PROCEEDING ON CERTIORARI Abigail Aragon, District Judge
Armstrong & Armstrong, P.C. Julia Lacy Armstrong Taos, NM
for Petitioner Jill Cline.
Herrera Firm, P.C. Samuel M. Herrera Taos, NM for Petitioner
K. Sanders Albuquerque, NM for Petitioners Loretta DeLong,
Jeanelle Livingston, Catherine Collins, Rose Martinez, Esther
Winter, and Elizabeth Trujillo.
Law Firm Marcus E. Garcia Albuquerque, NM L. Helen Bennett,
P.C. Linda Helen Bennett Albuquerque, NM for Respondent.
BARBARA J. VIGIL, Justice
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).
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.
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,
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
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.
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.
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.
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
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.
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.
STANDARD OF REVIEW
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 ...