NMPRC v. the New Mexican, Inc.

Opinion

The slip opinion is the first version of an opinion released by the Chief Clerk of the Supreme Court. Once an opinion is selected for publication by the Court, it is assigned a vendor-neutral citation by the Chief Clerk for compliance with Rule 23-

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1 IN THE SUPREME COURT OF THE STATE OF NEW MEXICO 2 Opinion Number: 3 Filing Date: August 29, 2024 4 No. S-1-SC-39602

5 NEW MEXICO PUBLIC REGULATION 6 COMMISSION, PUBLIC SERVICE 7 COMPANY OF NEW MEXICO, 8 WESTMORELAND COAL COMPANY,

9 Plaintiffs-Respondents, 10 and

11 BHP BILLITON NEW MEXICO 12 COAL, INC.,

13 Plaintiff, 14 v. 15 THE NEW MEXICAN, INC., 16 Defendant-Petitioner.

17 ORIGINAL PROCEEDING ON CERTIORARI 18 Francis J. Mathew, District Judge

19 Peifer, Hanson, Mullins & Baker, P.A. 20 Charles R. Peifer 21 Gregory P. Williams 22 Albuquerque, NM 1 for Petitioner

2 Miller Stratvert P.A. 3 Dylan O’Reilly 4 Luke A. Salganek 5 Santa Fe, NM 6 Richard L. Alvidrez 7 Albuquerque, NM

8 for Respondents Public Service Company of New Mexico 1 OPINION 2 VARGAS, Justice. 3 I. INTRODUCTION 4 {1} The First Amendment to the United States Constitution safeguards the right 5 of the people to “petition the Government for a redress of grievances.” We here 6 address a question broadly implicating the petition clause as applied in Cordova v. 7 Cline, 2017-NMSC-020, 396 P.3d 159. 8 {2} This is an appeal from a final judgment dismissing counterclaims asserted by 9 The New Mexican, Inc. (The New Mexican), publisher of the Santa Fe New 10 Mexican, against the Public Service Company of New Mexico (PNM) for malicious 11 abuse of process and other related theories. The New Mexican claimed that PNM 12 filed a frivolous lawsuit seeking to restrain publication of certain documents released 13 by the New Mexico Public Regulation Commission (the PRC) in response to a public 14 records request. The district court concluded that The New Mexican was required to 15 meet the heightened pleading standard imposed by Cordova, 2017-NMSC-020, ¶ 30, 16 on claims challenging conduct protected by the First Amendment right to petition. 17 Further concluding that The New Mexican failed to meet Cordova’s heightened 18 pleading standard, the district court granted PNM’s motion for judgment on the 19 pleadings and dismissed The New Mexican’s counterclaims.

1 {3} Cordova’s heightened pleading standard is premised on the Noerr-Pennington 2 doctrine, a body of federal law developed from the United States Supreme Court 3 opinions in Eastern R.R. Presidents Conf. v. Noerr Motor Freight, Inc., 365 U.S. 4 127 (1961); United Mine Workers of Am. v. Pennington, 381 U.S. 657 (1965); and 5 Cal. Motor Transp. Co. v. Trucking Unlimited, 404 U.S. 508 (1972). See Cordova, 6 2017-NMSC-020, ¶¶ 24-25, 29-30. Under Noerr-Pennington, conduct protected by 7 the right to petition is immune from liability under federal antitrust laws unless the 8 conduct is a mere sham because it is “not genuinely aimed at procuring favorable 9 government action.” City of Columbia v. Omni Outdoor Advert. Inc., 499 U.S. 365, 10 380 (1991) (internal quotation marks and citation omitted). In Cordova, we 11 concluded that the principles discussed in Noerr-Pennington have equal force 12 outside the antitrust context, applying more broadly to shield “those who engage in 13 conduct aimed at influencing the government, including litigation . . . from 14 retaliation provided their conduct is not a sham.” Cordova, 2017-NMSC-020, ¶ 24; 15 id. ¶ 26 (explaining that “federal and state courts have concluded that the Noerr- 16 Pennington doctrine is rooted in the First Amendment right to petition and therefore 17 must be applied to all claims implicating that right, not just to antitrust claims”) 18 (citation omitted). We therefore held that a plaintiff who sues a defendant for 19 conduct protected under Noerr-Pennington must allege specific facts showing that

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1 the protected conduct was a sham by being both objectively baseless and pursued 2 with an improper motivation. Id. ¶¶ 28-30. 3 {4} We now address a threshold question related to our opinion in Cordova: Did 4 PNM’s filing of a motion to intervene and related injunctive relief against The New 5 Mexican qualify as conduct protected under Noerr-Pennington such that The New 6 Mexican was required to meet Cordova’s heightened pleading standard? We 7 conclude that PNM’s conduct does not qualify for Noerr-Pennington protections. 8 Consequently, The New Mexican was not required to meet Cordova’s heightened 9 pleading standard, and the district court erred by dismissing The New Mexican’s 10 counterclaims against PNM. 11 {5} As we clarify herein, Cordova’s heightened pleading standard applies to 12 claims challenging conduct aimed at influencing governmental decisionmaking or 13 action. Cordova, 2017-NMSC-020, ¶ 24; see also Octane Fitness, LLC v. ICON 14 Health & Fitness, Inc., 572 U.S. 545, 555-56 (2014) (“Under the Noerr-Pennington 15 doctrine . . . defendants are immune from antitrust liability for engaging in conduct 16 (including litigation) aimed at influencing decisionmaking by the government.” 17 (citations omitted)). PNM’s litigation activities sought only to resolve a private 18 dispute with The New Mexican and did not seek to influence the government. 19 PNM’s conduct therefore falls outside of “the rubric of the Noerr-Pennington

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1 doctrine.” Cordova, 2017-NMSC-020, ¶ 26. Because the district court erred by 2 dismissing The New Mexican’s counterclaims under Cordova, we reverse and 3 remand to the district court with instructions to vacate both the order of dismissal 4 and the final judgment granted in favor of PNM. 5 II. BACKGROUND 6 {6} As background to our analysis, we are confronted with a web of procedural 7 history taking place over nine years of litigation. At the hub of this web lie two 8 pleadings—a motion to intervene including an attached proposed complaint-in- 9 intervention and an application for a preliminary injunction—filed by PNM against 10 The New Mexican in a lawsuit originally initiated by the PRC. See Motion of Public 11 Service Company of New Mexico to Intervene as a Party Plaintiff, NMPRC v. The 12 New Mexican, Inc., D-101-CV-2015-01823 (1st Jud. Dist. Ct. Aug. 7, 2015); PNM’s 13 Application for Preliminary Injunction, NMPRC v. The New Mexican, Inc., D-101- 14 CV-2015-01823 (1st Jud. Dist. Ct. Aug. 12, 2015). PNM’s filing of these pleadings 15 is the conduct at the core of this appeal. 16 {7} PNM is a public utility regulated by the PRC. In 2015, PNM was participating 17 in administrative proceedings regarding the partial decommissioning of the San Juan 18 Generating Station, a coal-fired power-generating facility in San Juan County, New 19 Mexico. At one point in the administrative proceedings, a hearing examiner issued

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1 a protective order outlining procedures for marking documents that the parties 2 deemed to be confidential. PNM subsequently submitted documents to the PRC 3 under the protective order. PNM contends that some of these documents contained 4 trade secrets. 5 {8} A reporter from The Santa Fe New Mexican newspaper sought documents 6 related to the administrative proceedings and submitted a public records request to 7 the PRC under the Inspection of Public Records Act (IPRA), NMSA 1978, § 14-2- 8 1 to -12 (1947, as amended through 2023). In response to this records request, a clerk 9 at the PRC gave the reporter two discs containing documents that the PRC claims 10 were not subject to release under IPRA. After the PRC unsuccessfully sought to 11 negotiate the return of the discs, the PRC filed a lawsuit, seeking a temporary 12 restraining order, a preliminary injunction, and a permanent injunction prohibiting 13 The New Mexican from publishing the documents.1 14 {9} The day after the PRC filed suit, the district court held a telephonic hearing 15 on the PRC’s request for a temporary restraining order. After the hearing and on 16 review of preliminary arguments, the district court denied a temporary restraining

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The PRC has since settled its claims against The New Mexican but remains a party in the case due to concerns by The New Mexican “about preservation [of] its claims against PNM.”

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1 order without prejudice. The district court explained that “any person seeking to 2 obtain a court order imposing a prior restraint on the press has a very heavy burden 3 under the constitutions of the United States and of New Mexico.” The district court 4 nevertheless delayed final decision on the restraining order pending an additional 5 hearing to be held approximately one week later, noting that additional parties had 6 expressed a desire to intervene in the suit. 7 {10} Shortly after this hearing, PNM filed a motion to intervene in the PRC’s suit 8 as a party-plaintiff and attached a proposed complaint-in-intervention as an exhibit 9 to its motion. In this proposed complaint, PNM requested injunctive relief against 10 The New Mexican, similar to the relief requested by the PRC, as well as attorneys’ 11 fees and costs for violations of the Uniform Trade Secrets Act, NMSA 1978, §§ 57- 12 3A-1 to -7 (1989). In their motion, PNM argued that it should be permitted to 13 intervene because it had a proprietary interest in the disclosed documents that the 14 PRC could not adequately represent. PNM also filed an application for preliminary 15 injunction against The New Mexican seeking to enjoin disclosure of its claimed trade

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1 secrets. Two other companies also moved to intervene in the suit, but, for various 2 reasons, these intervenors are no longer parties to this appeal. 2 3 {11} Several important developments occurred prior to the district court’s 4 additional hearing on the application for a temporary restraining order. The morning 5 of the hearing, The Santa Fe New Mexican published some of the subject documents 6 on its website. The New Mexican also filed an answer and a counterclaim against 7 PNM, the PRC, and the two other intervenors. The New Mexican’s counterclaim 8 asserted a claim for malicious abuse of process and several related counterclaims 9 challenging PNM’s, the PRC’s, and the other intervenors’ efforts to enjoin 10 publication of the documents. The New Mexican alleged that, by applying for a 11 restraining order and injunction, PNM, the PRC, and the other intervenors had 12 “asked the court to impose a blatantly unconstitutional prior restraint on the press” 13 that violated “clearly established statutory or constitutional rights which a reasonable 14 person would have known,” and had “no valid legal or factual basis for the relief 15 which they seek against The New Mexican.”

Westmoreland Coal Company filed a notice of discharge in bankruptcy of

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claims during the pendency of the district court proceedings. BHP Billiton New Mexico Coal, Inc. was dismissed from this appeal after settling with The New Mexican.

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1 {12} Around the same time that The New Mexican filed its counterclaims, PNM, 2 the PRC, and the other intervenors moved to withdraw from the suit. The district 3 court, however, had nearly simultaneously granted all pending motions to intervene. 4 The motions to withdraw filed by PNM, the PRC, and the other intervenors’ became 5 the focus of the district court’s hearing. For reasons not relevant to the question 6 presented, the district court would later deny these parties’ motions to withdraw. The 7 district court also explained that its previous order denying a temporary restraining 8 order remained in effect. 9 {13} Some time later, PNM joined another intervenor’s motion for judgment on the 10 pleadings seeking to dismiss The New Mexican’s counterclaims. The motion 11 asserted that The New Mexican’s counterclaims arose solely from the intervenor’s 12 joining in the PRC’s lawsuit against The New Mexican. The motion argued that this 13 conduct was protected under the Noerr-Pennington doctrine and therefore The New 14 Mexican was required to meet Cordova’s heightened pleading standard. The motion 15 further contended that The New Mexican could not meet Cordova’s heightened 16 pleading standard because the district court had granted the intervenor’s motion to 17 intervene in the suit, and thus intervention could not be a sham as a matter of law. 18 See Cordova, 2017-NMSC-020, ¶ 24 (“[T]hose who engage in conduct aimed at

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1 influencing the government, including litigation, are shielded from retaliation 2 provided their conduct is not a sham.”) (emphasis added). 3 {14} The district court held a hearing on the motion for judgment on the pleadings. 4 At that hearing, the district court judge expressed concerns about the scope of 5 Cordova and Noerr-Pennington as applied to The New Mexican’s counterclaims. 6 For example, the district court judge asked whether applying Cordova’s heightened 7 pleading standard to all claims premised on a defendant’s malicious abuse of process 8 might be contrary to DeVaney v. Thriftway Mktg. Corp. 1998-NMSC-001, 9 124 N.M. 512, 953 P.2d 277, overruled in part on other grounds by Durham v. 10 Guest, 2009-NMSC-007, ¶ 36, 145 N.M. 694, 204 P.3d 19, abrogated in part by 11 Fleetwood Retail Corp.of N.M. v. LeDoux, 2007-NMSC-047, 142 N.M. 150, 164 12 P.3d 31. In DeVaney, this Court articulated the tort of malicious abuse of process 13 and acknowledged the Noerr-Pennington doctrine but did not apply the doctrine to 14 the elements of the tort. 1998-NMSC-001, ¶ 19 n.1. The district court requested 15 briefing addressing the scope of Cordova and took the motion under advisement. 16 {15} Several years later, after a change in the presiding district court judge, PNM 17 reasserted the motion for judgment on the pleadings that it had previously joined and 18 filed a similar motion on its own behalf. After an additional hearing, the district court 19 granted PNM’s motion and entered final judgment dismissing all of The New

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1 Mexican’s counterclaims. The district court did not address the concerns expressed 2 by the prior presiding judge regarding the scope of Cordova and Noerr-Pennington. 3 Instead, the district court concluded that “by allowing intervention,” the prior judge 4 “was required to find that the right or interest [PNM] sought to protect could not 5 otherwise be protected except by intervention.” The district court therefore agreed 6 that the court’s earlier order allowing intervention “necessarily found that PNM . . . 7 had a legitimate interest to protect implicating the Noerr-Pennington doctrine.” 8 {16} The New Mexican appealed the final judgment to the Court of Appeals. 9 Among other arguments made at the Court of Appeals, The New Mexican argued 10 that the district court had misread Cordova and that Noerr-Pennington did not 11 abrogate the tort of malicious abuse of process as recognized by DeVaney. However, 12 the Court of Appeals did not address this argument. Although the Court of Appeals 13 acknowledged “doubts that the Noerr-Pennington doctrine and the heightened 14 pleading standard of Cordova are applicable when, as in this case, both parties in 15 question are private entities, and neither are government entities or officials,” that 16 court “decline[d] to address” these doubts. N.M. Pub. Regul. Comm’n v. The New 17 Mexican, Inc., A-1-CA-38898, dec. ¶ 5 (N.M. Ct. App. Sep. 7, 2022). Instead, the 18 Court of Appeals resolved to “assume without deciding that the doctrine and the 19 heightened pleading standard apply under such circumstances.” Id. The Court of

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1 Appeals concluded The New Mexican had “presented no argument as to the 2 objective element” of the sham exception to Noerr-Pennington and thus had failed 3 to demonstrate error. Id. ¶ 6. The Court of Appeals therefore affirmed the district 4 court’s dismissal of The New Mexican’s counterclaims. Id. We granted The New 5 Mexican’s petition for writ of certiorari and now reverse the district court and the 6 Court of Appeals. 7 III. STANDARD OF REVIEW 8 {17} This Court reviews the district court’s grant of a Rule 1-012(C) NMRA 9 motion for judgment on the pleadings de novo. Glaser v. LeBus, 2012-NMSC-012, 10 ¶ 8, 276 P.3d 959 (“We review de novo the district court’s grant of [a] motion to 11 dismiss and for judgment on the pleadings.”). When the district court’s decision is 12 based solely upon the matters contained within the pleadings, we treat a motion for 13 judgment on the pleadings like a Rule 1-012(B)(6) NMRA motion to dismiss for 14 failure to state a claim. Glaser, 2012-NMSC-012, ¶ 8; accord Vill. of Angel Fire v. 15 Bd. of Cnty. Comm’rs of Colfax Cnty., 2010-NMCA-038, ¶ 5, 148 N.M. 804, 16 242 P.3d 371 (“We review judgments on the pleadings made pursuant to Rule 1- 17 012(C) . . . according to the same standard as motions for failure to state a claim 18 under Rule 1-012(B)(6).”). “A motion to dismiss . . . tests the legal sufficiency of 19 the complaint, not the factual allegations of the pleadings which, for purposes of

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1 ruling on the motion, the court must accept as true.” Herrera v. Quality Pontiac, 2 2003-NMSC-018, ¶ 2, 134 N.M. 43, 73 P.3d 181 (internal quotation marks and 3 citation omitted). When reviewing an order dismissing for failure to state a claim, 4 we will “resolve all doubts in favor of sufficiency of the complaint.” Delfino v. 5 Griffo, 2011-NMSC-015, ¶ 9, 150 N.M. 97, 257 P.3d 917 (internal quotation marks 6 and citation omitted). We will affirm an order dismissing for failure to state a claim 7 “only when it appears that the plaintiff is not entitled to recover under any facts 8 provable under the” claim. Glaser, 2012-NMSC-012, ¶ 8 (internal quotation marks 9 and citation omitted). 10 IV. DISCUSSION 11 {18} In view of the district court’s and the Court of Appeals’ disposition of this 12 matter, the parties primarily focused their briefing on the sufficiency of The New 13 Mexican’s allegations of sham conduct under Cordova’s heightened pleading 14 standard. However, on review of the briefs and record proper, we questioned 15 whether PNM’s conduct implicated Noerr-Pennington and, accordingly, whether 16 Cordova’s heightened pleading standard applied to The New Mexican’s 17 counterclaims. Unlike the district court and the Court of Appeals, we are discontent 18 with merely assuming that Cordova’s standard applies. We therefore instructed the 19 parties to direct their oral arguments towards addressing the scope of Noerr-

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1 Pennington and Cordova as applied to the facts of this appeal. Having considered 2 those arguments, and on further review, we conclude that PNM’s conduct does not 3 qualify as conduct protected under Noerr-Pennington. Thus, Cordova’s heightened 4 pleading standard does not apply to The New Mexican’s counterclaims. We 5 therefore do not consider whether The New Mexican sufficiently alleged that PNM’s 6 conduct met Cordova’s and Noerr-Pennington’s sham exception. 7 A. Cordova and the Noerr-Pennington Doctrine 8 {19} We situate our discussion by summarizing Cordova and the federal body of 9 law on which that opinion relies. Cordova addressed a lawsuit brought by a Taos 10 County school board member against a group of citizens that had filed a petition 11 seeking to recall the school board member for alleged acts of misfeasance and 12 malfeasance in office. Cordova, 2017-NMSC-020, ¶ 3. At the start of the sufficiency 13 hearing, the citizens dismissed the recall effort, preventing the district court from 14 determining whether there was adequate support for the recall process to proceed. 15 Id. ¶¶ 4-5. The school board member subsequently filed a complaint against the 16 citizens, asserting claims for malicious abuse of process, civil conspiracy, and prima 17 facie tort on the grounds that the “recall efforts were in furtherance of a personal 18 vendetta as opposed to legitimate claims of malfeasance or misfeasance in office.” 19 Id. ¶¶ 4, 6.

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1 {20} The citizens contended that the school board member’s complaint amounted 2 to a Strategic Litigation Against Public Participation (SLAPP) lawsuit and filed a 3 special motion to dismiss the complaint under New Mexico’s Anti-SLAPP statute, 4 NMSA 1978, §§ 38-2-9.1 to -9.2 (2001). See Cordova, 2017-NMSC-020, ¶ 7. 5 “SLAPP suits are filed solely for delay, distraction, and to impose litigation costs on 6 activists exercising their constitutional right to petition as guaranteed by the First 7 Amendment.” Id. ¶ 18 (brackets, ellipses, internal quotation marks, and citation 8 omitted). The Anti-SLAPP statute provides expedited procedures for resolving 9 lawsuits through a special motion to dismiss actions “seeking money damages 10 against a person for conduct or speech undertaken or made in connection with a 11 public hearing or public meeting in a quasi-judicial proceeding before a tribunal or 12 decision-making body of any political subdivision of the state.” Section 38-2-9.1(A). 13 {21} The district court in Cordova found that the citizens’ activities in relation to 14 the recall petition were protected under the First Amendment and the Anti-SLAPP 15 statute and thus granted the citizens’ special motion to dismiss. 2017-NMSC-020, 16 ¶ 8. The district court’s decision was reversed by the Court of Appeals, which 17 determined that the sufficiency hearing on the recall petition was not a “public 18 hearing or public meeting in a quasi-judicial proceeding” protected by the Anti- 19 SLAPP statute. Id. ¶ 19; see also Cordova v. Cline, 2013-NMCA-083, ¶ 14,

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1 308 P.3d 975, rev’d, 2017-NMSC-020, ¶ 42. On review, we concluded that the Court 2 of Appeals misconstrued the Anti-SLAPP statute and thus affirmed the district 3 court’s dismissal of the school board member’s complaint. Cordova, 2017-NMSC- 4 020, ¶¶ 2, 42. More specifically, Cordova held the Court of Appeals erred by 5 narrowly construing the Anti-SLAPP statute to exclude the citizens’ efforts to recall 6 the school board member. Id. ¶¶ 18-23. We explained that the Court of Appeals’ 7 narrow construction of the term “public meeting” was contrary to the Anti-SLAPP 8 statute’s purposes “of protecting [] citizens from lawsuits in retaliation for exercising 9 their right to petition and to participate in quasi-judicial proceedings.” Id. ¶¶ 19, 22. 10 The Legislature rather “intended to protect all public participation, whether it be in 11 quasi-judicial proceedings or public hearings.” Id. ¶ 19. Thus, the school board 12 member’s complaint against the citizens was properly subject to the Anti-SLAPP 13 statute’s special motion to dismiss. Id. ¶ 23. 14 {22} After concluding that the citizens were entitled to the procedural protections 15 of the Anti-SLAPP statute, Cordova next considered whether the citizens’ conduct 16 was entitled to substantive protections under Noerr-Pennington. Id. ¶¶ 23-24. The 17 Noerr-Pennington doctrine first took shape in the antitrust context as a rule of 18 statutory construction used to reconcile the federal Sherman Act with the First 19 Amendment right to petition. Noerr, 365 U.S. at 139-40; Pennington, 381 U.S. at

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1 669-72. In its essential form, the doctrine recognizes “[t]he federal antitrust laws 2 also do not regulate the conduct of private individuals in seeking anticompetitive 3 action from the government.” Omni Outdoor, 499 U.S. at 379-80. However, 4 “[s]ubsequent decisions give weight to the First Amendment right to petition, thus 5 imputing a First Amendment analysis to the doctrine.” Cordova, 2017-NMSC-020, 6 ¶ 25. 7 {23} In Noerr, an association of truck operators sued several railroad companies 8 alleging an attempt to monopolize the long-distance freight business in violation of 9 the Sherman Act. Noerr, 365 U.S. at 129-30. The truckers alleged that the railroads 10 had engaged in a publicity campaign directed at legislators and law enforcement 11 with the purpose of “destroy[ing] the truckers as competitors.” Id. at 133. The United 12 States Supreme Court held that the railroads’ conduct could not give rise to antitrust 13 liability because the Sherman Act “does not apply to mere group solicitation of 14 governmental action.” Id. at 139. The Noerr Court reasoned that construing the 15 Sherman Act to prohibit the railroads’ publicity campaign would “deprive the 16 government of a valuable source of information and, at the same time, deprive the 17 people of their right to petition in the very instances in which that right may be of 18 the most importance to them.” Id. The Noerr Court cautioned, however, that the 19 antitrust laws would apply if the “publicity campaign, ostensibly directed toward

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1 influencing governmental action, is a mere sham to cover what is actually nothing 2 more than an attempt to interfere directly with the business relationships of a 3 competitor.” Id. at 144. 4 {24} A few years after Noerr, the United States Supreme Court extended antitrust 5 immunity to a union and other companies’ efforts to lobby executive branch 6 officials. Pennington, 381 U.S. at 660-61. The Pennington Court held that the 7 lobbying could not give rise to antitrust liability because “Noerr shields from the 8 Sherman Act a concerted effort to influence public officials regardless of intent or 9 purpose.” Id. at 669-70. 10 {25} Later, in Cal. Motor, the United States Supreme Court extended Noerr- 11 Pennington antitrust immunity to the judicial branch, explaining that “the right to 12 petition extends to all departments of the Government.” 404 U.S. at 510. Cal. Motor 13 involved a dispute between two motor carriers regarding the defendant-carrier’s use 14 of “rehearings” and “reviews or appeals from agency or court decisions” to defeat 15 the plaintiff-carrier’s applications to acquire operating rights. Id. at 509. The Cal. 16 Motor Court acknowledged, “The right of access to the courts is indeed but one 17 aspect of the right of petition.” Id. at 510. Nevertheless, the Court explained that 18 misrepresentations tolerated in politics do not gain immunity when employed in 19 legal proceedings; a pattern of baseless claims can constitute abuse of the judicial

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1 and administrative processes, resulting in unlawful outcomes that restrict access to 2 agencies and courts, regardless of claims of political expression. Id. at 513. Although 3 the Cal. Motor Court concluded that the defendant’s conduct—involving concerted 4 efforts to obstruct competitors’ access to adjudicatory tribunals through state and 5 federal proceedings—was shielded from general antitrust liability under Noerr- 6 Pennington immunity, it held that the plaintiff’s specific allegations of using these 7 processes in a deceptive manner satisfied the sham exception to this immunity. See 8 id. at 510-11, 515-16. 9 {26} Considering this historical context, our opinion in Cordova held that the 10 Noerr-Pennington doctrine is not limited to the antitrust context, but more broadly 11 shields “those who engage in conduct aimed at influencing the government, 12 including litigation . . . from retaliation provided their conduct is not a sham.” 13 Cordova, 2017-NMSC-020, ¶ 24. We therefore “consider[ed] the recall activities at 14 issue [in Cordova] to fall within the rubric of the Noerr-Pennington doctrine.” 15 Id. ¶ 26. Accordingly, the citizen’s recall activities were immune from suit unless 16 the school board member showed that the recall activities were a sham. Id. ¶ 27. 17 {27} As an additional protection arising from the Anti-SLAPP statute and Noerr- 18 Pennington, Cordova agreed with the Colorado Supreme Court in Protect Our 19 Mountain Env’t, Inc. v. Dist. Ct. In & For Cty. of Jefferson, 677 P.2d 1361, 1368-69

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1 (Colo. 1984) (en banc), that the plaintiffs challenging conduct shielded by Noerr- 2 Pennington should meet a heightened pleading standard. Cordova, 2017-NMSC- 3 020, ¶¶ 29-30. We therefore held that a plaintiff challenging Noerr-Pennington 4 protected conduct must plead sufficient facts and law to show that the protected 5 conduct was both “objectively baseless in that it did not have sufficient factual or 6 legal support” and subjectively pursued with an improper motivation. Id. ¶¶ 28, 30; 7 see also Pro. Real Est. Invs., Inc. v. Columbia Pictures Indus., Inc., 508 U.S. 49, 60- 8 61 (1993) (defining “sham litigation” as “objectively baseless in the sense that no 9 reasonable litigant could realistically expect success on the merits” and subjectively 10 “an attempt to interfere directly with the business relationships of a competitor 11 through the use of the governmental process . . . as an anticompetitive weapon” 12 (emphasis, brackets, internal quotation marks, and citations omitted)). Concluding 13 that the school board member had failed to meet the subjective element of this two- 14 part standard, Cordova affirmed the dismissal of the school board member’s 15 complaint. 2017-NMSC-020, ¶¶ 41-42. 16 B. The Scope of the Noerr-Pennington Doctrine 17 {28} In the current appeal, the district court and the Court of Appeals assumed that 18 Cordova’s heightened pleading standard applied to The New Mexican’s 19 counterclaims against PNM. N.M. Pub. Regul. Comm’n, A-1-CA-38898, dec. ¶ 5.

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1 PNM also appears to assume Cordova broadly extends the Noerr-Pennington 2 doctrine to shield defendants from all claims based on the defendant’s use of process, 3 like filing a motion to intervene or an application for injuctive relief. We disagree 4 with these assumptions. Cordova holds that conduct that would be protected under 5 Noerr-Pennington is also shielded from retaliatory state court litigation unless that 6 conduct is shown to be a sham; however, the recall activities at issue in Cordova 7 clearly fell within the scope of the Noerr-Pennington doctrine. Cordova, 2017- 8 NMSC-020, ¶ 26. Cordova did not consider what conduct qualifies for Noerr- 9 Pennington protections in the first instance. We therefore consider, as a threshold 10 matter, whether PNM’s conduct qualifies for immunity under Noerr-Pennington to 11 determine whether Cordova’s heightened pleading standard applies to The New 12 Mexican’s counterclaims. 13 {29} Unfortunately for purposes of our analysis, the United States Supreme Court 14 has not clearly settled the scope of the Noerr-Pennington doctrine. The primary 15 weight of authority, to which we adhere, suggests that Noerr-Pennington only 16 shields conduct aimed at influencing government decisionmaking or action. See 17 Noerr, 365 U.S. at 138 (“[W]e think it clear that the Sherman Act does not apply to 18 . . . mere solicitation of governmental action with respect to the passage and 19 enforcement of laws.”); Pennington, 381 U.S. at 670 (noting that Noerr applies to

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1 “a concerted effort to influence public officials”); Cantor v. The Detroit Edison Co., 2 428 U.S. 579, 601 (1976) (“The holding in Noerr was that the concerted activities 3 of the railroad defendants in opposing legislation favorable to the plaintiff motor 4 carriers was not prohibited by the Sherman Act.”); Allied Tube & Conduit Corp. v. 5 Indian Head, Inc., 486 U.S. 492, 499-500 (1988) (explaining that Noerr-Pennington 6 immunity depends “on the source, context, and nature of the anticompetitive 7 restraint at issue. . . . [T]he restraint cannot form the basis for antitrust liability if it 8 is ‘incidental’ to a valid effort to influence governmental action” (citations omitted)); 9 Omni Outdoor, 499 U.S. at 379-80; Octane Fitness, 572 U.S. at 555-56 (“Under the 10 Noerr-Pennington doctrine . . . defendants are immune from antitrust liability for 11 engaging in conduct (including litigation) aimed at influencing decisionmaking by 12 the government.”). Under this view, the Noerr-Pennington doctrine only applies to 13 conduct that can be fairly characterized as public participation—conduct such as 14 political campaigning, lobbying, or litigation asking the government to recognize or 15 enforce public rights. 16 {30} We are mindful, however, that Cal. Motor more broadly recognizes, “[t]he 17 right of access to the courts is indeed but one aspect of the right of petition.” 404 U.S. 18 at 509. Later opinions from the United States Supreme Court similarly acknowledge 19 that the petition clause may support a more general right of court access. See Bill

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1 Johnson’s Rests., Inc. v. NLRB., 461 U.S. 731, 737, 741-43 (1983) (explaining that 2 the First Amendment right to petition counsels against permitting the National Labor 3 Relations Board from enjoining a “well-founded” lawsuit brought by an employer 4 against its employees); BE & K Constr. Co. v. NLRB., 536 U.S. 516, 525 (2002) 5 (noting that Cal. Motor “made explicit that the right to petition extends to all 6 departments of the Government, and that the right of access to the courts is but one 7 aspect of the right of petition” (ellipsis, brackets, internal quotation marks, and 8 citation omitted)). Based partly on this line of authority, we have also stated that the 9 First Amendment provides a right of access to the courts. See, e.g., DeVaney, 1998- 10 NMSC-001, ¶ 19 (“Meaningful access to the courts is a right of fundamental 11 importance in our system of justice.”); Jiron v. Mahlab, 1983-NMSC-022, ¶ 7, 12 99 N.M. 425, 659 P.2d 311 (citing Cal. Motor for the proposition “[t]he right of 13 access to the courts is one aspect of the right to petition”); accord Bd. of Educ. of 14 Carlsbad Mun. Schs. v. Harrell, 1994-NMSC-096, ¶ 31, 118 N.M. 470, 882 P.2d 15 511 (“The right of access to the courts is one aspect of the right to petition the 16 government for redress of grievances, as guaranteed by the First Amendment to the 17 U.S. Constitution.”). In view of this wider right of court access, some commentators 18 have alternatively suggested that Noerr-Pennington may more broadly shield all 19 genuine litigation from a malicious abuse of process countersuit, even if that

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1 litigation is not aimed at influencing governmental decisionmaking or action. See, 2 e.g., Timothy P. Getzoff, Dazed and Confused In Colorado: The Relationship 3 Among Malicious Prosecution, Abuse of Process, and the Noerr-Pennington 4 Doctrine, 67 U. Colo. L. Rev. 675, 688 (1996) (explaining that the scope of 5 petitioning is unclear under Noerr-Pennington, as the doctrine, “[i]n the broadest 6 sense . . . could cover all litigation, concerning both public and private disputes,” but 7 nevertheless arguing for a more limited application of the doctrine); Joseph B. 8 Maher, Survival of the Common Law Abuse of Process Tort in the Face of a Noerr- 9 Pennington Defense, 65 U. Chi. L. Rev. 627, 628-629 (1998) (“Today, the survival 10 of the longstanding abuse of process tort appears threatened by the Noerr- 11 Pennington doctrine.”). Under this alternative view of the Noerr-Pennington 12 doctrine, the doctrine broadly immunizes all defendants from claims based on the 13 defendant’s use of process unless the defendant’s conduct is a sham. 14 {31} Thus, the scope of the Noerr-Pennington doctrine remains unsettled: 15 According to the primary weight of authority, the doctrine only protects a limited 16 category of conduct seeking to influence governmental decisionmaking or action; 17 yet according to an alternative view, the doctrine more broadly protects all conduct 18 arguably characterized as petitioning, including the petitioning of a court to resolve 19 a purely private dispute.

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1 {32} However, this alternative view finds little support in the jurisprudence 2 applying the Noerr-Pennington doctrine, as the United States Supreme Court has 3 only applied Noerr-Pennington to protect conduct seeking to influence 4 governmental decisionmaking or action. For example, in Noerr, the activity 5 protected by the First Amendment right to petition amounted to a publicity campaign 6 designed to influence legislation. 365 U.S. at 130-34. In Pennington, the protected 7 conduct included the lobbying of executive branch officials. 381 U.S. at 669-70. In 8 Cal. Motor, the protected conduct involved a motor carrier’s use of “the channels 9 and procedures of state and federal agencies and courts” to influence an agency’s 10 decision on a competitor’s operating rights applications. 404 U.S. at 509, 511. And 11 in Omni Outdoor, the protected conduct included a billboard company’s lobbying of 12 local zoning officials. 499 U.S. at 367-68. The protected conduct in each of these 13 cases was essentially political in nature, asking the government to either act, 14 withhold action, or decide public issues that affected the parties’ interests. None of 15 these matters involved a dispute between private parties over private rights in which 16 the government was only involved as an adjudicator. 17 {33} Similarly, the United States Supreme Court has deemed Noerr-Pennington to 18 be inapplicable in the context of purely commercial or private litigation. In Cantor, 19 428 U.S. at 581-82, 601-02, the United States Supreme Court did not apply Noerr-

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1 Pennington to protect a utility company from an antitrust suit brought by a 2 pharmacist concerning the utility’s free distribution of light bulbs, which allegedly 3 harmed local light bulb retailers. Although the utility’s program had been reviewed 4 by a regulatory commission, the program itself did not “implement any statewide 5 policy relating to light bulbs.” Id. at 585. The Cantor Court distinguished Noerr, 6 holding that the commission’s approval of the utility’s program was not “a sufficient 7 reason for conferring antitrust immunity on the proposed conduct.” Id. at 602. 8 {34} In Allied Tube, the Supreme Court held that a steel conduit manufacturer’s 9 manipulation of a private industry standards-setting association was not immune 10 from antitrust liability under the Noerr-Pennington doctrine. 486 U.S. at 496-97, 11 501-02. The manufacturer in Allied Tube had infiltrated an industry association’s 12 annual meeting with individuals who had been recruited to vote against a 13 competitor’s proposal. Id. In examining whether Noerr-Pennington shielded the 14 manufacturer’s conduct, the Allied Tube Court explained that the scope of Noerr- 15 Pennington protection depended “on the source, context, and nature of the 16 anticompetitive restraint at issue . . . where, independent of any government action, 17 the anticompetitive restraint results directly from private action, the restraint cannot 18 form the basis for antitrust liability if it is ‘incidental’ to a valid effort to influence 19 governmental action.” Id. at 499 (citations omitted). Although the industry

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1 association’s standards were widely adopted by state and local governments in 2 building codes, the industry association could not “be treated as a ‘quasi-legislative’ 3 body,” and “no official authority ha[d] been conferred on it by any government.” Id. 4 at 501. Thus, the manufacturer’s conduct was not directly aimed at influencing 5 government officials. 6 {35} The Allied Tube Court nevertheless recognized that the industry association’s 7 standards indirectly influenced state and local governments who would adopt the 8 association’s standards. Yet the Allied Tube Court still distinguished the 9 manufacturer’s conduct from the protected conduct in Noerr. Id. at 506-07. The 10 Allied Tube Court explained that the lobbying activities in Noerr were immunized 11 from antitrust liability because of their “political context and nature.” Id. at 506. In 12 contrast, the Allied Tube manufacturer’s attempts to influence the industry 13 association were “more aptly [] characterized as commercial activity with a political 14 impact.” Id. at 507. “Just as the antitrust laws should not regulate political activities 15 simply because those activities have a commercial impact, so the antitrust laws 16 should not necessarily immunize what are in essence commercial activities simply 17 because they have a political impact.” Id. (internal quotation marks and citation 18 omitted). The Supreme Court’s conclusion that the Noerr-Pennington doctrine did

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1 not apply to the disputes in Cantor and Allied Tube thus confirms that the Noerr- 2 Pennington doctrine does not apply to purely private disputes. 3 {36} Outside of the antitrust context, the petition clause has been understood to 4 secure the right of the people to “communicate their will through direct petitions to 5 the legislature and government officials.” McDonald v. Smith, 472 U.S. 479, 482- 6 83 (1985) (internal quotation marks and citation omitted). The petition clause has 7 therefore protected all sorts of political activity, including litigation, seeking to 8 influence governmental decisionmaking or action. For example, in NAACP v. 9 Claiborne Hardware Co., 458 U.S. 886, 914 (1982), the Supreme Court compared 10 a political boycott seeking “to vindicate rights of equality and of freedom” to the 11 protected conduct in Noerr because “a major purpose of the boycott in this case was 12 to influence governmental action.” See also NAACP v. Button, 371 U.S. 415, 429 13 (1963) (“In the context of NAACP objectives, litigation is not a technique of 14 resolving private differences; it is a means for achieving the lawful objectives of 15 equality of treatment by all government . . . It is thus a form of political 16 expression.”). Similarly, in Bill Johnson’s Rests., 461 U.S. at 741-42, the Supreme 17 Court applied the petition clause to constrain governmental action, explaining that 18 the National Labor Relations Board (NLRB) must be sensitive to an employer’s right 19 of petition when considering whether to enjoin state court litigation related to a labor

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1 dispute. And in BE & K Constr., 536 U.S. at 520-23, 536-37, the Supreme Court 2 relied on First Amendment principles to invalidate an NLRB regulation that 3 permitted the agency to penalize an employer’s unsuccessful, but reasonably based 4 lawsuit against several unions. While the underlying protected conduct in each of 5 these cases involved litigation between private parties, the litigation nevertheless 6 implicated important public issues and indirectly or directly influenced government 7 action on these issues. 8 {37} Our review of Supreme Court jurisprudence therefore confirms that the 9 Noerr-Pennington doctrine only shields conduct which essentially amounts to 10 political activity in that the conduct seeks to influence governmental decisionmaking 11 or action. Thus, while we acknowledge that Cal. Motor, 404 U.S. at 510, states, 12 “[t]he right of access to the courts is indeed but one aspect of the right of petition,” 13 we read this statement in context as simply affirming that the right of petition also 14 extends to the courts. We do not read Cal. Motor as eliminating the core prerequisite 15 of the Noerr-Pennington doctrine, namely, that the doctrine applies to “solicitation 16 of governmental action.” Noerr, 365 U.S. at 138; accord Pennington, 381 U.S. at 17 669 (characterizing Noerr as “entirely” addressing “activities of competitors seeking 18 to influence public officials”). Thus, we adhere to the primary view of the Noerr-

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1 Pennington doctrine as immunizing “political activity” under the First Amendment 2 right to petition, “not business activity.” Noerr, 365 U.S. at 137. 3 C. Applicability of Cordova’s Heightened Pleading Standard 4 {38} In light of the preceding analysis, we conclude that the Noerr-Pennington 5 doctrine protects conduct, including litigation, aimed at influencing governmental 6 decisionmaking or action. Noerr, 365 U.S. at 137-38; Pennington, 381 U.S. at 669. 7 We acknowledge that the scope of the Noerr-Pennington doctrine has not been 8 settled by the United States Supreme Court, and we leave to that Court the task of 9 clarifying the doctrine’s scope. However, we need not resolve any doctrinal 10 uncertainty to dispose of the question presented in this appeal. The United States 11 Supreme Court has not extended Noerr-Pennington to state court litigation. Our 12 opinion in Cordova extended the doctrine to our courts to effectuate the procedural 13 protections of the Anti-SLAPP statute and to provide a “mechanism that offers 14 [defendants] the substantive First Amendment protections they seek.” Cordova, 15 2017-NMSC-020, ¶ 24. As such, to resolve whether The New Mexican was required 16 to meet Cordova’s heightened pleading standard, we need only construe Cordova to 17 see how this Court understood the scope of the Noerr-Pennington doctrine when we 18 extended the doctrine’s protections to our courts.

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1 {39} And a plain reading of Cordova supports our doctrinal view: Cordova states 2 that a defendant is entitled to Noerr-Pennington immunity when the defendant’s 3 conduct was “aimed at influencing the government.” Id. The recall activities at issue 4 in Cordova exemplify the type of conduct that is contemplated within that 5 description: an effort by a group of citizens asking the government to remove a 6 school board member from office. Id. ¶¶ 3-4. The citizens’ conduct in Cordova fell 7 within the scope of the Noerr-Pennington doctrine because the recall activities 8 amounted to “public participation” in a political cause. Id. ¶¶ 18, 23. Cordova did 9 not contemplate that other conduct, not amounting to “public participation,” id., 10 would qualify for Noerr-Pennington protections. Rather, Cordova viewed the 11 substantive protections provided by Noerr-Pennington as a counterpart to the 12 procedural protections provided by the Anti-SLAPP statute.3 See id. ¶ 24 (“While 13 the Anti-SLAPP statute provides the procedural protections [defendants] require, the 14 Noerr-Pennington doctrine is the mechanism that offers [defendants] the substantive 15 First Amendment protections they seek.”).

Although Cordova decided to impose a heightened pleading standard “in

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furtherance of the policy upon which the Anti-SLAPP statute is based,” Cordova did not equate eligibility for Noerr-Pennington immunity with eligibility for the procedural protections of the Anti-SLAPP statute. 2017-NMSC-020, ¶ 30. A defendant may be entitled to Noerr-Pennington protections even if the defendant does not qualify under Section 38-2-9.1(A) for a special motion to dismiss.

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1 {40} It is likewise telling that Cordova did not overrule or address our previous 2 discussion of the Noerr-Pennington doctrine in DeVaney, 1998-NMSC-001, 3 ¶ 19 n.1. In DeVaney, we combined the common law torts of malicious prosecution 4 and abuse of process into a single tort of malicious abuse of process. Id. ¶ 17. The 5 DeVaney Court recognized, “[m]eaningful access to the courts is a right of 6 fundamental importance in our system of justice,” and noted that torts for malicious 7 abuse of process are disfavored “[b]ecause of the potential chilling effect on the right 8 of access to the courts.” Id. ¶ 19. Therefore, the tort of malicious abuse of process 9 must balance “the interest in protecting litigants’ right of access to the courts and the 10 interest in protecting citizens from unfounded or illegitimate applications of the 11 power of the state through the misuse of the courts.” Id. ¶ 14. In a footnote, the 12 DeVaney Court further acknowledged, “the importance of the right to petition, and 13 the potential chilling effect of tort liability, has caused the courts of some states to 14 apply the more stringent requirements of the Noerr-Pennington doctrine to actions 15 for malicious prosecution and abuse of process.” Id. ¶ 19 n.1. (citations omitted). 16 However, DeVaney did not apply Noerr-Pennington to the tort and instead narrowly 17 defined the elements of malicious abuse of process to “protect the right of access to 18 the courts.” Id. ¶ 19.

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1 {41} We further refined the elements of malicious abuse of process in Fleetwood, 2 2007-NMSC-047, ¶ 20, and in Durham, 2009-NMSC-007, ¶ 29, emphasizing in both 3 opinions that the tort should be construed narrowly to protect the right of access to 4 the courts. As currently stated, a malicious abuse of process claim requires the 5 plaintiff to prove “(1) the use of process in a judicial proceeding that would be 6 improper in the regular prosecution or defense of a claim or charge; (2) a primary 7 motive in the use of process to accomplish an illegitimate end; and (3) damages.” 8 Durham, 2009-NMSC-007, ¶ 29; accord UJI 13-1636 NMRA. “An improper use of 9 process may be shown by (1) filing a complaint without probable cause, or (2) an 10 irregularity or impropriety suggesting extortion, delay, or harassment, or other 11 conduct formerly actionable under the tort of abuse of process.” Durham, 2009- 12 NMSC-007, ¶ 29 (brackets, internal quotation marks, and citation omitted). If a 13 malicious abuse of process claim is premised on a lack of probable cause, then the 14 plaintiff must show that the defendant lacked “the reasonable belief, founded on 15 known facts established after a reasonable pre-filing investigation, that a claim can 16 be established to the satisfaction of a court or jury.” DeVaney, 1998-NMSC-001, 17 ¶ 22 (citation omitted); accord UJI 13-1639 NMRA. DeVaney’s probable cause 18 standard is more lenient than the sham exception to Noerr-Pennington, as the Noerr- 19 Pennington doctrine requires the protected conduct be “objectively baseless in the

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1 sense that no reasonable litigant could realistically expect success on the merits.” 2 Cordova, 2017-NMSC-020, ¶ 28 (internal quotation marks and citation omitted). 3 Yet DeVaney’s standard adequately addresses any concerns about chilling the right 4 of court access through malicious abuse of process claims falling outside of Noerr- 5 Pennington’s rubric. 6 {42} We thus understand our opinions in Cordova and DeVaney and its progeny to 7 operate harmoniously. DeVaney, Fleetwood, and Durham set forth the elements of 8 malicious abuse of process and emphasize that the tort should be construed “with an 9 eye toward protecting honest litigants.” Fleetwood, 2007-NMSC-047, ¶ 20. 10 Cordova, on the other hand, imposes a heightened pleading standard for a specific 11 category of claims challenging conduct that would be protected under the Noerr- 12 Pennington doctrine. Cordova, 2017-NMSC-020, ¶ 30. And, as explained above, we 13 conclude that Noerr-Pennington protects conduct seeking to influence governmental 14 decisionmaking or action. Id. ¶ 24. 15 {43} We also note that Cordova’s decision to impose a heightened pleading 16 standard on claims implicating the right to petition was inspired by the Colorado 17 Supreme Court’s opinion in Protect Our Mountain Env’t, 677 P.2d at 1368-69. 18 Subsequent to Protect Our Mountain Env’t, but prior to Cordova, the Colorado 19 Supreme Court clarified that its heightened pleading standard is “inapplicable to a

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1 resort to administrative or judicial process implicating purely private disputes.” 2 Boyer v. Health Grades, Inc., 2015 CO 40, ¶ 15, 359 P.3d 25; accord Gen. Steel 3 Domestic Sales, LLC v. Bacheller, 2012 CO 68, ¶ 32, 291 P.3d 1 (holding that 4 Protect Our Mountain Env’t’s heightened pleading standard is inapplicable to 5 arbitration involving a purely private dispute). Although the Boyer Court 6 acknowledged the uncertainty surrounding the scope of the Noerr-Pennington 7 doctrine, the Colorado Supreme Court nevertheless agreed “that a distinction 8 between the resort to legal process implicating purely private disputes and the resort 9 to legal process implicating matters of public concern is one that comports with 10 Supreme Court usage.” 2015 CO 40, ¶ 15. Thus, the Boyer Court held that two 11 employees asserting an abuse of process claim against their former employer were 12 not required to meet Protect Our Mountain Env’t’s heightened pleading standard. 13 Boyer, 2015 CO 40, ¶¶ 4, 15-16. We agree with the Colorado Supreme Court on the 14 scope of the Noerr-Pennington doctrine and corresponding necessity for a 15 heightened pleading standard. 16 {44} We therefore hold that Cordova’s heightened pleading standard only applies 17 to complaints challenging conduct, including litigation, aimed at influencing 18 governmental decisionmaking or action. Cordova’s heightened pleading standard

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1 does not apply to litigation between private parties, concerning only private interests, 2 and asking only for the judiciary to adjudicate the dispute. 3 D. Cordova Does Not Apply to The New Mexican’s Counterclaims 4 {45} We next apply our holding to The New Mexican’s counterclaims against 5 PNM. On review of the record, it is clear that PNM’s conduct in intervening in the 6 PRC’s lawsuit against The New Mexican and the filing of an application for an 7 injunction was not aimed at influencing governmental decisionmaking or action. In 8 fact, the PRC had already sued The New Mexican when PNM moved to intervene 9 in the suit; thus, any action that PNM wished to solicit from the PRC had already 10 been taken. By intervening, PNM sought to protect its private interests by enjoining 11 The New Mexican from publishing its alleged trade secrets and recovering costs and 12 fees related to the dispute. This conduct does not qualify for Noerr-Pennington 13 protections as contemplated by Cordova. 14 {46} Indeed, PNM admitted to the private nature of its dispute with The New 15 Mexican in its motion to intervene. “Under Rule 1–024(A)(2), an applicant seeking 16 to intervene as a matter of right must file a timely application, and satisfy a three- 17 part test showing that (1) the applicant has an interest in the subject matter of the 18 action; (2) protection of the applicant’s interest may be impaired or impeded by 19 disposition of the action; and (3) the interest sought to be protected is not adequately

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1 represented by existing parties.” Chino Mines Co. v. Del Curto, 1992-NMCA-108, 2 ¶ 7, 114 N.M. 521, 842 P.2d 738 (citation omitted). In its motion to intervene, PNM 3 asserted that the documents released to The New Mexican were “confidential 4 business information and trade secrets belonging to PNM and its coal suppliers,” and 5 that its private interests were not adequately represented in the suit because the PRC 6 was “a governmental entity . . . charged with representing the public interest, and 7 that interest does not always align with the interests of a movant for intervention.” 8 Thus, PNM admitted that any potential public interests involved in the lawsuit were 9 already adequately represented by the PRC. See N.M. Right to Choose/NARAL v. 10 Johnson, 1999-NMSC-005, ¶¶ 19-20, 126 N.M. 788, 975 P.2d 841 (noting that when 11 the government is “a party to an action and the interest the applicant seeks to protect 12 is represented by a governmental entity, a presumption of adequate representation 13 exists” (internal quotation marks and citation omitted)). 14 {47} And to the extent PNM’s oral argument presented the Court with other 15 avenues to conclude that its conduct was aimed at influencing the government, we 16 remain unpersuaded. For example, PNM suggested to the Court that its conduct was 17 aimed at influencing the government because PNM’s involvement in the litigation 18 involved exposure of certain documents PNM believed to be confidential as well as 19 what it perceived to be “an important public matter, which had to do with the

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1 abandonment of the San Juan Generating Station.” But PNM’s attempts to recover 2 documents from a private party that it believed to be confidential has little if any 3 influence upon the government itself. Nor does resolution of the allegedly 4 inadvertent disclosure have a material impact upon PNM’s attempt to abandon 5 certain portions of the San Juan Generating Station. 6 {48} PNM’s lawsuit against The New Mexican is purely a private dispute between 7 private parties, and PNM seeks no more than for the judiciary to resolve this dispute. 8 We therefore conclude that PNM’s conduct does not qualify as Noerr-Pennington 9 protected conduct under our decision in Cordova, 2017-NMSC-020, ¶¶ 24-26. 10 Accordingly, The New Mexican was not required to meet Cordova’s heightened 11 pleading standard in asserting counterclaims challenging PNM’s conduct. The 12 district court and Court of Appeals erred by applying Cordova’s heightened pleading 13 standard to The New Mexican’s counterclaims. 14 {49} Because the district court dismissed The New Mexican’s counterclaims based 15 solely on its conclusion that The New Mexican had not met Cordova’s heightened 16 pleading standard, we have no occasion to otherwise consider the sufficiency of The 17 New Mexican’s counterclaims. Nevertheless, we take this opportunity to address an 18 error in the district court’s reasoning lest this error cause confusion on remand.

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1 {50} The district court relied upon the intervention rule outlined in Richins v. 2 Mayfield, 1973-NMSC-099, 85 N.M. 578, 314 P.2d 854, to conclude that, “[b]y its 3 Order allowing intervention, the [district court] necessarily found that PNM . . . had 4 a legitimate interest to protect.” The district court’s reliance on Richins is misplaced. 5 Richins provides that, in order to allow a party to intervene in a finally adjudicated 6 proceeding, a district court “must find that the right or interest cannot otherwise be 7 protected, except by intervention.” Id. ¶ 7. The intervention rule in Richins only 8 applies when a court is assessing whether to allow a party to intervene “after a final 9 judgment or decree has been entered,” not at the pleadings stage, as was the case 10 here. Id. ¶ 6; accord Ruybalid v. Segura, 1988-NMCA-084, ¶ 15, 107 N.M. 660, 11 763 P.2d 369. Rather, at the beginning of a lawsuit a district court may consider, but 12 is not required to rule on the merits of a proposed intervenor’s complaint. Solon v. 13 WEK Drilling Co., Inc., 1992-NMSC-023, ¶ 5, 113 N.M. 566, 829 P.2d 645. The 14 grant of a motion to intervene under Rule 1-024 NMRA prior to final adjudication 15 does not establish that a party has either an objectively reasonable basis or probable 16 cause for the proceeding. Accordingly, the district court’s granting of PNM’s motion 17 to intervene did not establish as a matter of law that PNM had a legitimate claim. 18 The district court erred by concluding otherwise.

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1 V. CONCLUSION 2 {51} The district court and the Court of Appeals erred by concluding that The New 3 Mexican’s counterclaims against PNM should be dismissed for failure to meet 4 Cordova’s heightened pleading standard. Cordova only requires a plaintiff to meet 5 this heightened pleading standard if the defendant’s conduct was aimed at 6 influencing governmental decisionmaking or action. PNM’s conduct was not aimed 7 at influencing the government and thus Cordova’s heightened pleading standard did 8 not apply to The New Mexican’s counterclaims. We reverse and remand this matter 9 to the district court with instructions to vacate its order dismissing The New 10 Mexican’s counterclaims and the final judgment entered in favor of PNM. 11 {52} IT IS SO ORDERED.

12 13 JULIE J. VARGAS, Justice

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1 WE CONCUR:

2 3 MICHAEL E. VIGIL, Justice

4 5 C. SHANNON BACON, Justice

6 7 BRIANA H. ZAMORA, Justice

8 9 DREW D. TATUM, Judge 10 Sitting by designation