New Mexico newspaper’s counterclaims against utility that sued to block reporting revived

(CN) — The New Mexico Supreme Court on Thursday unanimously reversed a lower court’s dismissal of a local newspaper's counterclaims against a power utility that sued to block the paper from reporting on documents obtained through a records request, finding that the dispute ultimately did not involve the government.

“Our review of Supreme Court jurisprudence therefore confirms that the Noerr-Pennington doctrine only shields conduct which essentially amounts to political activity in that the conduct seeks to influence governmental decision making or action,” wrote New Mexico Supreme Court Justice Julie Vargas in Thursday’s opinion.

The case dates back to 2015, when the Public Service Company of New Mexico — the state's largest provider of electricity that serves more than 550,000 customers — was decommissioning parts of the coal-powered San Juan Generating Station.

PNM provided documents on the decommissioning to the state's utilities commission under seal, citing the need to protect trade secrets. The New Mexican, a local newspaper, then obtained the records through a request under the state Inspection of Public Records Act.

Claiming the documents shouldn't have been released, the New Mexico Public Regulation Commission then sued the newspaper to block publication. First Judicial District Judge Francis J. Mathew, appointed by Republican Governor Susana Martinez, denied the commission’s motion for a temporary restraining order, but held off on a final order because PNM had filed to intervene.

The newspaper published the document's on the site in the meantime, and then countersued the utility, claiming abuse of process.

PNM then asked the newspaper’s counterclaims be dismissed, citing the 2017 case Cordova v. Cline, which, for New Mexico, broadened the Noerr-Pennington doctrine, a collection of U.S. Supreme Court cases protecting the First Amendment right to petition the government.

Evoking Cordova increased The New Mexican’s burden to countersue, since they then had to prove PNM was hiding behind its right as a petitioner in order to influence the government. The state Court of Appeals affirmed the First Judicial District Court of Santa Fe County's ruling after The New Mexican failed to plead an exception to the Noerr-Pennington’s sham standard.

The state Supreme Court ultimately found Thursday both lower courts erred in applying the doctrine at all since the dispute between the utility and the newspaper was ultimately one of private parties.

"PNM’s lawsuit against The New Mexican is purely a private dispute between private parties, and PNM seeks no more than for the judiciary to resolve this dispute. We therefore conclude that PNM’s conduct does not qualify as Noerr-Pennington protected conduct under our decision in Cordova,” Vargas, an appointee by Democratic Governor Michelle Lujan Grisham, wrote.

Attorney Gregory Williams of Peifer Hanson in Albuquerque, who represented The New Mexican, told Courthouse News he was pleased with the ruling.

“Noerr-Pennington is designed to protect the First Amendment right of people to petition the government,” Williams said. "In the end, it reinforces the right of newspapers to publish matters that are in the public interest.”

Representatives for the Public Service Company of New Mexico did not immediately respond to a request for comment.

Varga was joined on the opinion by Justice Michael Vigil, an appointee of Democratic Governor Bill Richardson, Justices C. Shannon Bacon and Briana H. Zamora, who were nominated by a nonpartisan commission, and Ninth Judicial District Judge Drew Tatum, appointed by Democratic Governor Bill Richardson.

In reversing, the New Mexico Supreme Court remands the case to the First District for further proceeding.

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