The Volokh Conspiracy
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School board member sues citizens who tried to recall him but botched the process—loses (years later), has to pay defendants' attorney fees
Taos, N. Mex., school board member Arsenio Cordova sued several citizens who were trying to get him recalled. The citizens botched the recall process, so no election took place; Cordova claimed that their actions constituted "malicious abuse of process," partly because they were "politically motivated[,] and intended to curry favor with the School Administrators" and were "done to publicize rumor, innuendo and gossip, with the intent of harassing, embarrassing and humiliating" him.
No dice, the New Mexico Supreme Court said yesterday in Cordova v. Cline; Cordova has no case, and the people he was suing "are statutorily entitled to an award of attorney fees." Here's a key paragraph:
[P]ersons who choose to serve on school boards assume public roles with the understanding that citizens have a state constitutional right to petition the government to recall them from office. The facts alleged in Cordova's complaint regarding the recall activities undertaken in this case demonstrate the lawful exercise of this right and reveal, at most, a difference in opinion as to how the Taos school district should be managed….
From the face of Cordova's complaint, we cannot decipher precisely how Petitioners' motivations, even if political, make them improper. Nor can we identify an illegitimate motive on the part of Petitioners…. By its nature, the subjective motivation of the recall process may indeed be political, but that does not render it improper.
For those who want to see more, including about the procedural question related to New Mexico's anti-SLAPP statute:
[Facts:] Jill Cline, a parent with children enrolled in the Taos Municipal School District, organized Citizens for Quality Education (CQE) and registered it as an unincorporated citizens' association with the Taos County Clerk. Members of CQE included Cline, Taos Municipal School Board Member Thomas Tafoya, and various other current and former school administrators. CQE alleged that Cordova had committed acts of misfeasance and malfeasance while in office. CQE initiated a petition to recall Cordova from the Taos school board pursuant to the Recall Act.
After collecting the requisite signatures, CQE submitted its petition to the Taos County Clerk as required under the Recall Act. The Taos County Clerk filed an application with the district court on May 28, 2009, requesting "a hearing [for a] determination by the court of whether sufficient facts exist[ed] to allow the petitioner to continue with the recall process" as required by the Recall Act. Under the Recall Act, such hearing must "be held not more than ten days from the date the application is filed by the county clerk." The hearing was continued twice and was not held until September 16, 2009.
At the start of the hearing, CQE voluntarily dismissed its recall petition. Given CQE's voluntary dismissal of the recall petition, the district court did not determine whether there was adequate support for the recall process to proceed.
Two days later, on September 18, 2009, Cordova filed a complaint against eight named members of CQE as well as ten unnamed members in their individual capacities. Cordova contended that Petitioners' recall efforts were in furtherance of a personal vendetta as opposed to legitimate claims of malfeasance or misfeasance in office. He alleged that Petitioners initiated the recall without demonstrating probable cause of his misfeasance or malfeasance in office and that the voluntary dismissal of their petition precluded any finding of whether it was adequately supported. He argued that Petitioners' affidavits were incompetent and backdated. Further, Cordova's complaint stated that the incompetent affidavits, coupled with the two continuances and voluntary dismissal of the petition, constituted malicious abuse of process….
[Procedural protections:] Petitioners argue that Cordova sued them in retaliation for their attempt to recall him from office. Petitioners allege that Cordova's lawsuit is a strategic lawsuit against public participation, commonly referred to as a "SLAPP suit." SLAPP suits "are filed solely for delay [,] distraction … and to [impose] litigation costs" on activists exercising their constitutional right to petition as guaranteed by the First Amendment…. To curtail SLAPP suits, New Mexico enacted an Anti-SLAPP statute[, which] … created expedited procedures for dismissing actions "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," and allowing for the recovery of costs and attorney fees incurred in pursuing the dismissal.
The Legislature defined "public meeting in a quasi-judicial proceeding" to include "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." The Legislature specifically included protection of "the rights of its citizens to participate in quasi-judicial proceedings before local and state governmental tribunals" in the Anti-SLAPP statute. By protecting quasi-judicial proceedings, the Legislature did not intend for public hearings to be unprotected.
We conclude that the Legislature intended to protect all public participation, whether it be in quasi-judicial proceedings or public hearings. The specific protection in the Anti-SLAPP statute for participation in public hearings before tribunals also comports with a national political ethos, that "encourage[s], promote[s], and purport[s] to protect citizens' testifying, debating, complaining, campaigning, lobbying, litigating, appealing, demonstrating, and otherwise 'invoking the law' on public issues." …
At issue is whether Petitioners' actions preceding their voluntary dismissal of the recall petition at the sufficiency hearing were "in connection with a public hearing … before a tribunal …." The Recall Act sets forth standards and procedures for petitioning to recall a local school board member, including the form of the petitions, canvassers' affidavits, petitioners' responsibilities for alleging acts of malfeasance or misfeasance, and for filing with the county clerk, and responsibilities of the county clerk. In the context of a recall petition, the only "public hearing" is [the] sufficiency hearing before a district judge and potentially an appellate court. The public hearing is limited to a judges' "review of the completed face sheet together with affidavits submitted by the petitioner setting forth specific facts in support of the charges specified on the face sheet" and a "determination whether sufficient facts exist to allow petitioners to continue with the recall process."
The Recall Act's requirement of a public hearing before a tribunal is sufficient to bring Petitioners' activity under the protections of the Anti-SLAPP statute. We are also persuaded that the phrase "in connection with" … reveals the Legislature's intent to protect all activities related to the public hearing before a tribunal-in this case the collection of petitions, filing with the county clerk, the county clerk's responsibilities, etc…. For these reasons, we hold that the Legislature intended the Anti-SLAPP statute to protect individuals, like Petitioners, from lawsuits intended to chill their participation in recall proceedings.
[Substantive protections:] While the Anti-SLAPP statute provides the procedural protections Petitioners require, the Noerr-Pennington doctrine is the mechanism that offers Petitioners the substantive First Amendment protections they seek. The Noerr-Pennington doctrine is a body of federal law that provides First Amendment protections for citizens who petition the government. Under the Noerr-Pennington doctrine, those who engage in conduct aimed at influencing the government, including litigation, are shielded from retaliation provided their conduct is not a sham…. [W]e consider the recall activities at issue to fall within the rubric of the Noerr-Pennington doctrine….
The Noerr-Pennington doctrine protections are not absolute. To be entitled to First Amendment protection under the Noerr-Pennington doctrine, the activity must be genuine and not a mere sham. Id. Sham petitions lacking a genuine, legitimate purpose of procuring favorable governmental action are not protected by the First Amendment…. To constitute a sham, the petitioning activities must meet a two-part test. First, the petitioning activities "must be objectively baseless in the sense that no reasonable litigant could realistically expect success on the merits." Only upon a finding that the challenged activities are objectively baseless may the fact-finder proceed to the second element of the test-whether the subjective motivation underlying the challenged conduct was improper….
In furtherance of the policy upon which the Anti-SLAPP statute is based, we adopt a heightened standard of pleading for claims seeking damages for conduct protected by the First Amendment. This higher standard of pleading requires more than conclusory allegations in the complaint. In the instant case, Cordova must plead his claims with sufficient factual and legal specificity to establish that the recall activities were a sham to overcome both the Noerr-Pennington doctrine and the affirmative defense under the Anti-SLAPP statute….
Cordova states that the claims against him made by Cline and Tafoya were therefore illegitimate, "politically motivated[,] and intended to curry favor with the School Administrators." He alleges that the filing of the affidavits "was done to publicize rumor, innuendo and gossip, with the intent of harassing, embarrassing and humiliating" him. Finally, Cordova makes a blanket assertion that he was "damaged" without specifying what damages he actually incurred. We now consider whether these allegations satisfy the objective and subjective elements of the sham exception.
Taking Cordova's allegations as true, … the affidavits in support of the recall petition failed to meet the statutory requirements of the Recall Act because they were untimely, backdated, and contained attestations of events occurring after the affidavits were signed and after the recall petition was filed with the district court. Because it was impossible for the affiants to appear in person before the notary public at a single time and place and vouch for the truthfulness or accuracy of the affidavits—which referred to events occurring after their affidavits were signed—no reasonable litigant could realistically expect success on the merits. Therefore, the recall petition was objectively baseless.
However, … Cordova must also adequately allege in his complaint that the primary purpose of Petitioners' efforts to recall him from serving on the school board was improper…. In New Mexico, persons who choose to serve on school boards assume public roles with the understanding that citizens have a state constitutional right to petition the government to recall them from office. The facts alleged in Cordova's complaint regarding the recall activities undertaken in this case demonstrate the lawful exercise of this right and reveal, at most, a difference in opinion as to how the Taos school district should be managed. The conclusory allegations in Cordova's complaint are based on Petitioners' disagreement with his conduct and actions as a school board member.
From the face of Cordova's complaint, we cannot decipher precisely how Petitioners' motivations, even if political, make them improper. Nor can we identify an illegitimate motive on the part of Petitioners…. By its nature, the subjective motivation of the recall process may indeed be political, but that does not render it improper. Without more, [Cordova's] complaint lacks the necessary specificity to show that Petitioners' subjective motivation was improper and therefore a sham….