Cordova v. Cline

• Citation: 308 P.3d 975
• Decision Date: 26 July 2013
• Docket Number: No. 30,546.,30,546.
• Parties: Arsenio CORDOVA, Plaintiff–Appellant, v. Jill CLINE, Thomas Tafoya, Loretta DeLong, Jeanelle Livingston, Catherine Collins, Rose Martinez, Esther Winter, Elizabeth Trujillo, and Jane Does 1 Through 10, Defendants–Appellees.
• Court: Court of Appeals of New Mexico

308 P.3d 975

Arsenio CORDOVA, Plaintiff–Appellant,

v.Jill CLINE, Thomas Tafoya, Loretta DeLong, Jeanelle Livingston, Catherine Collins, Rose Martinez, Esther Winter, Elizabeth Trujillo, and Jane Does 1 Through 10, Defendants–Appellees.

No. 30,546.

Court of Appeals of New Mexico.

March 11, 2013.

Certiorari Granted, No. 34,093, July 26, 2013.

David Henderson, Santa Fe, NM, for Appellant.

Armstrong & Armstrong, P.C., Julia Lacy Armstrong, Taos, NM, for Appellee Cline.

The Herrera Firm, P.C., Samuel M. Herrera, Taos, NM, for Appellee Tafoya.

Steven K. Sanders & Associates, L.L.C., Steven K. Sanders, Albuquerque, NM, for Appellees DeLong, Livingston, Collins, Martinez, Winter, and Trujillo.

OPINION

KENNEDY, Judge.

{1} This case requires us to decide whether the New Mexico statute prohibiting strategic litigation against public participation (Anti–SLAPP statute) bars Plaintiff Arsenio Cordova's lawsuit against members of Citizens for Quality Education (CQE), an organization that tried to institute a recall election to remove Cordova from the school board. We conclude that the Anti–SLAPP statute does not apply to a hearing in district court as a part of the recall process. We reverse the district court's grant of the motion to dismiss and determine that Cordova successfully stated a claim for malicious abuse of process, and Defendants were not entitled to dismissal by the First Amendment. We dismiss the appeal as to Defendants Jill Cline and Thomas Tafoya, against whom the judgment is not final.

I. BACKGROUND

{2} Cordova was a member and vice president of the Taos Municipal Schools Board of Education. CQE was formed to initiate a recall process against Cordova under the Local School Board Member Recall Act (Act). NMSA 1978, §§ 22–7–1 to –16 (1977, as amended through 1993). CQE members, many of whom were Taos County school employees, were unhappy with some of Cordova's actions on the school board and filed a recall petition with the Taos County Clerk on June 1, 2009. The clerk duly filed her application for a district court hearing on the sufficiency of the recall allegations as is required by the Act. See § 22–7–9.1(A).

{3} Under the Act, the hearing should have taken place within ten days. Section 22–7–9.1(B). However, CQE continued the case twice, and the hearing finally took place on September 16, 2009. CQE voluntarily dismissed the recall petition at the hearing. Because of the dismissal, the district court made no determination of whether sufficient facts existed to allow the recall process to continue. No record of those proceedings was provided for this case.

{4} Cordova filed this suit on September 18, 2009, against eight individual members of CQE, in keeping with his claim that CQE could not legally exist as an entity that may file a recall petition. The individual members of CQE who were named as Defendants were Jill Cline, Thomas Tafoya, Loretta DeLong, Jeanelle Livingston, Catherine Collins, Rose Martinez, Esther Winter, and Elizabeth Trujillo (collectively, Defendants). Cordova alleged that the recall petition was brought without demonstrating probable cause of his misfeasance or malfeasance in office and that CQE's voluntary dismissal of the petition precluded any judicial finding on the question of whether the petition was adequately supported as required under the statute. Cordova's complaint specifically alleged that CQE and its members engaged in a recall petition process that was supported by incompetent and back-dated affidavits that CQE used to improperly accuse him of malfeasance and misfeasance in office. Cordova's complaint claimed that CQE brought the recall petition for purely political reasons because they were afraid his planned actions would hold them accountable for their own misdeeds, rather than because of misfeasance or malfeasance on his part. He stated that the incompetent affidavits, together with the postponement of the hearing and the eventual voluntary dismissal of the entire petition action, constituted an improper use of process in a judicial proceeding that was illegitimately motivated by hopes of damaging him. Based on these allegations, he maintained that he had been damaged and sought compensation under theories of malicious abuse of process, civil conspiracy, and prima facie tort.

{5} Defendants moved to dismiss the complaint under Rule 1–012(B)(6) NMRA for failure to state a claim and, alternatively, sought dismissal and attorney fees under the Anti–SLAPP statute. NMSA 1978, § 38–2–9.1 (2001). As an affirmative defense, Defendants maintained that the recall petition was protected under the First Amendment of the United States Constitution and New Mexico's Anti–SLAPP statute. Cline and Tafoya also counterclaimed against Cordova for malicious abuse of process.

{6} The district court held a hearing on April 29, 2010, to consider Defendants' motions to dismiss and Cordova's motion to dismiss the two counterclaims. On May 14, 2010, the district court issued its order granting Defendants' motions to dismiss. The court relied on the Anti–SLAPP statute and the First Amendment to find that Defendants' conduct in the recall petition was protected and dismissed Cordova's civil conspiracy and prima facie tort claims for failure to adequately plead sufficient facts to establish either tort. The district court did not address Cline's and Tafoya's counterclaims. The order also set rates for attorney fees and permitted Defendants to submit requests for the fees as allowed under the Anti–SLAPP statute. Section 38–2–9.1(B). Cordova now appeals.

II. DISCUSSION

{7} On appeal, Cordova argues that (1) the Anti–SLAPP statute does not apply to his suit below, (2) his complaint properly stated a claim for malicious abuse of process, (3) Defendants are not immune to the suit under the First Amendment, and (4) CQE did not have standing to bring the recall because it was not a legally cognizable organization. Defendants contest those issues and argue that Cordova's appeal is not from a final judgment. We address each issue in turn.

A. The Anti–SLAPP Statute Does Not Apply

{8} Cordova argues that his suit was improperly dismissed under the Anti–SLAPP statute. The Anti–SLAPP statute permits a defendant, who believes that he or she is being sued in retaliation for certain protected forms of public speech and participation, to file an expedited motion to dismiss. Section 38–2–9.1. We review the application of the Anti–SLAPP statute de novo. State v. Herrera, 2001–NMCA–007, ¶ 6, 130 N.M. 85, 18 P.3d 326 (stating that “statutory construction and interpretation are questions of law reviewed de novo”).

{9} The Anti–SLAPP statute is intended to save a defendant from incurring the expense and inconvenience of defending a lawsuit that seeks to chill a defendant exercising his or her constitutional rights. Frederick M. Rowe & Leo M. Romero, Resolving Land–Use Disputes By Intimidation: SLAPP Suits in New Mexico, 32 N.M. L.Rev. 217, 227 (2002). The statute states:

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[.]

Section 38–2–9.1(A). The purpose of the Legislature in adopting the statute is codified at NMSA 1978, Section 38–2–9.2 (2001), which states that its policy is to “protect the rights of its citizens to participate in quasi-judicial proceedings before local and state governmental tribunals” because “[b]aseless civil lawsuits ... have been filed against persons for exercising their right to petition and to participate in quasi-judicial proceedings.”

{10} “In interpreting statutes, we seek to give effect to the Legislature's intent, and in determining intent[,] we look to the language used and consider the statute's history and background.” Key v. Chrysler Motors Corp., 121 N.M. 764, 768–69, 918 P.2d 350, 354–55 (1996). When the language of a statute is clear and unambiguous, we will give effect to the statute's language and refrain from further interpretation. Sims v. Sims, 1996–NMSC–078, ¶ 17, 122 N.M. 618, 930 P.2d 153.

{11} The Anti–SLAPP statute protects citizen participation in a “public meeting in a quasi-judicial proceeding.” Section 38–2–9.1(A). The statute defines “public meeting in a quasi-judicial proceeding” as “any meeting established and held by a state or local governmental entity, including without limitations, meetings or presentations before state, city, town[,] or village councils, planning commissions, review boards[,] or commissions.” Section 38–2–9.1(D). We must therefore determine if a recall petition and resulting statutory sufficiency hearing before a district court constitute such participation.

{12} To begin the recall process, a petitioner collects signatures under the procedures of Section 22–7–6. Pursuant to Article XII, Section 14 of the New Mexico Constitution, a petition for a recall election must cite grounds of malfeasance, misfeasance, or violation of the oath of office. The petition citing the specific charges in support of the recall, which charges “shall constitute misfeasance in office, malfeasance in office[,] or violation of oath of office[,]” is submitted to the county clerk. Section 22–7–8(C), (D). The clerk requests a hearing before the district court to evaluate whether the petition alleges sufficient cause to proceed with the recall. Sections 22–7–9(A)(2), –9.1(A), (B). At the sufficiency hearing, the court is charged with reviewing the signatures on the petition along with “affidavits submitted by the petitioner setting forth specific facts in support of the charges.” Section 22–7–9.1(C); Doña Ana Cnty. Clerk v. Martinez, 2005–NMSC–037, ¶ 11, 138 N.M. 575, 124 P.3d 210 (per curiam); see CAPS v. Bd. Members, 113 N.M. 729, 730, 832 P.2d 790, 791 (1992) (describing how petitions are evaluated...