New Mexico Case Raises Questions About Anti-SLAPP Law

A New Mexico jury recently decided a case that raises questions about the use of the New Mexico anti-SLAPP law.

In 2004 Linda Hull, a concerned Los Alamos parent, realized that a music teacher at her childrens’ school had been convicted as a child sex offender and was registered as such. She lobbied the school district to enact protections, including mandating that registered sex offenders be escorted on campus, and also sent emails and other communications to inform those in the community about Vives’ past. Hull alleges that Vives then engaged in several acts of harassment and retaliation, including approaching and berating Hull in a coffee shop, and twice approaching her teenage daughter.

In early 2008, Vives filed suit against Hull, alleging intentional interference with contractual relations, infliction of emotional distress, false light invasion of privacy and malicious abuse of process for alerting people to his sex-offender status.

Hull filed a counterclaim in April 2008, seeking damages for malicious abuse of process, assault, intentional infliction of emotional distress, and seeking an injunction.

At trial, Vives admitted he hadn’t disclosed to parents that he was a convicted sex offender when he moved to Los Alamos and began offering private music lessons in his home to teenagers. He also noted that being alone with children was a “sensitive trigger” of his “urges” to offend.

On September 25, 2009, the jury deliberated for five hours before handing down a verdict that awarded damages to neither party. Hull had asked for attorney’s fees, which she said at that time topped $100,000.

New Mexico does have an anti-SLAPP law, which protects statements made in connection with a public hearing or public meeting in a quasi-judicial proceeding before a body of any political subdivision of the state. It is unclear whether Hull’s lobbying of the school board would constitute such protected activity, and there are no appellate decisions about the New Mexico anti-SLAPP law, so there is little guidance as to what a court would consider to be an adjudicatory proceeding. It may well be that, in this case, New Mexico’s law would prove too narrow to offer protection for Hull or similar speech.

The Vives case provides an excellent example of a case in which the proposed Citizen Participation Act would offer protection for important speech. Under the law, Hull could bring a special motion to dismiss the claims against her, and make a showing that her speech was protected.Hull’s comments to a public body (the school board) about a registered sex offender would likely be considered petitioning activity and/or issue of public interest under the proposed legislation. Once a showing is made that the speech is protected, Vives would have to make a showing of minimum merit on each of his claims for each claim to proceed. If Vives failed to make this showing, the case would be dismissed, and Hull could recover the fees and costs incurred in defending against the lawsuit.

Of course, although the jury found that Vives did not succeed in showing that Hull had made any false statements with negligence as their falsity, and that Hull had not misused the criminal process, Vives’ claims may have had the minimum level of merit required to survive an anti-SLAPP special motion to dismiss. In that case, the lawsuit would proceed.

The proposed Citizen Participation Act offers procedural protections so that only merited suits arising from protected activity are able to proceed in court.

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