Email:
(505)332-9400 Albuquerque,
Victor
Victor
Counsel
12509
WILLIAM
DANIEL
NEW
v.
SUZANNE
STATE
IN
Oakland App
R.
R.
Appellants,
THE
MEXICO
for
Marshall
OF
Marshall
WEINSTEIN;
ellees.
Appellants
HOWELL;
COURT
NEW
FOY
New
FAX:
NE
STATE
&
AND
Mexico
MEXICO,
Associates,
(505)332-3793
OF
and
JOHN
VICKY
APPEALS
INVESTMENT
87122
MARVIN
BRIEF
ex
CASEY,
P.C.
rel,
L.
FRANK
SCHIFF;
QF IN
ROSEN,
CHIEF
THE
COUNCIL;
Ct. D-lol-CV-201
Sarah Santa
FOY,
App.
STATE
Oral
Fe
M.
No.
County
Singleton,
Argument
C0UR
OF
33,787
101534
NEW
O
R
ALBUQUERQUE
APP’
District
Is
FILED
MEXICO
21)
Requested
tc4ø
S
OF
Z015
Judge
NEW MEXICO
Part
Part
Part
Argument
Statement Introduction Table
C.
B.
A.
4.
3. 2.
2.
1.
1.
of
Authorities
of
Association
and
Disputed
Contrary The
The
The
Gary of
The Taxpayers
because
Foy’s
Gary appeal The
The Violation
The
and
Proceedings
damages
Evidence
District
district
district
district
district
district
District
King
King
Summary
claims
before
that
to
Facts
of
Act
and
and
court
is
FATA
court
court
court
court
Court
the
Court
case
in
the
irrelevant TABLE
.
and
Relevant
Day
the
Austin
Continuing
violated
violated
erroneously
Supreme
violated
is
had
Denied
Acted
and
District
§
assigned
Pitney
6-8-24
no
while
OF
the
to
to
jurisdiction
Beyond
San
several
the
the
Qui
Rules Court
CONTENTS
violated
the
Court
Stay
that
to
ruled
automatic
Juan
evaluation
Evaluation
Tam
another
case
of
in
provisions
Violated
Its
Agricultural
that
Austin
§
Civil
Plaintiffs
Jurisdiction,
over
6-8-24
is
judge
on
the
stay
Procedure
of
the
of
the
interlocutory
amount
a of
......
by
Settlement,
settlement
claims
Discovery
Fraud
FATA
Water
releasing
and
in
Against
Users
in
Austin, on
.
36
35
34
24 24
30
23
22
22
22
iii 1
proportionally-spaced
excepted
the
This
Request
Conclusion
Part
Part
body
brief,
E.
D.
by
2.
of
for 1.
according
the
Rule
Oral
and
Standing
The
Gary
in6-8-2
of
The
The
resolved
foregoing
Where
Public
12-21
Request
Argument
District
SIC
“Order
King
to
typeface
there
3(F)(
to
the Violated
Records
through
brief and
Raise
for
Court
of
word
1).
are
His
Relief
Dismissal”
contains
(Calisto
The
These
disputes
discovery
Act, the
Erred
count
Staff
11
text
Open
and
Conflicts
Had
MT). by
provided
10,987
of
about
is
the
Ruling
Meetings
the
not
Personal
Quorum
brief words,
material
a
by
final
That
WordPerfect
is
Act,
Conflicts
exclusive
composed
appealable
Requirement Qui
facts,
the
Tams
Inspection
they
of
of
in
Version
Interest. judgment
Had
those
can
14
No
point
only
parts
X5,
be
.
51
51
49
.
41
40 36
Prior
United People
Multimedia
Moorv. Arkansas United
United
Cases
State VP.
State
Tn-State Farmers
San
Board Aetna
G
New
&
Juan
Lake
Clarence
G
ex
ex 3776260
(S.D.N.Y. No,
2006
[28Misc.3d1215(A)(2010).]
289P.3d v.
Mexico States
297
States
States
from
150
of
128 Cas.
101
Serves,
County
rel. rel.
Morris,
Ins.
Cnty
Gazette
Generation
Agricultural
American
04
P.3d
N.M.
N.M.
N.M.
Publg WL
Foy and
Clark
cx
cx
Other ex
Group
Civ,
Co.
Inc.
Comm’rsv.
(D.D.C.
rel. Cases:
rel. ofAlameda,
rel.
Sur.
v.
2010
925035
357,
1232
Co.
Mar. v.
64 434
v.
235
Austin
v.
3088, v.
Resnick
Schweizer
Nudelman
Johnson, v.
Colgate, Jurisdictions: v.
Henderson and
Co.
v. Agora
cert.
Martinez,
N.Y.
Mader,
Water
Pickens,
5,
v.
Jul.
(E.D.
Transmission
2009
Capital
2009)
granted,
Ogden,
TABLE
Bendix v.
Syndicate, 411
Slip
1993-NMSC-022,
v.
Users 19,
1995-NMSC-048, Weill
v.
642
U.S.
Oce
Pa.
Cnty.,
522
Int’lRehab,
U.S.
1988-NMCA-018,
Management, op.
2013)
1994-NMCA-010,
Control
N.W.2d Ass
300
Med.
North
Apr.
OF
S.W.2d
Dist.
693 51331(U),
Inc.,
525
Ass
‘n
P.3d
111
AUTHORITIES
v.
Coil,
4,
America,
Div.,
‘n
(1973)
LEXIS
S.E.2d
KNME,
2000-NMCA-003, 2006)
Assocs,, 729
v.
350
1181
of
D
Ltd.,
1984-NMCA-029,
115
Cornell
(Minn.
Antonio,
120
at
(Ark.
24376
786
(Mar. No.
201 *41
Inc.,
N.M.
201
107
N.M.
117
(N.C.
06-648, 1-NMSC-01
Univ.,
1975)
3-NMCA-043,
2002)
N.M.
No.
15,
N.M.
201
471
562
2013)
Ct.
00-1837,
2-NMSC-039,
82
2013
181
App.
1,
WL
2000)
4,35
.
29
29
29 44
44 38
44
40
43 40
40 46
40
9
7 1
James
The The
Fed. False
Other Rule 18U.S.C.1001
Rulell-901,NMRA Rule
Rule
Rule
Rule Rule
NMSA Rule
NMSA
NMSA
NMSA NMSA
NMSA
NMSA
NMSA
NMSA
N.M.
Open
Inspection
Fraud
New
1.15.2.119NMAC
George Federalist
R.
of
available
Series 12-203(E),
Claims
11-802,NMRA
11-602,
1-56(F), 1-054(B)(2),
1-026,
1-0
Madison’s
Authorities: Mexico
Const.
Meetings through
through
Civ.
Against l787forSeptember
1978, 1978,
1978,
1978,
1978,
1978,
1978,
1978,
1978, 12,
4.
Washington
of
NMRA
I’TMRA
P.
Act,
NMRA
at
NMRA
art.
§ §
No. § General
§
§ Public
§
§
§
§
Constitution, 26,
-12
-15
44-9-13 Taxpayers
44-9-12 44-9-7
44-9-6
44-9-5 44-9-3
NMRA
http:
6-8-24 6-8-2(B)
10-15-3(A)
Act,
notes
V,
NMRA
12
Advisory
58
§
Stat. /
Records
NMSA
(James
/lcweb2
9
on
Correspondence, Papers
the
696
Act
14,
Committee
Madison,
1978,
Court
Debates
Act,
(1863)
.loc.gov/ammem/GW/
(“FATA”),
1787
at
the
NMSA
§
Rules,
iv
Library
10-15-1
in
Feb.
notes
1697-1799,
the
NMSA
1978,
Regulations,
20,
Federal
through to of
1788)
Congress,
§
1993
1978,
14-2-1
Image
Convention
amendments
-5
1301
§
and 233,
44-9-1
1741-1799: b.jpg
3,6,10,25,26,27-28
Statutes:
4,41,42,45
2,3,4,7,8
5-6,26-27
4,9,24,34
3,21,42
3,21,42
passim
•
40-41
4,12
2,12
4,12
.
7,23
48
48
48
49
39
40 23
23 45
47
42 6
4
4 4
N.M.
U.S.
Const.
Att’y
Gen.
art.
I,
op.
§
9,
90-20
ci.
7 V
.
43-44 47 INTRODUCTION AND SUMMARY
All of the issues in this brief are issues of first impression for the appellate courts of New Mexico. This court’s decision on these issues will affect several hundred million dollars in potential recoveries for the State of
New Mexico. All of the questions in this appeal involve questions of statutory interpretation, so they are reviewed denovoby the appellate courts. Tn-State
Generationand TransmissionAss’nv.DAntonio, 20l2-NMSC-039, ¶ 11, 289 P.3d
1232.
The present case (SIC v.Blanc!)is an outgrowth of two cases filed by the qui tam plaintiff Frank Foy under New Mexico’s Fraud Against Taxpayers
Act (“FATA”). StateexrelFoy v. Vanderbiltand StateexrelFoy v.Austin Capital.
The present case is based on the facts uncovered by Mr. Foy in Vanderbiltand
Austin. All of the present defendants are defendants in Vanderbiltor Austin.
Because the present litigation is an “alternative remedy” to Mr. Foy’s cases,
FATA explicitly grants Mr. Foy the right to intervene in the present case, to object to any settlement proposed by the Attorney General, to present evidence, and to receive the same reward as in Vanderbiltand Austin.
However, at the urging of then Attorney General Gary King, the district court (Hon. Sarah Singleton) infringed all of the special statutory rights which the
Legislature gave to Mr. Foy.
Both the Vanderbiltand Austin cases are stayed while the New Mexico
Supreme Court decides whether the 20 year retroactivity provision in FATA is constitutional. For reasons that have never been adequately explained, Gary
King has tried to settle Mr. Foy’s cases for relatively small amounts before the
Supreme Court issues its ruling, in violation of the continuing automatic stay imposed by Rule 12-203(E).
In 2013, the Attorney General went to Judge Stephen Pfeffer and asked him to dismiss the Vanderbiltcase. Judge Pfeffer firmly rejected the proposed settlement as contrary to FATA.
After being rebuffed by Judge Pfeffer, Gary King went judge shopping.
He negotiated secret settlements for small amounts with some of the defendants in the Austin case and the Bland case. The proposed settlements included a release of claims in Mr. Foy’s Austin case against the defendants
Weinstein, Schiff, Rosen and Howell. Mr. King was required to present these proposed releases and settlement of the Austin claims to the district judge having jurisdiction over that case, the Hon. Louis McDonald, or to the Court
and
imposed
acted
claims
requested,
though
Singleton
though
reach
shopping
or
lift
of
the Appeals,
the
especially
in
•
•
Therefore
•
the
Gary
Supreme
under
stay
Austin
Judge
excess
the
the
the
by
to
same
has
without
pending
Rule
King
Inspection
or
Open
Fraud
Judge
the
no
Singleton
continues
§
to
of
decision
44-9-6(B),
Court,
the
Fraud
authority
the
12-203(E).
did
its
Meetings
Singleton Against
following
decision
jurisdiction,
appeal.
Supreme
not
probably
of
Against
has
as
to
apply
Public
(C),
to
be
Judge
Taxpayers
Act,
no
below
The
and
the
lift.
subject
Court,
and
jurisdiction
to
Taxpayers
because
Records
stringent
§
and
asked
district
Pfeffer.
Judge
Nevertheless,
(H)
must
10-15-1
to
in
because
Act
3
her
[all
violation
an
McDonald,
be
court
he
Act,
Instead,
requirements
(“FATA”),
Act.
references
automatic
over
to
through
reversed
feared
dismiss
those
§
also
Judge
the
14-2-1
of
Mr.
that
acted
Austin
courts an
-5;
or
because
stay
are
claims
,
Singleton
King
those
automatic
the
§
through
for
contrary
to
44-9-1
which
case,
had
Court
settlement
NMSA
went
in
courts
the
jurisdiction
Austin,
and
-12;
did
district
through
Judge
of
stay
forum
to:
would
Appeals,
1978];
even
as
of
even
the
court
-15,
AG to
and tenure.
January
602
[Attorney
about that
statute
37-40, FATA;
if
Investment
the
his
(need
a
Note:
litigation
party
material
•
•
•
•
•
150
which
current
So
1,
the
Rule
San §
§
General’s
for
6-8-24,
6-8-2(B)
2015.
N.M.
this
must
Council);
Rules
Hector
Juan
personal
is
12-203(E)
facts.
staff. brief
does
different
64
be
All
Agricultural which
of
(a
Balderas
(it
Officej
allowed
uses
not
of
Inter
Civil
statutory
knowledge);
is
the
prejudice
(automatic
allows
than
error
“Gary
alia,
Procedure
events
to
to
replaced
Water
the
refer
to
see
quorum
conduct
the
King”,
follow
state
or
in
Rules
to
SIC
11-802
stay
Users
impair
this
and
Mr.
4
Gary
statute);
“Attorney
is
discovery
to
federal
during
1-012,
Ass
appeal
Rules
required
King
pursue
(hearsay);
King
the
‘n
v.
case
interlocutory right
1-026,
and
of
occurred
KNME,
as
contingent
when
General”,
Evidence,
for
Attorney
his
law
of
11-901
action
and
qui
staff,
there
interpreting
2011
during
1-056(F);
tam
(authentication).
and
by
fee
not
which
appeal);
are
General
-NMSC-0
litigants
the
litigation
Gary
Mr.
“AGO”
disputes
State
provide
Rules
a
Balderas
and
federal
on
King’s
11,
under
only
11- ¶
proceed
early Mr.
action permanent
provides
New
complaint
5(B), Council
No.
state
Act.
complaint
Taxpayers
Foy
D-101-CV-200801895.
court
election Mexico’s
Foy’s
On
While
The
Frank
on
with
and
and
retirement
July
behalf
qui
alleged
on
under
Act
funds
counsel
Mr.
the
Foy’s
his
the
whether
behalf
tam
14,
Educational
(“FATA”).
of
Education
law
case, Foy’s
FATA.
which
2008,
a
plaintiff
the
qui
negotiated
benefits
massive
STATEMENT
of
firm
to
State.
tam
the
Gary
complaint
support
the
intervene
should
State
Frank
Retirement
The
State
lawsuits
Retirement
qui
to
pay
King
FATA
with
school
tam
public
Vanderbilt of
to
ex
unseal
Foy
remained
elected
New
or
rel.
play
Gary
plaintiff
OF
requires
under
to
teachers.
is Foy .3
c
schools
Board.
Board
the
conspiracy
let
PROCEEDINGS
Mexico
the
King
not
case
v.
qui
the
complaint
under
former
Frank
Vanderbilt
the
to
(“ERB”).
and
tam
and The
is
Fraud
intervene,
under
Attorney
the
seal,
Foy
universities,
at
his
prosecute
chief
SIC
first
the
Against
and
Financial
staff
the
as
filed
manages
The
investment
case
State
required
prosecute
Fraud
General
but
about
a
Vanderbilt the
ever
sealed
Taxpayers
agreed
Investment
while
Trust
Against
case.
the
how
by
filed
to
officer
the
State
et
the make
§
that
to
§
44-9-
aL,
in
civil
44-9-
ERB
at an 5(D). Once the Attorney General decides not to intervene and take over the case, then “the qui tam plaintiff shall have the right to conduct the action,” §
44-9-6(F).
When the Vanderbiltcase was unsealed in January 2009, it started a chain of events that ultimately led to the resignations of Gary Bland, the Chief
Investment Officer of the State Investment Council, and Bruce Malott,
Chairman of the Educational Retirement Board. In 2009 Frank Foy filed a second FATA case that expanded upon and provided more details about the pay to play conspiracy described in Vanderbilt. The second case is Statecxrel.
Foy v.Austin Capitalet al., Corrected First Amended Complaint, No. D-101-
CV-200901189 [RP 4681-769].
Both cases were filed under the Fraud Against Taxpayers Act, a qui tam statute enacted by the Legislature in 2007. In broad terms, the Fraud Against
Taxpayers Act is modeled after the federal False Claims Act (“FCA”), 12 Stat.
696 (1863), a qui tam statute which dates back to “Lincoln’s Law”, enacted during the Civil War. However, when the New Mexico Legislature enacted
FATA, it made numerous improvements on the federal statute. The
Legislature changed the text of the statute to overrule federal cases where federal judges had rubber-stamped settlements by the government over the
6 objections of the qui tam plaintiffs, without a hearing on the evidence. The
Legislature fixed other parts of the federal act which had proved problematic, and added stronger protections for the procedural and monetary rights of the qui tam plaintiff. See Part B.
FATA contains an explicit 20-year retroactivity provision that allows
FATA to be used as a remedy for frauds that were committed against the State at any time after July 1, 1987. §44-9-12(A). In Vanderbilt,Judge Stephen
Pfeffer ruled that this part of the statute was unconstitutional as expostfacto legislation. In Austin, Judge John Pope adopted the same ruling, and certified it for interlocutory appeal. The Court of Appeals accepted the interlocutory appeal on August 31, 2011. At that point, appellate Rule 12-203(E)imposed an automatic stay on all proceedings in the Austin case. That stay remains in effect, but it has been violated by the proceedings in this case. See Part A.
The Court of Appeals affirmed the ruling that parts of FATA are unconstitutionally retroactive. Stateexrel.Foy v.Austin CapitalManagemenç,
Ltd., 2013-NMCA-043, 297 P.3d 357, cert.granted, 300 P.3d 1181 (Mar. 15,
2013).
7 The New Mexico Supreme Court granted certiorari and heard oral argument on November 14, 2013. The Supreme Court case number is 34,013.
The Court might issue a decision at any time.
No matter how the Supreme Court rules on the retroactivity issues, the
Vanderbiltand Austin cases will go forward, because both cases allege violations of FATA that occurred after the effective date of the statute. The interlocutory appeal will not affect those claims.
The Austin district court case is currently assigned to Judge Louis P.
McDonald in the Thirteenth Judicial District. It is automatically stayed by operation of Rule 12-203(E)pending the Supreme Court’s decision. The
Vanderbiltcase is also stayed, by an order entered by Judge Stephen Pfeffer on
July 12, 2013, discussed below.
Gary King’s later lawsuit based on the same facts against the same defendants. Meanwhile, in August, 2010, the SIC and Gary King hired Day
Pitney, a medium sized firm from Connecticut, to investigate the pay to play scheme uncovered by Mr. Foy in Vanderbiltand Austin. Initially, the SIC paid
Day Pitney on a hourly basis, Then the SIC and Day Pitney wished to change to a contingent fee contract, so they asked for authorization from the
Legislature. The 2011 Legislature did authorize contingent fee contracts for
8 the SIC, but only after it added a specific new provision directing the AG and the SIC not to “prejudice or impair” the rights of a qui tam plaintiff, like Frank
Foy. §6-8-24. See Part B.3.
In May 2011, Day Pitney and Gary King filed a complaint in federal court on behalf of the State Investment Council, based on the same operative facts as the Austin case, against the same defendants, alleging breach of fiduciary duty and conspiracy. Day Pitney’s purported federal complaint was based on diversity jurisdiction. However, it is well settled that a state cannot invoke diversity jurisdiction, because the State of New Mexico itself is not a citizen of the state for purposes of diversity jurisdiction. Moorv. Countyof
Alameda, 411 U.S. 693, 717 (1973).’
The AGO and Day Pitney withdrew their facially defective federal complaint and ultimately filed the present case in state court. State Investment
Council v. Gary Bland, Guy Riordan, Saul Meyer, Renaissance Private Equity
Partners, LP d/b/a Aldus Equity Partners, LP, Marc Correra, Anthony
Correra, Alfred Jackson, Daniel Weinstein, Vicky L. Schiff, Julio Ramirez,
The head of Gary King’s civil division, Scott Fuqua, admitted that he was ignorant about the diversity rule. Day Pitney offered no explanation for filing in the wrong court. This is one of several instances where Day Pitney and Gary King’s staff did not meet the standards of competence required of attorneys in litigation of this magnitude.
9 Barrett Wissman, William Howell, Marvin Rosen, Daniel Hevesi, Elliott
Broidy, Milton Robert Carr, and Henry Morris, No. D-l01-CV-201 101534.
(Hereafter referred to as “the Bland case” or “the present case”.)
The Bland case is an offshoot of the Austin case and the Vanderbiltcase.
The Bland case is based on the same operative facts. Of the 17 named defendants in SIC v.Bland, 15 are already named defendants in the Austin case.
The defendants Bland, Marc Correra, and Anthony Correra are also named defendants in Vanderbilt.
The Bland lawsuit is an “alternate remedy” under §44-9-6(H) of FATA.
FATA does allow the Attorney General to pursue other actions as an alternative to the qui tam’s lawsuit. However if the State pursues an alternate remedy, FATA expressly gives qui tam the same rights in the alternate action.
“If an alternate remedy is pursued, the qui tam plaintiff shall have the same rights in such a proceeding as the qui tam plaintiff would have had if the action had continued pursuant to this section.” Id. These rights include the qui tam’s right to his reward and attorney fees, the right to intervene and participate as a party in the alternate action, and the right to present evidence in the alternate action. Gary King and the district court deprived the qui tam plaintiffs of these rights. See Part B.
10
through purported
an
prohibited
The
provided,
from
qui Singleton court
4311-16].
strenuous
appeal, to plaintiffs
qui
stay
evidentiary
tam
tam
Bland
conducting
also
The
At
The
the
over
plaintiffs
discovery.
plaintiffs
the
[RP
plus
denied
objections
refused
“evidentiary
district
Bland
prohibition
all
Bland
the
request
discovery
14701.
hearing,
a
copy
vigorous
case
the
case
qui
to
exercised
court
to
Without
get
discovery
allow
of
of
tams’
was
until
of
against
hearing”
but
the
the
a
said
[RP
any
copy
objections
assigned
discovery
Attorney
the
motion
qui
she
their
the
4006-08].
the
insurance
which
of
Supreme
tam
discovery.
denied
qui
right
about
statutory
the
to
to
plaintiffs.
tam
of
General’s
in
documents
they
to
compel
the
11
them
the
agreement,
the
The
the
gather
plaintiffs
Court
Honorable
right
settlements,
sought
At qui
Bland
qui
the
discovery.
Gary
On
tam
decides
office,
evidence,
to
tam
right
which
case,
could
to
January
intervene
but
plaintiffs
King’s
plaintiffs
evaluate
Sarah
to
the
beyond
the
again
since
defendants
present
gather
The
the
district
Austin
19,
request,
M.
as
FATA
[RP
right
over
the
were order
2013,
that,
evidence
additional
Singleton.
evidence
court
settlements. 4113-15;
interlocutory
the
to
had
thus
the
allowed
the
requires
Judge
present
refused
district
already
court
barred
at
The a
$20,000
$300,000
series provided
defendants,
voluntarily
2560-2614;
to
Gary
“informal
have
requests
PartsBandC.
facts.
must
evidence
compel
information
King
be
of
In
In
In
from
small
allowed
Bland,
for
the
this
Gary
from
is
discovery”
testimony
and
chose
meaningless.
which
3547-3714],
production
Bland
Howell
instance,
settlements:
Rosen
King’s
the
the
to
to
about
were
case,
AGO
defendants.
conduct
provide.
from
[RP
through
[RP
staff
almost
of
never
the
there
but
and
See,
4160].
2537],
documents.
witnesses.
with
$100,000
case.
discovery
they
Relying
were the
e.g.,
Diamond tested
all
whatever
rather
were
of
defendants
No
Rules
no
the
by
from
The
requests
12
upon
when
depositions.
blocked
No
discovery,
than
major
Edge
1-012,
information
qui
Weinstein
identification
these
there
real
engaged
tam
Capital
issues
for
by
1-026,
discovery.
selective
admissions.
the
are
the
plaintiffs
No
of
and
in
court
disputes
Partners
AGO
the
and
fact
interrogatories.
what
of
Schiff
defendants
disclosures
1-056(F)
persons
were
at
filed
negotiated
The
they
the
about
No
[RP
[RP
disputed.
motions
defendants
request
subpoenas
called
4169]; likely
—
4152];
material
a
from
party
a
No
to
of
[RP
and
See the
in These
stay.
but
to
FATA
negotiated required
defendant global which
release
Tr.
only
The these
small
judge
Judge
not
1819-24;
qui
had
However,
defendants
Gary
sums,
The
courts
release
the
claims
any
the
shopping
tam
McDonald,
to
jurisdiction
AGO
in
jurisdictional
a
FATA
make
King
of
the
release
plaintiff
the
were
RP
of
in
the
the
settlements
Austin
all
filed
Austin.
was
in
4184-85,
a
by
claims
assigned
claims
motion
claims
AGO
the
limited
going or
over
intervenors
required
with
case
Austin
to
For
in
problem
in
chose
the
the
for
Judge
5410-111.
in
to
the
Austin
to
released
Austin.
[RP
example,
the
Judge
case
Court
or
case,
the
to
case
not
4159-64].
on
present
repeatedly
Singleton,
Austin
weakly
as
and
assigned
a
behalf
and
to
Instead,
Singleton,
of
and
part
case
If
13
see
judge do
Appeals,
Gary
case.
each
the
dismissed
of
pled
this,
not
the
of
to
subject
a pointed
settlement
the
shopping.
the
of
King
negotiated
release
The assigned
her,
complaint
and
who
them
or
AGO
SIC,
AGO
not
decided
to
the
and
to
has
out
of
the
had
objections
which
tried
the
FATA
to
of
the
no
William
that
In
settlement,
might
for
Supreme
Judge
the
authority
Austin
jurisdiction
exchange
SIC
instead
to
Judge
fiduciary
includes
claims
claims
sneak
have
wanted
Singleton.
by
Howell,
case
Court.
to
Singleton
qui
to
they
in
in
against for
engage
the
breach
[7-15-13
lift
over
Austin
a
tams,
to
these
were
a the
jurisdiction
and relation
these
without rejected going
dollars. no
settlement
See conclusions
over the
her, automatic
discovery
Austin
Part
the
and
which
same
Judge
Judge
Judge
to
SIC.
by
to
real
Judge
A.
a
case.
case stay
the with
Judge
no-discovery
she
over
Pfeffer
[RP
Singleton
Pfeffer’s
discovery,
[RP
He
State’s
in
Singleton,
which
has
the
This
the
5635-84],
explained
Austin.
Pfeffer.
4562-81].
rejected
no
Vanderbilt
Austin
is
damage
rejection
is
approved
jurisdiction
and
forum
stayed
tactics
Gary
The
Judge
case,
his
because
the
Foy
defendants,
claims,
shopping.
AGO
reasons
by
settlement King
in
of
a
and
objected
Singleton
the
release
the
the
or
the
and
she
and
authority,
which
appellate
14 Vanderbilt
SIC’s
in
amount
never
the
And
Day
a
of
for
because
proposed
very
never
all
exceed
proposed
SIC
$24.6
Pitney
it
addresses
SIC
courts.
a
was
case,
thoughtful
is
negotiated
case
explains
it
a
million
five
claims
by
was
maneuver
quite
had
but
which
settlement.
the
In
hundred
improper
the
they
already
inadequate
her
how
AG, in
-
opinion,
in
a
appellate
is
Austin,
findings
secret
were
to
exchange
not
she
Day
million
evade
attempted
to
assigned
had
Before
firmly
which
and
a
Pitney,
settle
in
stay.
case
and
the
hasty
for
is to set forth here in detail. Qui tams submit that it correctly states the law that governs judicial approval or rejection of proposed settlements under FATA.
1. As preliminary matters to seeking acceptance of its proposed settlement, the State asks this Court to declare that “the qui tarnplaintiffs have no right to object to the proposed settlement of NMSIC’s claims and/or finding, pursuant to Section 44-9-6.C, [,],“ to conclude “that the proposed settlement is fair, adequate and reasonable under all of the circumstances,” and to “disapprov[e] any reward to the qui tarn plaintiffs or fees to their counsel.” Given the posture of the matter, this Court need not reach the majority of the State’s arguments. 2. An issue previously decided by this Court—whetherthe provisions of the Fraud Against Taxpayers Act (“FATA”) apply retroactively, or whether claims that predate enactment of FATA are barred by prohibitions against expostfacto laws—looms over this litigation. The Supreme Court of New Mexico has granted certiorari on precisely the same
issue in a companion case. [Austin] . . . Given that the appellate decision in the companion lawsuit will illuminate the very same significant issue in this matter, and based on the analysis below, the State’s Motion to Approve and Enforce Settlement Agreement shall be denied and this matter shall be stayed until a decision is rendered by the Supreme Court in the companion matter. 3. While the State asserts that “the Court can approve a settlement, notwithstanding the objection of a qui tarn plaintiff, if it finds that the proposed settlement is ‘fair, adequate and reasonable under all of the circumstances,” the State omits crucial aspects of the applicable statutory provision. CompareMotion to Approve, at 4, with §44-9--6.C. Paragraph C of Section 44-9-6 provides: “The state
15 may settle the action with the defendant notwithstanding any objection by the qui tarn plaintiff jfthe courtdetermines,aftera hearingprovidingthe qui tarn plaintff’an opportunitytopresentevidence,that the proposedsettlementis fair, adequateand reasonableunder all ofthe circumstances.”(Emphasis added)[by the court]. Ostensibly, the purpose of Paragraph C of Section 44-9-6 is to afford qui tarnplaintiffs the opportunity to test the fairness, adequacy, and reasonableness of proposed settlements, as well as to give the Court an adequate basis on which to rest its assessment. The statutory scheme does not permit the evaluation to be made unilaterally by the State. Likewise, it would be inappropriate for this Court to attempt to evaluate the proposed settlement based on the conclusory assertions of the State and Defendants. Allowing the Qui tarn Plaintiffs to test the fairness, adequacy, and reasonableness of a proposed settlement “under all the circumstances” suggests that “all the circumstances” be knowable and can be adequately assessed. At this stage, this Court is not in a position to adequately assess all the circumstances integral to determining whether the proposed settlement is fair, adequate, and reasonable. That is, if the Supreme Court reverses the determination that FATA claims that predate enactment are barred by ex postfactoprotections, thereby allowing such claims to proceed, the proposed settlement would not be based on an accurate assessment of Defendants’ exposure. It bears noting that, prior to this Court’s ruling on the expostfactoissue, the State had supported Qui tarn Plaintiffs’ position and filed arnicuscuriaebriefs in that regard. Ultimately, it is the responsibility of this Court, in determining the propriety of a proposed settlement, to hold the interests of the citizens of New Mexico paramount and to ensure that the public’s coffers arc reimbursed fairly, adequately, and
16 reasonably under all of the circumstances. See§44-9-6.C. 4. In addition, the State’s proposed settlement ignores that this Court explicitly allowed Qui tam Plaintiffs to pursue all remaining claims pursuant to Section 44-9-3.A(9),. For example, any post-enactment and NMERB claims are still the province of Qui tam Plaintiffs. The State’s proposed settlement essentially presumes a defactoexpansion of this Court’s December 20, 2011 Order Granting Partial Dismissal. 5. The State also “asserts that the proposed settlement of N1vIERB’sclaims is fair, adequate and reasonable under all the circumstances” for a variety of reasons. SeeMotion to Approve, at 9. For instance, the State asserts that “[1]ittle meaningful discovery has been conducted.” Motion to Approve, at 9, ¶ 2. Given the State’s assertion, this Court seriously questions whether it could fairly assess the propriety of the proposed settlement agreement, or if the State itself can assess the fairness, adequacy, and reasonableness of the proposed agreement under all of the circumstances, See§44-9-6.C. Again, the Court must determine, “after a hearing providing the qui tam plaintiff an opportunity to present evidence, that the proposed settlement is fair, adequate and reasonable under all of the circumstances.” §44-9- 6.C. An evidentiary hearing is statutorily prescribed, presumably, to allow qui tam plaintiffs to test such facets as the adequacy of the effOrtsmade to obtain discovery prior to making settlement decisions so that the propriety of that settlement can be legitimately assessed, 6. Paragraph H of Section 44-9-6 states: Notwithstanding the provisions of Section 5 of the Fraud Against Taxpayers Act, the attorney general may elect to pursue the state’s claim through any alternateremedy availableto thestate,including an
17 administrative proceeding to determine a civil money penalty. If an alternateremedy ispursued, the qui tamplaintiffshall havethe samerightsin sucha proceedingas the qui tam plaintiffwouldhavehad ifthe actionhad continuedpursuant to thissection. A finding of fact or conclusion of law made in the other proceeding that has become final shall be conclusive on all parties to an action under the Fraud Against Taxpayers Act. For purposes of this subsection, a finding or conclusion is final if it has been finally determined on appeal to the appropriate court, if all time for filing an appeal with respect to the finding or conclusion has expired or if the finding or conclusion is not subject to judicial review. (Emphasis added) [by the court]. Given the decision to stay this matter pending resolution of the expostfacto issue by the Supreme Court, this Court will save for another day issues raised by the State pertaining to the extent of Qui Tam Plaintiffs’ rights to awards, attorney fees, and expenses. Nonetheless, it is troubling that the State is seeking to deny Qui tam Plaintiffs any rights for their efforts under FATA based on an issue currently before the Supreme Court that, if resolved in Qui tam Plaintiffs’ favor, could result in a mandatory award and attorney fees for them under a settlement or other disposition. There is no indication that, butfor Qui tam Plaintiffs initiating this litigation, the State was pursuing, or even contemplating pursuing, claims the Qui tam Plaintiffs made and that have apparently resulted in the proposed settlement. The State even initially acquiesced to Qui tam Plaintiffs’ litigation pursuant to Section 44-9-5, ,supported Qui tam
18 Plaintiffs’ position in trying to pursue claims that predated FATA’s enactment, and did not involve itself to any great extent until Qui tam Plaintiffs had already expended a good deal of time and, very likely, expense, to pursue its claims and defend against dismissal. This Court allowed the State to take over a portion of the “operative complaint” premised expressly on the State’s ability to pursue “any alternate remedy available to the state” for the claims that would otherwise be at risk of being barred by ex postfacto protections and allowed the Qui Tam Plaintiffs to proceed with all remaining claims. See State of New Mexico’s Memorandum of Points and Authorities in Support of its Motion for Partial Dismissal, at 1, 3 (May 6, 2011); seealsoOrder Granting Partial Dismissal, at 2 (Dec. 20, 2011). When the State sought partial dismissal of the Qui tam Plaintiffs’ original claims, it made representations to this Court acknowledging Qui tam Plaintiffs’ continuing rights under FATA. ... The State clearly anticipated that Qui tam Plaintiffs would continue to have “the same rights” in an alternate proceeding “as the qui plaintiff would have had if the action had continued pursuant to” FATA, and this Court relied the State’s assertions in ruling on its Motion for Partial DismissaL IT IS ORDERED that the State’s Motion to Approve and Enforce Settlement Agreement shall be, and hereby is, DENIED. IT IS FURTHER ORDERED that Qul tam Plaintiffs’ Motion to Stay Proceedings Until Decision by New Mexico Supreme Court shall be, and hereby is, GRANTED.
19
Mr.
Feb.
Exhibit Weinstein,
Hernandez, Tr.
meeting.
General authority see
and Taxpayers
Proceedings”
Settlement
“Order
Part
26:23-24],
Foy’s
the
18,
The Judge
Judge
Denying
A,
AGO’s
B.
Counsel
2015.
to
The
rights.
SIC’s
Act.
SIC
Agreement
Rosen,
Esq.,
a
Judge Pfeffer’s
Singleton
(Jul.
subcommittee
SIC
This
but
“Recovery
representations
Therefore
State
secret
[11-25-13
the
refused
Pfeffer
operated
and
12,
policy
ruling
Governor’s
of
took
2013)
and
Howell
subcommittee.
New
found
was
to
Litigation
qui
Order
judicial
is
Tr.
in
consisting
[7-15-13
follow
the
Mexico’s
tams
secret
drafted
were
to
19:19-20].
that
legal
correct
Granting
the
notice
incorporate
it
never
by
the
Settlement
court,
Tr.
20
in
primarily
counsel
of
delegating
Motion The
AGO
any
interpretation
two
26:23-24].
of approved
Qui
and
settlement
Judge
respect.
SIC
was
and
Tarn
it
by
to Policy”,
that
as
members
complete
Approve
Pfeffer’s
deputy
not
Evan
Plaintifi’s
by
part
the
of
complying
contracts
the
AGO
filed
of
Land,
the
chief
SIC
their
decision
and
and
settlement
Fraud
in
Motion
was
the
in
of
Enforce
Jessica
this
argument,
with
with
an
staff,
infringing
SIC’s
Against
Court
[7-15-13
open
Schiff,
To
FATA
See
Stay on SIC member Peter Frank testified that the proposed settlements were approved by the secret litigation subcommittee, but not by the SIC itself.
According to Mr. Frank, the litigation subcommittee has met 7 or 8 times, operating in complete secrecy, with no published notice of meetings, no published agendas, no open meetings, no notice of executive sessions, and no minutes. According to Mr. Frank and the AGO, the SIC can delegate all of its litigation and settlement authority to two SIC members and the Governor’s counsel, who is not a member of the SIC. According to Mr. Frank, this three- person subcommittee can unanimously approve and sign settlements without any action by the eleven-member SIC. Furthermore, this subcommittee of a public agency can operate in total secrecy. [11-25-13 Tr. 16:11-24:22] Judge
Singleton agreed. She denied qui tam’s motion to prohibit secret settlements
[RP 4005].
The SIC’s actions violates the Open Meetings Act, § 10-15-1through -
5; the Inspection of Public Records Act, § 14-2-1through -12; and the statutory quorum requirement imposed on the SIC by §6-8-2(B).
Nevertheless, Judge Singleton has ruled that the use of a secret subcommittee is legal and allowable. See Conclusions of Law ¶J 1-4 [RP 5663-64]. Unless this decision is promptly reversed, it will nullifr the Open Meetings Act and
21 IPRA, and the quorum requirements for public bodies. State agencies and county commissions and city councils will immediately seize upon this ruling to act in secret, with no public notice, no public action, and no public records.
See Part C.
The purported “evidentiary hearing”. The court allowed qui tam plaintiffs a little over 4 hours, timed by watch. Much of the time was consumed by legal arguments, objections, authentication, etc., the sort of issues that are usually eliminated by discovery. At the hearing, the AG and defendants presented affidavits which neither the court nor qui tam counsel had seen before. When qui tam counsel asked for time to read the unseen affidavits, the court ruled that taking time to read them would count against qui tam’s time limit. [11-25-13 Tr. 15:8-9].
ARGUMENT
PART A. TIlE DISTRICT COURT ACTED BEYOND ITS JURISDICTION, AN]) iN VIOLATION OF THE CONTINUING STAY iN AUSTIIV
1. The district court had no jurisdiction over the claims in Austin, because that case is assigned to another judge.
Judge Singleton had no jurisdiction over the claims in the Austin case, because that case is assigned to Judge McDonald. And she had no authority to release the FATA claims in Austin, because that case was subject to an automatic stay, and still is. Yet Gary King and the defendants persuaded her to exceed her jurisdiction, without citing any authority that would allow this.
In effect, Judge Singleton tried the Austin case in absentia.
In Austin, Frank Foy filed a demand for jury trial. Therefore Judge
Singleton infringed Mr. Foy’s constitutional right to jury trial. [RP 4439]
2. The district court violated the automatic stay by releasing Foy’s claims in Austin while that case is on interlocutory appeal before the Supreme Court.
In situations where the State can use FATA as a remedy against fraudfeasors, FATA gives the State many advantages, including:
• mandatory treble damages, §44-9-3(C)(1);
• attorneys fees for qui tam counsel and the AGO, paid by the
defendants, §44-9-3(C)(4);
• joint and several liability, §44-9-13;
• a civil penalty for each violation, §44-9-3(C)(2);
• no requirement to prove specific intent to defraud, §44-9-3(B); and
• a lower standard of proof (preponderance of the evidence), §44-
9-12(C).
23 This is why the Legislature enacted FATA in the first place: to give the State major advantages in pursuing frauds, with a boost from qui tam plaintiffs and qui tam counsel.
Gary King violated the automatic stay by asking the District Court to dismiss FATA claims before the Supreme Court has a chance to rule on them.
Gary King is usurping the authority of the Supreme Court to decide a pending appeal. Gary King is throwing away the opportunity to use the State’s best remedy against these fraudfeasors. His actions are especially puzzling, because Gary King agrees with qui tam plaintiffs that FATA is constitutional as written [RP 5155-95]. Therefore FATA can be used against all the fraudfeasors in this case, no matter when the frauds occurred.
PART B. GARY KING ANT) THE DISTRICT COURT VIOLATED THE FRAUD AGAINST TAXPAYERS ACT ANT) §6-8-24.
1. The district court violated several provisions of FATA.
The district court and Gary King did not obey the rules laid down in
FATA for the prosecution and settlement of qui tam cases. Instead of following the plain text of FATA, they committed a plain enor of law by following federal cases where some judges rubber-stamped settlements over the objections of a qui tam relator. Yet they were informed that the New Mexico
24 Legislature had added new provisions to FATA in order to overrule those federal cases. This is an insult to the New Mexico Legislature.
The Blandlawsuit is an “alternate remedy” under §44-9-6(H) of FATA.
FATA does allow the Attorney General to pursue other actions as an alternative to the qui tam’s lawsuit. However, if the State pursues an alternate remedy, FATA expressly gives qui tam the same rights in the alternate action.
“If an alternate remedy is pursued, the qui tam plaintiff shall have the same rights in such a proceeding as the qui tam plaintiff would have had if the action had continued pursuant to this section.” Id. These rights include the qui tam’s right to his reward and attorney fees, the right to intervene and participate as a party in the alternate action, and the right to present evidence in the alternate action. The AG and the district court deprived the qui tam plaintiffs of these statutory rights under FATA.
The New Mexico Legislature added extra protections in FATA for qui tam plaintiffs who object to a settlement negotiated by the AG. Inter alia,
FATA requires that:
(A) the court must provide an evidentiary hearing on their objections, not merely a hearing, §44-9-6(B); and
25
prevent
These provisions
frauds Legislature 44-9-5(A).
to from
consent
added
tam’s
involved
prohibit
entering
objections,
(C) (B) Here
These
provisions them
—
the
of
and
and
the
once
the
do
district
is
added
government
Act
violation
action
§
to
three
the
AG
the
44-9-5
the
not
into
court,
prevent
filed,
[44-9-3
settlement
public
govern
§
text
must
appear
A.
requirements
judges
these
collusive
shall
44-9-6(B);
a
“taking
of
of
A
qui
rubberstamp
prove”good
J
be
purposes
requirements
Section
from
the
person
the
on
in
from
tam
brought
of
the
relevant
or
behalf
present
into
and
cheating
fraud
rubber-stamping
inadequate
action
federal
do
may
3
behind
account
of
of
not
in
cause”
cases
settlements
case:
the
provisions
bring
the
can
to
the
26
the
statute:
appear
Fraud
FATA
the person
—
name
be
the
settlements
qui
a
for
to
civil
Fraud
dismissed
best
scrutiny
tam
in
dismissing
Against
the
to
in
of
with settlements;
and
the
action
FATA. prevent
interest the
plaintiff
New
Against
federal
the
little
state.
with
by
only
Taxpayers
for
Mexico
state.
a
the
or
the of
out
defendants;
The
case
a
Taxpayers
The
statute.
with
and
no
the
public.
government
The
of
underlined
discovery.
over
parties
to
Legislature
the
his
expose
The
written
the
reward;
Act.”
to
qui § person bringing the action shall be referred to as the gui tam plaintiff. Once filed, the action may be dismissed only with the written consent of the court, taking into account the best interest of the parties involved and the public purposes behind the Fraud Against Taxpayers Act. D. Before the expiration of the sixty-day period or any extensions of time granted by the court, the attorney general shall notify the court that the state: (1) intends to intervene and proceed with the action; in which case, the seal shall be lifted and the action shall be conducted by the attorney general on behalf of the state; or (2) declines to take over the action; in which case, the seal shall be lifted and the gui tam plaintiff may proceed with the action. E. When a person brings an action pursuant to this section, no person other than the attorney general on behalf of the state may intervene or bring a related action based on the facts underlying the pending action.
§44-9-6
B. The state may seek to dismiss the action fcr good cause notwithstanding the objections of the qui tam plaintiff if the gui tam plaintiff has been notified of the filing of the motion and the court has provided the qui tam plaintiff with an opportunity to oppose the motion jo resent eyidençe gLhthg. C. The state may settle the action with the defendant notwithstanding any objection by the qui tam plaintiff if the court determines, after a hearing providing the gui tam plaintiff an opportunity to present evidence, that the proposed settlement is fair, adequate and reasonable under all of the circumstances.
27
Legislature
that reasonable
rather
proposed
discretion” notion Mexico
FATA,
evidence False
the
The
Claims
Under
than
found
underlined
government
Legislature
at
settlement
qui
under
made
to
argument,
a
the
a civil through
the of conduct
action,
including attorney
New
Act,
hearing
in
proceeding
dismiss
tam
the
action qui
some
money
all
[lIP
H.
F.
the
Mexico’s
Fraud
plaintiffs
above,
the
tam
added
can the
is
any
the
general
on
qui
federal
qui
an If
5430-33]. proving
Notwithstanding
had
fair,
qui
plaintiff
circumstances;
the
penalty.
action.
settle
a
alternate
Against
administrative
as
tam
tam
in the
proposed
continued
tam
adequate,
specifically
state
the
Fraud
may
order
cases
evidence
cases;
plaintiffs
without
that
plaintiff
qui
shall
However
If
elects
Taxpayers
elect
remedy
Against
to
the
that
an
tam
settlement
(c)
(a)
pursuant
and
have 28
alternate
settlement
allowing
to
not
the
pointed
and
and
have
to
plaintiff
proceeding shall
the
eliminate
pursue
reasonable;
require
available
the
Taxpayers the
government
to
provisions (d)
good
Act
an
have
proceed
District
to
same
and
overrule
remedy
out
discovery
absolute
would
[44-9-5
the
cause
this
is
the
any
the
dismissal.
the
fair,
to
to
rights
states
AG
section.
(b)
Act,
determine
with
right
the
Court
of
presumption
changes
have
requirements
has
is
federal
1
adequate
right
to
Section
pursued,
to to
state,
the
in
in
claim
the
to
eliminate
“unfettered
present
the
had
decided
such
contrast
to
The
cases
which
qui
present
a
if
5
and
New
that
tams.
evidence,
holding
to
to
the
to
the
ignore
a the
because
Legislature
2006
(D
5,
exrel.
judge
[RP
Univ., [11-1-13
New
qui 2009);
.
D.C.
tam
5669-70],
WL
Mexico’s
Schweizerv.
The
prohibited
No.
it
counsel
Jul.
Tr.
United
925035,
contradicts
court
04
enacted
depositions
them,
nowhere
Court:
liability
discovery
Qui
42:9-17]
19,
Civ.
which
explicit
States
reaffirmed
sought
tam
2013);
them:
Oce
at
but
3088, to
...
in
*14
counsel:
North
near follows
the
ex
reach
and
ones
all
two
requirement
United
depositions
done.
rel.
2009
(E.D.
FATA
the
that
not
America,
its
days
I
Nudelman
the
lOoked
False
federal
And
U.S. no
States
having
good
Pa.
opposite
from
provisions
discovery
Apr.
obviously,
Claims
Dist.
to
No.
for
ex
at,
and
cases
29
v.
taken
scratch
prepare
rel.
there
a
Int’l
4,
06-648,
LEXIS
the
result.
genuine
Resnick
under
2006).
Act
which
ruling
depositions.
Rehab.
case
have
with
I
for
cases
can’t
24376,
2013
the
is
v.
evidentiary
in the
This
the
been
no
Assocs.,
too
Weill
FCA Conclusion
-
prove
evidentiary
preliminary
New WL
-
not
is
big.
at
no
I
Med.
a
such
*5
3776260
am
Inc.,
plain
all the
Mexico
(S.D.N.Y.
hearing.
of
Coil,
as
No.
of
error
hearing,
United
Law
of
at
00-1837,
Cornell
*9
of
When
Mar.
¶
States law,
the 16
central
[11-1-13 recover
favorable exposure?”
defendants’
attendant reasonableness
settlement settlement. listed
Qui
the
“Best
At
2.
inquiry
if
Tr.
the
to
factors
it
risks
tams
fund
prevailed
damages.
defendant
[T]he
or
is
Qui
possible
maximum
The is
The This
the
beginning
34:17-241
the
irrelevant
failure?
in
of
of
agreed
State.
in
tam
relevant
district
that
requires
evaluating
litigation.”
exposure,
exposure
the
light
recovery”
counsel:
it
on
settlement
In
or
with
liability?”
And
would
of
of
its
court
whether
cases
to
factors
a
the
the
question
calculation
claims,
the
the
and
that’s
the
hearing
[11-1-13
best
The
consider
like
erroneously
is
court
evaluation
settlement
what’s
included
fund
another
you’re
“What
the
possible
basic
this,
using
goes
that
30
matrix
to
on
Tr.
of
in
the
you
matrix
a
a
November
the
is
way
to
the
deciding
the
“the
possible
plaintiff.”
recovery
11:23-12:2]
of
likelihood
the
of
ruled
the
have
when
damage
damages
calculation
any
of
a
range
defendants’
is,
question
settlement.
asking
two
that
case.
of
recovery
whether
you’re
and
1,
of
course,
theories
of
alternative
the
that
2013,
reasonableness
“What
success
the
of
of
a
amount
the
maximum
to
damages
in
range
what
the
which
approve
light
State
is
district
the
of
of
of
could
are
was
damages
all
the
of
court
most
the
the a
had
settlement, defendants
and
measure
[11-1-13
[11-1-13
ruled
already
Qui
of
Tr.
Tr.
that
tams
even
[11-1-13
damages,
what
stage.
investment. important making calculation calculate
Court: Counsel:
Court: Qui
Court: discovery,
restitution. kinds Counsel: is
damages the defendants, of
listed
37:19-38:24]
35:5-13]
not
information
New
plaintiff
then
tam
though
was
whether
of
earlier
I
Mr.
I
Mexico]..
the
Tr. damages,
pointed
counsel:
don’t
understand
that
damages].
either
the
I I
for
we
want
now,
want
decision
Marshall,
Either
usually
gets
this
35:14-37:20].
We
in
gain
settlement
is
don’t
you
think
on
the
loss
most
was
to
don’t
out to
but
the
damages
And
or
one is
.
have
chose
hearing.
ask
called
have to
.
to
you
facts,
you
that
is
one
available,
loss
favorable
And
to
know
the
is
whether
settle
without
somebody
the
purposes.
me,
need
loss
want
of
that
they
on
[choose]
31
unjust
State
Your
[the]
was At
the
ability
this
that considered
the
to
information
had
to
this
the
and.
to
material
simply
somebody
not
or
the
Honor.
other
particular
issue
know
enrichment
information.
him.
from
facts,
the
been
unjust point,
.
to
plaintiff important
.
make
is measure
.
at
having
that
the
the
denied
but
those
gain
issues
this
the
enrichment
[to
who
law
SIC,
that at
that’s
[the
hearing
court
or
to
this
facts.
for
had
which
of
discovery
is
is
the
okay,
State
that
a
not
reversed
decision
to
the
the
court
on
itself,
on either
Unlike
and
tries
heightened which
recovery
AGO
could the
Damage recovery,
question: That
say
That standard.
financial
that
the
to
is
is
When
do
This
Gary
and
it
settle
federal
a
so
settling
it
had
was calculations
the
rote
using
vacuous
what
considered
Day
The
ruling
requirements
King
the
calculations data
cited
with
irrelevant
recitation
law,
standard
Pitney
parties
the
were
district
never
is
from
defendants
earlier.
that
FATA
alternate
another
the
are
damages
never
to
its
made
to
it
court
in
is
maximum
part
which
prove
for
means
records,
settlement,
every
not
Even
imposes
error
did
measures
themselves.
over
the
ruled
of
whether
in
(a)
FATA
more
routine
them.
settlement
nothing.
necessary
of
the
the
which
good
that
an
damages?
law,
course
the
32
importantly,
objections
evidentiary
of
has
the
Even
information
due
cause,
because
damages
are
court
In
government
imposed
hearing,
calculations
diligence
of
public
every
worse,
deciding
contradicted
(b)
of
it
burden
for
with
this
case,
the
adopts
records,
but
when
the
about
for
each
qui
ruling
considered
admissible
about
it
SIC
to
the
any
begs
on
the
the
an
settle
tam
investment.
the
government
so
refused
the
attorney,
incorrect
obliterates
government
the
best
the
that
relator.
case
the
government
best
relevant
damages.
possible
evidence,
qui
case.
to
law
possible
provide
legal
yet
tams
the
will the
4438]. Marvin
Angeles help
roughly The standard tam requirements heightened
Park letter least
in done (c)
return.
which
plaintiffs,
SIC
of
as
West
a
from
As
Rather
poor
qui
interpreted
Rosen
$285,000
[RP
agreed
that
a
is
Yet
in her
result,
tam
requirements
subject
job
4438,
than
the
to even
because
Judge
paid
lawyer
plaintiffs
put to
protecting
same
the
per
being
accept
drops
by
4446;
to
roughly
an
Singleton
proposed
year
claiming
discovery
some
the
building
end
deferential
below
and
do
a
11-25-13
Legislature
to
the
mere
to
eleven
federal
not
live
their
rubberstamp
state’s
ignored
settlement
that
the
as
and
exist
$50,000
in
Jerry
lawyers,
million
Tr.
standards
courts.
to
she
Pacific
rebuttal
interests.
under
33
decided
the
FATA,
162:21-23].
was
Seinfeld
from
AG,
amounts
dollars
judicial
Palisades,
and
So
the
impecunious
by
in
that
the
Vicky
FATA
and
So
federal
gave
the
the
and
for
Legislature
the
government
approvals.
are
invented
qui
cases
Meanwhile,
them John
Schiff,
an
a
Legislature
is
grossly
False
wealthy
tam
protective
apartment cited
-
McEnroe
strong
because
objectors.
based
a
Claims
added
inadequate. new
by
lawyers
suburb
in
protections
the
enlisted
in
of
2013 it legal
on
Act,
[RP
these
part
cost
the
court.
Central
These
of
had
qui
at
on
her
Los
the a
hearings
rights
this,
under
authorization
statutory
and
for
calculations.J
range
is
maximum
too
the
other
they
The in
3. low,
The
which
of
entire
the
during
300
provision
enacted
qui
AGO,
settlements
because
exposure.
Fraud
impair
6-8-24.
Gary
pending
Day
to
damages
tam
to
Under
500
the
enter
Day
Nothing
Pitney
a
King
plaintiffs.
Against
the
which
Day
special
2011
million
Qui
Vanderbilt
FATA,
Day
into
Pitney,
are
rights
[11-26-13
and
tam
Pitney
is
session:
the
also
Taxpayers
contingency
in
Pitney
provision
now
dollars
Day
plaintiffs.
of
In
this
all
Legislature
and
grossly
and
a
and
2011,
operating.
the
Pitney
qui
Tr.
2011
estimated
the
[11-26-13
Austin
Gary
defendants
tam
specifically
38:1-61
Act.
34
the
SIC
inadequate
act
fee
violated
plaintiff
added
King’s
SIC
cases,
shall
are
contracts
Before
the
Tr.
and
also
prejudice
are
maximum
in
which
designed
staff
§
37:15-39:191.
pursuant
in
the
the
2011
violating
6-8-24.
jointly
for
relation
never
AGO
legislators
were
litigation,
to
or
to
and
protect
liability
to
did
the
sought
protect
the
to
the
severally
proper
the
special
subject
[This
agreed
like
Frank
to
defendants’
statutory
Mr.
be
estimate
the
damage
of
to
liable
in
Foy’s
Foy
one
do the
per
The
rejected
Mr. Foy’s
relying in amendment.
and fees.
Singleton,
Information different
Court
37-40,
Vanderbilt
the
the
Foy’s
New
See
4.
Once
rights
In
of
150
new
upon
Court
their
San
Appeals
than
paragraph
Mexico
rights
and
N.M.
Gary
Association.
The
statute,
as
Act
to
Juan
federal
tactics,
It
the
of
a
this
dismiss
passed
qui under
district
(“FOJA”)
Appeals
64,
King
etred
state
Agricultural
Senate
time
one
tam
court
1
the
Gary
of
statute
by
FATA
and
Foy’s
in
they
of
Supreme
court
Judge
plaintiff,
added
and
following
a
cases
King
the
as
Day
vote
were
case,
Water
a
on the
and
first
violated
Pfeffer’s
guide
this
interpreting
and
Pitney
of
the
Supreme
contrary Court
successful:
§
and
things
3
Users
federal
special
6-8-24.
Day
7-0.
same
to
35
to
entered
San
Order,
interpreting held
Ass
Pitney
they
deny
subject.
to
Court.
case
protection
Juan
the
‘n
that
the
they
did
v.
above.
him
into
federal
law
bypassed
KNME,
Agricultural
statute.
the
was
Instead
persuaded
The
any
a
when
New
district
contingent
for
After
to
Freedom
lower
reward
2011
try
They
Frank
Mexico’s
Judge
the
they
Judge
to
court
Water
-NMSC-0
her
federal
courts
eliminate
filed
went
or
Foy
McDonald
of
fee
to
attorneys
and
Pfeffer
Inspection
Users
contract,
impair
a
as
erred
to
statute
motion
the
a
Judge
11,
floor
Mr.
by
¶J is of Public Records Act (“IPRA”), since there were significant differences between the statutes.
In the present case, the district court repeated the same mistake. The court relied on federal cases interpreting the False Claims Act (“FCA”) as a guide to interpreting New Mexico’s Fraud Against Taxpayers Act (“FATA”), despite the manifest differences between the statutes, discussed above.
PART C. THE DISTRICT COURT DENTED QUT TAM PLAiNTIFFS DISCOVERY ON DISPUTED FACTS RELEVANT TO THE EVALUATION OF SETTLEMENT, CONTRARY TO FATA AND THE RULES OF CIVIL PROCEDURE AN]) EVIDENCE.
I. Where there are disputes about material facts, they can only be resolved through discovery.
In this case, almost all of the material facts were disputed, such as:
• What did the defendants do?;
• When did they do it?;
• How did the defendants communicate in furtherance of their conspiracy, and how did they co-ordinate?;
• What was the amount of loss to the State of New Mexico on each investment?;
• What was the amount of gain (unjust enrichment) to the defendants on each investment?;
36 • What is the amount of treble damages under FATA?;
• What are the real financial resources of each defendant?;
• What was the amount of the bribes and kickbacks, and who ended up with that money?;
• What political connections did the defendants use?;
• Did the plaintiffs’ attorneys do real discovery?;
• Were the defendants also engaged in kickback schemes in New York and California?
All of these facts are material to the approval or rejection of a proposed settlement. When there are genuine disputes about material facts, the only way to resolve them is through discovery. While a district court can impose reasonable limitations on discovery, but the court may not prohibit one side from discovery into the relevant facts. In the adversarial system of justice as it exists in America, a court cannot allow one side to present their version of the evidence, while prohibiting the other side from gathering evidence which might refute the other side’s version of the facts.
This is especially true in cases of conspiracy and possible criminal wrongdoing, where the defendants have good reasons to conceal and spin and
37 lie. In cases like this, the documents never tell the whole 2story. As a court in New York said in the criminal case against Hank Morris, who is one of the
Austin defendants:
[T]he law is not so naive to believe that bribery may only be shown by proof of a formal written contract setting forth the quidpro quoof the parties to the bribe as to the payment on the one hand, and the official misconduct on the other. Bribery is, instead, “often perpetrated subtly with winks, nods and walks in the park” and that proof may be from circumstantial and inferential evidence. Peoplev.Bac Tran, 80 N.Y.2d 170 (1992).
Peoplev.Morris, 2010 N.Y. Slip Op. 51331(U), at *41 [28 Misc. 3d 1215(A)
(2010).]
A district court cannot simply listen to the parties and lawyers on one side present their self-serving version of the supposed facts, while prohibiting the lawyers on the other side from finding out the real facts. A district court can grant summary judgment only if two conditions are met: (1) there is no genuine dispute about the material facts, and (2) the moving parties are
2 In the present case, there was a massive “document dump” of millions of pages. Many of the documents are duplicates [11-25-13 Tr. 55:8-9] and most of them are chaff. At best, the documents provided some hints for further discovery, like depositions.
38 entitled to judgment as a matter of law. Neither one of these conditions has been met in this case.
To prepare for the evidentiary hearing, qui tam plaintiffs propounded discovery asking for the most basic information. Qui tam’s discovery tracked the list in Rule 1-026(B)(3),including the name and address of persons who likely have information about the case; copies of documents which the parties might use to support their claims or defenses; a computation of each category of damages claimed; a copy of any insurance agreement [RP 3566-67].
This is “basic information that is needed in most cases to prepare for trial or make an informed decision about settlement.” Fed. R. Civ. P. 26,
Advisory Committee notes to 1993 amendments. It is part of the minimal due diligence and competence that is required in every case, and most certainly in a case like this one.
Judge Singleton refused to allow the discovery. She said that the disclosure of persons with knowledge would be “over-onerous and burdensome” [12-21-12 Tr 10:24]. She made this ruling without knowing who those persons might be. She also said that qui tams could obtain that information through discovery after the settlements. This makes no sense,
‘5-
44-9-7(D).
because
434;
his amount not Procedure. not
adjudicate
statements
054(B)(2), disputed
settlements
Cas. G
&
reward
adjudicate
evidence.
and G
Farmers
2.
The
Throughout
Serves,
the
of
Sur.
facts.
March
but
the
attorney
and
by
This
were
The
court
The
Ins.
Co.
Inc.
the
25 it
all
VP.
attorneys
The
subsection does
v.
order
“Order
Group
made
v.
to
issues
30
and
attorneys
Bendix
these
Clarence
Agora
fees
statements,
30%
“Order
not
the
claims
final,
v.
which relating
proceedings,
of
fees.
share
Martinez,
meet
Syndicate,
Control
qui
of
Co. Dismissal”
for
of
not
to
tam
FATA
Then
are
the
of
Dismissal”
the
v.
representations,
be
to
Div.,
afterwards.
Colgate,
the
plaintiffs
paid
requirements
AG
these
a
19884\fMCA-018,
Inc.,
subsection
final
settlement
gives
the
40
1984-NMCA-029,
and
by
is
2000-NIvICA-003,
four
district
1993-NMSC-022,
appealable
not
these
is
Mr.
the
needed
[12-21-12
defective
defendants,
a
defendants
Foy
(E)
final
which
defendants,
or
of
court
that
arguments
discovery
says
a
order
appealable
¶
statutory
under
erred
goes
Tr.
4,
rule.
that
¶
because
107
23,
concerning
under
¶
45:7-9]
¶
to
by
as
the
“The
51,
The
2,
before
N.M.
of
Mr.
101
required
first
relying
115
Rules
counsel
128
judgment.
Rule
order
it
state
N.M.
Foy,
priority
does
N.M.
the
82;
N.M.
of
on
1-
is
does
by
Aetna
or
235.
are
not
Civil
471;
the
§ for
PART
meeting. Meetings
the Policy,”
subcommittee. staff. subcommittee requirement
operates quorum
and SIC entitled
gui
secret
tam
Jessica
delegated
Peter These
In
D.
to
plaintiff.”
of
Exhibit
agreeing
in
Act;
Instead,
litigation
all
6
complete
Hernandez,
Frank
INSPECTION
THE
QUORUM
settlement
that
members.
proceeds
complete
consists
the
He
A,
the
SIC
to
Inspection based
signed
[Emphasis
testified
subcommittee,
filed
these
SIC
secrecy.
VIOLATED
of
collected
contracts
§
Esq.,
settlement
REQUIREMENT
on
with
the
must
two
6-8-2.
settlements,
that
legal
OF
settlement
of
the
added.]
this
SIC
See
act
Public
PUBLIC
the
Therefore
in
were
advice
Governor’s
Court
members,
SIC
as
but
authority
an
proposed
TIlE
a
41
action
never
not
the
body
“Recovery
Records
agreements
from
on
RECORDS
OPEN
by
SIC
the
Feb.
IN
of
approved
Peter
to
or
legal
the
Evan
settlements
settlements
repeatedly
§
11
a
Act;
settlement
6-8-2.
18,
SIC
3
MEETINGS
Litigation
members,
Frank
counsel
person
Land
on
2015.
and
itself.
by
ACT,
behalf
the
and
and
were
the
violated
subcommittee
are
not
and
This
According
with
Settlement
statutory
AND
SIC
Linda
the
the
void.
awarded
approved
deputy
ACT,
secret
AGO,
secret
a
in
the
minimum
THE
Eitzen,
an
THE
Open
chief
to
open
to
the
by
that
Mr.
a of
2(B). meetings
24:22]
Unfortunately, Furthermore,
member
subcommittee approve
Frank
authority meetings, Frank,
secrecy,
The
•
• •
•
and
the
with
and
The
The
The
of
1.15.2.119
permanently;
to
no
SIC’s
litigation
Gary
the
two
sign
statutory
Inspection
notice Open
no
Gary
can
SIC.
the
King, actions
published
SIC
settlements
operate
district
Meetings
King
NIvIAC,
of
subcommittee
This
members
executive
quorum
the
and
violate
of
and
three-person
court
SIC
in
Public
notice
which
Act,
total
without
the
and
can
requirement
the
agreed
sessions,
SIC
of Records
,
secrecy,
has
delegate
the
following
§
requires
meetings,
any
and
42
10-15-1
subcommittee
Governor’s
met
with
and
action
the
Act,
without
7
all
imposed
agencies
them.
or laws:
defendants
through
no
no of
,
8
by
§
minutes.
its
published
times,
counsel,
keeping
14-2-1
[11-25-13
the
litigation
on
to
can
-5;
eleven-member
maintain
the
operating
argued
unanimously
through
According
any
who
agendas,
SIC
Tr.
and
records.
by,
that
is
records
16:11-
settlement
in
-12;
not
§
complete
this
no
to
6-8-
a
SIC.
open
Mr. of Despite these laws, Judge Singleton erroneously ruled as a matter of law that the use of a secret subcommittee is legal and allowable. Conclusions of
Law ¶J 2-4 [RP 5663-64].
In July, 2012, qui tams filed a motion to prohibit secret settlements [RP
2906-56]. Judge Singleton denied the motion, saying that she did not have the authority to enjoin the SIC to follow the law [12-21-12 Tr. 54:8]. This is another plain error of law, because courts do have the authority to order the executive branch to comply with thethe law. Stateexrel. Clarkv.Johnson, 1995-
NMSC-048, 120 N.M. 562, Otherwise, the rule of law would not exist.
Unless this district court decision is promptly reversed, it will nullify the
Open Meetings Act and IPRA. State agencies and county commissions and city councils will immediately use this ruling to act in secret, with no public notice, no public action, and no public records.
Gary King erroneously advised the SIC and the district court that the
SIC can delegate authority to a subcommittee which can operate without complying with these statutes. By giving this plainly erroneous legal advice,
Gary King contradicted an official Attorney General’s opinion on the subject:
A public policy-making body may not create an alter-ego with a “fact-finding group” facade when, in fact, its subordinate unit is shrouded with a substantial amount of decision-making authority. “Government
43
Multimedia
2000).
Although
The privilege,
access.” possessed
its
Meetings
(university
the
N.M.
SIC
committees
Assistant
public
complies
Furthermore,
See
Gary
Gary
Att’y
Prior
the
Act,
some
of
also
Publg
body
Board
King
King
Gen.
by
meetings
a
Attorney
attorney
with
Lake
prerogative
because
Arkansas
are
delegation”
discussions
bears
is
and v.
Op.
of
also
American
IPRA
Henderson
also
while
Trustees
his in
90-20.
client
the
these General
subject
Gazette
contradicting
New
immediate
and
public
burden
greater
cannot
might
exception
v.
statutes
is
Mexico.
Cnty.,
the
to
Mader,
Co.
subject
who
agencies
the
Open
than
of
be
v.
be
525
proving
staff
Pickens,
attends
held
apply
statute;
44
used
the
642
cannot
the
to
Meetings
S.E.2d
also
plain
open
in
usually
N.W.2d
whole.”).
to
as
secret,
all
the
522 “Surely
any pretext
contradicted
“swallow
meeting
texts
786,
SIC
exceptions
S.W.2d
Act.
have
decision
729,
the
meetings
792
of
a
to
part
an
minutes
IPRA
closing
statute,
742 the
(N.C.
350,
attorney-client
making
the
(of
which
rule
(Minn.
to
and
354
advice
a
Ct.
may
and
ensure
of board)
the
it
(Ark.
App.
public
subentities.
2002).
therefore
claims.
be
Open given
that
is
public.
1975)
not
by the Because the proposed settlements were not authorized by the SIC or its
Litigation Committee in accordance with the Open Meetings Act, the settlements are void. § 10-15-3(A):
No resolution, rule, regulation, ordinance or action of any board, commission, committee or other policymaking body shall be valid unless taken or made at a meeting held in accordance with the requirements of Section 10-15-1
The actions of the SIC Litigation Subcommittee also violate the quorum requirement and the majority vote requirement imposed by the Legislature on the SIC. §6-8-2(A) provides for an eleven-member State Investment Council and §6-8-2(B)provides that:
All actions of the council shall be by majority vote, and a majority of the members shall constitute a quorum.
Some members of the SIC are exofficio,some are appointed by the
Legislature, and some by the Governor. §6-8-2(A). The statutory quorum requirement protects the diversity of representation on the Council. The
“Recovery Litigation Policy” delegates complete decision-making authority to a small group, so it disenfranchises the other 9 members of the SIC. It
45
members.”
which
Open
may
contracts
contract
Pitney
Ogden
are
Cnty
if
commissioners
they
delegation
subcommittees
fiduciary
deprives
this
not
be
says
Comm’rs
would
Meetings
The
is
Court
Many
mischaracterize
It
discussed subject
—
not
should
that
must
There
the
responsibilities.
the
Attorney
maneuver
no
on
were
“The
public
SIC
v.
settlement be
be
were to
longer Act
point,
and
which
Ogden,
in
noted
the
approved
members
Council’s
to
or
only
bodies
closed
school
General
allow
requirements
because would
have IPRA
would
that
1994-NMCA-O1O,
Ogden,
two
agreement
litigation
this
In
session,
would it. board
of
to in
SIC
by
be
and
government,
operate
the
public
which subcommittee act
this
members
the
a
Day
members
great
in
knowledge
love
committee
case
but of attorneyclient
—
public.
session.
dealt
46
to
the
without
Pitney
to
settlements
convenience
involves
on
settle
delegate
Open
117
with the
violates
secrecy
who
shall
There
argue
which
subcommittee.
Matters
a
N.M.
any Meetings
a
pending
would
a
be
decision
the
public
authority
notice
privilege.
breeds
are
are
comprised that
they
to
181.
SIC’s
relating
not
many
public
love
settlement
lawsuit.
body
need
or Act,
The
stupidity. 3
own
to
exempted
records.
to
to
of
file county
The
officials, citing
AGO
stated to
entering
to
secret
at
adopt
a
least
litigation
fulfill
Public
lawsuit.
agreements
policy,
Board
and
from
this
This
three
since
their
into
Day
tactic,
SIC
the
of a
government,
it
their
quite made
time
of citizenry. which
the
know
December perpetuity. be
agreements
and
attorney-client
is
the
exempt
defendants,
the
its
to
money.
plain:
The
to
The
Receipts
to
require
adversaries
time”)
public’s
the
the
public
See
SIC
2012,
from
were
These
governor
to
defendants.
(c)
the
U.S.
give
privilege
also
and
and
but
money
our
disclosure
but
has
not
government
settlement
in
N.M.
Expenditures
citizens
they violated
Const.
government
they
a
protected
litigation.
and
constitutional
that
does
were
So
Const.
were
the
art.
under
the
government
provisions
the
agreements not
legislature).
kept
to
I,
by
kept
right
settlement
If
is
art.
§
disclose
the
extend
of
the
9,
it
based
secret
all
secret
did,
to
V,
right cl.
Open
47
attorney-client
public
in
know
§
7
spends,
to
upon
from then
9
were
financial
the
(“a
to
for
The
contracts
Meetings
contracts
(report
financial
federal
how
regular
Money
months.
all
the
the
reached
purpose
(b)
settlement
public.
the
consent
information
of
the
were
between
and
privilege,
Act
Statement
shall
all
government
information
The
in
public
of
moneys
state
and
November
not
these
be
of
settlement
agreements
the
IPRA,
published
a kept
elects
constitutions
since
to
public
and
provisions
must
governed,
the
because
secret
is
Account
they the
in
using
and
agency
be
would
from
from
were
is (a)
Washington
http://lcweb2.loc.gov/ammem/GW/
Debates
Correspondence,
31];
to
essential turn
all people
and
(through
Federalist
Founding
foundation
and
a
of
the
free
the
and
can
these
In
On
and
petition
public
press,
in
George
inform
our
link
the
the
Fathers
No.
the
citizen
their
of
Papers
representative
news
in
publication
all
has
Federal
to
58
this
the
clause.
Washington’s
government:
the
petition,
1697-1799,
(James
understood
rights.
media
the
government
at
feedback
individual
the
right
Convention
The
Madison,
or
clause,
Library
and
democracy,
to
the
publication
Image
ioop,
that know
citizens
to
handwritten
civil
publication
of
vote.
see
of
“the
their
along
of
Feb.
233,
liberties
what
Congress,
also
48
1787
130
get
So
there
power
wishes,
20, of
available
with
James
lb.jpg
they
information
the
the
for
clause,
annotations
1788).
in
is
Constitution
the
over
September
government
are
1741-1799:
a
the
through
Madison’s
[RP
feedback
at
public’s
consenting
for
Bill
the
2920-23].
example),
from
purse”
of
in
the
Rights.
14,
right loop
The
Series
notes
explicitly
finances
the
electoral
1787
to,
was
George
between
to
government
so
4.
on
and
See
free
the
[RP
they
General
is
the
protects
process
(d)
The
an
speech,
2924-
the
in our
because
duces
Albuquerque
(making being
committed without
electronic
after
one
CPA PART
dealings
Vanderbilt,
of
his
tecum
who
Mr.
Former
named
Gary
the
E.
Mr.
his
2002
with
a
signature
Malott
main
was false
and
in
one
King
cousin
ERRED
CONFLICTS
STANDING GARY
Malott’s
as
Journal
2009
the
run
Assistant
the
Bland.
or
statement
a
conspirators
had
defendant
was
defendant
for
more
Chairmen
Amanda
which
on
KiNG
BY
Congress.
permission.
broke
a
also
Qui
King’s
disqualifying
Attorney
felonies
RUUNG
to
is
TO
the
tam
OF
AND
the
still
Bruce
Cooper
the
the
and
of
reports
RAISE
Campaign
INTEREST,
plaintiffs
story
the
United
in
under
Vanderbilt
During
General
fraudfeasors
ifiS
In
Malott.
force
ERB
THAT
is
conflict
so
that
to
49
THESE a
STAFF
federal
States).
doing,
suspected
the
the
[RP
served
until
Treasurer
Gary
Seth
and
Mr.
QU[
course
Federal
2225-27].
of
THE
law.
in
he
Austin
HAD
Cohen Gary
CONFLICTS.
King
Ms.
Malott
interest,
the
TAMS
was
wrongdoer
of
DISTRICT
Se
for
Cooper
Election
pay
King
certified
PERSONAL
cases.
the
forced
also
is
Gary
e.g.,
because
HAD
to
an
Foy
might
had
play
with
Albuquerque
Mr.
18
to
King,
Commission,
Mr.
in
lawsuits,
NO
a
U.S.C.
resign
COURT
scheme.
Austin,
have of
Malott
conflict,
a
Malott’s
subpoena
during
his
after
§
The
was
1001 and
Fourth, Mr. because
about confidence
the
confidence
Gary of grants
King,
summarily
standing
interest
court’s
Foy
King’s
This
Qui
with
these
him
Gary
he
is
to
by
tams
refusal
a
is
standing.
supporting
denied
in in
is
raise
conflicts
refusals
party
another
public
entitled
King’s
the
the
raised
any
judiciary.
AGO.
to
to
the
officials
hear
of
to
involvement
this
of
error
Second,
to
motion,
these
exhibits
interests
follow
these
a
Fifth,
litigation,
the
large
of
and
The
which
motion
conflicts
law.
Mr.
FATA
ruling
[RP
these
monetary
creates
other
District
in
Foy
First,
might
and 2
the
conflicts
196-2308].
to
that
and
50
issues
[RP
has
at
disqualify
a
Bland
Court’s
Mr.
party
award,
affect
the
least
honor
a
3931-32].
in
direct
Foy
qui
provide
case
an
has
a
the
the
refusal
However,
Motion plus
tam
has
appearance
does
financial
undermines
the
integrity
automatic
plaintiffs
standing
attorney
one
right
not
to
to
explanation
hear
promote
the
Disqualify
stake
to
of
of
fees.
because
raise
stay. the
District
had
the
evidence
impropriety,
in
case.
public’s
no
conflicts
public
Third,
this
Sixth,
Mr.
for
Court
FATA case,
Court. Deputy
actions these
January
for reasons: be
all
this
courts,
each
District
i.e.
stayed
major
the
case.
that
of
conflicts
Qui
•
The
State
and that
Note:
the Attorney
These
Court,
1,
the
respects.
until
Judge
tam
rulings
2015.
issues
to
created
court
of
prevent CONCLUSION
Hector
and
cases
plaintiff-intervenors
the
but New
Pfeffer’s
General
The
raised
of
enabled
the
Supreme
that
REQUEST
And
the
involve
Mexico.
the
Balderas
new
any
handling
problems
was
all
district
here,
excellent
Scott
repetition
Mr.
Attorney
further
the
more
Court
to
replaced
King’s
FOR
AND Fuqua
effect
must of
provide
in
than
this
proceedings
issues
analysis
request
this
General
of
ORAL
be
of
51
REQUEST
cover-up.
case.
are
$500,000,000
the
case
Gary
reversed.
the
guidance
a
no
decision
oral
mistakes
of
court’s
ARGUMENT
which
Gary
and
longer
King
FATA
before
argument
That
his
FOR
King,
on This
as
rulings. 4
are
in
that
at
new
in
should
FATA
Attorney
Judge
Austin.
was
the
being
court
potential
RELIEF
Seth
have
for
staff
not AGO,
Singleton
be
to
the
reviewed
must
Cohen
been
need
the
General
the
confirmed
following
recoveries
but
intent
rule
lower
made
to
and
it
review
should
by
on
is
on
of
their
in
this
in the
Honorable
this
copy
all I
present
automatic
quorum
Open
the
hereby
counsel
functioning
of
Victor
• Meetings
•
•
•
the
its
When
The
By
The
certify
requirement
version
stay.
listed
Sarah
foregoing
approving
R.
district
district
material
Marshall
that
of
Act,
below
M.
the
of
a
court
court
the
Singleto
the
for
was
true
Fraud
a
and
facts
VICTOR
secret
Respectfully
Inspection
the
facts
emailed
acted
and
and
the
SIC.
Against
are
while
victorJvrmarshall
Albuquerque,
Attorneys
Frank
12509
subcommittee,
Gary correct
beyond
disputed,
to
of
barring
Victor
King
Foy,
Oakland
submitted,
Taxpayers
52
Public
its
for
have
Suzanne
a
jurisdiction,
R.
the
judge
Qui
NM
Records
the
Marshall
NE
committed
other
Act. Tam
.
87122
corn
district
cannot
Foy
side
Plaintiffs-Intervenors
Act,
and
and
court
allow
from
errors
and
in
John
violation
has
the
discovery.
one
which
Casey
nullified
statutory
side
impair
of
to
the the
Albuquerque, P.O. Mel [email protected]
[email protected] Rodney P.O.
Butt ems@sommerudall
[email protected]. P.O. Emily meysantafe1awyers Eric kwrittdaypitney
Santa Scheuer 41
Santa Sommer, Kenneth Deputy
Stamford, Day Bruce
One Special
Santa
Plaza
E.
M.
Thornton
Pitney
Canterbury
Box
Box
Box
Fe,
Fe,
Fe,
A.
A.
Yost
Assistant
General
Sommer
L.
&
La
W.
Brown
Udall,
Franke
9570
NM
3170
NM
MM
1984
CT
Yost
Schiagel
LLP
Prensa
Ritt
NM
06901
87501 87504-1984
87504-9570
&
Sutin,
Counsel
Green
Attorney
Baehr corn
.
corn 87190-3
. corn
.
corn
Hardwick
PC
General
170
&
Hyatt,
53 P.A.