10th Circuit: Albuquerque city clerk and lawyers are immune from suit by failed mayoral candidate

Stella Padilla wanted to run for mayor of Albuquerque in 2018, but the city clerk, Natalie Howard, rejected her nominating petition. Padilla filed a suit in state district court asking for declaratory judgment that her petition was proper.

During the lawsuit, Padilla’s daughter, Vanessa Benavidez, allegedly harrassed Ms. Howard on two occasions. On the first, Ms. Benavidez allegedly served Ms. Howard with the state-court lawsuit but then pursued her to demand that she sign an affidavit of service (which she was not required to do). On the second, Ms. Benavidez allegedly confronted Ms. Howard outside the courthouse with a “Stella for Mayor” sign and blocked her path while yelling at her about the case.

Ms. Howard, represented by city attorney Jessica Hernandez, and two of her colleagues, William Zarr and Nicholas Bullock, filed a motion for protective order in state court, which apparently was never ruled upon.

Ms. Benavidez and Ms. Padilla filed a Section 1983 lawsuit in federal court against Howard, Hernandez, Zarr, and Bullock, claiming that the filing of the motion for protective order was filed to retaliate against them for exercising their First Amendment rights. The district court dismissed the claims on immunity grounds.

In Benavidez v. Howard, in a per curiam opinion, the Tenth Circuit affirmed, holding that “a government defense attorney who, in the course of a civil adjudication, prepares a motion and arranges for the presentation of evidence on the court record by way of affidavit in support of the motion, is absolutely immune from a collateral § 1983 suit for damages based on the filing of such motion and affidavit.”

The Court further held that the claims against the city clerk were properly dismissed based on qualified immunity, since the complaint alleged only that the mere filing of the motion for protective order was in retaliation for the exercise of the plaintiffs’ First Amendment rights.

Judge Bobby Baldock filed a concurring opinion. He joined the opinion in full, except that he believed that the Court should have affirmed the judgment in the city clerk’s favor based on absolute immunity, not qualified immunity.

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