Bribing a State Official as "Free Speech"

Even if New Mexico title-insurance rates were established as a result of bribes to a state official, the companies involved aren't liable under state anti-trust law and can't be sued by people affected by high rates.

"The Insurer Defendants did not violate the New Mexico Antitrust Act even if they conspired to bribe the superintendent of insurance," the The 10th District Court of Appeals in Denver said in an opinion this week in a case filed five years ago by former state Rep. Max Coll and others.

The defendants claimed certain title-insurance companies conspired with former state Insurance Superintendent Eric Serna to establish unreasonably high premiums. The suit claimed Serna set title-insurance rates high because of nearly $48,000 in contributions in 2003 and 2004 from title-insurance companies to Con Alma Health Foundation Inc., a nonprofit company Serna co-founded. Serna in 2006 called the allegation "ridiculous."

The appeals court justified their rejection of Coll's suit partly with the "Noerr-Pennington" doctrine, which holds that anti-trust laws don't apply to citizens and private companies who are trying to influence laws or government policies.

"The Noerr-Pennington doctrine is based upon the First Amendment," the opinion says. It protects the right to advocate for laws, or, in this case, high title-insurance rates "even if the conduct by which citizens attempted to influence governmental regulation was undertaken for the sole purpose of destroying competition, involved unethical business practices, or was specifically intended to hurt competitors," the court opinion states.

"There is no bribery exception to Noerr-Pennington."

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