Case Information
*1 Cеrtiorari Granted, No. 31,724, July 1, 2009, Certiorari Denied, No. 31,725; June 22, 2009
IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number:
Filing Date: May 7, 2009
NO. 24,026; consolidated with 24,027; 24,042; and 24,425 ALBUQUERQUE COMMONS PARTNERSHIP,
Petitioner-Appellee,
v.
CITY COUNCIL OF THE CITY OF ALBUQUERQUE,
Respondent-Appellant. APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY Susan M. Conway and William F. Lang, District Judges Mettler & LeCuyer, P.C.
Stephen T. LeCuyer
Albuquerque, NM
Bryan & Flynn-O’Brien
George R. Pat Bryan III
Timothy V. Flynn-O’Brien
Albuquerque, NM
Phillip B. Davis
Albuquerque, NM
for Appellee
Robert M. White, City Attorney
Mark Hirsch, Assistant City Attorney
Albuquerque, NM
Lorenz Law
Alice T. Lorenz
Albuquerque, NM
Campbell & Wells, P.A.
John S. Campbell
Albuquerque, NM
Robinson & Cole LLP
Dwight H. Merriam
James A. Wade
Gregory W. McCracken
Hartford, CT
for Appellant
OPINION
CASTILLO, Judge. On motion for rehearing, the opinion filed October 30, 2008, is withdrawn, and the
following opinion is substituted in its place. The motion for rehearing is otherwise denied. The operable event that forms the basis for these consolidated cases [1] occurred over thirteen years ago when the Albuquerque City Council (City) adopted the 1995 Uptown Sector Plan (1995 USP), which affected property leased by Albuquerque Commons Partnership (ACP). Until 1995, the leased property was governed by the 1981 Uptown Sector Plan (1981 USP). In 1991, ACP selected Opus Southwest Corporation (Opus) as the buyer for the leasehold. Opus submitted a site plan for the property in June 1994 and then, in July 1994, withdrew the plan because of public outcry. In September 1994, the City requested a comprehensive overview of the 1981 USP. Before the City could complete the overview, Opus submitted another site plan (ACP/Opus site plan). The City deferred consideration of the ACP/Opus site plan and implemented an expedited schedule to evaluate proposed revisions to the 1981 USP. The City ultimately adopted the 1995 USP. ACP sought review of the City’s adoption of the 1995 USP in the trial court. ACP also claimed damages under 42 U.S.C. § 1983 (2000) for violations of due process and for an unconstitutional taking in violation of the Fifth Amendment. Concluding that the 1995 USP was enacted contrary to law as applied to ACP, the trial court ordered the City to consider the ACP/Opus site plan under the 1981 USP. The City complied and ultimately The City separately appealed a jury verdict and two whole-record reviews that were conducted by the trial court of the City’s decisions regarding ACP’s development of the property. On a motion by the City, we consolidated the three appeals.
rejected the ACP/Opus site plan under the 1981 USP. The claims for damages continued to
trial, and the jury found for ACP on both the due process and the takings claims. The
takings verdict was dismissed pursuant to the doctrine of election of remedies.
ACP appealed to this Court, and we reversed.
Albuquerque Commons P’ship v. City
Council of the City of Albuquerque (ACP II)
,
{5}
The facts surrounding the adoption of the 1995 USP, the resulting law suits, and the
several appeals are set forth in
ACP II
,
DISCUSSION
A. Section 1983 Claim In order to prove its claim under Section 1983, ACP was required to show that the
2The City’s appeal as to attorney fees and costs was a separate appeal before this Court. Before the Supreme Court filed ACP III , we reversed the trial court’s allocation of costs and fees in a memorandum opinion. Albuquerque Commons P’ship v. City Council of the City of Albuquerque , No. 24,425, slip op. at 3 (N.M. Ct. App. Dec. 9, 2005). As a result of the holding in ACP III , we now consolidate the fees and costs appeal with the other three consolidated cases considered by the Supreme Court in ACP III .
City, “acting under color of state law, cause[d ACP] to be deprived of a federally protected
constitutional right.”
Miles v. Bd. of County Comm’rs
,
1. Property Right To establish a violation of procedural due process, ACP was required to show that
the City deprived ACP of “life, liberty, or property, without due process of law.” U.S.
Const. amend. XIV, § 1. Here, we focus on the property interest portion of the equation.
In order to decide whether a party has a constitutionally protected property right, we first
must determine whether there is a state-created substantive property right and then consider
whether that right triggers federal due process protections.
Memphis Light, Gas & Water
Div. v. Craft (Memphis Light)
,
are those to which an individual has a claim of entitlement.”
Mills v. N.M. State Bd. of
Psychologist Exam’rs
,
{9}
In addition, the City’s applicable zoning regulation—Resolution 270-1980— tracks
the “change or mistake” requirement.
ACP III
,
{10} Based on these New Mexico cases and Resolution 270-1980, we agree with the trial court that ACP had a right, under state law, to continued zоning in the face of downzoning or a map amendment unless the City was able to justify a zoning change under the requirements enunciated by Resolution 270-1980 and Miller . Accordingly, we conclude that ACP had a state-created property interest.
b. Federal Protection The next inquiry is whether the federal constitution extends its protection to this
state-created property right. A party claiming a federally protected property interest must
have a “legitimate claim of entitlement to it.”
Bd. of Regents of State Colleges v. Roth
, 408
U.S. 564, 577 (1972). “[A] legitimate claim of entitlement is created only when the statutes
or regulations in question establish a framework of factual conditions delimiting entitlements
which are capable of being explored at a due process hearing.”
Eidson v. Pierce
, 745 F.2d
453, 459-60 (7th Cir. 1984). In the context of municipal land use regulation, “[t]he
entitlement analysis centers on the degree of discretion given the decisionmaker and not on
the probability of the decision’s favorable outcome.”
Hyde Park Co. v. Santa Fe City
Council
, 226 F.3d 1207, 1210 (10th Cir. 2000) (internal quotation marks and citation
omitted). Accordingly, we must decide whether the applicable law, Resolution 270-1980
or
Miller
, substantively limited the City’s discretion to pass the 1995 USP.
See Jacobs,
Visconsi & Jacobs, Co. v. City of Lawrence (Jacobs)
,
amendments by establishing (1) errors at the time the existing zone map pattern was created,
or (2) changes in the neighborhood or community conditions that justify the amendment, or
(3) that a different use category is more advantageous to the community. These are
substantive and direct limitations on the City’s discretion: By its own rules, the City cannot
make a zone map amendment without demonstrating, in some fashion, at least one of these
criteria.
See ACP III
,
piece of property.
{14}
Our Supreme Court explained in
ACP III
that the zoning changes effected by the City
in the present case “must be justified pursuant to the
Miller
rule and Resolution 270-1980”
and that such changes “require specific factual findings relating to the affected properties.”
ACP III
,
270-1980 factors—particularly in the application of the “more advantageous use”
*7
criterion—and that because the factors do not dictate the outcome of the City’s spot
downzoning decision, Resolution 270-1980 and
Miller
do not create a protectеd property
right. We first observe that our Supreme Court has substantially narrowed the City’s
discretion in the application of this factor. In
ACP III
, the Court explained that the “proof”
of a more advantageous use category “would have to show, at a minimum, that ‘(1) there is
a public need for a change of the kind in question, and (2) that need will be best served by
changing the classification of the particular piece of property in question as compared with
other available property.’”
regulations did not place sufficient substantive limitations on the state’s discretion to allow
a prisoner to receive visitors.
constitutional rights of a prisoner, which have been construed narrowly over the past thirty
years.
See
Ahmed A. White,
The Concept of “Less Eligibility” and the Social Function of
Prison Violence in Class Society
, 56 Buff. L. Rev. 737, 777 (2008) (“[T]he courts made clear
that, while they are not entirely beyond the realm of constitutional protection, prisoners only
enjoy such constitutional rights as are consistent with legitimate penological interests; and
that in determining what those interests are, courts must generally defer to the discretion of
prison officials, granting them wide deference in fashioning and implementing penological
policies.” (internal quotation marks and footnotes omitted)). Second, the property right in
the present case is the right to continued zoning in the face of spot downzoning, absent a
showing of evidence under
Miller
/
Davis
/Resolution 270-1980. Considering the mandatory
language in
Miller
and Resolution 270-1980, ACP could “reasonably form an objective
expectation” that its zoning category would remain in effect absent evidence that could
*8
establish at least one of the required criteria.
See Thompson
,
{21}
In the present case, ACP had to show a set of conditions existing under local law
which, if fulfilled, would give rise to a legitimate expectation that the City would provide
evidence regarding the zoning change according to
Miller
and Resolution 270-1980. Unlike
the ordinance in
Hyde Park Co.
, Resolution 270-1980 provides “clearly defined limitations”
on the City’s discretion to engage in spot downzoning, and there is no need to infer
substantive limitations—those limitations are delineated in the ordinance.
See
body’s discretion was sufficiently limited such that the parties had a “legitimate expectation
to the rezoning of their property.”
applied to the county board of commissioners for a special zoning designation, which was
*9
denied after vociferous public outcry.
Sylvia Dev. Corp.
, 48 F.3d at 815, 816. The
developer appealed and argued, in relevant part, that it was entitled to approval of its
application if all of the criteria set forth in the applicable zoning ordinance were met.
Id.
at
825-26. The Fourth Circuit Court disagreed for two reasons: (1) the county had complete
discretion to create the requested special zoning designation because of permissive language
in the ordinance and (2) the criteria in the zoning ordinance were merely preconditions to
be met by an applicant before the county would consider creating a special zoning
designation.
Id.
at 826. As we have explained, Resolution 270-1980 is neither permissive
in its language nor does it outline preconditions that a property owner is required to meet.
Instead, in the event of a spot downzoning, Resolution 270-1980 and
Miller
require the City
to provide proof of the listed criteria.
See ACP III
,
case, the United States Supreme Court considered whether homeowners had a
constitutionally protected property interest in continued utility service.
under the conditions explained in Miller or outlined in Resolution 270-1980, we conclude *10 that ACP has a federally protected property interest to continued zoning under the narrow circumstances presented by this case. Accordingly, we turn next to consider whether ACP received all of the process that it was due in order to protect its property right. 2. Process Due We next consider whether the process provided by the City was sufficient to
safeguard ACP’s constitutionally protected property right. The City argues that ACP
received all of the process that was due because the City provided and ACP participated in
seven hearings about the adoption of the 1995 USP. Further, the City argues that because
the adoption of the 1995 USP was a legislative act, constitutional due process was not
required. We first note that our Supreme Court held in
ACP III
that the adoption of the 1995
USP was a quasi-judicial, and not a legislative, act.
ACP III
,
hearing process to which piecemeal or spot downzoned property owners are entitled. 2008-
NMSC-025, ¶ 34. While this process is certainly necessary to satisfy state law, Section 1983
actions are brought under federal law. The United States Supreme Court has explained that
“[p]rocess is not an end in itself. Its constitutional purpose is to protect a substantive interest
to which the individual has a legitimate claim of entitlement.”
Olim v. Wakinekona
, 461
U.S. 238, 250 (1983). The
Olim
Court concluded that while a state may choose to require
certain procedures, “making that choice . . . does not create an independent substantive
right.” at 250-51. In particular, the characterization of a zoning prоcess as quasi-judicial
does not engender the “expectation of a property interest or otherwise place substantive
limitations on official discretion.”
Jacobs
,
meaningful time and in a meaningful manner.”
Mathews v. Eldridge
,
First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the [g]overnment’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.
Mathews
,
{30} The second factor considers (1) the risk of erroneous deprivation absent the requested procedure and (2) the probative value of the additional safeguard. To analyze the second factor, we must first consider what procedure ACP requested. The City points out that ACP had an opportunity to participate in seven hearings and that seven hearings satisfied any procedural due process right. ACP disagrees.
{31}
In order to resolve this issue, we need only turn to one aspect of the hearing—the
type of tribunal. During its review of the downzoning issue, our Supreme Court concluded
that the City made “no effort to provide ACP with an impartial tribunal by limiting
ex parte
contacts on the part of the council members.”
process.”
Withrow v. Larkin
,
provide a meaningful opportunity to be heard before an impartial tribunal. Taking all of the factors together, we conclude that the balance weighs in favor of providing a property owner with an impartial tribunal—one free from ex parte contacts—рrior to implementing a piecemeal downzone.
3. Adequacy of State Remedies Despite our holding that the City’s procedure failed to provide ACP with adequate
process to protect its property rights, we continue our analysis to determine whether ACP
properly established a Section 1983 cause of action in light of available state-law remedies.
See Starko, Inc. v. Gallegos
,
{35}
The City’s first argument is based on the multiple levels of state court review that
were available to ACP after the 95 USP passed. The City contends that at the first level of
review in the district court, ACP argued against remand for the City to conduct a quasi-
judicial review of thе ACP/Opus site plan. Thus, the City argues, any due process violation
was never complete because review of the passage of the 95 USP was available in the district
court, this Court, and our Supreme Court, and ACP refused to participate in that procedure.
ACP maintains that no state remedy was available to adequately address its loss. With this
argument, ACP appears to focus on its financial loss rather than on any due process
violation. It is well established that “[a]lthough the state remedies may not provide the
respondent with all the relief which may have been available if he could have proceeded
under [Section] 1983, that does not mean that the state remedies were not adequate to satisfy
the requirements of due process.”
Parratt v. Taylor
,
process requires a predeprivation hearing before the [s]tate interferes with any liberty or
property interest enjoyed by its citizens,”
id.
at 537, and, as a result, state appellate
procedures are not sufficient to cure a due process violation. In such cases, “deprivations
of property [are] authorized by an established state procedure and due process [requires]
predeprivation notice and [a] hearing in order to serve as a check on the possibility that a
wrongful deprivation [c]ould occur.”
Id.
at 538. In other cases, for example in
Parratt
itself,
“random and unauthorized” state acts that lead to deprivations of property are cured by a
postdeprivation hearing—or an appeal— because a predeprivation hearing is impractical.
Id.
at 541, 543. We thus consider whether the City’s actions were random and unauthorized
in order to determine whether the available appellate process was a constitutionally sufficient
remedy for ACP’s due process deprivation.
The City cites
McKinney v. Pate
,
biased decisionmaker is an inherently random and unauthorized act because bias is not sanctioned by the state. at 1563. As a result, the McKinney court concluded that the plaintiff was not deprived of due process unless the state refused to address the alleged bias *13 on appeal from the administrative proceeding. See id. at 1562. We are unpersuaded by McKinney for two reasons. First, McKinney was decided in the context of employment termination proceedings
and the long line of cases that establish a fired employee’s due process rights. Id. (“[I]n the case of an employment termination case, due prоcess [does not] require the state to provide an impartial decisionmaker at the pre-termination hearing. The state is obligated only to make available the means by which [the employee] can receive redress for the deprivations.” (internal quotation marks and citation omitted)). Second, although the logic of McKinney is superficially attactive—that a biased tribunal is inherently not authorized by the state—the facts of the present case do not bear out this presumption. The City’s improper process was neither unpredictable nor the result of the rogue actions of one city councilor. The City chose to proceed by legislative hearings—a procedure that did not provide an impartial tribunal and allowed for ex parte contact. In addition, we are faced with the rare circumstance of having allegations of bias borne out by the record: a city councilor had indicated one course of action, was contacted by a constituent with an opposing view, and after that contact, the councilor changed her position and her vote. See ACP III , 2008- NMSC-025, ¶ 36 n.3. The decision to proceed legislatively is not sufficient alone to create a due process violation; it is possible that a legislative hearing could provide a meaningful opportunity to be heard or could be conducted without evidence of ex parte contact resulting in improper influence. Under the facts of the present case, however, as recognized by our Supreme Court in ACP III , there is substantial evidence to support the jury’s decision that ACP did not receive an impartial tribunal and that the flawed process was selected and endorsed as an official act of the whole governmental power of the City. See id. As a result, we are unpersuaded by the presumption applied in McKinney . The present circumstances are more closely aligned with Zinermon v. Burch , 494
U.S. 113 (1990). The plaintiff in
Zinermon
was admitted as a voluntary mental patient even
though he was incompetent to provide informed consent for his admission.
Id.
at 114-15.
The defendants argued that a postdeprivation remedy was sufficient, in lieu of a Section
1983 action, because the constitutional deprivation was the result of a random and
unauthorized action by a state employee.
Id.
at 115. The Supreme Court of the United
States explained that generally, “the Constitution requires some kind of a hearing
before
the
State deprives a person of liberty or property.”
Id.
at 127. The random and unauthorized
rule articulated in
Parratt
represents “a special case . . . in which postdeprivation tort
remedies are all the process that is due, simply because they are the only remedies the [s]tate
could be expected to provide.”
Zinermon
,
zoning decisions that can lead to deprivations of constitutionally protected property rights.
Part and parcel with that authority is the duty to provide adequate predeprivation procedural
protections. Similar to the deprivation in
Zinernon
, an impermissibly biased tribunal was
not unpredictable: the City’s decision to proceed legislatively carried with it the risk of ex
parte contact and bias and, based on the record, the risk was elevated to reality. In addition,
it was not impossible for the City to provide an unbiased tribunal. In
Parratt
, the deprivation
involved the loss of personal property by prison officials—an action which was impossible
for the state to predict and prevent by predeprivation hearing.
{41} We now reach the City’s second argument, which concerns the decision to proceed legislatively. The City maintains that its decision to proceed legislatively was merely a procedural error that does not rise to the level of a constitutional violation and that if ACP is permitted to recover under Section 1983 based on a procedural flaw in the proceedings, property owners will have “the unilateral option to cash in on any procedural flaw in an administrative proceeding by declining remand and pursuing a [Section] 1983 action.” We disagree. The bias in the present case was more than a procedural flaw because ACP had a
protected property interest, it was entitled to due process, and there is evidence of actual bias in the process afforded by the City. An unbiased tribunal was a constitutional requirement in the present case. See 1 E.C. Yokley, Zoning Law and Practice § 3A-1[d], at 3A-23 (4th ed. 2008) (“Procedural due process, however, will apply where a decision is administrative or quasi-judicial and the property owner has an entitlement rather than an expectancy to whatever he or she sought.” (footnotes omitted)). In addition, the decision to proceed under Section 1983, rather than to pursue administrative remedies, is a tactical and risk-laden choice. See 2 Steven H. Steinglass, Section 1983 Litigation in State Courts § 17:3, at 17-7 to 17-8 (2008) (discussing the tactical reasons for resorting to a Section 1983 action or for voluntarily submitting claims to administrative proceedings). The litigant takes the risk of receiving no remedy at all should he neglect to pursue administrative remedies, and the Section 1983 action may be blocked by the myriad of requirements that stand between a plaintiff and relief. We recognize that other courts have concluded that minimal process is due under the
Constitution in zoning cases and that a municipality’s failure to provide the process required
under local law is a matter for state courts, not Section 1983.
See River Park, Inc.
, 23 F.3d
at 166-67. The
River Park, Inc.
court succinctly explained that “the due process clause
permits municipalities to use political methods to decide, so that the only procedural rules
аt stake are those local law provides, and these rules must be vindicated in local courts.”
Id.
at 167. Nevertheless, our analysis of the present case leads to the conclusion that ACP had
a property right that was to be afforded federal due process protections. Due process
*15
requires notice of the pending deprivation and a meaningful opportunity to be heard. In the
present case, the meaningful opportunity to be heard was foreclosed by evidence of actual
and impermissible bias on the tribunal—bias that was the foreseeable result of the political
process chosen by the City as its official act to effectuate the deprivation of ACP’s property.
Under the unusual circumstances of this case, we therefore hold that ACP’s Section 1983
action was not foreclosed by available state remedies and that the City’s failure to provide
ACP with an impartial tribunal violated ACP’s right to procedural due process.
See ACP III
,
4. Ripeness of the Section 1983 Claim The City contends that because ACP prevailed on both the due process and the
takings issues at trial, ACP cannot recover damages for the Section 1983 claim until it has
attempted to recover compensation for the taking. As a result of ACP’s failure to seek
recovery for the taking, the City argues that the due process claim is not ripe. For support,
the City cites
Rocky Mountain Materials & Asphalt, Inc. v. Board of County Commissioners
(Rocky Mountain)
,
When a plaintiff alleges that he was denied a property interest without due process, and the loss of that property interest is the same loss upon which the plaintiff’s takings claim is based, we have required the plaintiff to utilize the remedies applicable to the takings claim. It is appropriate in this case to subsume the more generalized Fourteenth Amendment due process protections within the more particularized protections of the Just Compensation Clause. Accordingly, until a plaintiff has resorted to the condemnation procedures to recover compensation for the alleged taking, the procedural due process claim is likewise not ripe because it is in essence based on the same deprivation.
Id. at 311 (internal quotation marks and citation omitted). ACP argues that (1) federal ripeness jurisprudence does not apply, (2) the takings claim was not coextensive with the due process claim, and (3) no state remedy existed for the takings claim, and ACP was therefore not required to pursue a non-existent remedy. For the reasons listed below, we agree with ACP that the takings claim and the due process claim were not coextensive, and we therefore do not address ACP’s other points. Rocky Mountain identified two sets of circumstances. In one scenario, the loss of the
property interest is the same loss upon which the takings claims is premised.
Id.
This is the
scenario which the City argues is similar to the present case. However,
Rocky Mountain
goes on to explain that “[t]here are many intangible [property] rights that merit the protection
of procedural due process although their infringement falls short of an exercise of the power
of eminent domain for which just compensation is required under the Fifth and Fourteenth
Amendments.” (alterations in original) (internal quotation marks and citation omitted).
*16
{46}
In the present case, the property right that forms the basis for the due process claim
is an intangible right—the right to continuation of a certain zoning classification until the
City can establish specific circumstances, as we have identified in preceding paragraphs.
ACP’s loss resulting from the due process violation was a loss of opportunity to
meaningfully participate in a hearing related to the adoption of the 1995 USP. Our Supreme
Court has determined that ACP’s deprivation of this meaningful hearing resulted in its
inability to develop its property.
See ACP III
,
5. Damages Under the Section 1983 Claim
{47}
In Section 1983 cases, the plaintiff must prove a causal connection between the
wrongful conduct and the injury in order to justify an award of compensatory damages.
Jacobs v. Meister
, 108 N.M. 488, 495-96, 775 P.2d 254, 261-62 (Ct. App. 1989),
disapproved of on other grounds by Carrillo v. Rostro
,
common law of tort damages will be a starting point for Section 1983 damages[.]”
Wells v.
County of Valencia
, 98 N.M. 3, 5, 644 P.2d 517, 519 (1982). Our Supreme Court has
explained that according to long-established principles of tort law, “the purpose of
compensatory damages is to make an injured person whole.”
Lovelace Medical Center v.
Mendez
,
constitutionally protected property right and, therefore, the passage of the 1995 USP violated ACP’s due process rights. Absent the improperly passed 1995 USP, the 1981 USP governed *17 the ACP/Opus site plan. Consequently, we turn to whether the ACP/Opus site plan would have been approved under the 1981 USP. In ACP III , the Supreme Court determined that
[t]he record shows that the [ACP/]Opus site plan, though it needed some adjustments (adjustments that were in the process of being made at the time the City imposed the moratorium to consider the 1995 [USP] amendments), complied with the requirements of the 1981 [USP] and was no different from a number of projects that the City had previously allowed under that sector plan.
related to reimbursement of a percentage of funds used to construct a road. The Supreme Court did not address this argument in ACP III , and we thus consider whether ACP provided substantial еvidence to support the jury’s verdict that ACP’s damages were caused by the City’s actions. The City argues that there was no agreement that the City would reimburse ACP for construction of Loop Road, a road adjacent to the site, and that damages related to the road were improperly awarded based on ACP’s assumption that the City would reimburse for road construction costs. The record supports ACP’s assumption in that there was evidence at trial that the City had paid a percentage of another access road, that the City had identified the cost of such a road as a cost to the City, and that the 1981 USP required public financing of the road. Accordingly, we conclude that ACP put on evidence to support the jury’s assessment of damages in this regard.
B. Post-Judgment Interest We review the trial court’s construction of the post-judgment interest statutes de
novo.
Bird v. State Farm Mut. Auto. Ins. Co.
,
{53}
As the City recognizes, post-judgment interest is routinely awarded in Section 1983
cases filed in federal court. The basis for those awards, however, is 28 U.S.C. § 1961
(2000).
See, e.g.
,
Transpower Constructors v. Grand River Dam Auth.
,
jurisdictions do permit the recovery of post-judgment interest against the state or political
subdivisions, either by statute, by case law, or by both.
See
Alaska Stat. § 09.50.280 (1997);
Ariz. Rev. Stat. § 12-823 (1984); 735 Ill. Comp. Stat. 5/2-1303 (1987); Ind. Code § 34-54-8-
5 (1998); Kan. Stat. Ann. § 16-204 (1996); N.Y. State Finance Law § 16 (1982); Okla. Stat.
tit. 12, § 727.1(B) (2004); Tenn. Code Ann. § 9-8-307(d) (2005);
State of Ala. Highway
Dep’t v. Milton Constr. Co.
,
successful plaintiffs to recover post-judgment interest on verdicts against the state.
See Chun
v. Bd. of Trs. of the Employees’ Ret. Sys.
,
question of post-judgment interest in a Section 1983 case filed in state court. Our research thus reveals that there is no support for ACP’s position that the City is required to pay post- judgment interest in this case. ACP argues that the denial of post-judgment interest for Section 1983 claims brought
in state court will have a twofold effect. First, ACP quotes
Wells
to argue that “[t]he
Legislature cannot enact a law which would have the practical effect of depriving a party of
his rights secured by the United States Constitution.”
[b]ecause the notice-of-claim statute at issue here conflicts in both its purpose and effects with the remedial objectives of [Section] 1983, and because its enforcement in such actions will frequently and predictably produce different outcomes in [Section] 1983 litigation based solely on whether the claim is asserted in state or federal court, we conclude that the state law is pre-empted when the [Section] 1983 action is brought in a state court.
Id.
We do not believe that the New Mexico prohibition against the recovery of post-
judgment interest against the state and political subdivisions “conflicts in both its purpose
and effects with the remedial objectives of [Section] 1983.” The remedial objectives of
Section 1983 are certainly achieved when a plaintiff successfully brings suit for damages
against the state to vindicate constitutional rights. The recovery of post-judgment interest
operates only as an enforcement mechanism to encourage the timely payment of damages
after judgment has been entered.
See Bird
,
C. Attorney Fees and Costs
1.
Recovery Under Section 1988 For State Law Claims
{58}
The City first contends that the trial court improperly awarded attorney fees for the
first administrative appeal under Section 1988, which only allows recovery for federal civil
rights actions.
See N.C. Dep’t of Transp. v. Crest St. Cmty. Council, Inc.
,
the civil rights claim would not have been successful. The trial court agreed and found that
“virtually everything [in the first administrative appeal] focused on whether there was a
downzone.” As we discussed above, ACP’s identifiable property right is to be free from
downzoning unless the City can establish certain criteria. Therefore, there was no abuse of
discretion to permit attorney fees for the first administrative appeal because that appeal
decided an issue that was crucial to the later and successful constitutional claim.
See N.C.
Dep’t of Transp.
,
2. Costs The City next argues that specific costs awarded by the trial court were either (1)
improperly categorized in the cost bill or (2) not recoverable under state or federal law. We
review a trial court’s determination of costs for abuse of discretion.
Bird
,
{61} The City contends that ACP improperly categorized some expenses under Section 1988 that were not recoverable under that section and other expenses under Rule 1-054 that were not permitted under that rule. The trial court concluded that any improper categorization of the requests did not “require that the request be disallowed [i]f it is otherwise compensable under the law.” Although ACP acknowledges that it claimed some items under both statutes, it repeatedly asserted that double recovery was not sought for expenses that were claimed under both laws. We agree with the trial court that if certain costs were permissible under any law—federal or state—ACP was entitled to recover those costs. See Rule 1-054(D)(1) (“[C]osts, other than attorney fees, shall be allowed to the prevailing party unless the court otherwise directs[.]”). We therefore review each of the City’s arguments regarding whether a particular expense is allowable under either Section 1988 or Rule 1-054(D). The City disputes the trial court’s award of copy costs, subpoena fees, and transcript
fees. These arguments are without merit because either Rule 1-054(D)(2) or Section 1988
permit the recovery of these costs, and the City admits that copy costs are billed through as
attorney fees.
See Case v. Unified School Dist. No. 233
,
costs. Section 1988 and Rule 1-054(D) are silent with regard to mediation costs. New
Mexico trial courts are cautioned that “[c]osts generally are recoverable only as allowed by
statute, Supreme Court rule[,] and case law,” Rule 1-054(D)(2), and “[w]e therefore expect
. . . courts to exercise their discretion sparingly with regard to costs that are not specifically
authorized.”
H-S-B P’Ship
,
to recover costs related to expert witnesses. The parties do not dispute that Section 1988
does not permit recovery for expert witnesses in Section 1983 actions.
See
§ 1988
(permitting the recovery of expert witness fees in proceedings to enforce the provisions of
42 U.S.C. §§ 1981 or 1981a (2000)—but omitting reference to Section 1983);
see also James
v. Sears, Roebuck & Co.
,
The trial court found that Rainhart and Ricker testified at trial as experts and that the City
did not object. It was not therefore not an abuse of disсretion to allow ACP to recover costs
for those experts.
See
NMSA 1978, § 38-6-4(B) (1983);
Fernandez v. Española Pub. Sch.
Dist.
,
III. CONCLUSION We affirm the trial court and the jury verdict on the Section 1983 claim and the
award of damages, costs, and fees, with the exception of the award of post-judgment interest. We remand the matter to the trial court for an entry of judgment consistent with this opinion. IT IS SO ORDERED.
________________________________ CELIA FOY CASTILLO, Judge WE CONCUR:
_________________________________
MICHAEL D. BUSTAMANTE, Judge
_________________________________
LYNN PICKARD, Judge Pro Tempore
Topical Index for Alb. Commons Partnership v. Alb. City Council , Nos. 24,026/24,027/24,042/24,425
CP CIVIL PROCEDURE
CP-DP Due Process
CP-ER Election of Remedies
CR CIVIL RIGHTS
CR-AF Attorney Fees
CR-PR Procedure
CR-SE Section 1983 Actions
CT CONSTITUTIONAL LAW
CT-DP Due Process
CT-RP Ripeness
CT-TC Taking Without Compensation
GV GOVERNMENT
GV-LU Land Use
GV-ZL Zoning Law
JM JUDGEMENT
JM-IN Interest
RE REMEDIES
RE-CD Compensatory Damages
RE-ER Election of Remedy
RE-MD Measure of Damages