NMPRC v. the New Mexican, Inc.

The slip opinion is the first version of an opinion released by the Chief Clerk of the
Supreme Court. Once an opinion is selected for publication by the Court, it is
assigned a vendor-neutral citation by the Chief Clerk for compliance with Rule 23-
112 NMRA, authenticated and formally published. The slip opinion may contain
deviations from the formal authenticated opinion.

1 IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

2 Opinion Number:

3 Filing Date: August 29, 2024

4 No. S-1-SC-39602

5 NEW MEXICO PUBLIC REGULATION
6 COMMISSION, PUBLIC SERVICE
7 COMPANY OF NEW MEXICO,
8 WESTMORELAND COAL COMPANY,

9 Plaintiffs-Respondents,

10 and

11 BHP BILLITON NEW MEXICO
12 COAL, INC.,

13 Plaintiff,

14 v.

15 THE NEW MEXICAN, INC.,

16 Defendant-Petitioner.

17 ORIGINAL PROCEEDING ON CERTIORARI
18 Francis J. Mathew, District Judge

19 Peifer, Hanson, Mullins & Baker, P.A.
20 Charles R. Peifer
21 Gregory P. Williams
22 Albuquerque, NM
1 for Petitioner

2 Miller Stratvert P.A.
3 Dylan O’Reilly
4 Luke A. Salganek
5 Santa Fe, NM
6 Richard L. Alvidrez
7 Albuquerque, NM

8 for Respondents Public Service Company of New Mexico
1 OPINION

2 VARGAS, Justice.

3 I. INTRODUCTION

4 {1} The First Amendment to the United States Constitution safeguards the right

5 of the people to “petition the Government for a redress of grievances.” We here

6 address a question broadly implicating the petition clause as applied in Cordova v.

7 Cline, 2017-NMSC-020, 396 P.3d 159.

8 {2} This is an appeal from a final judgment dismissing counterclaims asserted by

9 The New Mexican, Inc. (The New Mexican), publisher of the Santa Fe New

10 Mexican, against the Public Service Company of New Mexico (PNM) for malicious

11 abuse of process and other related theories. The New Mexican claimed that PNM

12 filed a frivolous lawsuit seeking to restrain publication of certain documents released

13 by the New Mexico Public Regulation Commission (the PRC) in response to a public

14 records request. The district court concluded that The New Mexican was required to

15 meet the heightened pleading standard imposed by Cordova, 2017-NMSC-020, ¶ 30,

16 on claims challenging conduct protected by the First Amendment right to petition.

17 Further concluding that The New Mexican failed to meet Cordova’s heightened

18 pleading standard, the district court granted PNM’s motion for judgment on the

19 pleadings and dismissed The New Mexican’s counterclaims.
1 {3} Cordova’s heightened pleading standard is premised on the Noerr-Pennington

2 doctrine, a body of federal law developed from the United States Supreme Court

3 opinions in Eastern R.R. Presidents Conf. v. Noerr Motor Freight, Inc., 365 U.S.

4 127 (1961); United Mine Workers of Am. v. Pennington, 381 U.S. 657 (1965); and

5 Cal. Motor Transp. Co. v. Trucking Unlimited, 404 U.S. 508 (1972). See Cordova,

6 2017-NMSC-020, ¶¶ 24-25, 29-30. Under Noerr-Pennington, conduct protected by

7 the right to petition is immune from liability under federal antitrust laws unless the

8 conduct is a mere sham because it is “not genuinely aimed at procuring favorable

9 government action.” City of Columbia v. Omni Outdoor Advert. Inc., 499 U.S. 365,

10 380 (1991) (internal quotation marks and citation omitted). In Cordova, we

11 concluded that the principles discussed in Noerr-Pennington have equal force

12 outside the antitrust context, applying more broadly to shield “those who engage in

13 conduct aimed at influencing the government, including litigation . . . from

14 retaliation provided their conduct is not a sham.” Cordova, 2017-NMSC-020, ¶ 24;

15 id. ¶ 26 (explaining that “federal and state courts have concluded that the Noerr-

16 Pennington doctrine is rooted in the First Amendment right to petition and therefore

17 must be applied to all claims implicating that right, not just to antitrust claims”)

18 (citation omitted). We therefore held that a plaintiff who sues a defendant for

19 conduct protected under Noerr-Pennington must allege specific facts showing that

2
1 the protected conduct was a sham by being both objectively baseless and pursued

2 with an improper motivation. Id. ¶¶ 28-30.

3 {4} We now address a threshold question related to our opinion in Cordova: Did

4 PNM’s filing of a motion to intervene and related injunctive relief against The New

5 Mexican qualify as conduct protected under Noerr-Pennington such that The New

6 Mexican was required to meet Cordova’s heightened pleading standard? We

7 conclude that PNM’s conduct does not qualify for Noerr-Pennington protections.

8 Consequently, The New Mexican was not required to meet Cordova’s heightened

9 pleading standard, and the district court erred by dismissing The New Mexican’s

10 counterclaims against PNM.

11 {5} As we clarify herein, Cordova’s heightened pleading standard applies to

12 claims challenging conduct aimed at influencing governmental decisionmaking or

13 action. Cordova, 2017-NMSC-020, ¶ 24; see also Octane Fitness, LLC v. ICON

14 Health & Fitness, Inc., 572 U.S. 545, 555-56 (2014) (“Under the Noerr-Pennington

15 doctrine . . . defendants are immune from antitrust liability for engaging in conduct

16 (including litigation) aimed at influencing decisionmaking by the government.”

17 (citations omitted)). PNM’s litigation activities sought only to resolve a private

18 dispute with The New Mexican and did not seek to influence the government.

19 PNM’s conduct therefore falls outside of “the rubric of the Noerr-Pennington

3
1 doctrine.” Cordova, 2017-NMSC-020, ¶ 26. Because the district court erred by

2 dismissing The New Mexican’s counterclaims under Cordova, we reverse and

3 remand to the district court with instructions to vacate both the order of dismissal

4 and the final judgment granted in favor of PNM.

5 II. BACKGROUND

6 {6} As background to our analysis, we are confronted with a web of procedural

7 history taking place over nine years of litigation. At the hub of this web lie two

8 pleadings—a motion to intervene including an attached proposed complaint-in-

9 intervention and an application for a preliminary injunction—filed by PNM against

10 The New Mexican in a lawsuit originally initiated by the PRC. See Motion of Public

11 Service Company of New Mexico to Intervene as a Party Plaintiff, NMPRC v. The

12 New Mexican, Inc., D-101-CV-2015-01823 (1st Jud. Dist. Ct. Aug. 7, 2015); PNM’s

13 Application for Preliminary Injunction, NMPRC v. The New Mexican, Inc., D-101-

14 CV-2015-01823 (1st Jud. Dist. Ct. Aug. 12, 2015). PNM’s filing of these pleadings

15 is the conduct at the core of this appeal.

16 {7} PNM is a public utility regulated by the PRC. In 2015, PNM was participating

17 in administrative proceedings regarding the partial decommissioning of the San Juan

18 Generating Station, a coal-fired power-generating facility in San Juan County, New

19 Mexico. At one point in the administrative proceedings, a hearing examiner issued

4
1 a protective order outlining procedures for marking documents that the parties

2 deemed to be confidential. PNM subsequently submitted documents to the PRC

3 under the protective order. PNM contends that some of these documents contained

4 trade secrets.

5 {8} A reporter from The Santa Fe New Mexican newspaper sought documents

6 related to the administrative proceedings and submitted a public records request to

7 the PRC under the Inspection of Public Records Act (IPRA), NMSA 1978, § 14-2-

8 1 to -12 (1947, as amended through 2023). In response to this records request, a clerk

9 at the PRC gave the reporter two discs containing documents that the PRC claims

10 were not subject to release under IPRA. After the PRC unsuccessfully sought to

11 negotiate the return of the discs, the PRC filed a lawsuit, seeking a temporary

12 restraining order, a preliminary injunction, and a permanent injunction prohibiting

13 The New Mexican from publishing the documents.1

14 {9} The day after the PRC filed suit, the district court held a telephonic hearing

15 on the PRC’s request for a temporary restraining order. After the hearing and on

16 review of preliminary arguments, the district court denied a temporary restraining

1
The PRC has since settled its claims against The New Mexican but remains
a party in the case due to concerns by The New Mexican “about preservation [of] its
claims against PNM.”

5
1 order without prejudice. The district court explained that “any person seeking to

2 obtain a court order imposing a prior restraint on the press has a very heavy burden

3 under the constitutions of the United States and of New Mexico.” The district court

4 nevertheless delayed final decision on the restraining order pending an additional

5 hearing to be held approximately one week later, noting that additional parties had

6 expressed a desire to intervene in the suit.

7 {10} Shortly after this hearing, PNM filed a motion to intervene in the PRC’s suit

8 as a party-plaintiff and attached a proposed complaint-in-intervention as an exhibit

9 to its motion. In this proposed complaint, PNM requested injunctive relief against

10 The New Mexican, similar to the relief requested by the PRC, as well as attorneys’

11 fees and costs for violations of the Uniform Trade Secrets Act, NMSA 1978, §§ 57-

12 3A-1 to -7 (1989). In their motion, PNM argued that it should be permitted to

13 intervene because it had a proprietary interest in the disclosed documents that the

14 PRC could not adequately represent. PNM also filed an application for preliminary

15 injunction against The New Mexican seeking to enjoin disclosure of its claimed trade

6
1 secrets. Two other companies also moved to intervene in the suit, but, for various

2 reasons, these intervenors are no longer parties to this appeal. 2

3 {11} Several important developments occurred prior to the district court’s

4 additional hearing on the application for a temporary restraining order. The morning

5 of the hearing, The Santa Fe New Mexican published some of the subject documents

6 on its website. The New Mexican also filed an answer and a counterclaim against

7 PNM, the PRC, and the two other intervenors. The New Mexican’s counterclaim

8 asserted a claim for malicious abuse of process and several related counterclaims

9 challenging PNM’s, the PRC’s, and the other intervenors’ efforts to enjoin

10 publication of the documents. The New Mexican alleged that, by applying for a

11 restraining order and injunction, PNM, the PRC, and the other intervenors had

12 “asked the court to impose a blatantly unconstitutional prior restraint on the press”

13 that violated “clearly established statutory or constitutional rights which a reasonable

14 person would have known,” and had “no valid legal or factual basis for the relief

15 which they seek against The New Mexican.”

Westmoreland Coal Company filed a notice of discharge in bankruptcy of
2

claims during the pendency of the district court proceedings. BHP Billiton New
Mexico Coal, Inc. was dismissed from this appeal after settling with The New
Mexican.

7
1 {12} Around the same time that The New Mexican filed its counterclaims, PNM,

2 the PRC, and the other intervenors moved to withdraw from the suit. The district

3 court, however, had nearly simultaneously granted all pending motions to intervene.

4 The motions to withdraw filed by PNM, the PRC, and the other intervenors’ became

5 the focus of the district court’s hearing. For reasons not relevant to the question

6 presented, the district court would later deny these parties’ motions to withdraw. The

7 district court also explained that its previous order denying a temporary restraining

8 order remained in effect.

9 {13} Some time later, PNM joined another intervenor’s motion for judgment on the

10 pleadings seeking to dismiss The New Mexican’s counterclaims. The motion

11 asserted that The New Mexican’s counterclaims arose solely from the intervenor’s

12 joining in the PRC’s lawsuit against The New Mexican. The motion argued that this

13 conduct was protected under the Noerr-Pennington doctrine and therefore The New

14 Mexican was required to meet Cordova’s heightened pleading standard. The motion

15 further contended that The New Mexican could not meet Cordova’s heightened

16 pleading standard because the district court had granted the intervenor’s motion to

17 intervene in the suit, and thus intervention could not be a sham as a matter of law.

18 See Cordova, 2017-NMSC-020, ¶ 24 (“[T]hose who engage in conduct aimed at

8
1 influencing the government, including litigation, are shielded from retaliation

2 provided their conduct is not a sham.”) (emphasis added).

3 {14} The district court held a hearing on the motion for judgment on the pleadings.

4 At that hearing, the district court judge expressed concerns about the scope of

5 Cordova and Noerr-Pennington as applied to The New Mexican’s counterclaims.

6 For example, the district court judge asked whether applying Cordova’s heightened

7 pleading standard to all claims premised on a defendant’s malicious abuse of process

8 might be contrary to DeVaney v. Thriftway Mktg. Corp. 1998-NMSC-001,

9 124 N.M. 512, 953 P.2d 277, overruled in part on other grounds by Durham v.

10 Guest, 2009-NMSC-007, ¶ 36, 145 N.M. 694, 204 P.3d 19, abrogated in part by

11 Fleetwood Retail Corp.of N.M. v. LeDoux, 2007-NMSC-047, 142 N.M. 150, 164

12 P.3d 31. In DeVaney, this Court articulated the tort of malicious abuse of process

13 and acknowledged the Noerr-Pennington doctrine but did not apply the doctrine to

14 the elements of the tort. 1998-NMSC-001, ¶ 19 n.1. The district court requested

15 briefing addressing the scope of Cordova and took the motion under advisement.

16 {15} Several years later, after a change in the presiding district court judge, PNM

17 reasserted the motion for judgment on the pleadings that it had previously joined and

18 filed a similar motion on its own behalf. After an additional hearing, the district court

19 granted PNM’s motion and entered final judgment dismissing all of The New

9
1 Mexican’s counterclaims. The district court did not address the concerns expressed

2 by the prior presiding judge regarding the scope of Cordova and Noerr-Pennington.

3 Instead, the district court concluded that “by allowing intervention,” the prior judge

4 “was required to find that the right or interest [PNM] sought to protect could not

5 otherwise be protected except by intervention.” The district court therefore agreed

6 that the court’s earlier order allowing intervention “necessarily found that PNM . . .

7 had a legitimate interest to protect implicating the Noerr-Pennington doctrine.”

8 {16} The New Mexican appealed the final judgment to the Court of Appeals.

9 Among other arguments made at the Court of Appeals, The New Mexican argued

10 that the district court had misread Cordova and that Noerr-Pennington did not

11 abrogate the tort of malicious abuse of process as recognized by DeVaney. However,

12 the Court of Appeals did not address this argument. Although the Court of Appeals

13 acknowledged “doubts that the Noerr-Pennington doctrine and the heightened

14 pleading standard of Cordova are applicable when, as in this case, both parties in

15 question are private entities, and neither are government entities or officials,” that

16 court “decline[d] to address” these doubts. N.M. Pub. Regul. Comm’n v. The New

17 Mexican, Inc., A-1-CA-38898, dec. ¶ 5 (N.M. Ct. App. Sep. 7, 2022). Instead, the

18 Court of Appeals resolved to “assume without deciding that the doctrine and the

19 heightened pleading standard apply under such circumstances.” Id. The Court of

10
1 Appeals concluded The New Mexican had “presented no argument as to the

2 objective element” of the sham exception to Noerr-Pennington and thus had failed

3 to demonstrate error. Id. ¶ 6. The Court of Appeals therefore affirmed the district

4 court’s dismissal of The New Mexican’s counterclaims. Id. We granted The New

5 Mexican’s petition for writ of certiorari and now reverse the district court and the

6 Court of Appeals.

7 III. STANDARD OF REVIEW

8 {17} This Court reviews the district court’s grant of a Rule 1-012(C) NMRA

9 motion for judgment on the pleadings de novo. Glaser v. LeBus, 2012-NMSC-012,

10 ¶ 8, 276 P.3d 959 (“We review de novo the district court’s grant of [a] motion to

11 dismiss and for judgment on the pleadings.”). When the district court’s decision is

12 based solely upon the matters contained within the pleadings, we treat a motion for

13 judgment on the pleadings like a Rule 1-012(B)(6) NMRA motion to dismiss for

14 failure to state a claim. Glaser, 2012-NMSC-012, ¶ 8; accord Vill. of Angel Fire v.

15 Bd. of Cnty. Comm’rs of Colfax Cnty., 2010-NMCA-038, ¶ 5, 148 N.M. 804,

16 242 P.3d 371 (“We review judgments on the pleadings made pursuant to Rule 1-

17 012(C) . . . according to the same standard as motions for failure to state a claim

18 under Rule 1-012(B)(6).”). “A motion to dismiss . . . tests the legal sufficiency of

19 the complaint, not the factual allegations of the pleadings which, for purposes of

11
1 ruling on the motion, the court must accept as true.” Herrera v. Quality Pontiac,

2 2003-NMSC-018, ¶ 2, 134 N.M. 43, 73 P.3d 181 (internal quotation marks and

3 citation omitted). When reviewing an order dismissing for failure to state a claim,

4 we will “resolve all doubts in favor of sufficiency of the complaint.” Delfino v.

5 Griffo, 2011-NMSC-015, ¶ 9, 150 N.M. 97, 257 P.3d 917 (internal quotation marks

6 and citation omitted). We will affirm an order dismissing for failure to state a claim

7 “only when it appears that the plaintiff is not entitled to recover under any facts

8 provable under the” claim. Glaser, 2012-NMSC-012, ¶ 8 (internal quotation marks

9 and citation omitted).

10 IV. DISCUSSION

11 {18} In view of the district court’s and the Court of Appeals’ disposition of this

12 matter, the parties primarily focused their briefing on the sufficiency of The New

13 Mexican’s allegations of sham conduct under Cordova’s heightened pleading

14 standard. However, on review of the briefs and record proper, we questioned

15 whether PNM’s conduct implicated Noerr-Pennington and, accordingly, whether

16 Cordova’s heightened pleading standard applied to The New Mexican’s

17 counterclaims. Unlike the district court and the Court of Appeals, we are discontent

18 with merely assuming that Cordova’s standard applies. We therefore instructed the

19 parties to direct their oral arguments towards addressing the scope of Noerr-

12
1 Pennington and Cordova as applied to the facts of this appeal. Having considered

2 those arguments, and on further review, we conclude that PNM’s conduct does not

3 qualify as conduct protected under Noerr-Pennington. Thus, Cordova’s heightened

4 pleading standard does not apply to The New Mexican’s counterclaims. We

5 therefore do not consider whether The New Mexican sufficiently alleged that PNM’s

6 conduct met Cordova’s and Noerr-Pennington’s sham exception.

7 A. Cordova and the Noerr-Pennington Doctrine

8 {19} We situate our discussion by summarizing Cordova and the federal body of

9 law on which that opinion relies. Cordova addressed a lawsuit brought by a Taos

10 County school board member against a group of citizens that had filed a petition

11 seeking to recall the school board member for alleged acts of misfeasance and

12 malfeasance in office. Cordova, 2017-NMSC-020, ¶ 3. At the start of the sufficiency

13 hearing, the citizens dismissed the recall effort, preventing the district court from

14 determining whether there was adequate support for the recall process to proceed.

15 Id. ¶¶ 4-5. The school board member subsequently filed a complaint against the

16 citizens, asserting claims for malicious abuse of process, civil conspiracy, and prima

17 facie tort on the grounds that the “recall efforts were in furtherance of a personal

18 vendetta as opposed to legitimate claims of malfeasance or misfeasance in office.”

19 Id. ¶¶ 4, 6.

13
1 {20} The citizens contended that the school board member’s complaint amounted

2 to a Strategic Litigation Against Public Participation (SLAPP) lawsuit and filed a

3 special motion to dismiss the complaint under New Mexico’s Anti-SLAPP statute,

4 NMSA 1978, §§ 38-2-9.1 to -9.2 (2001). See Cordova, 2017-NMSC-020, ¶ 7.

5 “SLAPP suits are filed solely for delay, distraction, and to impose litigation costs on

6 activists exercising their constitutional right to petition as guaranteed by the First

7 Amendment.” Id. ¶ 18 (brackets, ellipses, internal quotation marks, and citation

8 omitted). The Anti-SLAPP statute provides expedited procedures for resolving

9 lawsuits through a special motion to dismiss actions “seeking money damages

10 against a person for conduct or speech undertaken or made in connection with a

11 public hearing or public meeting in a quasi-judicial proceeding before a tribunal or

12 decision-making body of any political subdivision of the state.” Section 38-2-9.1(A).

13 {21} The district court in Cordova found that the citizens’ activities in relation to

14 the recall petition were protected under the First Amendment and the Anti-SLAPP

15 statute and thus granted the citizens’ special motion to dismiss. 2017-NMSC-020,

16 ¶ 8. The district court’s decision was reversed by the Court of Appeals, which

17 determined that the sufficiency hearing on the recall petition was not a “public

18 hearing or public meeting in a quasi-judicial proceeding” protected by the Anti-

19 SLAPP statute. Id. ¶ 19; see also Cordova v. Cline, 2013-NMCA-083, ¶ 14,

14
1 308 P.3d 975, rev’d, 2017-NMSC-020, ¶ 42. On review, we concluded that the Court

2 of Appeals misconstrued the Anti-SLAPP statute and thus affirmed the district

3 court’s dismissal of the school board member’s complaint. Cordova, 2017-NMSC-

4 020, ¶¶ 2, 42. More specifically, Cordova held the Court of Appeals erred by

5 narrowly construing the Anti-SLAPP statute to exclude the citizens’ efforts to recall

6 the school board member. Id. ¶¶ 18-23. We explained that the Court of Appeals’

7 narrow construction of the term “public meeting” was contrary to the Anti-SLAPP

8 statute’s purposes “of protecting [] citizens from lawsuits in retaliation for exercising

9 their right to petition and to participate in quasi-judicial proceedings.” Id. ¶¶ 19, 22.

10 The Legislature rather “intended to protect all public participation, whether it be in

11 quasi-judicial proceedings or public hearings.” Id. ¶ 19. Thus, the school board

12 member’s complaint against the citizens was properly subject to the Anti-SLAPP

13 statute’s special motion to dismiss. Id. ¶ 23.

14 {22} After concluding that the citizens were entitled to the procedural protections

15 of the Anti-SLAPP statute, Cordova next considered whether the citizens’ conduct

16 was entitled to substantive protections under Noerr-Pennington. Id. ¶¶ 23-24. The

17 Noerr-Pennington doctrine first took shape in the antitrust context as a rule of

18 statutory construction used to reconcile the federal Sherman Act with the First

19 Amendment right to petition. Noerr, 365 U.S. at 139-40; Pennington, 381 U.S. at

15
1 669-72. In its essential form, the doctrine recognizes “[t]he federal antitrust laws

2 also do not regulate the conduct of private individuals in seeking anticompetitive

3 action from the government.” Omni Outdoor, 499 U.S. at 379-80. However,

4 “[s]ubsequent decisions give weight to the First Amendment right to petition, thus

5 imputing a First Amendment analysis to the doctrine.” Cordova, 2017-NMSC-020,

6 ¶ 25.

7 {23} In Noerr, an association of truck operators sued several railroad companies

8 alleging an attempt to monopolize the long-distance freight business in violation of

9 the Sherman Act. Noerr, 365 U.S. at 129-30. The truckers alleged that the railroads

10 had engaged in a publicity campaign directed at legislators and law enforcement

11 with the purpose of “destroy[ing] the truckers as competitors.” Id. at 133. The United

12 States Supreme Court held that the railroads’ conduct could not give rise to antitrust

13 liability because the Sherman Act “does not apply to mere group solicitation of

14 governmental action.” Id. at 139. The Noerr Court reasoned that construing the

15 Sherman Act to prohibit the railroads’ publicity campaign would “deprive the

16 government of a valuable source of information and, at the same time, deprive the

17 people of their right to petition in the very instances in which that right may be of

18 the most importance to them.” Id. The Noerr Court cautioned, however, that the

19 antitrust laws would apply if the “publicity campaign, ostensibly directed toward

16
1 influencing governmental action, is a mere sham to cover what is actually nothing

2 more than an attempt to interfere directly with the business relationships of a

3 competitor.” Id. at 144.

4 {24} A few years after Noerr, the United States Supreme Court extended antitrust

5 immunity to a union and other companies’ efforts to lobby executive branch

6 officials. Pennington, 381 U.S. at 660-61. The Pennington Court held that the

7 lobbying could not give rise to antitrust liability because “Noerr shields from the

8 Sherman Act a concerted effort to influence public officials regardless of intent or

9 purpose.” Id. at 669-70.

10 {25} Later, in Cal. Motor, the United States Supreme Court extended Noerr-

11 Pennington antitrust immunity to the judicial branch, explaining that “the right to

12 petition extends to all departments of the Government.” 404 U.S. at 510. Cal. Motor

13 involved a dispute between two motor carriers regarding the defendant-carrier’s use

14 of “rehearings” and “reviews or appeals from agency or court decisions” to defeat

15 the plaintiff-carrier’s applications to acquire operating rights. Id. at 509. The Cal.

16 Motor Court acknowledged, “The right of access to the courts is indeed but one

17 aspect of the right of petition.” Id. at 510. Nevertheless, the Court explained that

18 misrepresentations tolerated in politics do not gain immunity when employed in

19 legal proceedings; a pattern of baseless claims can constitute abuse of the judicial

17
1 and administrative processes, resulting in unlawful outcomes that restrict access to

2 agencies and courts, regardless of claims of political expression. Id. at 513. Although

3 the Cal. Motor Court concluded that the defendant’s conduct—involving concerted

4 efforts to obstruct competitors’ access to adjudicatory tribunals through state and

5 federal proceedings—was shielded from general antitrust liability under Noerr-

6 Pennington immunity, it held that the plaintiff’s specific allegations of using these

7 processes in a deceptive manner satisfied the sham exception to this immunity. See

8 id. at 510-11, 515-16.

9 {26} Considering this historical context, our opinion in Cordova held that the

10 Noerr-Pennington doctrine is not limited to the antitrust context, but more broadly

11 shields “those who engage in conduct aimed at influencing the government,

12 including litigation . . . from retaliation provided their conduct is not a sham.”

13 Cordova, 2017-NMSC-020, ¶ 24. We therefore “consider[ed] the recall activities at

14 issue [in Cordova] to fall within the rubric of the Noerr-Pennington doctrine.”

15 Id. ¶ 26. Accordingly, the citizen’s recall activities were immune from suit unless

16 the school board member showed that the recall activities were a sham. Id. ¶ 27.

17 {27} As an additional protection arising from the Anti-SLAPP statute and Noerr-

18 Pennington, Cordova agreed with the Colorado Supreme Court in Protect Our

19 Mountain Env’t, Inc. v. Dist. Ct. In & For Cty. of Jefferson, 677 P.2d 1361, 1368-69

18
1 (Colo. 1984) (en banc), that the plaintiffs challenging conduct shielded by Noerr-

2 Pennington should meet a heightened pleading standard. Cordova, 2017-NMSC-

3 020, ¶¶ 29-30. We therefore held that a plaintiff challenging Noerr-Pennington

4 protected conduct must plead sufficient facts and law to show that the protected

5 conduct was both “objectively baseless in that it did not have sufficient factual or

6 legal support” and subjectively pursued with an improper motivation. Id. ¶¶ 28, 30;

7 see also Pro. Real Est. Invs., Inc. v. Columbia Pictures Indus., Inc., 508 U.S. 49, 60-

8 61 (1993) (defining “sham litigation” as “objectively baseless in the sense that no

9 reasonable litigant could realistically expect success on the merits” and subjectively

10 “an attempt to interfere directly with the business relationships of a competitor

11 through the use of the governmental process . . . as an anticompetitive weapon”

12 (emphasis, brackets, internal quotation marks, and citations omitted)). Concluding

13 that the school board member had failed to meet the subjective element of this two-

14 part standard, Cordova affirmed the dismissal of the school board member’s

15 complaint. 2017-NMSC-020, ¶¶ 41-42.

16 B. The Scope of the Noerr-Pennington Doctrine

17 {28} In the current appeal, the district court and the Court of Appeals assumed that

18 Cordova’s heightened pleading standard applied to The New Mexican’s

19 counterclaims against PNM. N.M. Pub. Regul. Comm’n, A-1-CA-38898, dec. ¶ 5.

19
1 PNM also appears to assume Cordova broadly extends the Noerr-Pennington

2 doctrine to shield defendants from all claims based on the defendant’s use of process,

3 like filing a motion to intervene or an application for injuctive relief. We disagree

4 with these assumptions. Cordova holds that conduct that would be protected under

5 Noerr-Pennington is also shielded from retaliatory state court litigation unless that

6 conduct is shown to be a sham; however, the recall activities at issue in Cordova

7 clearly fell within the scope of the Noerr-Pennington doctrine. Cordova, 2017-

8 NMSC-020, ¶ 26. Cordova did not consider what conduct qualifies for Noerr-

9 Pennington protections in the first instance. We therefore consider, as a threshold

10 matter, whether PNM’s conduct qualifies for immunity under Noerr-Pennington to

11 determine whether Cordova’s heightened pleading standard applies to The New

12 Mexican’s counterclaims.

13 {29} Unfortunately for purposes of our analysis, the United States Supreme Court

14 has not clearly settled the scope of the Noerr-Pennington doctrine. The primary

15 weight of authority, to which we adhere, suggests that Noerr-Pennington only

16 shields conduct aimed at influencing government decisionmaking or action. See

17 Noerr, 365 U.S. at 138 (“[W]e think it clear that the Sherman Act does not apply to

18 . . . mere solicitation of governmental action with respect to the passage and

19 enforcement of laws.”); Pennington, 381 U.S. at 670 (noting that Noerr applies to

20
1 “a concerted effort to influence public officials”); Cantor v. The Detroit Edison Co.,

2 428 U.S. 579, 601 (1976) (“The holding in Noerr was that the concerted activities

3 of the railroad defendants in opposing legislation favorable to the plaintiff motor

4 carriers was not prohibited by the Sherman Act.”); Allied Tube & Conduit Corp. v.

5 Indian Head, Inc., 486 U.S. 492, 499-500 (1988) (explaining that Noerr-Pennington

6 immunity depends “on the source, context, and nature of the anticompetitive

7 restraint at issue. . . . [T]he restraint cannot form the basis for antitrust liability if it

8 is ‘incidental’ to a valid effort to influence governmental action” (citations omitted));

9 Omni Outdoor, 499 U.S. at 379-80; Octane Fitness, 572 U.S. at 555-56 (“Under the

10 Noerr-Pennington doctrine . . . defendants are immune from antitrust liability for

11 engaging in conduct (including litigation) aimed at influencing decisionmaking by

12 the government.”). Under this view, the Noerr-Pennington doctrine only applies to

13 conduct that can be fairly characterized as public participation—conduct such as

14 political campaigning, lobbying, or litigation asking the government to recognize or

15 enforce public rights.

16 {30} We are mindful, however, that Cal. Motor more broadly recognizes, “[t]he

17 right of access to the courts is indeed but one aspect of the right of petition.” 404 U.S.

18 at 509. Later opinions from the United States Supreme Court similarly acknowledge

19 that the petition clause may support a more general right of court access. See Bill

21
1 Johnson’s Rests., Inc. v. NLRB., 461 U.S. 731, 737, 741-43 (1983) (explaining that

2 the First Amendment right to petition counsels against permitting the National Labor

3 Relations Board from enjoining a “well-founded” lawsuit brought by an employer

4 against its employees); BE & K Constr. Co. v. NLRB., 536 U.S. 516, 525 (2002)

5 (noting that Cal. Motor “made explicit that the right to petition extends to all

6 departments of the Government, and that the right of access to the courts is but one

7 aspect of the right of petition” (ellipsis, brackets, internal quotation marks, and

8 citation omitted)). Based partly on this line of authority, we have also stated that the

9 First Amendment provides a right of access to the courts. See, e.g., DeVaney, 1998-

10 NMSC-001, ¶ 19 (“Meaningful access to the courts is a right of fundamental

11 importance in our system of justice.”); Jiron v. Mahlab, 1983-NMSC-022, ¶ 7,

12 99 N.M. 425, 659 P.2d 311 (citing Cal. Motor for the proposition “[t]he right of

13 access to the courts is one aspect of the right to petition”); accord Bd. of Educ. of

14 Carlsbad Mun. Schs. v. Harrell, 1994-NMSC-096, ¶ 31, 118 N.M. 470, 882 P.2d

15 511 (“The right of access to the courts is one aspect of the right to petition the

16 government for redress of grievances, as guaranteed by the First Amendment to the

17 U.S. Constitution.”). In view of this wider right of court access, some commentators

18 have alternatively suggested that Noerr-Pennington may more broadly shield all

19 genuine litigation from a malicious abuse of process countersuit, even if that

22
1 litigation is not aimed at influencing governmental decisionmaking or action. See,

2 e.g., Timothy P. Getzoff, Dazed and Confused In Colorado: The Relationship

3 Among Malicious Prosecution, Abuse of Process, and the Noerr-Pennington

4 Doctrine, 67 U. Colo. L. Rev. 675, 688 (1996) (explaining that the scope of

5 petitioning is unclear under Noerr-Pennington, as the doctrine, “[i]n the broadest

6 sense . . . could cover all litigation, concerning both public and private disputes,” but

7 nevertheless arguing for a more limited application of the doctrine); Joseph B.

8 Maher, Survival of the Common Law Abuse of Process Tort in the Face of a Noerr-

9 Pennington Defense, 65 U. Chi. L. Rev. 627, 628-629 (1998) (“Today, the survival

10 of the longstanding abuse of process tort appears threatened by the Noerr-

11 Pennington doctrine.”). Under this alternative view of the Noerr-Pennington

12 doctrine, the doctrine broadly immunizes all defendants from claims based on the

13 defendant’s use of process unless the defendant’s conduct is a sham.

14 {31} Thus, the scope of the Noerr-Pennington doctrine remains unsettled:

15 According to the primary weight of authority, the doctrine only protects a limited

16 category of conduct seeking to influence governmental decisionmaking or action;

17 yet according to an alternative view, the doctrine more broadly protects all conduct

18 arguably characterized as petitioning, including the petitioning of a court to resolve

19 a purely private dispute.

23
1 {32} However, this alternative view finds little support in the jurisprudence

2 applying the Noerr-Pennington doctrine, as the United States Supreme Court has

3 only applied Noerr-Pennington to protect conduct seeking to influence

4 governmental decisionmaking or action. For example, in Noerr, the activity

5 protected by the First Amendment right to petition amounted to a publicity campaign

6 designed to influence legislation. 365 U.S. at 130-34. In Pennington, the protected

7 conduct included the lobbying of executive branch officials. 381 U.S. at 669-70. In

8 Cal. Motor, the protected conduct involved a motor carrier’s use of “the channels

9 and procedures of state and federal agencies and courts” to influence an agency’s

10 decision on a competitor’s operating rights applications. 404 U.S. at 509, 511. And

11 in Omni Outdoor, the protected conduct included a billboard company’s lobbying of

12 local zoning officials. 499 U.S. at 367-68. The protected conduct in each of these

13 cases was essentially political in nature, asking the government to either act,

14 withhold action, or decide public issues that affected the parties’ interests. None of

15 these matters involved a dispute between private parties over private rights in which

16 the government was only involved as an adjudicator.

17 {33} Similarly, the United States Supreme Court has deemed Noerr-Pennington to

18 be inapplicable in the context of purely commercial or private litigation. In Cantor,

19 428 U.S. at 581-82, 601-02, the United States Supreme Court did not apply Noerr-

24
1 Pennington to protect a utility company from an antitrust suit brought by a

2 pharmacist concerning the utility’s free distribution of light bulbs, which allegedly

3 harmed local light bulb retailers. Although the utility’s program had been reviewed

4 by a regulatory commission, the program itself did not “implement any statewide

5 policy relating to light bulbs.” Id. at 585. The Cantor Court distinguished Noerr,

6 holding that the commission’s approval of the utility’s program was not “a sufficient

7 reason for conferring antitrust immunity on the proposed conduct.” Id. at 602.

8 {34} In Allied Tube, the Supreme Court held that a steel conduit manufacturer’s

9 manipulation of a private industry standards-setting association was not immune

10 from antitrust liability under the Noerr-Pennington doctrine. 486 U.S. at 496-97,

11 501-02. The manufacturer in Allied Tube had infiltrated an industry association’s

12 annual meeting with individuals who had been recruited to vote against a

13 competitor’s proposal. Id. In examining whether Noerr-Pennington shielded the

14 manufacturer’s conduct, the Allied Tube Court explained that the scope of Noerr-

15 Pennington protection depended “on the source, context, and nature of the

16 anticompetitive restraint at issue . . . where, independent of any government action,

17 the anticompetitive restraint results directly from private action, the restraint cannot

18 form the basis for antitrust liability if it is ‘incidental’ to a valid effort to influence

19 governmental action.” Id. at 499 (citations omitted). Although the industry

25
1 association’s standards were widely adopted by state and local governments in

2 building codes, the industry association could not “be treated as a ‘quasi-legislative’

3 body,” and “no official authority ha[d] been conferred on it by any government.” Id.

4 at 501. Thus, the manufacturer’s conduct was not directly aimed at influencing

5 government officials.

6 {35} The Allied Tube Court nevertheless recognized that the industry association’s

7 standards indirectly influenced state and local governments who would adopt the

8 association’s standards. Yet the Allied Tube Court still distinguished the

9 manufacturer’s conduct from the protected conduct in Noerr. Id. at 506-07. The

10 Allied Tube Court explained that the lobbying activities in Noerr were immunized

11 from antitrust liability because of their “political context and nature.” Id. at 506. In

12 contrast, the Allied Tube manufacturer’s attempts to influence the industry

13 association were “more aptly [] characterized as commercial activity with a political

14 impact.” Id. at 507. “Just as the antitrust laws should not regulate political activities

15 simply because those activities have a commercial impact, so the antitrust laws

16 should not necessarily immunize what are in essence commercial activities simply

17 because they have a political impact.” Id. (internal quotation marks and citation

18 omitted). The Supreme Court’s conclusion that the Noerr-Pennington doctrine did

26
1 not apply to the disputes in Cantor and Allied Tube thus confirms that the Noerr-

2 Pennington doctrine does not apply to purely private disputes.

3 {36} Outside of the antitrust context, the petition clause has been understood to

4 secure the right of the people to “communicate their will through direct petitions to

5 the legislature and government officials.” McDonald v. Smith, 472 U.S. 479, 482-

6 83 (1985) (internal quotation marks and citation omitted). The petition clause has

7 therefore protected all sorts of political activity, including litigation, seeking to

8 influence governmental decisionmaking or action. For example, in NAACP v.

9 Claiborne Hardware Co., 458 U.S. 886, 914 (1982), the Supreme Court compared

10 a political boycott seeking “to vindicate rights of equality and of freedom” to the

11 protected conduct in Noerr because “a major purpose of the boycott in this case was

12 to influence governmental action.” See also NAACP v. Button, 371 U.S. 415, 429

13 (1963) (“In the context of NAACP objectives, litigation is not a technique of

14 resolving private differences; it is a means for achieving the lawful objectives of

15 equality of treatment by all government . . . It is thus a form of political

16 expression.”). Similarly, in Bill Johnson’s Rests., 461 U.S. at 741-42, the Supreme

17 Court applied the petition clause to constrain governmental action, explaining that

18 the National Labor Relations Board (NLRB) must be sensitive to an employer’s right

19 of petition when considering whether to enjoin state court litigation related to a labor

27
1 dispute. And in BE & K Constr., 536 U.S. at 520-23, 536-37, the Supreme Court

2 relied on First Amendment principles to invalidate an NLRB regulation that

3 permitted the agency to penalize an employer’s unsuccessful, but reasonably based

4 lawsuit against several unions. While the underlying protected conduct in each of

5 these cases involved litigation between private parties, the litigation nevertheless

6 implicated important public issues and indirectly or directly influenced government

7 action on these issues.

8 {37} Our review of Supreme Court jurisprudence therefore confirms that the

9 Noerr-Pennington doctrine only shields conduct which essentially amounts to

10 political activity in that the conduct seeks to influence governmental decisionmaking

11 or action. Thus, while we acknowledge that Cal. Motor, 404 U.S. at 510, states,

12 “[t]he right of access to the courts is indeed but one aspect of the right of petition,”

13 we read this statement in context as simply affirming that the right of petition also

14 extends to the courts. We do not read Cal. Motor as eliminating the core prerequisite

15 of the Noerr-Pennington doctrine, namely, that the doctrine applies to “solicitation

16 of governmental action.” Noerr, 365 U.S. at 138; accord Pennington, 381 U.S. at

17 669 (characterizing Noerr as “entirely” addressing “activities of competitors seeking

18 to influence public officials”). Thus, we adhere to the primary view of the Noerr-

28
1 Pennington doctrine as immunizing “political activity” under the First Amendment

2 right to petition, “not business activity.” Noerr, 365 U.S. at 137.

3 C. Applicability of Cordova’s Heightened Pleading Standard

4 {38} In light of the preceding analysis, we conclude that the Noerr-Pennington

5 doctrine protects conduct, including litigation, aimed at influencing governmental

6 decisionmaking or action. Noerr, 365 U.S. at 137-38; Pennington, 381 U.S. at 669.

7 We acknowledge that the scope of the Noerr-Pennington doctrine has not been

8 settled by the United States Supreme Court, and we leave to that Court the task of

9 clarifying the doctrine’s scope. However, we need not resolve any doctrinal

10 uncertainty to dispose of the question presented in this appeal. The United States

11 Supreme Court has not extended Noerr-Pennington to state court litigation. Our

12 opinion in Cordova extended the doctrine to our courts to effectuate the procedural

13 protections of the Anti-SLAPP statute and to provide a “mechanism that offers

14 [defendants] the substantive First Amendment protections they seek.” Cordova,

15 2017-NMSC-020, ¶ 24. As such, to resolve whether The New Mexican was required

16 to meet Cordova’s heightened pleading standard, we need only construe Cordova to

17 see how this Court understood the scope of the Noerr-Pennington doctrine when we

18 extended the doctrine’s protections to our courts.

29
1 {39} And a plain reading of Cordova supports our doctrinal view: Cordova states

2 that a defendant is entitled to Noerr-Pennington immunity when the defendant’s

3 conduct was “aimed at influencing the government.” Id. The recall activities at issue

4 in Cordova exemplify the type of conduct that is contemplated within that

5 description: an effort by a group of citizens asking the government to remove a

6 school board member from office. Id. ¶¶ 3-4. The citizens’ conduct in Cordova fell

7 within the scope of the Noerr-Pennington doctrine because the recall activities

8 amounted to “public participation” in a political cause. Id. ¶¶ 18, 23. Cordova did

9 not contemplate that other conduct, not amounting to “public participation,” id.,

10 would qualify for Noerr-Pennington protections. Rather, Cordova viewed the

11 substantive protections provided by Noerr-Pennington as a counterpart to the

12 procedural protections provided by the Anti-SLAPP statute.3 See id. ¶ 24 (“While

13 the Anti-SLAPP statute provides the procedural protections [defendants] require, the

14 Noerr-Pennington doctrine is the mechanism that offers [defendants] the substantive

15 First Amendment protections they seek.”).

Although Cordova decided to impose a heightened pleading standard “in
3

furtherance of the policy upon which the Anti-SLAPP statute is based,” Cordova did
not equate eligibility for Noerr-Pennington immunity with eligibility for the
procedural protections of the Anti-SLAPP statute. 2017-NMSC-020, ¶ 30. A
defendant may be entitled to Noerr-Pennington protections even if the defendant
does not qualify under Section 38-2-9.1(A) for a special motion to dismiss.

30
1 {40} It is likewise telling that Cordova did not overrule or address our previous

2 discussion of the Noerr-Pennington doctrine in DeVaney, 1998-NMSC-001,

3 ¶ 19 n.1. In DeVaney, we combined the common law torts of malicious prosecution

4 and abuse of process into a single tort of malicious abuse of process. Id. ¶ 17. The

5 DeVaney Court recognized, “[m]eaningful access to the courts is a right of

6 fundamental importance in our system of justice,” and noted that torts for malicious

7 abuse of process are disfavored “[b]ecause of the potential chilling effect on the right

8 of access to the courts.” Id. ¶ 19. Therefore, the tort of malicious abuse of process

9 must balance “the interest in protecting litigants’ right of access to the courts and the

10 interest in protecting citizens from unfounded or illegitimate applications of the

11 power of the state through the misuse of the courts.” Id. ¶ 14. In a footnote, the

12 DeVaney Court further acknowledged, “the importance of the right to petition, and

13 the potential chilling effect of tort liability, has caused the courts of some states to

14 apply the more stringent requirements of the Noerr-Pennington doctrine to actions

15 for malicious prosecution and abuse of process.” Id. ¶ 19 n.1. (citations omitted).

16 However, DeVaney did not apply Noerr-Pennington to the tort and instead narrowly

17 defined the elements of malicious abuse of process to “protect the right of access to

18 the courts.” Id. ¶ 19.

31
1 {41} We further refined the elements of malicious abuse of process in Fleetwood,

2 2007-NMSC-047, ¶ 20, and in Durham, 2009-NMSC-007, ¶ 29, emphasizing in both

3 opinions that the tort should be construed narrowly to protect the right of access to

4 the courts. As currently stated, a malicious abuse of process claim requires the

5 plaintiff to prove “(1) the use of process in a judicial proceeding that would be

6 improper in the regular prosecution or defense of a claim or charge; (2) a primary

7 motive in the use of process to accomplish an illegitimate end; and (3) damages.”

8 Durham, 2009-NMSC-007, ¶ 29; accord UJI 13-1636 NMRA. “An improper use of

9 process may be shown by (1) filing a complaint without probable cause, or (2) an

10 irregularity or impropriety suggesting extortion, delay, or harassment, or other

11 conduct formerly actionable under the tort of abuse of process.” Durham, 2009-

12 NMSC-007, ¶ 29 (brackets, internal quotation marks, and citation omitted). If a

13 malicious abuse of process claim is premised on a lack of probable cause, then the

14 plaintiff must show that the defendant lacked “the reasonable belief, founded on

15 known facts established after a reasonable pre-filing investigation, that a claim can

16 be established to the satisfaction of a court or jury.” DeVaney, 1998-NMSC-001,

17 ¶ 22 (citation omitted); accord UJI 13-1639 NMRA. DeVaney’s probable cause

18 standard is more lenient than the sham exception to Noerr-Pennington, as the Noerr-

19 Pennington doctrine requires the protected conduct be “objectively baseless in the

32
1 sense that no reasonable litigant could realistically expect success on the merits.”

2 Cordova, 2017-NMSC-020, ¶ 28 (internal quotation marks and citation omitted).

3 Yet DeVaney’s standard adequately addresses any concerns about chilling the right

4 of court access through malicious abuse of process claims falling outside of Noerr-

5 Pennington’s rubric.

6 {42} We thus understand our opinions in Cordova and DeVaney and its progeny to

7 operate harmoniously. DeVaney, Fleetwood, and Durham set forth the elements of

8 malicious abuse of process and emphasize that the tort should be construed “with an

9 eye toward protecting honest litigants.” Fleetwood, 2007-NMSC-047, ¶ 20.

10 Cordova, on the other hand, imposes a heightened pleading standard for a specific

11 category of claims challenging conduct that would be protected under the Noerr-

12 Pennington doctrine. Cordova, 2017-NMSC-020, ¶ 30. And, as explained above, we

13 conclude that Noerr-Pennington protects conduct seeking to influence governmental

14 decisionmaking or action. Id. ¶ 24.

15 {43} We also note that Cordova’s decision to impose a heightened pleading

16 standard on claims implicating the right to petition was inspired by the Colorado

17 Supreme Court’s opinion in Protect Our Mountain Env’t, 677 P.2d at 1368-69.

18 Subsequent to Protect Our Mountain Env’t, but prior to Cordova, the Colorado

19 Supreme Court clarified that its heightened pleading standard is “inapplicable to a

33
1 resort to administrative or judicial process implicating purely private disputes.”

2 Boyer v. Health Grades, Inc., 2015 CO 40, ¶ 15, 359 P.3d 25; accord Gen. Steel

3 Domestic Sales, LLC v. Bacheller, 2012 CO 68, ¶ 32, 291 P.3d 1 (holding that

4 Protect Our Mountain Env’t’s heightened pleading standard is inapplicable to

5 arbitration involving a purely private dispute). Although the Boyer Court

6 acknowledged the uncertainty surrounding the scope of the Noerr-Pennington

7 doctrine, the Colorado Supreme Court nevertheless agreed “that a distinction

8 between the resort to legal process implicating purely private disputes and the resort

9 to legal process implicating matters of public concern is one that comports with

10 Supreme Court usage.” 2015 CO 40, ¶ 15. Thus, the Boyer Court held that two

11 employees asserting an abuse of process claim against their former employer were

12 not required to meet Protect Our Mountain Env’t’s heightened pleading standard.

13 Boyer, 2015 CO 40, ¶¶ 4, 15-16. We agree with the Colorado Supreme Court on the

14 scope of the Noerr-Pennington doctrine and corresponding necessity for a

15 heightened pleading standard.

16 {44} We therefore hold that Cordova’s heightened pleading standard only applies

17 to complaints challenging conduct, including litigation, aimed at influencing

18 governmental decisionmaking or action. Cordova’s heightened pleading standard

34
1 does not apply to litigation between private parties, concerning only private interests,

2 and asking only for the judiciary to adjudicate the dispute.

3 D. Cordova Does Not Apply to The New Mexican’s Counterclaims

4 {45} We next apply our holding to The New Mexican’s counterclaims against

5 PNM. On review of the record, it is clear that PNM’s conduct in intervening in the

6 PRC’s lawsuit against The New Mexican and the filing of an application for an

7 injunction was not aimed at influencing governmental decisionmaking or action. In

8 fact, the PRC had already sued The New Mexican when PNM moved to intervene

9 in the suit; thus, any action that PNM wished to solicit from the PRC had already

10 been taken. By intervening, PNM sought to protect its private interests by enjoining

11 The New Mexican from publishing its alleged trade secrets and recovering costs and

12 fees related to the dispute. This conduct does not qualify for Noerr-Pennington

13 protections as contemplated by Cordova.

14 {46} Indeed, PNM admitted to the private nature of its dispute with The New

15 Mexican in its motion to intervene. “Under Rule 1–024(A)(2), an applicant seeking

16 to intervene as a matter of right must file a timely application, and satisfy a three-

17 part test showing that (1) the applicant has an interest in the subject matter of the

18 action; (2) protection of the applicant’s interest may be impaired or impeded by

19 disposition of the action; and (3) the interest sought to be protected is not adequately

35
1 represented by existing parties.” Chino Mines Co. v. Del Curto, 1992-NMCA-108,

2 ¶ 7, 114 N.M. 521, 842 P.2d 738 (citation omitted). In its motion to intervene, PNM

3 asserted that the documents released to The New Mexican were “confidential

4 business information and trade secrets belonging to PNM and its coal suppliers,” and

5 that its private interests were not adequately represented in the suit because the PRC

6 was “a governmental entity . . . charged with representing the public interest, and

7 that interest does not always align with the interests of a movant for intervention.”

8 Thus, PNM admitted that any potential public interests involved in the lawsuit were

9 already adequately represented by the PRC. See N.M. Right to Choose/NARAL v.

10 Johnson, 1999-NMSC-005, ¶¶ 19-20, 126 N.M. 788, 975 P.2d 841 (noting that when

11 the government is “a party to an action and the interest the applicant seeks to protect

12 is represented by a governmental entity, a presumption of adequate representation

13 exists” (internal quotation marks and citation omitted)).

14 {47} And to the extent PNM’s oral argument presented the Court with other

15 avenues to conclude that its conduct was aimed at influencing the government, we

16 remain unpersuaded. For example, PNM suggested to the Court that its conduct was

17 aimed at influencing the government because PNM’s involvement in the litigation

18 involved exposure of certain documents PNM believed to be confidential as well as

19 what it perceived to be “an important public matter, which had to do with the

36
1 abandonment of the San Juan Generating Station.” But PNM’s attempts to recover

2 documents from a private party that it believed to be confidential has little if any

3 influence upon the government itself. Nor does resolution of the allegedly

4 inadvertent disclosure have a material impact upon PNM’s attempt to abandon

5 certain portions of the San Juan Generating Station.

6 {48} PNM’s lawsuit against The New Mexican is purely a private dispute between

7 private parties, and PNM seeks no more than for the judiciary to resolve this dispute.

8 We therefore conclude that PNM’s conduct does not qualify as Noerr-Pennington

9 protected conduct under our decision in Cordova, 2017-NMSC-020, ¶¶ 24-26.

10 Accordingly, The New Mexican was not required to meet Cordova’s heightened

11 pleading standard in asserting counterclaims challenging PNM’s conduct. The

12 district court and Court of Appeals erred by applying Cordova’s heightened pleading

13 standard to The New Mexican’s counterclaims.

14 {49} Because the district court dismissed The New Mexican’s counterclaims based

15 solely on its conclusion that The New Mexican had not met Cordova’s heightened

16 pleading standard, we have no occasion to otherwise consider the sufficiency of The

17 New Mexican’s counterclaims. Nevertheless, we take this opportunity to address an

18 error in the district court’s reasoning lest this error cause confusion on remand.

37
1 {50} The district court relied upon the intervention rule outlined in Richins v.

2 Mayfield, 1973-NMSC-099, 85 N.M. 578, 314 P.2d 854, to conclude that, “[b]y its

3 Order allowing intervention, the [district court] necessarily found that PNM . . . had

4 a legitimate interest to protect.” The district court’s reliance on Richins is misplaced.

5 Richins provides that, in order to allow a party to intervene in a finally adjudicated

6 proceeding, a district court “must find that the right or interest cannot otherwise be

7 protected, except by intervention.” Id. ¶ 7. The intervention rule in Richins only

8 applies when a court is assessing whether to allow a party to intervene “after a final

9 judgment or decree has been entered,” not at the pleadings stage, as was the case

10 here. Id. ¶ 6; accord Ruybalid v. Segura, 1988-NMCA-084, ¶ 15, 107 N.M. 660,

11 763 P.2d 369. Rather, at the beginning of a lawsuit a district court may consider, but

12 is not required to rule on the merits of a proposed intervenor’s complaint. Solon v.

13 WEK Drilling Co., Inc., 1992-NMSC-023, ¶ 5, 113 N.M. 566, 829 P.2d 645. The

14 grant of a motion to intervene under Rule 1-024 NMRA prior to final adjudication

15 does not establish that a party has either an objectively reasonable basis or probable

16 cause for the proceeding. Accordingly, the district court’s granting of PNM’s motion

17 to intervene did not establish as a matter of law that PNM had a legitimate claim.

18 The district court erred by concluding otherwise.

38
1 V. CONCLUSION

2 {51} The district court and the Court of Appeals erred by concluding that The New

3 Mexican’s counterclaims against PNM should be dismissed for failure to meet

4 Cordova’s heightened pleading standard. Cordova only requires a plaintiff to meet

5 this heightened pleading standard if the defendant’s conduct was aimed at

6 influencing governmental decisionmaking or action. PNM’s conduct was not aimed

7 at influencing the government and thus Cordova’s heightened pleading standard did

8 not apply to The New Mexican’s counterclaims. We reverse and remand this matter

9 to the district court with instructions to vacate its order dismissing The New

10 Mexican’s counterclaims and the final judgment entered in favor of PNM.

11 {52} IT IS SO ORDERED.

12
13 JULIE J. VARGAS, Justice

39
1 WE CONCUR:

2
3 MICHAEL E. VIGIL, Justice

4
5 C. SHANNON BACON, Justice

6
7 BRIANA H. ZAMORA, Justice

8
9 DREW D. TATUM, Judge
10 Sitting by designation

40