NM Stat § 38-2-9.1 (2021)
2021 New Mexico Statutes|Chapter 38 - Trials|Article 2 - Pleadings and Motions|Section 38-2-9.1 - Special motion to dismiss unwarranted or specious lawsuits; procedures; sanctions; severability.

A. 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 to ensure the early consideration of the issues raised by the motion and to prevent the unnecessary expense of litigation. B. If the rights afforded by this section are raised as an affirmative defense and if a court grants a motion to dismiss, a motion for judgment on the pleadings or a motion for summary judgment filed within ninety days of the filing of the moving party's answer, the court shall award reasonable attorney fees and costs incurred by the moving party in defending the action. If the court finds that a special motion to dismiss or motion for summary judgment is frivolous or solely intended to cause unnecessary delay, the court shall award costs and reasonable attorney fees to the party prevailing on the motion. C. Any party shall have the right to an expedited appeal from a trial court order on the special motions described in Subsection B of this section or from a trial court's failure to rule on the motion on an expedited basis. D. As used in this section, a "public meeting in a quasi-judicial proceeding" means and includes 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. E. Nothing in this section limits or prohibits the exercise of a right or remedy of a party granted pursuant to another constitutional, statutory, common law or administrative provision, including civil actions for defamation or malicious abuse of process. F. If any provision of this section or the application of any provision of this section to a person or circumstance is held invalid, the invalidity shall not affect other provisions or applications of this section that can be given effect without the invalid provision or application, and to this end the provisions of this section are severable. History: Laws 2001, ch. 218, § 2. ANNOTATIONSEffective dates. — Laws 2001, ch. 218 contained no effective date provision, but, pursuant to N.M. Const., art. IV, § 23, was effective June 15, 2001, 90 days after adjournment of the legislature. Jurisdiction when there are pending counter-claims in district court. — Where respondent, a Taos school board member, brought a malicious abuse of process claim against petitioners, eighteen members of an unincorporated citizens' association who sought to remove respondent from office, and where the district court granted petitioners' motions to dismiss without addressing certain counterclaims, the appellate court had jurisdiction over all parties under the Anti-SLAPP statute because the overall purpose of the Anti-SLAPP statute would be thwarted by piecemeal litigation if some petitioners were excluded from the appeal, and 38-2-9.1(C) NMSA 1978 allows any party to bring an interlocutory appeal from a trial court order on the special motions brought pursuant to the Anti-SLAPP statute. Cordova v. Cline, 2017-NMSC-020, rev'g 2013-NMCA-083, 308 P.3d 975. Application to recall petitions. — The anti-SLAPP statute [38-2-9.1 NMSA 1978] does not apply to a sufficiency hearing before a district court to determine the sufficiency of the allegations in a recall petition pursuant to Section 22-7-9.1 NMSA 1978, because a sufficiency hearing before the district court is a judicial proceeding, not a public meeting or a quasi-judicial proceeding as defined in the anti-SLAPP statute. Cordova v. Cline, 2013-NMCA-083, cert. granted, 2013-NMCERT-007. Where defendants filed a petition with the county clerk to recall plaintiff who was a member and officer of a municipal school board; the county clerk filed an application for a district court hearing on the sufficiency of the recall allegations pursuant to Section 22-7-9.1 NMSA 1978; at the hearing, before the district court determined the sufficiency of the petition, defendants dismissed the petition; plaintiff filed suit against defendants for damages; and the district court dismissed plaintiff's complaint under the anti-SLAPP statute [38-2-9.1 NMSA 1978], the district court improperly dismissed plaintiff's suit because the anti-SLAPP statute did not apply to a judicial proceeding to determine the sufficiency of the recall petition. Cordova v. Cline, 2013-NMCA-083, cert. granted, 2013-NMCERT-007. Plaintiff entitled to expedited appeal following district court's denial of special motion. — Where plaintiff filed an action in district court against defendants, plaintiff's former employer, for malicious abuse of process and defamation, in which she alleged that defendants filed meritless claims against her in retaliation for her submission of sworn declarations to the United States Department of Commerce alleging that defendant was not representing the best interests of certain clients, and where defendants filed several counterclaims, and where plaintiff filed a motion to dismiss (the special motion) these counterclaims under the Anti-SLAPP statute arguing they were made in retaliation for her declarations to the Department of Commerce, and where the district court denied plaintiff's special motion, concluding that the Anti-SLAPP statute was inapplicable because her alleged speech was not directed to a state or local government but to a federal agency, and where, on appeal to the New Mexico Court of Appeals, defendant challenged the court of appeals jurisdiction, arguing that the Anti-SLAPP provision authorizing immediate appeal does not apply, the court of appeals had jurisdiction to review the district court's denial of plaintiff's special motion because Subsection C of this section permits any party to one of the special motions described in Subsection B to appeal from a trial court order on those motions. Moreover, the plain language of Subsection C allowing for an expedited appeal does not distinguish between decisions on the merits of the claims raised in the special motion or decisions on the applicability of the Anti-SLAPP statute, suggesting that both types of decisions are entitled to an expedited appeal. Ferebee v. Hume, 2021-NMCA-012.The district court did not err in denying plaintiff's special motion. — Where plaintiff filed an action in district court against defendants, plaintiff's former employer, for malicious abuse of process and defamation, in which she alleged that defendants filed meritless claims against her in retaliation for her submission of sworn declarations to the United States Department of Commerce alleging that defendant was not representing the best interests of certain clients, and where defendants filed several counterclaims, and where plaintiff filed a motion to dismiss (the special motion) these counterclaims under the Anti-SLAPP statute arguing they were made in retaliation for her declarations to the Department of Commerce, and where the district court denied plaintiff's special motion, concluding that the Anti-SLAPP statute was inapplicable because her alleged speech was not directed to a state or local government but to a federal agency, the district court did not err in denying the motion, because the Anti-SLAPP statute does not include within its protections 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 the federal government. Ferebee v. Hume, 2021-NMCA-012.Attorney fees awarded under the anti-SLAPP statute are sanctions. — The legislature intended the provision authorizing an award of attorney fees in § 38-2-9.1(B) NMSA 1978, to be a sanction, and not a mechanism for compensating or awarding damages. Cordova v. Cline, 2021-NMCA-022.Award of attorney fees apply to all stages of litigation, including appellate work. — Where plaintiff filed a complaint alleging that when defendants signed a petition and actively supported plaintiff's recall from the Taos school board, such acts constituted malicious abuse of process, civil conspiracy, and prima facie tort, and where defendants filed special motions to dismiss pursuant to § 38-2-9.1 NMSA 1978, alleging that plaintiff's complaint infringed on defendants' first amendment rights, and where the district court granted defendants' special motions to dismiss, finding that defendants' support of plaintiff's recall from the Taos school board invoked the substantive protection of the first amendment and the procedural and remedial provisions of the anti-SLAPP statute, and where the New Mexico supreme court upheld the dismissal and held that the defendants were statutorily entitled to an award of attorney fees, and where, on remand, the district court granted attorney fees only for work completed while the case was pending in the district court, the district court erred in denying defendants' request for attorney fees for the work done on appeal, because the plain language of the anti-SLAPP statute requires attorney fees to be awarded to a defendant who prevails on any of the special motions provided by the statute, and such an award applies to all stages of litigation reasonably related to the defense of the action, whether at the trial level or on appeal. Cordova v. Cline, 2021-NMCA-022.Prevailing party not entitled to prejudgment interest on an award of attorney fees. — Where plaintiff filed a complaint alleging that when defendants signed a petition and actively supported plaintiff's recall from the Taos school board, such acts constituted malicious abuse of process, civil conspiracy, and prima facie tort, and where defendants filed special motions to dismiss pursuant to § 38-2-9.1 NMSA 1978, alleging that plaintiff's complaint infringed on defendants' first amendment rights, and where the district court granted defendants' special motions to dismiss and granted defendants' request for attorney fees, finding that defendants' support of plaintiff's recall from the Taos school board invoked the substantive protection of the first amendment and the procedural and remedial provisions of the anti-SLAPP statute, the district court did not err in denying defendants' request for prejudgment interest on their award of attorney fees, because although § 56-8-4(B)(1) NMSA 1978 provides the district court with discretion to award prejudgment interest on damages, the attorney fees awarded under the anti-SLAPP statute are sanctions and not a compensatory mechanism for damages. Cordova v. Cline, 2021-NMCA-022. Defendants' conduct or speech does not fall within the Anti-SLAPP statute's protections. — Where plaintiff, a candidate for elected office, sued defendants for defamation, declaratory relief, and punitive damages after defendants published and distributed two mailers discussing child abuse that allegedly occurred on the youth ranch operated by plaintiff, and where defendants filed a special motion to dismiss plaintiff's defamation claims under the Anti-SLAPP statute, arguing that the statute protects conduct or speech made during political campaigns, and where the district court denied defendants' special motion, ruling that the statements at issue could qualify as defamatory and that the claims arising from those statements should therefore not be dismissed, defendants' appeal was dismissed as premature, because defendants' statements were not made in connection with a public hearing or public meeting as required by this section. Defendants' speech does not fall within the Anti-SLAPP statute's protections because it was not engaged in for the purpose of petitioning or participating in proceedings before a local or state governmental tribunal. Chandler v. Advance N.M. Now PAC, 2021-NMCA-017, cert. denied. Anti-SLAPP statute inapplicable in federal diversity action. — Where a lessee of geothermal mineral rights brought an action in federal court alleging that the owner of a portion of surface estate breached the parties' joint facility operating agreement by objecting to their state permit applications, and where defendants filed a special motion to dismiss pursuant to 38-2-9.1 NMSA 1978, New Mexico's legislative enactment aimed at thwarting "strategic litigation against public participation" (SLAPP), asserting that New Mexico's anti-SLAPP statute is a substantive state law designed to protect the defendants from having to litigate meritless claims aimed at chilling first amendment expression, the district court did not err in denying defendants special motion, because New Mexico's anti-SLAPP statute is a procedural mechanism designed to expedite the disposal of frivolous lawsuits aimed at threatening free speech rights, and thus does not apply in federal courts as a substantive right or remedy. Los Lobos Renewable Power, LLC v. Americulture, Inc., 885 F.3d 659 (10th Cir. 2018). Law reviews. — For comment , "Resolving Land-use Disputes by Intimidation: SLAPP Suits in New Mexico," see 32 N.M.L. Rev. 217 (2002).