# Seeds v. Lucero > New Mexico Court of Appeals · March 30, 2005 · 137 N.M. 589 URL: https://www.frixlaw.com/law-library/cases/9785579 ## Case - **Full name:** Robert SEEDS and Laura Seeds, Plaintiffs-Appellants, v. Richard LUCERO, John Lenssen, Anthony Vandervossen, and Kathy Vandervossen, Defendants-Appellees - **Court:** New Mexico Court of Appeals - **Decided:** March 30, 2005 - **Citations:** 137 N.M. 589; 113 P.3d 859; 2005 NMCA 67; 2005 NMCA 067 - **Precedential status:** Published - **Opinion:** Concurring in part by Robinson - **Judges:** Fry, Sutin, Robinson - **Cited by:** 30 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9785579 ## How later opinions describe it (automated extraction) - stating that, unless falling within an exception, public employees “are immune for 12 any actions they performed while in the scope of their duties” - recognizing “the burdens imposed in comparative negligence cases where the parties must deal with evidence of the negligence of non-party tortfeasors” - holding that public employees are immune from civil conspiracy claims ## Opinion text ROBINSON, Judge (concurring in part and dissenting in part). {28} I would not recognize a grant of immunity from liability for the Mayor, or any of the City Defendants who are accused of malicious conduct by intentionally carrying out their personal and political vendettas against their political adversaries. I do not believe that the law should or does provide them with a place to safely hide from civil prosecution under the Tort Claims Act. {29} Those with whom the City Defendants conspire to accomplish their wrongful goals do not escape liability. Neither should the City Defendants. I therefore dissent. {30} I am convinced that New Mexico ought to follow those states that do not recognize immunity for public employees or officials who are guilty of malicious acts. See Aspen Exploration Corp. v. Sheffield, 739 P.2d 150, 158 (Alaska 1987) (stating that “[ujnder a rule of qualified immunity, a public official is shielded from liability only when discretionary acts within the scope of the official’s authority are done in good faith and are not malicious or corrupt”); Trimble v. City & County of Denver, 697 P.2d 716, 729 (Colo.1985) (stating that “an official performing discretionary acts within the scope of his office enjoys only qualified immunity. He is shielded from liability for civil damages only insofar as his conduct is not willful, malicious or intended to cause harm”); Podruch v. State Dep’t of Pub. Safety, 674 N.W.2d 252, 254 (Minn.Ct.App.2004) (stating that “[t]he doctrine of official immunity protects from personal liability a public official charged by law with duties that call for the exercise of judgment or discretion unless the official is guilty of willful or malicious wrong”); Huber v. N.C. State Univ., 163 N.C.App. 638 , 594 S.E.2d 402, 408 (2004) (stating that “[pjublic official immunity does not protect a public official from liability based on corrupt or malicious actions”). {31} The TCA also mentions malice in the indemnity section. See § 41-4-4(E). That section provides that a government entity has the right to indemnification from a public employee for sums expended in defending the employee or paying a judgment if the employee “acted fraudulently or with actual intentional malice causing the bodily injury, wrongful death or property damage.” Id. Although this section is somewhat puzzling because the public employee must have been sued and suffered a judgment, it shows the legislature’s disdain for a public employee who demonstrates the same malice that I find so despicable. {32} The majority believes that there is no clear indication that the legislature wanted to waive immunity for a public official, other than a law enforcement officer, who misuses the enforcement machinery of government. {33} I would rely on Oldfield v. Benavidez, 116 N.M. 785 , 867 P.2d 1167 (1994), which explains that opposing these policies is the concern that sovereign immunity can result in unfairness and deny the public the right to any redress for the abuse of government power. I certainly share this concern when public officials misuse their governmental authority and power to the point of maliciousness. {34} Where these same officials misuse the machinery of government and do so maliciously, they shatter the public trust and injure those who they are sworn to protect. The majority believes the legislature has resolved the conflict presented in this ease in favor of granting public officials broad latitude to proceed without fear of lawsuits. I suspect that is why public officials do wrong — because they have no such fear. {35} The majority relies on McBrayer, which dealt with a university instructor who lured a student to his apartment and sexually assaulted her. This Court upheld that public employee’s immunity from prosecution. I do not agree with the holding in McBrayer. I ask the question: “Are these public officials or employees serving the public interest or violating it?” {36} The majority states that the “City Defendants’ wrongful motive is simply irrelevant, as long as there is ‘a connection between the public employee’s actions at the time of the incident and the duties the public employee was requested, required or authorized to perform.’ ” Majority Opinion ¶ 10 at 862. I cannot agree that wrongful motive is simply irrelevant. I would hold that malicious actions by a public official disconnect him from his scope of public duty. {37} Let me be quite clear. I appreciate the difficulty of serving as a public official whether elected or appointed. It may well be that the legislature drew a line in the sand keeping members of the public from harassing and frivolously suing public officials. But once a public official crosses over that line and commits malicious acts against others, he loses that cloak of immunity. CONCLUSION {38} I concur with the majority in reversing and remanding the trial court’s summary judgment on the conspiracy count against the VanderVossens. {39} For the reasons stated above, I respectfully dissent from the majority’s affirmance of the dismissal of the City Defendants under Tort Claims immunity. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9785579. Public record. Not legal advice.