Chandler v. Advance New Mexico Now PAC, 012021 NMCA, A-1-CA-38649

Docket NºA-1-CA-38649
Opinion JudgeJULIE J. VARGAS, JUDGE
Party NameJ. SCOTT CHANDLER, Plaintiff-Appellee, v. ADVANCE NEW MEXICO NOW PAC and JAY MCCLESKEY, Defendants-Appellants, and JOHN DOE(S) and JANE DOE(S), Defendants.
AttorneyDomenici Law Firm, P.C. Pete V. Domenici Lorraine Hollingsworth Albuquerque, NM for Appellee Kennedy, Hernandez & Associates, P.C. Paul J. Kennedy Jessica M. Hernandez Albuquerque, NM for Appellants
Judge PanelWE CONCUR: MEGAN P. DUFFY, Judge, SHAMMARA H. HENDERSON, Judge
Case DateJanuary 20, 2021
CourtCourt of Appeals of New Mexico

J. SCOTT CHANDLER, Plaintiff-Appellee,

v.

ADVANCE NEW MEXICO NOW PAC and JAY MCCLESKEY, Defendants-Appellants,

and

JOHN DOE(S) and JANE DOE(S), Defendants.

No. A-1-CA-38649

Court of Appeals of New Mexico

January 20, 2021

Appeal From the District Court of Luna County Jennifer E. DeLaney, District Judge

Domenici Law Firm, P.C. Pete V. Domenici Lorraine Hollingsworth Albuquerque, NM for Appellee

Kennedy, Hernandez & Associates, P.C. Paul J. Kennedy Jessica M. Hernandez Albuquerque, NM for Appellants

OPINION

JULIE J. VARGAS, JUDGE

{¶1} Defendants Advance New Mexico Now PAC and Jay McCleskey appeal the district court's order denying their special motion to dismiss Plaintiff J. Scott Chandler's complaint under New Mexico's statute prohibiting strategic litigation against public participation (Anti-SLAPP statute), NMSA 1978, § 38-2-9.1 (2001). Concluding the Anti-SLAPP statute does not protect the conduct or speech at issue in the case at bar, we dismiss Defendants' appeal as premature.

BACKGROUND

{¶2} During a primary election in which Plaintiff was running for a New Mexico House of Representatives seat, Defendants published and distributed two mailers discussing child abuse that allegedly occurred on the youth ranch operated by Plaintiff. One side of the first mailer depicted a police siren and crime scene tape and contained a message that read, "How did a business accused of child abuse and torture AVOID government oversight?" On the reverse side was a message that read, "[Plaintiff] lobbied liberal legislators to avoid state oversight of his ranch." The reverse side continued to describe circumstances in which children were abused at the youth ranch, and stated that Plaintiff avoided oversight by "lobb[ying] to defeat two bills that would have required state licensing and put his ranch under the oversight of the state Children, Youth and Families [D]epartment."

{¶3} The second mailer contained a detailed description of the circumstances surrounding the abuse at the youth ranch and provided a quote from the Today Show: "They were threatened that they would be castrated if they didn't complete all the work." The mailer noted that "[p]arents [were] suing [Plaintiff] for abusing children on his ranch."

{¶4} Plaintiff sued Defendants for defamation, declaratory relief, and punitive damages and Defendants filed a special motion to dismiss Plaintiff's defamation claims under the Anti-SLAPP statute, arguing the statute protects conduct or speech made during political campaigns.

{¶5} The district court denied Defendants' special motion, ruling the statements at issue could qualify as defamatory and that the claims arising from those statements should therefore not be dismissed. Defendants filed an interlocutory appeal from the district court's decision, asking that we reverse the order of the district court and dismiss Plaintiff's entire complaint, including Plaintiff's declaratory judgment and punitive damages claims, because they are all based on statements that are not defamatory as a matter of law. See § 38-2-9.1(C) (authorizing an expedited appeal from a special motion); Cordova v. Cline, 2017-NMSC-020, ¶ 17, 396 P.3d 159 (concluding the Anti-SLAPP statute provides a right to an interlocutory appeal).

DISCUSSION

{¶6} On appeal, Defendants contend that the district court erred when it concluded that the statements set out in its campaign mailers could qualify as defamatory. However, before we reach the merits of Defendants' appeal, we must determine whether those statements fall within the procedural protections of the Anti-SLAPP statute granting "[a]ny party . . . the right to an expedited appeal from a trial court order on [a] special motion[.]"[1] Section 38-2-9.1(C); see also Ferebee v. Hume, __ NMCA__, ¶¶ 13-15, __ P.3d __ (No. A-1-CA-37202, Jan. 6, 2021) (holding that this Court has jurisdiction under the Anti-SLAPP statute to consider whether a party was entitled to the statute's protections). Because we conclude that Defendants' statements were not made "in connection with" a public hearing or public meeting, we hold that Defendants are not entitled to an interlocutory review of the district court's order denying its motion to dismiss. We explain.

II. Defendants' Conduct or Speech Is Not of the Kind Entitled to the Procedural Protections of the Anti-SLAPP Statute

{¶7} The Anti-SLAPP statute provides certain procedural protections to persons who engage in conduct or speech made in connection with specified public hearings or public meetings, stating in relevant part: Any 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 proceeding before a tribunal or decision-making body of any political subdivision of the state is subject to a special motion to dismiss, motion for judgment on the pleadings, or motion for summary judgment that shall be considered by the court on a priority or expedited basis[.]

Section 38-2-9.1(A).

{¶8} Defendants contend they are entitled to an expedited review of the district court's denial of their special motion to dismiss because the statements set out in the mailers were "undertaken or made in connection with . . . public hearing[s] or public meeting[s] in a quasi-judicial proceeding." Id. (emphasis added). Specifically, Defendants identify three types of public hearings or public meetings they contend their mailers were prepared and sent "in connection with." First, they contend that the mailers were sent in connection with the political election in which Plaintiff was participating. "Elections," Defendants argue, "necessarily entail public hearings and meetings convened by tribunals and decision-making bodies such as state and county canvassing boards and precinct boards." Defendants next claim that their mailers were made in connection with prior litigation related to allegations of abuse of teenagers at the youth ranch, including litigation that the Children, Youth & Families Department negligently licensed and regulated the youth ranch, as well as litigation brought by parents of youth ranch residents. Defendants also claim that the mailers were made in connection with bills introduced in the New Mexico Legislature in the two sessions preceding the mailers, arguing that "anyone with an interest in . . . greater oversight of outdoor youth programs or residential placements through new legislation would have reason to connect their campaign speech to this issue during the 2016 elections for state legislative offices . . . [to] improve efforts to enact such legislation in future legislative sessions."

{¶9} In support of their claim that they are entitled to an expedited review under the Anti-SLAPP statute, Defendants point us to our Supreme Court's decision in Cordova, arguing that Cordova requires that we apply the Anti-SLAPP statute broadly enough to include the conduct or speech set out in the mailers. In Cordova, parents of children enrolled in the Taos Municipal School District, working as an unincorporated association, sought to recall a school board member, pursuant to the Local School Board Member Recall Act, (the Recall Act).2 Cordova, 2017-NMSC-020, ¶ 3. In accordance with the Recall Act, the association collected signatures and submitted a petition to the Taos County Clerk, who then filed an application with the district court requesting a sufficiency hearing as required by Section 22-7-9.1(A) (providing that "the county clerk shall file an application with the district court . . . requesting a hearing for a determination by the court of whether sufficient facts exist to allow the petitioner to continue with the recall process"). Cordova, 2017-NMSC-020, ¶ 4. Our Supreme Court, considering whether members of the association were entitled to the protections of the Anti-SLAPP statute in response to the school board member's malicious abuse of process suit, evaluated whether the association's activities constituted "conduct or speech undertaken or made in connection with a public hearing . . . before a tribunal[.]" Cordova, 2017-NMSC-020, ¶ 19; Section 38-2-9.1(A) (emphasis added). Our Supreme Court held that "all activities related to the" sufficiency hearing, i.e., "the collection of petitions, filing with the county clerk, the county clerk's responsibilities, etc.[, ]" were activities by which the defendants exercised their right to petition, namely "the right to engage in the recall process[.]" Cordova, 2017-NMSC-020, ¶¶ 21-22. Accordingly, notwithstanding that many of the activities at issue took place prior to and in anticipation of the sufficiency hearing and that the sufficiency hearing never took place because the association voluntarily dismissed its recall petition, the defendants' participation in the recall proceedings was protected under the Anti-SLAPP statute, as it was related to the sufficiency hearing. Id. ¶¶ 5, 23. "[T]he phrase 'in connection with, '" our Supreme Court held, "reveals the Legislature's intent to protect all activities related to the public hearing before a tribunal[.]" Id. ¶ 21. Any other conclusion, our Supreme Court reasoned, is "contrary to the Legislature's broad intent to protect citizens exercising their right to petition" from suits filed in retaliation for those petitioning activities. Id. ¶ 22.

{¶10} While Cordova provides us with some general guidance regarding the meaning of "in connection with," it does not answer the question presented by Defendants' appeal. In Cordova, the conduct of the association members was undertaken to initiate, and was directly related to, a specific public hearing (i.e. the sufficiency hearing) in which the parents intended to participate. Here,...

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