	9
whore.” Because the content of Kennedy’s statements is a matter of record and not	10
subject to dispute, we reject Ms. Chavez-Neal’s contentions. In the record before us,	11
Defendants’ only republication of Ms. Chavez-Neal’s deposition testimony occurred	12
as part of a written response filed in ongoing litigation. Defendants were privileged	13
to republish Ms. Chavez-Neal’s testimony within the confines of those proceedings.	14
See, e.g., Superior Constr., Inc. v. Linnerooth, 1986-NMSC-008, ¶ 8, 103 N.M. 716,	15
712 P.2d 1378 (acknowledging that “[w]ith few exceptions, any publication made	16
in a judicial proceeding enjoys absolute privilege from later charges of defamation”).	17

11
CONCLUSION	1
{16} 	We hold that the statements at issue in this case are absolutely privileged and	2
therefore reverse and remand with instructions to enter summary judgment in favor	3
of Defendants.	4
{17} 	IT IS SO ORDERED.	5
__________________________________	6
MEGAN P. DUFFY, Judge	7
WE CONCUR:	8
_________________________________	9
BRIANA H. ZAMORA, Judge	10
__________________________________	11
JANE B. YOHALEM, Judge	12