J. Placidio GARCIA, Plaintiff-Appellee, Cross-Appellant, v. BOARD OF EDUCATION OF the SOCORRO CONSOLIDATED SCHOOL DISTRICT, Leo Lujan, Margene Harris, Daniel Trujillo and David Shortess, Defendants/Counter-claimants/Appellants, Cross-Appellees, 777 F.2d 1403

PER CURIAM. Plaintiff, Superintendent of the Socorro Consolidated School District of New Mexico, brought a

section 1983 action alleging violation of his first amendment rights and claiming that he was deprived of liberty and property without due process. His claims arose out of the school board’s decision not to renew his contract. Plaintiff named the Board of Education and the members who voted against renewing his contract as defendants. The members were named in both their individual and official capacities. During trial, plaintiff dropped the claims against the board members in their individual capacities. Initially, the board gave no public reasons for its decision not to renew the plaintiff’s contract.

Upon learning about the nonrenewal, plaintiff made statements to various persons that his contract was not being renewed because he had refused to let the board coerce him into performing an illegal act. After these statements were republished in the local newspapers, the board held a special meeting to draft a statement discussing the reasons for nonrenewal of plaintiff’s contract. The reasons — which included conduct detrimental to staff morale, that plaintiff was hard to work with, and that constituents were unhappy — were announced publicly and reprinted in local newspapers.

Based on the dismissal and the statement drafted by the board, plaintiff filed this action alleging denial of first amendment, property, and liberty rights. The board members counterclaimed for defamation. The trial judge instructed the jury on plaintiff’s liberty claim, but refused to instruct on either the first amendment or property claims.

As to the counterclaim, the court instructed the jury that, in order to recover on their defamation claim, the school board members, as public officials, must prove that plaintiff’s statements were made with “actual malice.” The jury awarded plaintiff $180,000 and defendants nothing. On appeal, plaintiff challenges the trial court’s refusal to instruct the jury on the first amendment and property claims.

The school board members argue that the trial court erred in failing to direct a verdict on plaintiff’s liberty claim, and they challenge the trial court’s finding that they were bound by the actual malice standard of proof. They also argue, for the first time on appeal, that they are immune from suit under the eleventh amendment. I. ELEVENTH AMENDMENT Initially, the issues raised on appeal and addressed in the parties’ briefs were limited to the trial court’s handling of the first amendment, due process, and defamation claims.

Shortly after the briefs were filed, the school board members submitted a letter to this court asserting that the school district and board members in their official capacities enjoy eleventh amendment immunity. The eleventh amendment claim was addressed at oral argument although not yet fully briefed. Three sub-issues are important: (1) whether the issue was timely raised; (2) whether the board members are estopped from raising the issue; and (3) if the issue is properly before the court and estoppel does not apply, whether the school board is in fact entitled to immunity. A.

Was the Eleventh Amendment Defense Timely Raised? The board members raised the eleventh amendment as a defense in their Answer, First and Second Amended Answers, and in the Pre-Trial Order. Apparently, however, they did not pursue the defense, and the trial judge failed to rule on it. An eleventh amendment defense is jurisdictional and may be raised for the first time on appeal. Edelman v. Jordan, 415 U.S. 651, 677-78, 94 S.Ct. 1347, 1362-63, 39 L.Ed.2d 662 (1974) (citing Ford Motor Co. v. Department of Treasury, 323 U.S. 459, 466-67, 65 S.Ct. 347, 351-52, 89 L.Ed. 389 (1945)).

Further, it may be argued on appeal even if it was raised but abandoned at the trial level. See Sosna v. Iowa, 419 U.S. 393, 396 n. 2, 95 S.Ct. 553, 555 n. 2, 42 L.Ed.2d 532 (1975). The plaintiff argues that Patsy v. Board of Regents, 457 U.S. 496,102 S.Ct. 2557, 73 L.Ed.2d 172 (1982), retreated from the broad holdings of Edelman and Ford Motor. However, since Patsy, the Supreme Court has reaffirmed that an eleventh amendment defense may be raised at any time in the proceedings. Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 99 n. 8, 104 S.Ct. 900, 907 n. 8, 79 L.Ed.2d 67 (1984).

We sympathize with the trial court and the plaintiff when they have been “sand bagged” as they were on this issue. However, the cases dictate this post-trial revision of the issues. ■ B. Are the Defendants Estopped from Raising the Defense? The plaintiff further asserts that the school board should be estopped from raising the eleventh amendment defense. The action was initially against the board members in both their individual and official capacities. During trial, plaintiff dropped his claims against the board members in their individual - capacities.

Three exchanges between the court and the attorneys are important. In the first exchange, the court addressed the plaintiffs attorney and asked him whether plaintiff wanted a jury instruction for punitive damages. The judge suggested that explaining and distinguishing between the claims against defendants in their individual and official capacities would confuse the jury. In essence, the court recommended that plaintiff drop one of the claims, preferably the claim against defendants in their individual capacities. Although present, the school board’s attorney did not participate in this exchange.

Record, vol. 3, at 171-73. On the next day of trial, the court again addressed plaintiff’s attorney, inquiring whether any decision had been made about dropping one of the claims. Plaintiff’s attorney, noting that he had conferred with his client and with co-counsel, informed the court that plaintiff wanted to drop the claim against defendants in their individual capacities. The defense attorney’s only participation in this exchange was to state that he and the defendants’ insurer had no problem with this decision. Record, vol. 4, at 4-5.

Then, in chambers, when the trial judge and attorneys for both plaintiff and defendants discussed the final version of the jury instructions, the following conversation took place: THE COURT: [T]he instructions are drafted as against the Defendants strictly in their official capacities. I understood that’s the way the Plaintiff wanted it. Therefore, that takes out any issue of punitive damages and also any issue of good faith. So if there’s no hooker— There’s no problem; if the Plaintiff is entitled to a verdict, its recoverable. I assume that’s true. [Defense Counsel]: That’s true, Your Honor.

THE COURT: I mean if the Plaintiff were recovering, then all at once the school district will not respond or claim some kind of immunity or something. [Defense Counsel]: No. They probably would not have the money, but there’s no problem with that. [Plaintiff’s Counsel]: Of course, if there’s nothing with the County, the Constitution provides for that. Record, vol. 5, at 42-43.

Thus it appears that, had the school board’s attorney indicated that an eleventh amendment defense would be further pursued, the trial court might have reconsidered its recommendation that plaintiff drop his claim against the defendants in their individual capacities. Further, when the court gave the parties the opportunity to preserve the record by making objections, defendants did not object to the court’s failure to rule on the defense. However, the parties fail to address the issue of whether the school board’s attorney has the authority to waive sovereign immunity.

Sovereign immunity in New Mexico is now a statutory creation, In Hicks v. State, 88 N.M. 588, 544 P.2d 1153 (1975), the New Mexico Supreme Court abolished common law sovereign immunity. In response, the legislature enacted the Tort Claims Act, reinstating governmental immunity except in eight classes of activity. N.M.Stat.Ann. §§ 41-4-4 to -12 (1978). None of the eight exceptions apply to this case. Under

section 41-4-4, waiver of immunity is limited to and governed by N.M.Stat.Ann. §§ 41-4-13 to -25 (1978). These sections do not authorize the school board’s attorney to waive sovereign immunity. Thus we find that the school board is not estopped from raising eleventh amendment immunity at this time. C. Do the Local School Board Members in Their Official Capacity Enjoy the State’s Sovereign Immunity under the Eleventh Amendment? A nonconsenting state is immune from suit brought in federal court by her own citizens as well as by citizens of another state. See Edelman v.

Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974). Further, a suit in a federal court against the members of a state board or agency acting in their official capacities is a suit against the board or agency itself, and is subject to the eleventh amendment immunity restriction. However, since Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), created a constitutional dichotomy between state and local functions, it has been necessary in suits against agencies to determine whether the agency sued is the alter ego of the state.

If the agency is the alter ego, it enjoys the eleventh amendment immunity of the state. If it is “local” as defined by the cases, it does not enjoy that eleventh amendment immunity. Thus, determination of that issue is a matter of federal law and is made by examining the relationship between the state and the entity being sued. This court has recently considered whether local school boards in New Mexico are to be considered state or local entities for eleventh amendment purposes, and has concluded that they should be considered arms of the state. Martinez v.

Board of Education of the Taos Municipal School District, 748 F.2d 1393 (10th Cir.1984); Maestas v. Board of Education of the Mora Independent School District, 749 F.2d 591 (10th Cir.1984). We are bound by these decisions. The eleventh amendment therefore bars this suit against the school board and its members in their official capacities. II. DEFAMATION (Cross Appeal) On cross-appeal, the defendant school board members in their individual capacities complain that the trial court erroneously instructed the jury on their defamation claim.

The trial court instructed the jury that, in order to recover on their defamation claim, the school board members, as public officials, must prove that Mr. Garcia’s statement was made with “actual malice” as mandated by New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). The school board members challenge the instruction, arguing that they need only prove common law negligence because they are not public officials and that, even if they are public officials, the New York Times standard applies only to “media” defendants.

The Supreme Court has enunciated tests for determining whether someone is a public official or figure. In Rosenblatt v. Baer, 383 U.S. 75, 85, 86 S.Ct. 669, 675, 15 L.Ed.2d 597 (1966), the Court held that the “ ‘public official’ designation applies at the very least to those among the hierarchy of government employees who have, or appear to the public to have, substantial responsibility for or control over the conduct of governmental affairs.” In Gertz v.

Robert Welch, Inc., 418 U.S. 323, 351, 94 S.Ct. 2997, 3012, 40 L.Ed.2d 789 (1974), the Court stated that public figures are those who “assume special prominence in the resolution of public questions.” The Court noted that one could become a public figure in one of two ways: (1) by achieving such personal fame and notoriety that he becomes a public figure for all purposes; or (2) by voluntarily becoming involved or being drawn into a public controversy and thereby becoming a public figure as to the issues involved in that controversy. Id. at 351, 94 S.Ct. 3012.

The school board members make a variety of arguments as to why they do not fall within these

definitions: They are not “employees” because they do not get paid and are elected; their position is not one that the public perceives as having substantial responsibility over the conduct of government affairs; their power is merely local; and the public would not scrutinize their activities absent the controversy at issue in this case. The school board’s arguments, however, are not persuasive. Courts have often considered elected city officials to be within the definition of public officials. See, e.g., New York Times, 376 U.S. at 283 n. 23, 84 S.Ct. at 727 n. 23 (city commissioner); Ocala Star-Banner Co. v.

Damron, 401 U.S. 295, 299, 91 S.Ct. 628, 631, 28 L.Ed.2d 57 (1971) (city mayor); Fadell v. Minneapolis Star & Tribune Co., 557 F.2d 107, 108 (7th Cir.), cert. denied, 434 U.S. 966, 98 S.Ct. 508, 54 L.Ed.2d 452 (1977) (elected township tax assessor); Dostert v. Washington Post Co., 531 F.Supp. 165, 166 n. 1 (D.W.Va.1982) (elected judge). As the Supreme Court noted in Gertz, “An individual who decides to seek governmental office must accept certain necessary consequences of that involvement in public affairs.” 418 U.S. at 344, 94 S.Ct. at 3009.

Further, we reject the board members’ argument that they are not public officials because the public would not scrutinize their decisions absent the instant controversy and because the public does not perceive them as having substantial responsibility over the conduct of government affairs.. Clearly, the governance of a public school system is of the utmost importance to a community, and school board policies are often carefully scrutinized by residents.

Members of the local school board, who are elected to make decisions regarding local education, clearly “have, or appear to the public to have, substantial responsibility for or control over the conduct of governmental affairs.” Rosenblatt, 383 U.S. at 85, 86 S.Ct. at 675. The strong public interest in ensuring open discussion of their job performance warrants the conclusion that school board members are public officials. The scope of the constitutional protection established in New York Times is a more troublesome issue.

Although in New York Times itself the Supreme Court specifically required a public-official defamation plaintiff to prove that both the “media” and private individual defendants made defamatory statements with actual malice, the board members argue that Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974), cut back on New York Times by limiting the constitutional protection only to “media” defendants.

In analyzing New York Times and its progeny, the crux of the issue before us is whether there is any compelling reason why a private “nonmedia” defendant should be afforded less protection than a “media” defendant when discussing matters of public importance involving a public official. In other words, should a public official who sues for defamation find it easier to obtain a judgment against a “nonmedia” critic of his official conduct than he would against a “media” critic?

In New York Times, the Court made repeated statements extolling the purposes of the first amendment, using the terms “freedom of expression,” “freedoms of speech and press,” “freedom of speech,” and “freedom of the press.” While the Court at times discussed freedom of the press and freedom of speech separately, it did not appear to make any distinction between the two in terms of the amount of protection to which they are entitled.

Nor did the specific holding of the case limit the privilege to the media: “We hold today that the Constitution delimits a State’s power to award damages for libel in actions brought by public officials against critics of their official conduct.” New York Times, 376 U.S. at 283, 84 S.Ct. at 727. The Court’s reasoning focused on protecting open public debate critical of official conduct, not on the identity of the criticizing speaker. Subsequently, in Garrison v. Louisiana, 379 U.S. 64, 85 S.Ct. 209, 13 L.Ed.2d 125 (1964) (criminal defamation action), and Henry v.

Collins, 380 U.S. 356, 85 S.Ct. 992, 13 L.Ed.2d 892 (1965), the Court applied the actual malice standard to public official defamation plaintiffs suing nonmedia defendants without specifically considering whether the character of the disseminator of the information was significant. Instead, the Court again focused on the character of the defamation plaintiff as a public official.

In Garrison, the Court termed the New York Times rule the “public-official rule,” protecting “the paramount public interest in a free flow of information to the people concerning public officials, their servants.” 379 U.S. at 77, 85 S.Ct. at 217. “[Wjhere the criticism is of public officials and their conduct of public business, the interest in private reputation is overborne by the larger public interest, secured by the Constitution, in the dissemination of truth.” Id. at 72-73, 85 S.Ct. at 214-15. Then, in Gertz v.

Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974), the Court considered the case of a private plaintiff suing a media defendant.

The Court’s holding can be summarized as follows: (1) “Public officials” and “public figures” may recover for defamation only on a New York Times malice showing, id. at 343, 94 S.Ct. at 3008; (2) the states may define appropriate standards of liability respecting private plaintiffs “so long as they do not impose liability without fault,” id. at 347, 94 S.Ct. at 3010; and (3) no plaintiff may recover presumed or punitive damages, “at least when liability is not based on a showing of knowledge of falsity or reckless disregard for the truth.” Defamation plaintiffs who do not prove knowledge of falsity or reckless disregard for the truth are limited to “compensation for actual injury.” Id. at 349, 94 S.Ct. at 3011.

The majority in Gertz repeatedly employed terms such as “newspaper or broadcaster,” “press and broadcast media,” “publisher or broadcaster,” and “media,” and the Court phrased its holding in terms of publishers and broadcasters. Id. at 347, 94 S.Ct. at 3010. Further, the actual injury segment of the holding spoke of “publishers and broadcasters.” Id. at 350, 94 S.Ct. at 3012.

The Court’s language and apparent focus on freedom of the press generated considerable speculation as to whether Gertz’s requirements concerning fault and actual damages were limited to defamation by “media” defendants, and whether the Supreme Court might apply the Gertz rationale, focusing on freedom of the press, to cases involving public-official plaintiffs and nonmedia defendants. The Supreme Court recently had the opportunity to decide whether the New York Times rule should be limited to media defendants in Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., — U.S. —, 105 S.Ct. 2939, 86 L.Ed.2d 593 (1985).

While Justice Powell, writing for the Court, did not reach the issue, five members of the Court expressly rejected a distinction between media and nonmedia defendants. Justice Brennan, in a dissent joined by Justices Marshall, Blackmun and Stevens, explained: Such a distinction is irreconcilable with the fundamental First Amendment principle that “[t]he inherent worth of ... speech in terms of its capacity for informing the public does not depend upon the identity of its source, whether corporation, association, union, or individual.” 105 S.Ct. at 2957 (quoting First National Bank of Boston v.

Bellotti, 435 U.S. 765, 777, 98 S.Ct. 1407, 1416, 55 L.Ed.2d 707 (1978)). Similarly, Justice White stated: I agree with Justice Brennan that the First Amendment gives no more protection to the press in defamation suits than it does to others exercising their freedom of speech. None of our cases affords such a distinction; to the contrary, the Court has rejected it at every turn. 105 S.Ct. 2953 (White, J., concurring in judgment). Such a rejection of the defendants’ suggested distinction accords with the principles underlying the New York Times rule and the first amendment.

Criticism of the functioning and integrity of local government is exactly the type of speech the first amendment was intended to protect. “Criticism of the government is at the very center of the constitutionally protected area of free discussion. Criticism of those responsible for government operations must be free, lest criticism of government itself be penalized.” Rosenblatt, 383 U.S. at 85, 86 S.Ct. at 675. First amendment protection should not depend on whether the criticism is in the form of speech by a private individual or publication by the institutional press.

Indeed, the law should encourage the private individual to become involved in and express his or her views on the conduct of government affairs. Arguably, vigorous debate at the local level is vastly more important in shaping an individual’s ideas and opinions as to proper government conduct than is what that individual reads or hears from the national media. The bulk of government is conducted on the level where matters of public concern are decided by personal, individual exchanges.

See Watkins & Schwartz, Gertz and the Common Law: Of Fault, Nonmedia Defendants, and Conditional Privileges, 15 Tex.Tech.L.Rev. 823, 849-50 (1984). Furthermore, at this absolutely central level of government, the education and aculturation of new members of society is carried on at a scale where there is no assurance at all that any media will cover, report, or otherwise carry on the open and vigorous debate essential to a free society.

Only an urban oligarch could be oblivious to the real dynamics of democracy carried on in “local” school board meetings, often too dull or localized to attract those who profit financially from selling “news.” To withhold the protections of the first amendment from nonmedia participants in the political process would be to stand the amendment on its head without the slightest justification. The focus of the analysis, in determining whether actual malice is required, must be on the subject of the speech, not on the identity of the speaker.

The rationale of New York Times was two-fold: (1) a commitment to “the principle that debate on public issues should be uninhibited, robust, and wide-open”; and (2) that such debate “may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.” New York Times, 376 U.S. at 270, 84 S.Ct. at 720; Rosenblatt, 383 U.S. at 85, 86 S.Ct. at 675.

The traditional reasons for requiring proof of actual malice when the speech is critical of public officials — the need for open debate regarding official actions, a public official’s presumed access to the press for rebuttal, and the official’s presumed consent to criticism by accepting the position — are applicable regardless of whether the speaker is a private individual or the institutional press.

Indeed, it would be irrational to require the private individual, whose criticism reaches a smaller audience and therefore has less potential for harm, to meet a higher standard than the press, with its vast resources and audience. Further, we would be creating definitional monsters by attempting to define “press” and “media.” Does media refer merely to institutional national newspapers, magazines, and television; or does it include the lone tax protester running off copies of his handwritten newsletter on his home photocopier?

Changing technology alone would deter attempts to fashion a legal distinction between “media” and “nonmedia.” As Justice Brennan noted, any distinction “would likely be born an anachronism.” Dun & Bradstreet, Inc., 105 S.Ct. at 2958 & n. 7 (Brennan, J., dissenting). The crucial elements which brought the United States Supreme Court into the field of defamation law are present here.

To create sanctions against a private person criticizing local government officials’ conduct of governmental affairs would threaten the “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide open____” New York Times, 376 U.S. at 270, 84 S.Ct. at 720. There is “a strong interest in debate on public issues ... and ... a strong interest in debate about those persons who are in a position significantly to influence the resolution of those issues.” Rosenblatt, 383 U.S. at 85, 86 S.Ct. at 675.

These constitutional values, the difficulty of defining “media,” and the undesirability of carving out a greater constitutional protection for the media all mandate that, at least when a public-official plaintiff is suing a non-media defendant for defamation, the New York Times actual malice standard should apply. Therefore, the trial court correctly instructed the jury that the defendants could recover on their counterclaims only if they could show that the plaintiff acted with actual malice.

We reverse the judgment in favor of the plaintiff and remand it for dismissal on the grounds of eleventh amendment immunity. Because the trial court correctly instructed the jury regarding the counterclaim, we affirm the verdict against the counter-claimants. . The pertinent part of

section 1983 states: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. 42 U.S.C. § 1983 (1982). .

At different points in the trial, the judge referred to the school board members as public officials and public figures. The United States Constitution, however, does not make a distinction between the two, and neither party alleges error on this ground. See infra note 4. .

In New York Times, the Supreme Court held that the constitutional guarantees of the first and fourteenth amendments require a "federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with 'actual malice’— that is, with knowledge that it was false or with reckless disregard of whether it was false or not.” 376 U.S. at 279-80, 87 S.Ct. at 726. . In Curtis Publishing Co. v. Butts, 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967), the Court extended the New York Times rule to public figures.

See also Gertz v. Robert Welch, Inc., 418 U.S. 323, 342-43, 94 S.Ct. 2997, 3008, 41 L.Ed.2d 789 (1974). . Justice Burger, at least implicitly, also rejected the media/nonmedia distinction, since he stated that he "agree[s] generally with Justice White's observations concerning New York Times v. Sullivan." 105 S.Ct. at 2948 (Burger, C.J., concurring in judgment).