1 IN THE SUPREME COURT OF THE STATE OF NEW MEXICO
2 Opinion Number:
3 Filing Date: May 22, 2017
4 NO. S-1-SC-34093
5 ARSENIO CORDOVA,
6 Plaintiff-Respondent,
7 v.
8 JILL CLINE, THOMAS TAFOYA, 9 LORETTA DELONG, JEANELLE LIVINGSTON, 10 CATHERINE COLLINS, ROSE MARTINEZ, 11 ESTHER WINTER, ELIZABETH TRUJILLO, 12 AND JANE DOES 1 THROUGH 10,
13 Defendants-Petitioners.
14 ORIGINAL PROCEEDING ON CERTIORARI 15 Abigail Aragon, District Judge
16 Armstrong & Armstrong, P.C. 17 Julia Lacy Armstrong 18 Taos, NM
19 for Petitioner Jill Cline
20 The Herrera Firm, P.C. 21 Samuel M. Herrera 22 Taos, NM 1 for Petitioner Thomas Tafoya
2 Steven K. Sanders 3 Albuquerque, NM
4 for Petitioners Loretta DeLong, Jeanelle Livingston, Catherine Collins, Rose 5 Martinez, Esther Winter, and Elizabeth Trujillo
6 Garcia Law Firm 7 Marcus E. Garcia 8 Albuquerque, NM
9 L. Helen Bennett, P.C. 10 Linda Helen Bennett 11 Albuquerque, NM
12 for Respondent 1 OPINION
2 VIGIL, Justice.
3 {1} This dispute comes before the Court in relation to a malicious abuse of process
4 claim made by Taos school board member Arsenio Cordova (Cordova) against
5 eighteen members of an unincorporated citizens’ association (collectively,
6 Petitioners) following their efforts to remove Cordova from office under the Local
7 School Board Member Recall Act (Recall Act), NMSA 1978, §§ 22-7-1 to -16 (1977,
8 as amended through 2015). We hold that petitioners who pursue the recall of a local
9 school board member under the Recall Act are entitled to the procedural protections
10 of the New Mexico statute prohibiting strategic litigation against public participation
11 (Anti-SLAPP statute). See NMSA 1978, § 38-2-9.1 (2001). We also conclude that
12 petitioners are entitled to immunity under the Noerr-Pennington doctrine when they
13 exercise their right to petition unless the petitioners (1) lacked sufficient factual or
14 legal support, and (2) had a subjective illegitimate motive for exercising their right
15 to petition. See E. R. R. Presidents Conf. v. Noerr Motor Freight, Inc., 365 U.S. 127,
16 135 (1961) (“To hold that . . . the people cannot freely inform the government of their
17 wishes . . . would raise important constitutional questions. The right of petition is one
18 of the freedoms protected by the Bill of Rights.”); United Mine Workers of Am. v.
19 Pennington, 381 U.S. 657, 670 (1965) (relying on Noerr’s protection of “effort[s] to 1 influence public officials regardless of intent or purpose” of the efforts); Prof’l Real
2 Estate Inv’rs, Inc. v. Columbia Pictures Indus., Inc., 508 U.S. 49, 60-62 (1993)
3 (holding that if the challenged litigation is objectively baseless, a court examines the
4 subjective motivation behind the litigation to determine if the lawsuit is a sham).
5 {2} Accordingly, we reverse the Court of Appeals’ holdings that the Anti-SLAPP
6 statute and the Noerr-Pennington doctrine do not apply. We also reverse the Court
7 of Appeals’ holding that it did not have jurisdiction over Petitioners with pending
8 counterclaims. Cordova v. Cline, 2013-NMCA-083, ¶¶ 15-17, 308 P.3d 975. We
9 affirm the district court’s holding that Petitioners’ conduct was in support of the
10 political process of a school board member recall; and thus, Petitioners properly
11 invoked the substantive protection of the Noerr-Pennington doctrine and the
12 procedural and remedial provisions of the Anti-SLAPP statute. Pursuant to Section
13 38-2-9.1(A), we uphold the district court order granting Petitioners’ motion to
14 dismiss. Pursuant to Section 38-2-9.1(B), Petitioners are statutorily entitled to an
15 award of attorney fees.
16 I. BACKGROUND
17 {3} Jill Cline, a parent with children enrolled in the Taos Municipal School
18 District, organized Citizens for Quality Education (CQE) and registered it as an
2 1 unincorporated citizens’ association with the Taos County Clerk. Members of CQE
2 included Cline, Taos Municipal School Board Member Thomas Tafoya, and various
3 other current and former school administrators. CQE alleged that Cordova had
4 committed acts of misfeasance and malfeasance while in office. CQE initiated a
5 petition to recall Cordova from the Taos school board pursuant to the Recall Act. See
6 §§ 22-7-2, -8.
7 {4} After collecting the requisite signatures, CQE submitted its petition to the Taos
8 County Clerk as required under the Recall Act. See §§ 22-7-8(F), -9. The Taos
9 County Clerk filed an application with the district court on May 28, 2009, requesting
10 “a hearing [for a] determination by the court of whether sufficient facts exist[ed] to
11 allow the petitioner to continue with the recall process” as required by the Recall Act.
12 Section 22-7-9.1(A). Under the Recall Act, such hearing must “be held not more than
13 ten days from the date the application is filed by the county clerk.” Section
14 22-7-9.1(B). The hearing was continued twice and was not held until September 16,
15 2009.
16 {5} At the start of the hearing, CQE voluntarily dismissed its recall petition. Given
17 CQE’s voluntary dismissal of the recall petition, the district court did not determine
18 whether there was adequate support for the recall process to proceed.
3 1 {6} Two days later, on September 18, 2009, Cordova filed a complaint against
2 eight named members of CQE as well as ten unnamed members in their individual
3 capacities. Cordova contended that Petitioners’ recall efforts were in furtherance of
4 a personal vendetta as opposed to legitimate claims of malfeasance or misfeasance
5 in office. He alleged that Petitioners initiated the recall without demonstrating
6 probable cause of his misfeasance or malfeasance in office and that the voluntary
7 dismissal of their petition precluded any finding of whether it was adequately
8 supported. He argued that Petitioners’ affidavits were incompetent and backdated.
9 Further, Cordova’s complaint stated that the incompetent affidavits, coupled with the
10 two continuances and voluntary dismissal of the petition, constituted malicious abuse
11 of process. Cordova sought damages for malicious abuse of process, civil conspiracy,
12 and prima facie tort.
13 {7} In response to Cordova’s complaint, six of the named Petitioners filed a motion
14 to dismiss for the failure to state a claim under Rule 1-012(B)(6) NMRA, and for
15 violations under the Anti-SLAPP statute, § 38-2-9.1(A) (requiring that “a special
16 motion to dismiss . . . be considered by the court on a priority or expedited basis”).
17 Petitioners asserted that Cordova filed his complaint in retaliation for their petitioning
18 activity and thus violated their right to petition under the First Amendment to the
4 1 United States Constitution. Each filing separately, Cline and Tafoya also moved to
2 dismiss Cordova’s complaint, invoked New Mexico’s Anti-SLAPP statute as an
3 affirmative defense, see § 38-2-9.1, and asserted counterclaims against Cordova for
4 malicious abuse of process.
5 {8} The district court granted Petitioners’ motions to dismiss, finding that
6 Petitioners’ “speech and conduct occurred in connection with public meetings and a
7 public hearing and were in support of the political process of school board member
8 recall[,] thus invoking the substantive protection of the First Amendment and the
9 procedural and remedial provisions of the SLAPP statutes.” The district court did not
10 address Cline and Tafoya’s counterclaims.
11 {9} Cordova moved for certification for interlocutory appeal or, alternatively, for
12 partial final judgment as to the district court’s order. Then, without waiting for the
13 district court to rule on his motion, Cordova filed a notice of appeal of the district
14 court’s dismissal order in the Court of Appeals. As a result, the district court entered
15 an order finding that Cordova’s filing of a notice of appeal divested it of jurisdiction
16 and thereby declined to rule on his motion to certify the dismissal order for
17 interlocutory appeal or for partial final judgment. The district court determined that
18 it was likewise divested of jurisdiction to address the unresolved counterclaims of
5 1 Cline and Tafoya.
2 {10} The Court of Appeals assumed jurisdiction of this appeal and concluded that
3 Petitioners’ actions in the district court fell outside the scope of public meetings that
4 benefit from Anti-SLAPP statutory protection. Cordova, 2013-NMCA-083, ¶¶ 1, 14.
5 The Court of Appeals held that the district court’s dismissal of Cordova’s claims for
6 civil conspiracy and prima facie tort should be affirmed but that his malicious abuse
7 of process claim was sufficient to survive a motion to dismiss. Id. ¶ 29. Finally, the
8 Court of Appeals determined that Cordova did not appeal from a final judgment, and
9 thus the Court of Appeals excluded Cline and Tafoya from its holding. Id. ¶ 17.
10 II. STANDARD OF REVIEW
11 {11} Each of the issues we are called upon to address requires de novo review. We
12 review the interpretation of statutory language de novo. Quynh Truong v. Allstate Ins.
13 Co., 2010-NMSC-009, ¶ 22, 147 N.M. 583, 227 P.3d 73. We also review the
14 interpretation and application of the United States Constitution de novo. See State v.
15 Pangaea Cinema, L.L.C., 2013-NMSC-044, ¶ 8, 310 P.3d 604. Finally, we review a
16 dismissal under Rule 1-012(B)(6) de novo. Valdez v. State, 2002-NMSC-028, ¶ 4,
17 132 N.M. 667, 54 P.3d 71.
18 III. DISCUSSION
6 1 A. Appellate Jurisdiction under the Anti-SLAPP Statute
2 {12} As a threshold matter, we must determine whether we have appellate
3 jurisdiction over Petitioners Cline and Tafoya while they have pending counterclaims
4 in the district court. Pursuant to Rule 1-054(B)(2) (2008, amended 2016),1 the Court
5 of Appeals concluded that it had jurisdiction over only those Petitioners without
6 counterclaims, and thus excluded Cline and Tafoya from the reach of its decision.
7 Cordova, 2013-NMCA-083, ¶ 16 (holding that “the judgment is final for Defendants
8 who did not have counterclaims against Cordova . . . [because] [a]n order disposing
9 of the issues contained in the complaint but not the counterclaim is not a final
10 judgment.” (second alteration in original) (internal quotation marks and citations
11 omitted)). Petitioners argue that the Court of Appeals had jurisdiction over all parties
12 under the Anti-SLAPP statute because the overall purpose of the Anti-SLAPP statute
13 would be thwarted by piecemeal litigation if some Petitioners were excluded from the
14 appeal. See § 38-2-9.1(C) (providing an “ ‘expedited appeal’ from a trial court order
15 on the special motions”). We agree with Petitioners and hold that Section 38-2-9.1(C)
1 16 Rule 1-054(B) has since been amended so that a judgment in a multiparty 17 lawsuit that adjudicates all issues “as to one or more, but fewer than all, . . . parties,” 18 is not automatically deemed final. The new rule requires the court to expressly 19 determine that there is “no just reason for delay,” thus avoiding the piecemeal 20 litigation that occurred in this case. Id.
7 1 allows any party to bring an interlocutory appeal from a trial court order on the
2 special motion(s) brought pursuant to Anti-SLAPP statute.
3 {13} Our primary goal in interpreting statutory language is to “give effect to the
4 intent of the Legislature.” State v. Smith, 2004-NMSC-032, ¶ 8, 136 N.M. 372, 98
5 P.3d 1022 (internal quotation marks and citation omitted). “We look first to the plain
6 meaning of the statute’s words, and we construe the provisions of the Act together to
7 produce a harmonious whole.” Dewitt v. Rent-A-Center, Inc., 2009-NMSC-032, ¶ 14,
8 146 N.M. 453, 212 P.3d 341 (internal quotation marks and citation omitted). When
9 we interpret the plain language of a statute, we read all sections of the statute together
10 so that all parts are given effect. Diamond v. Diamond, 2012-NMSC-022, ¶ 25, 283
11 P.3d 260. “[I]f the language is doubtful, ambiguous, or an adherence to the literal use
12 of the words would lead to injustice, absurdity or contradiction, we will reject the
13 plain meaning in favor of an interpretation driven by the statute’s obvious spirit or
14 reason.” State v. Trujillo, 2009-NMSC-012, ¶ 21, 146 N.M. 14, 206 P.3d 125
15 (internal quotation marks and citations omitted).
16 {14} Section 38-2-9.1(C) of the Anti-SLAPP statute provides that “[a]ny party shall
17 have the right to an expedited appeal from a trial court order on the special motions
18 described in Subsection B of this section or from a trial court’s failure to rule on the
8 1 motion on an expedited basis.” Subsection B lists several pre-trial motions. Section
2 38-2-9.1(B) (“If the rights afforded by this section are raised as an affirmative defense
3 and if a court grants a motion to dismiss, a motion for judgment on the pleadings or
4 a motion for summary judgment filed within ninety days of the filing of the moving
5 party’s answer, the court shall award reasonable attorney fees and costs incurred by
6 the moving party in defending the action.”). Importantly, the plain language of
7 Subsection A explicitly provides that the expedited process must allow for the “early
8 consideration of the issues raised by the motion and to prevent the unnecessary
9 expense of litigation.” Section 38-2-9.1(A) (emphasis added). Therefore, the plain
10 language of Subsections A, B, and C of the Anti-SLAPP statute describe an expedited
11 process that “is necessarily interlocutory in nature.” Frederick M. Rowe & Leo M.
12 Romero, Resolving Land-Use Disputes by Intimidation: SLAPP Suits in New Mexico,
13 32 N.M. L. Rev. 217, 231 (2002).
14 {15} The Legislature has the authority to establish appellate jurisdiction and to
15 create a right of appeal. See Lovelace Med. Ctr. v. Mendez, 1991-NMSC-002, ¶ 11,
16 111 N.M. 336, 805 P.2d 603 (“The appellate jurisdiction of both this Court and the
17 court of appeals is within the legislative power to prescribe.”); Taggader v. Montoya,
18 1949-NMSC-068, ¶ 7, 54 N.M. 18, 212 P.2d 1049 (noting that the Legislature has the
9 1 authority to determine what “questions should be subject to judicial review by
2 appeal”); State v. Arnold, 1947-NMSC-043, ¶ 11, 51 N.M. 311, 183 P.2d 845 (“The
3 creating of a right of appeal is a matter of substantive law and outside the province
4 of the court’s rule making power.”). The legislative power to create such a rule
5 derives from Article VI, Section 2 of the New Mexico Constitution.
6 Appeals from a judgment of the district court imposing a sentence of 7 death or life imprisonment shall be taken directly to the supreme court. 8 In all other cases, criminal and civil, the supreme court shall exercise 9 appellate jurisdiction as may be provided by law; provided that an 10 aggrieved party shall have an absolute right to one appeal.
11 Id. Thus, “unless unconstitutional, it is not the role of this Court to question the
12 wisdom, policy or justness of legislation enacted by our legislature.” State v. Maestas,
13 2007-NMSC-001, ¶ 25, 140 N.M. 836, 149 P.3d 933.
14 {16} Our interpretation also furthers the purpose of the Anti-SLAPP statute. See §
15 38-2-9.2 (noting that the purpose of the statute is to protect citizens who exercise
16 their right to petition from the financial burden of having to defend against retaliatory
17 lawsuits and such claims “should be subject to prompt dismissal or judgment to
18 prevent the abuse of the legal process” (emphasis added)). Both the plain language
19 and the purpose of the Anti-SLAPP statute underscore a clear legislative intent to
20 provide an interlocutory appeal. See Union Carbide Corp. v. U.S. Cutting Serv., Inc.,
10 1 782 F.2d 710, 712 (7th Cir. 1986) (noting “in free-speech cases[,] interlocutory
2 appeals sometimes are more freely allowed”). To conclude otherwise would result in
3 protracted piecemeal litigation, a result which would be antithetical to the plain
4 language and purpose of the Anti-SLAPP statute.
5 {17} For these reasons, we reverse the Court of Appeals’ holding declining
6 jurisdiction over Cline and Tafoya and conclude that the Anti-SLAPP statute provides
7 a right to an interlocutory appeal under the expedited appeal provision. As a result,
8 our holdings in this opinion apply to all Petitioners in this case, including Cline and
9 Tafoya.
10 B. New Mexico’s Anti-SLAPP Statute Applies to Petitioners’ Recall Efforts
11 {18} The central issue presented in this appeal is whether Petitioners’ recall efforts
12 fall within the protections of the Anti-SLAPP statute. Petitioners argue that Cordova
13 sued them in retaliation for their attempt to recall him from office. Petitioners allege
14 that Cordova’s lawsuit is a strategic lawsuit against public participation, commonly
15 referred to as a “SLAPP suit.” See Rowe & Romero, supra, at 218. SLAPP suits “are
16 filed solely for delay[,] distraction . . . and to [impose] litigation costs” on activists
17 exercising their constitutional right to petition as guaranteed by the First Amendment.
18 Rowe & Romero, supra, at 218 (citing Dixon v. Superior Ct., 36 Cal. Rptr. 2d 687,
11 1 693 (Ct. App. 1994)). Such lawsuits are brought under the guise of a wide array of
2 tort, contract, or civil rights conspiracy causes of actions targeting the petitioners.
3 Rowe & Romero, supra, at 219. Rather than treating SLAPP suits as an ordinary
4 commercial or tort litigation, courts must identify the challenged activities of the
5 target of the SLAPP suit in relation to their First Amendment protections. Id.
6 {19} To curtail SLAPP suits, New Mexico enacted an Anti-SLAPP statute. Section
7 38-2-9.1. The Legislature enacted the Anti-SLAPP statute with the policy goal of
8 protecting its citizens from lawsuits in retaliation for exercising their right to petition
9 and to participate in quasi-judicial proceedings. Section 38-2-9.2. In order to
10 accomplish this goal, the Legislature created expedited procedures for dismissing
11 actions “seeking money damages against a person for conduct or speech undertaken
12 or made in connection with a public hearing or public meeting in a quasi-judicial
13 proceeding before a tribunal or decision-making body of any political subdivision of
14 the state,” Section 38-2-9.1(A), and allowing for the recovery of costs and attorney
15 fees incurred in pursuing the dismissal, Section 38-2-9.1(B). The Legislature defined
16 “public meeting in a quasi-judicial proceeding” to include “any meeting established
17 and held by a state or local governmental entity, including without limitations,
18 meetings or presentations before state, city, town or village councils, planning
12 1 commissions, review boards or commissions.” Section 38-2-9.1(D). The Legislature
2 specifically included protection of “the rights of its citizens to participate in quasi-
3 judicial proceedings before local and state governmental tribunals” in the Anti-
4 SLAPP statute. Section 38-2-9.2. By protecting quasi-judicial proceedings, the
5 Legislature did not intend for public hearings to be unprotected. We conclude that the
6 Legislature intended to protect all public participation, whether it be in quasi-judicial
7 proceedings or public hearings. The specific protection in the Anti-SLAPP statute for
8 participation in public hearings before tribunals also comports with a national
9 political ethos, that “encourage[s], promote[s], and purport[s] to protect citizens’
10 testifying, debating, complaining, campaigning, lobbying, litigating, appealing,
11 demonstrating, and otherwise ‘invoking the law’ on public issues.” George W. Pring
12 & Penelope Canan, “Strategic Lawsuits Against Public Participation” (“SLAPPS”):
13 An Introduction for Bench, Bar and Bystanders, 12 Bridgeport L. Rev. 937, 945-46
14 (1992); see also Rowe & Romero, supra, at 221-23 (summarizing a lawsuit filed in
15 state district court against protestors who appealed city approval of Wal-Mart’s
16 development plan to the district court and then the Court of Appeals and describing
17 the lawsuit as a SLAPP because it was intended to discourage the protestors’ public
18 participation in opposing the development).
13 1 {20} Petitioners argue that, because Cordova’s lawsuit bears the traditional
2 hallmarks of a SLAPP suit, the Court of Appeals erred by reversing the district
3 court’s application of the Anti-SLAPP statute’s procedural remedies. See Pring &
4 Canan, supra, at 948, 950 (listing common characteristics of SLAPP suits including
5 the involvement of local issues, politically active defendants, money damage claims
6 which are disproportionate to realistic losses, and the inclusion of “ ‘Doe’ defendants
7 []to spread the chill[]”). At issue is whether Petitioners’ actions preceding their
8 voluntary dismissal of the recall petition at the sufficiency hearing were “in
9 connection with a public hearing . . . before a tribunal . . . .” Section 38-2-9.1(A)
10 (emphasis added).
11 {21} The Recall Act sets forth standards and procedures for petitioning to recall a
12 local school board member, including the form of the petitions, § 22-7-6, canvassers’
13 affidavits, § 22-7-7, petitioners’ responsibilities for alleging acts of malfeasance or
14 misfeasance, and for filing with the county clerk, § 22-7-8, and responsibilities of the
15 county clerk, § 22-7-9. In the context of a recall petition, the only “public hearing”
16 is sufficiency hearing before a district judge and potentially an appellate court.
17 Section 22-7-9.1. The public hearing is limited to a judges’ “review of the completed
18 face sheet together with affidavits submitted by the petitioner setting forth specific
14 1 facts in support of the charges specified on the face sheet” and a “determination
2 whether sufficient facts exist to allow petitioners to continue with the recall process.”
3 Section 22-7-9.1(C). The Recall Act’s requirement of a public hearing before a
4 tribunal is sufficient to bring Petitioners’ activity under the protections of the Anti-
5 SLAPP statute. We are also persuaded that the phrase “in connection with” in Section
6 38-2-9.1(A) reveals the Legislature’s intent to protect all activities related to the
7 public hearing before a tribunal—in this case the collection of petitions, filing with
8 the county clerk, the county clerk’s responsibilities, etc.
9 {22} The Court of Appeals erred when it focused solely on the sufficiency hearing
10 before the district court. Cordova, 2013-NMCA-083, ¶ 14 (concluding “that a
11 sufficiency hearing before a district court for a recall petition is not a public meeting
12 or quasi-judicial proceeding as defined by the Anti-SLAPP statute. It is a judicial
13 proceeding.”). Such a narrow interpretation of the language of the Anti-SLAPP
14 statute is contrary to the Legislature’s broad intent to protect citizens exercising their
15 right to petition—here the right to engage in the recall process—from SLAPP suits.
16 See § 38-2-9.2.
17 {23} For these reasons, we hold that the Legislature intended the Anti-SLAPP
18 statute to protect individuals, like Petitioners, from lawsuits intended to chill their
15 1 participation in recall proceedings. The next question is whether Petitioners are
2 entitled to the substantive protections provided by the Noerr-Pennington doctrine.
3 C. Noerr-Pennington Doctrine Analysis
4 1. Evolution of the Noerr-Pennington doctrine
5 {24} While the Anti-SLAPP statute provides the procedural protections Petitioners
6 require, the Noerr-Pennington doctrine is the mechanism that offers Petitioners the
7 substantive First Amendment protections they seek. The Noerr-Pennington doctrine
8 is a body of federal law that provides First Amendment protections for citizens who
9 petition the government. See Noerr, 365 U.S. 127; Pennington, 381 U.S. 657. Under
10 the Noerr-Pennington doctrine, those who engage in conduct aimed at influencing the
11 government, including litigation, are shielded from retaliation provided their conduct
12 is not a sham. Octane Fitness, LLC v. ICON Health & Fitness, Inc., 134 S. Ct. 1749,
13 1757 (2014) (relying on Noerr, 365 U.S. 127, and Pennington, 381 U.S. 657).
14 {25} The Noerr-Pennington doctrine emerged in the antitrust context from the
15 Supreme Court’s interpretation of the Sherman Act. See Noerr, 365 U.S. at 135-36;
16 Pennington, 381 U.S. at 669-70. It provides protection for petitioners by excluding
17 petitioning activity as a basis for a federal antitrust claim. See Noerr, 365 U.S. at 135-
18 36; Pennington, 381 U.S. at 669-70. Subsequent decisions give weight to the First
16 1 Amendment right to petition, thus imputing a First Amendment analysis to the
2 doctrine. See Cal. Motor Transp. Co. v. Trucking Unlimited, 404 U.S. 508, 510-11
3 (1972) (extending Noerr-Pennington protections to “the right to petition . . . all
4 departments of the [g]overnment” including administrative agencies and courts); see
5 also Joseph B. Maher, Survival of the Common Law Abuse of Process Tort in the
6 Face of a Noerr-Pennington Defense, 65 U. Chi. L. Rev. 627, 630-36 (1998); Zachary
7 T. Jones, “Gangster Government:” The Louisiana Supreme Court’s Decision in
8 Astoria v. Debartolo on the Application of the Noerr-Pennington Doctrine to State
9 Law Tort Claims, 55 Loy. L. Rev. 895, 900 (2009). Accordingly, the Noerr-
10 Pennington doctrine refers to two principles establishing the basis for Noerr-
11 Pennington immunity: (1) a statutory interpretation of the Sherman Act; and (2)
12 immunity predicated on the First Amendment right to petition. Cardtoons, L.C. v.
13 Major League Baseball Players Ass’n, 208 F.3d 885, 888 (10th Cir. 2000).
14 {26} Many “federal and state courts have concluded that the Noerr-Pennington
15 doctrine is rooted in the First Amendment right to petition and therefore must be
16 applied to all claims implicating that right, not just to antitrust claims.” Aaron R.
17 Gary, First Amendment Petition Clause Immunity from Tort Suits: In Search of a
18 Consistent Doctrinal Framework, 33 Idaho L. Rev. 67, 95-96 (1996) (citing cases
17 1 where “the doctrine has been applied to claims for tortious interference with contract
2 and with business relations/economic advantage, defamation, violation of civil rights,
3 abuse of process, and intentional infliction of emotional distress” (footnotes
4 omitted)); see e.g. BE & K Constr. Co. v. NLRB, 536 U.S. 516, 525 (2002) (“[W]e
5 would not lightly impute to Congress an intent to invade . . . freedoms protected by
6 the Bill of Rights, such as the right to petition.” (internal quotation marks and citation
7 omitted)); Sosa v. DIRECTV, Inc., 437 F.3d 923, 930 (9th Cir. 2006) (stating that the
8 Noerr-Pennington doctrine applies outside of the antitrust context); White v. Lee, 227
9 F.3d 1214, 1231 (9th Cir. 2000) (holding that the Noerr-Pennington doctrine is not
10 limited to the antitrust context but “applies equally in all contexts”).2 Given this
11 historical evolution, we consider the recall activities at issue to fall within the rubric
12 of the Noerr-Pennington doctrine.
2 13 Notably, in Cardtoons, the Tenth Circuit held that “it is more appropriate to 14 refer to immunity as Noerr-Pennington immunity only when applied to antitrust 15 claims. In all other contexts . . . such immunity derives from the right to petition.” 208 16 F.3d at 889-90. (footnote omitted). Other courts have considered Cardtoons an outlier 17 case. See Sosa, 437 F.3d at 937. Indeed, the subsequent United States Supreme Court 18 case, see BE & K Constr. Co., 536 U.S. at 525, extended the applicability of the 19 Noerr-Pennington doctrine outside the antitrust realm. See also Tichinin v. City of 20 Morgan Hill, 99 Cal. Rptr. 3d 661, 676 n.9 (Ct. App. 2009) (“[T]he Sosa court . . . 21 doubted that Cardtoons survived subsequent Supreme Court decisions extending 22 applicability of the Noerr-Pennington doctrine.” (citations omitted)).
18 1 2. The sham exception to the Noerr-Pennington doctrine
2 {27} The Noerr-Pennington doctrine protections are not absolute. Noerr, 365 U.S.
3 at 144. To be entitled to First Amendment protection under the Noerr-Pennington
4 doctrine, the activity must be genuine and not a mere sham. Id. Sham petitions
5 lacking a genuine, legitimate purpose of procuring favorable governmental action are
6 not protected by the First Amendment. See Video Int’l Prod., Inc. v. Warner-Amex
7 Cable Commc’ns, Inc., 858 F.2d 1075, 1082 (1988). The United States Supreme
8 Court has reaffirmed this sham exception in cases outside of the antitrust context. Bill
9 Johnson’s Rest.’s., Inc. v. NLRB, 461 U.S. 731, 743 (1983). Therefore, the application
10 of the Noerr-Pennington doctrine to the instant case turns on whether Petitioners’
11 recall activities were a sham. See Prof’l Real Estate Inv’rs, Inc., 508 U.S. at 60-62.
12 {28} To constitute a sham, the petitioning activities must meet a two-part test. First,
13 the petitioning activities “must be objectively baseless in the sense that no reasonable
14 litigant could realistically expect success on the merits.” Id. at 60. Only upon a
15 finding that the challenged activities are objectively baseless may the fact-finder
16 proceed to the second element of the test—whether the subjective motivation
17 underlying the challenged conduct was improper. See id. at 60-62. (“Only if
18 challenged litigation is objectively meritless may a court examine the litigant’s
19 1 subjective motivation.”). In other words, for Cordova to overcome the Noerr-
2 Pennington doctrine through the sham exception, he must first establish that
3 Petitioners’ recall petition was objectively baseless in that it did not have sufficient
4 factual or legal support. Upon such showing, Cordova must then establish that the
5 primary purpose for the recall was to effectuate an improper objective.
6 3. A heightened pleading standard is required under the Noerr-Pennington 7 doctrine
8 {29} We review whether the district court properly dismissed Cordova’s complaint
9 under Rule 1-012(B)(6). Under a motion to dismiss, Cordova’s allegations must be
10 assumed true. Delfino v. Griffo, 2011-NMSC-015, ¶ 9, 150 N.M. 97, 257 P.3d 917
11 (stating that on review, “we accept all well-pleaded factual allegations in the
12 complaint as true and resolve all doubts in favor of sufficiency of the complaint”
13 (internal quotation marks and citation omitted)). In the context of the Noerr-
14 Pennington doctrine’s protection of the First Amendment right to petition, courts
15 require a heightened pleading standard for addressing allegations of misuse or abuse
16 of process. Protect Our Mountain Environment, Inc. v. Dist. Ct. In & For Cty. Of
17 Jefferson, 677 P.2d 1361, 1369 (Colo. 1984) (en banc). In Protect Our Mountain
18 Env’t, Inc., the Colorado Supreme Court stated that the heightened standard requires
19 that
20 1 when . . . a plaintiff sues another for alleged misuse or abuse of the 2 administrative or judicial processes of government, and the defendant 3 files a motion to dismiss by reason of the constitutional right to petition, 4 the plaintiff must make a sufficient showing to permit the court to 5 reasonably conclude that the defendant’s petitioning activities were not 6 immunized from liability under the First Amendment.
7 Id.; see also Forras v. Rauf, 39 F. Supp. 3d 45, 52-54 (D.D.C. 2014) (“In order to . .
8 prevail[] on a claim in opposition to an Anti-SLAPP motion to dismiss, a
9 plaintiff . . . must demonstrate that the complaint is legally sufficient and supported
10 by a prima facie showing of facts.” (internal quotation marks and citations omitted)).
11 This heightened standard is “necessary to avoid ‘a chilling effect on the exercise of
12 this fundamental First Amendment right . . . [, and c]onclusory allegations are not
13 sufficient to strip a defendant’s activities of Noerr-Pennington protection.’ ” Oregon
14 Nat. Res. Council v. Mohla, 944 F.2d 531, 533 (9th Cir. 1991) (citation omitted);
15 Franchise Realty Interstate Corp. v. San Francisco Local Joint Exec. Bd. of Culinary
16 Workers, 542 F.2d 1076, 1083 (9th Cir. 1976) (“[W]here a plaintiff seeks damages
17 . . . for conduct which is prima facie protected by the First Amendment, the danger
18 that the mere pendency of the action will chill the exercise of First Amendment rights
19 requires more specific allegations than would otherwise be required.”).
20 {30} We agree with this principle. In furtherance of the policy upon which the Anti-
21 SLAPP statute is based, we adopt a heightened standard of pleading for claims
21 1 seeking damages for conduct protected by the First Amendment. See Oregon Nat.
2 Res. Council, 944 F.2d at 533. This higher standard of pleading requires more than
3 conclusory allegations in the complaint. In the instant case, Cordova must plead his
4 claims with sufficient factual and legal specificity to establish that the recall activities
5 were a sham to overcome both the Noerr-Pennington doctrine and the affirmative
6 defense under the Anti-SLAPP statute.
7 {31} According to Cordova’s complaint, the County Clerk filed the recall petition
8 with the district court on June 1, 2009. The district court was required to review
9 affidavits to determine whether there were sufficient facts stated to support the
10 allegations in the recall petition. Section 22-7-9.1(C). The sufficiency hearing should
11 have been conducted within ten days from the County Clerk’s application to the
12 court—in this case by June 10, 2009. Section 22-7-9.1(B). Thus, the affidavits
13 supporting the allegations of malfeasance and misfeasance should have been filed by
14 June 10, 2009. Id.
15 {32} Cordova contends that the petitioning activity was objectively baseless because
16 the affidavits were backdated. As stated in Cordova’s complaint, the affidavits filed
17 in support of the recall petition did not exist at the time the recall petition was filed.
18 Although the date on the affidavits is June 9, 2009, they refer to events occurring
22 1 much later—in July and August 2009. The affidavits were not prepared until
2 September 8 or 9, 2009.
3 {33} Cordova also contends that the petitioning activity was objectively baseless
4 because Petitioners voluntarily dismissed their petition at the sufficiency hearing.
5 Cordova alleges in his complaint that the sufficiency hearing was continued twice at
6 the request of Petitioners. Cordova claims that the delay in scheduling the sufficiency
7 hearing “was intended to harass, annoy, embarrass, and cost . . . Cordova money.” He
8 further contends in his complaint that the delay was intended to cause adverse
9 publicity against Cordova, as shown by a press release dated September 9, 2009.
10 Cordova states that the claims against him made by Cline and Tafoya were therefore
11 illegitimate, “politically motivated[,] and intended to curry favor with the School
12 Administrators.” He alleges that the filing of the affidavits “was done to publicize
13 rumor, innuendo and gossip, with the intent of harassing, embarrassing and
14 humiliating” him. Finally, Cordova makes a blanket assertion that he was “damaged”
15 without specifying what damages he actually incurred. We now consider whether
16 these allegations satisfy the objective and subjective elements of the sham exception.
17 4. Objectively baseless element of the sham exception
18 {34} Taking Cordova’s allegations as true, Petitioners’ affidavits supporting the
23 1 recall were not timely filed under the requirements set forth in Section 22-7-9.1. The
2 Recall Act mandates that the recall petitioner’s affidavits set forth specific facts in
3 support of the recall and be submitted to the district court by the sufficiency hearing.
4 Section 22-7-9.1(C). The deadline for conducting the sufficiency hearing was June
5 10, 2009, ten days after the petition was filed with the County Clerk. Section
6 22-7-9.1(B). While the affidavits were dated June 9, 2009, they were not submitted
7 to the district court until September 8 or 9, 2009, approximately three months after
8 the ten-day statutory deadline for conducting the sufficiency hearing. Further, the
9 affidavits refer to events which occurred after June 9, 2009. It is logical to require
10 affidavits in support of a recall petition to be filed before the statutory deadline for
11 the sufficiency hearing. Section 22-7-9.1(C). Perhaps more importantly, however, the
12 affidavits must refer to events that occurred before the filing of the recall petition.
13 {35} Here, the affidavits in support of the recall petition failed to meet the statutory
14 requirements of the Recall Act because they were untimely, backdated, and contained
15 attestations of events occurring after the affidavits were signed and after the recall
16 petition was filed with the district court. Because it was impossible for the affiants to
17 appear in person before the notary public at a single time and place and vouch for the
18 truthfulness or accuracy of the affidavits—which referred to events occurring after
24 1 their affidavits were signed—no reasonable litigant could realistically expect success
2 on the merits.3 See NMSA 1978, § 14-12A-2(F) (2003) (definition of jurat).
3 Therefore, the recall petition was objectively baseless. However, our analysis under
4 the Noerr-Pennington doctrine does not end there. To pierce its shield, Cordova must
5 also adequately allege in his complaint that the primary purpose of Petitioners’ efforts
6 to recall him from serving on the school board was improper.
7 5. Subjective motivation element of the sham exception
8 {36} Next, we examine Cordova’s complaint to determine whether Cordova alleged
9 sufficient facts to show that Petitioners’ primary purpose in pursuing the recall was
10 based upon an improper subjective motive. As set forth above, Cordova states that
11 Petitioners had improper motives in bringing their recall petition because they “were
12 politically motivated” and intended to embarrass him. Cordova asserts that such
13 allegations are sufficient to establish that the motivations underlying the petition were
14 “illegitimate.”
15 {37} In New Mexico, persons who choose to serve on school boards assume public
16 roles with the understanding that citizens have a state constitutional right to petition
3 17 We recognize that some of the averments may have concerned relevant events 18 which occurred before the filing of the recall petition, but invalidity of the affidavits 19 does not permit the district court to consider such information.
25 1 the government to recall them from office. N.M. Const. art. XII, § 14. The facts
2 alleged in Cordova’s complaint regarding the recall activities undertaken in this case
3 demonstrate the lawful exercise of this right and reveal, at most, a difference in
4 opinion as to how the Taos school district should be managed. The conclusory
5 allegations in Cordova’s complaint are based on Petitioners’ disagreement with his
6 conduct and actions as a school board member.
7 {38} From the face of Cordova’s complaint, we cannot decipher precisely how
8 Petitioners’ motivations, even if political, make them improper. Nor can we identify
9 an illegitimate motive on the part of Petitioners. In reviewing a dismissal for failure
10 to state a claim, dismissal is appropriate only if the nonmoving parties are “not
11 entitled to recover under any theory of the facts alleged in their complaint.” Delfino,
12 2011-NMSC-015, ¶ 12 (internal quotation marks and citation omitted); see also Las
13 Luminarias of the N.M. Council of the Blind v. Isengard, 1978-NMCA-117, ¶ 4, 92
14 N.M. 297, 587 P.2d 444 (stating that generally, “New Mexico adheres to the broad
15 purposes of Rules of Civil Procedure and construes the rules liberally, particularly as
16 they apply to pleading”). However, given the strictures of the First Amendment as
17 well as the heightened pleading standard we hereby adopt, the complaint “must
18 include allegations of the specific activities” which demonstrate that the petitioning
26 1 activity falls within the sham exception. Oregon Nat. Res. Council, 944 F.2d at 533
2 (internal quotation marks and citation omitted).
3 {39} In this case, Cordova’s complaint lacks the factual specificity necessary to
4 establish an improper subjective motivation. By its nature, the subjective motivation
5 of the recall process may indeed be political, but that does not render it improper.
6 Without more, the complaint lacks the necessary specificity to show that Petitioners’
7 subjective motivation was improper and therefore a sham. City of Columbia v. Omni
8 Outdoor Advert., Inc., 499 U.S. 365, 380 (1991) (holding that “[a] sham situation
9 involves a defendant whose activities are not genuinely aimed at procuring favorable
10 government action at all, not one who genuinely seeks to achieve his governmental
11 result, but does so through improper means” (internal quotation marks and citations
12 omitted)).
13 {40} By requiring an improper motive, this two-step sham exception encompasses
14 a “breathing space” that “overprotects baseless petitioners” which is necessary for the
15 effective exercise of First Amendment rights. Sosa, 437 F.3d at 932-34; see also
16 Tichinin, 99 Cal. Rptr. 3d at 675. Thus, just as the malice requirement in a defamation
17 claim against a public official “protects some false statements to ensure that the right
18 of free speech remains robust and unfettered, so too the improper-motive requirement
27 1 of the sham exception protects some baseless petitions . . . to ensure that citizens may
2 enjoy the right to petition the government through access to the courts without fear
3 of . . . liability.” Tichinin, 99 Cal. Rptr. 3d at 675.
4 {41} We conclude that the allegations in the complaint are not sufficient to establish
5 an improper motive but rather are differences of opinion and political views. As such,
6 the petitioning activities undertaken by Petitioners against Cordova are an act in
7 furtherance of their right to petition the government under the First Amendment.
8 Under the heightened pleading standard attributed to claims made against such
9 conduct, the complaint fails to meet that heightened threshold to qualify Petitioners’
10 actions as a sham and thereby pierce the protection under the Noerr-Pennington
11 doctrine. Accordingly, we affirm the district court’s decision to dismiss the
12 complaint. Because we affirm the district court’s dismissal of Cordova’s complaint
13 under the Noerr-Pennington doctrine, we need not address the legal sufficiency of
14 Cordova’s malicious abuse of process claim.
15 IV. CONCLUSION
16 {42} We reverse the Court of Appeals holdings that the Anti-SLAPP statute and the
17 Noerr-Pennington doctrine do not apply. As a result, we uphold the district court
18 order dismissing Cordova’s claims against Petitioners. We remand to the district court
28 1 to determine the remedies available under the Anti-SLAPP statute.
2 {43} IT IS SO ORDERED.
3 ______________________________ 4 BARBARA J. VIGIL, Justice
5 WE CONCUR:
6 __________________________________ 7 CHARLES W. DANIELS, Chief Justice
8 __________________________________ 9 PETRA JIMENEZ MAES, Justice
10 __________________________________ 11 EDWARD L. CHÁVEZ, Justice