New Mexico Court of Appeals holds that Anti-SLAPP Statute does not apply to judicial proceedings

A “strategic lawsuit against public participation,” or SLAPP, is a lawsuit that is intended to punish members of the public for criticizing or opposing actions that the plaintiff wants a public body to take. The usual objective of such a lawsuit is not necessarily to win, but rather to silence one’s opponents.

These lawsuits take many forms. For example, some people consider the recent defamation lawsuit filed by Beef Products, Inc. against ABC News over its “pink slime” reporting to be an example of such a lawsuit.

In response to the perceived problem posed by SLAPPs, many states, including New Mexico, have enacted “anti-SLAPP” statutes. New Mexico’s statute, NMSA 1978, § 38-2-9.1, allows defendants who believe they are being sued in retaliation for protected speech to file an expedited motion to dismiss.

This brings us to Cordova v. Cline, a unanimous decision issued earlier this week, and written by Chief Judge Roderick Kennedy.

Some residents of Taos County formed an organization called Citizens for Quality Education, and initiated a recall action against Arsenio Cordova, a member of the Taos Municipal Schools Board of Education.  The statute governing recall actions requires the district court to hold a hearing to determine whether sufficient basis exists for the recall. At the hearing, Citizens for Quality Education dismissed the petition, so the district court never decided whether a basis for the recall existed.

Cordova then sued the members of Citizens for Quality Education for malicious abuse of process, alleging that the recall petition lacked probable cause, that the petition was supported by “incompetent and back-dated affidavits,” and that the petitioners had an improper motive for seeking to recall him.

The defendants filed a motion under the Anti-SLAPP statute, which the District Court granted. Cordova appealed, and the Court of Appeals reversed, holding that Anti-SLAPP statute does not apply to conduct or speech in judicial proceedings.

The statute provides that “[a]ny action seeking money damages against a person for conduct or speech undertaken or made in connection with a public hearing or public meeting in a quasi-judicial proceedings before a tribunal or decision-making body of any political subdivision of the state is subject to a special motion to dismiss.” NMSA 1978, § 38-2-9.1.  The Court noted that a “public meeting in a quasi-judicial proceeding” is defined as “any meeting established and held by a state or local governmental entity, including without limitations, meeting or presentations before state, city, town or village councils, planning commissions, review boards or commissions.”  NMSA 1978, § 38-2-9.1(D).

The Court of Appeals observed that Cordova’s claims were based on problems that “all stem from the hearing,” but that a “plain reading of the Anti-SLAPP statute” meant that “a sufficiency hearing bfore a district court for a recall petition is not a public meeting or a quasi-judicial proceeding as defined by the Anti-SLAPP statute.” Therefore, the Court held that the Anti-SLAPP statute provided no protection to defendants.

Cordova may, however, lead to seemingly anomalous results in some cases.  For example, suppose that a neighborhood association opposes a new subdivision at a city council meeting, based on grounds that the land developer believes to be defamatory or frivolous. If the land developer then sues the neighborhood association for its alleged defamatory statements at the city council meeting, the Anti-SLAPP statute may provide a defense.

But now suppose that the neighborhood association appeals the city council’s approval of the subdivision to a district court, and repeats the same accusations against the land developer there. In that event, under Cordova, the land developer could potentially sue the neighborhood association for malicious abuse of process, and the Anti-SLAPP statute would no longer provide a defense.

The takeaway from Cordova is that if you criticize someone in, say, a city council meeting or at a planning and zoning board meeting, and that person later sues you based on your speech or actions at the meeting, the Anti-SLAPP statute may be available as a defense, but if you file a lawsuit against that person, your speech and actions in the judicial proceedings will not be protected by that statute (you may, of course, have other defenses).



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