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Cordova v. Cline

Supreme Court of New Mexico

May 22, 2017

ARSENIO CORDOVA, Plaintiff-Respondent,

         ORIGINAL PROCEEDING ON CERTIORARI Abigail Aragon, District Judge

          Armstrong & Armstrong, P.C. Julia Lacy Armstrong Taos, NM for Petitioner Jill Cline.

          The Herrera Firm, P.C. Samuel M. Herrera Taos, NM for Petitioner Thomas Tafoya.

          Steven K. Sanders Albuquerque, NM for Petitioners Loretta DeLong, Jeanelle Livingston, Catherine Collins, Rose Martinez, Esther Winter, and Elizabeth Trujillo.

          Garcia Law Firm Marcus E. Garcia Albuquerque, NM L. Helen Bennett, P.C. Linda Helen Bennett Albuquerque, NM for Respondent.


          BARBARA J. VIGIL, Justice

         {1} This dispute comes before the Court in relation to a malicious abuse of process claim made by Taos school board member Arsenio Cordova (Cordova) against eighteen members of an unincorporated citizens' association (collectively, Petitioners) following their efforts to remove Cordova from office under the Local School Board Member Recall Act (Recall Act), NMSA 1978, §§ 22-7-1 to -16 (1977, as amended through 2015). We hold that petitioners who pursue the recall of a local school board member under the Recall Act are entitled to the procedural protections of the New Mexico statute prohibiting strategic litigation against public participation (Anti-SLAPP statute). See NMSA 1978, § 38-2-9.1 (2001). We also conclude that petitioners are entitled to immunity under the Noerr-Pennington doctrine when they exercise their right to petition unless the petitioners (1) lacked sufficient factual or legal support, and (2) had a subjective illegitimate motive for exercising their right to petition. See E. R. R. Presidents Conf. v. Noerr Motor Freight, Inc., 365 U.S. 127, 135 (1961) ("To hold that . . . the people cannot freely inform the government of their wishes . . . would raise important constitutional questions. The right of petition is one of the freedoms protected by the Bill of Rights."); United Mine Workers of Am. v. Pennington, 381 U.S. 657, 670 (1965) (relying on Noerr's protection of "effort[s] to influence public officials regardless of intent or purpose" of the efforts); Prof'l Real Estate Inv'rs, Inc. v. Columbia Pictures Indus., Inc., 508 U.S. 49, 60-62 (1993) (holding that if the challenged litigation is objectively baseless, a court examines the subjective motivation behind the litigation to determine if the lawsuit is a sham).

         {2} Accordingly, we reverse the Court of Appeals' holdings that the Anti-SLAPP statute and the Noerr-Pennington doctrine do not apply. We also reverse the Court of Appeals' holding that it did not have jurisdiction over Petitioners with pending counterclaims. Cordova v. Cline, 2013-NMCA-083, ¶¶ 15-17, 308 P.3d 975. We affirm the district court's holding that Petitioners' conduct was in support of the political process of a school board member recall; and thus, Petitioners properly invoked the substantive protection of the Noerr-Pennington doctrine and the procedural and remedial provisions of the Anti-SLAPP statute. Pursuant to Section 38-2-9.1(A), we uphold the district court order granting Petitioners' motion to dismiss. Pursuant to Section 38-2-9.1(B), Petitioners are statutorily entitled to an award of attorney fees.

         I. BACKGROUND

         {3} Jill Cline, a parent with children enrolled in the Taos Municipal School District, organized Citizens for Quality Education (CQE) and registered it as an unincorporated citizens' association with the Taos County Clerk. Members of CQE included Cline, Taos Municipal School Board Member Thomas Tafoya, and various other current and former school administrators. CQE alleged that Cordova had committed acts of misfeasance and malfeasance while in office. CQE initiated a petition to recall Cordova from the Taos school board pursuant to the Recall Act. See §§ 22-7-2, -8.

         {4} After collecting the requisite signatures, CQE submitted its petition to the Taos County Clerk as required under the Recall Act. See §§ 22-7-8(F), -9. The Taos County Clerk filed an application with the district court on May 28, 2009, requesting "a hearing [for a] determination by the court of whether sufficient facts exist[ed] to allow the petitioner to continue with the recall process" as required by the Recall Act. Section 22-7-9.1(A). Under the Recall Act, such hearing must "be held not more than ten days from the date the application is filed by the county clerk." Section 22-7-9.1(B). The hearing was continued twice and was not held until September 16, 2009.

         {5} At the start of the hearing, CQE voluntarily dismissed its recall petition. Given CQE's voluntary dismissal of the recall petition, the district court did not determine whether there was adequate support for the recall process to proceed.

         {6} Two days later, on September 18, 2009, Cordova filed a complaint against eight named members of CQE as well as ten unnamed members in their individual capacities. Cordova contended that Petitioners' recall efforts were in furtherance of a personal vendetta as opposed to legitimate claims of malfeasance or misfeasance in office. He alleged that Petitioners initiated the recall without demonstrating probable cause of his misfeasance or malfeasance in office and that the voluntary dismissal of their petition precluded any finding of whether it was adequately supported. He argued that Petitioners' affidavits were incompetent and backdated. Further, Cordova's complaint stated that the incompetent affidavits, coupled with the two continuances and voluntary dismissal of the petition, constituted malicious abuse of process. Cordova sought damages for malicious abuse of process, civil conspiracy, and prima facie tort.

         {7} In response to Cordova's complaint, six of the named Petitioners filed a motion to dismiss for the failure to state a claim under Rule 1-012(B)(6) NMRA, and for violations under the Anti-SLAPP statute, § 38-2-9.1(A) (requiring that "a special motion to dismiss . . . be considered by the court on a priority or expedited basis"). Petitioners asserted that Cordova filed his complaint in retaliation for their petitioning activity and thus violated their right to petition under the First Amendment to the United States Constitution. Each filing separately, Cline and Tafoya also moved to dismiss Cordova's complaint, invoked New Mexico's Anti-SLAPP statute as an affirmative defense, see § 38-2-9.1, and asserted counterclaims against Cordova for malicious abuse of process.

         {8} The district court granted Petitioners' motions to dismiss, finding that Petitioners' "speech and conduct occurred in connection with public meetings and a public hearing and were in support of the political process of school board member recall[, ] thus invoking the substantive protection of the First Amendment and the procedural and remedial provisions of the SLAPP statutes." The district court did not address Cline and Tafoya's counterclaims.

         {9} Cordova moved for certification for interlocutory appeal or, alternatively, for partial final judgment as to the district court's order. Then, without waiting for the district court to rule on his motion, Cordova filed a notice of appeal of the district court's dismissal order in the Court of Appeals. As a result, the district court entered an order finding that Cordova's filing of a notice of appeal divested it of jurisdiction and thereby declined to rule on his motion to certify the dismissal order for interlocutory appeal or for partial final judgment. The district court determined that it was likewise divested of jurisdiction to address the unresolved counterclaims of Cline and Tafoya.

         {10} The Court of Appeals assumed jurisdiction of this appeal and concluded that Petitioners' actions in the district court fell outside the scope of public meetings that benefit from Anti-SLAPP statutory protection. Cordova, 2013-NMCA-083, ¶¶ 1, 14. The Court of Appeals held that the district court's dismissal of Cordova's claims for civil conspiracy and prima facie tort should be affirmed but that his malicious abuse of process claim was sufficient to survive a motion to dismiss. Id. ¶ 29. Finally, the Court of Appeals determined that Cordova did not appeal from a final judgment, and thus the Court of Appeals excluded Cline and Tafoya from its holding. Id. ¶ 17.


         {11} Each of the issues we are called upon to address requires de novo review. We review the interpretation of statutory language de novo. Quynh Truong v. Allstate Ins. Co., 2010-NMSC-009, ¶ 22, 147 N.M. 583, 227 P.3d 73. We also review the interpretation and application of the United States Constitution de novo. See State v. Pangaea Cinema, L.L.C., 2013-NMSC-044, ¶ 8, 310 P.3d 604. Finally, we review a dismissal under Rule 1-012(B)(6) de novo. Valdez v. State, 2002-NMSC-028, ¶ 4, 132 N.M. 667, 54 P.3d 71.


         A.Appellate Jurisdiction under the ...

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