Cordova v. Cline
2017 NMSC 20
| N.M. | 2017Background
- Citizens for Quality Education (CQE), an unincorporated citizens’ group, organized a recall petition against Taos school board member Arsenio Cordova under the Local School Board Member Recall Act; CQE filed the petition with the county clerk after collecting signatures.
- The Recall Act requires a sufficiency hearing in district court within ten days of the clerk filing to determine whether affidavits and facts support continuing the recall; CQE’s sufficiency hearing was delayed and ultimately CQE voluntarily dismissed the petition at the hearing.
- Two days later Cordova sued (malicious abuse of process, civil conspiracy, prima facie tort) against multiple CQE members, alleging backdated/untimely affidavits, delays intended to harass, and resulting damages.
- Several defendants moved to dismiss under New Mexico’s Anti‑SLAPP statute (§ 38‑2‑9.1) and invoked Noerr‑Pennington petitioning immunity; the district court granted dismissal, but the Court of Appeals reversed on scope and jurisdictional grounds for parties with pending counterclaims.
- The New Mexico Supreme Court granted certiorari, held the Anti‑SLAPP statute applies to recall‑related public participation and provides interlocutory appellate review, and affirmed dismissal because the complaint failed the heightened pleading standard required to invoke the sham exception to Noerr‑Pennington.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does § 38‑2‑9.1(C) permit interlocutory appeal for all parties who file Anti‑SLAPP special motions, including those with pending counterclaims? | Cordova argued appeal was not final for defendants with unresolved counterclaims so Court of Appeals lacked jurisdiction over those defendants. | Petitioners argued the Anti‑SLAPP statute creates an expedited interlocutory appeal right to avoid piecemeal litigation. | Held: § 38‑2‑9.1(C) authorizes expedited/interlocutory appeal for any party on special motions; Court of Appeals erred to exclude petitioners with counterclaims. |
| Do recall‑process activities fall within the Anti‑SLAPP statute’s protection for conduct "in connection with a public hearing or public meeting in a quasi‑judicial proceeding"? | Cordova urged the sufficiency hearing is a judicial proceeding not covered by the statute; thus defendants’ conduct not protected. | Petitioners contended recall activities (petition collection, filing, clerk review, sufficiency hearing) are "in connection with" a public hearing/quasi‑judicial proceeding and are protected. | Held: Anti‑SLAPP statute covers recall activities; the Legislature intended broad protection of public participation related to quasi‑judicial/public hearings. |
| Does the Noerr‑Pennington doctrine protect recall petitioning activity from tort liability? | Cordova argued defendants’ recall efforts were a sham and outside Noerr‑Pennington protection due to untimely/backdated affidavits and dismissal. | Petitioners argued recall petitioning is protected petitioning activity and immune unless shown to be a sham. | Held: Noerr‑Pennington applies; petitioning immunity protects recall activity unless the sham exception (objective baselessness and improper subjective motive) is plead and proved. |
| Were defendants’ actions objectively baseless and motivated by an improper subjective purpose (sham) so as to defeat Noerr‑Pennington at the pleading stage? | Cordova alleged affidavits were backdated/untimely, delays were intended to harass and produce adverse publicity, and dismissal showed lack of merit. | Petitioners argued allegations were conclusory and reflected political disagreement, not an improper primary purpose; Noerr‑Pennington requires a two‑part test. | Held: Taken as true, affidavits were untimely/backdated and thus objectively baseless; but Cordova’s complaint failed the heightened pleading standard to allege specific facts showing an improper primary motive. Dismissal affirmed. |
| What pleading standard governs suits seeking damages for petitioning activity covered by Noerr‑Pennington/Anti‑SLAPP? | Cordova did not contest heightened standard, but relied on his existing factual allegations. | Petitioners asserted that a heightened pleading standard is required to avoid chilling petitioning rights. | Held: Court adopts a heightened pleading standard for claims targeting petitioning activity: plaintiff must plead specific facts showing both objective baselessness and improper subjective motive to overcome immunity. |
Key Cases Cited
- Eastern R.R. Presidents Conference v. Noerr Motor Freight, 365 U.S. 127 (establishes petitioning immunity principle)
- United Mine Workers of Am. v. Pennington, 381 U.S. 657 (extends Noerr protection to efforts to influence public officials)
- Professional Real Estate Investors, Inc. v. Columbia Pictures Industries, Inc., 508 U.S. 49 (announces two‑part sham litigation test: objective baselessness then subjective improper motive)
- California Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508 (Noerr applies to petitions to all government branches, including courts and agencies)
- BE & K Construction Co. v. NLRB, 536 U.S. 516 (reaffirms First Amendment protections against statutory imputation limiting petitioning rights)
- Cardtoons, L.C. v. Major League Baseball Players Ass’n, 208 F.3d 885 (Tenth Circuit discussion of Noerr principles and distinction between antitrust immunity and petition‑clause immunity)
- Sosa v. DIRECTV, Inc., 437 F.3d 923 (Ninth Circuit applying Noerr‑Pennington beyond antitrust; discusses protective scope)