Email:

(505)332-9400 Albuquerque,

Victor

Victor

Counsel

12509

WILLIAM

DANIEL

NEW

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SUZANNE

STATE

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43-44 47 INTRODUCTION AND SUMMARY

All of the issues in this brief are issues of first impression for the appellate courts of . 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

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by

to

same

has

without

pending

Rule

King

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or

Open

Fraud

Judge

the

no

Singleton

continues

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to

of

decision

44-9-6(B),

Court,

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authority

the

12-203(E).

did

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Meetings

Singleton Against

following

decision

jurisdiction,

appeal.

Supreme

not

probably

of

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as

to

apply

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(C),

to

be

Judge

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below

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and

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lift.

subject

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and

jurisdiction

to

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because

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stringent

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asked

district

Pfeffer.

Judge

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must

10-15-1

to

in

because

Act

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her

[all

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McDonald,

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requirements

(“FATA”),

Act.

references

automatic

over

to

through

reversed

feared

dismiss

those

§

also

Judge

the

14-2-1

of

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that

acted

Austin

courts an

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or

because

stay

are

claims

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Singleton

King

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automatic

the

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through

for

contrary

to

44-9-1

which

case,

had

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settlement

NMSA

went

in

courts

the

jurisdiction

Austin,

and

-12;

did

district

through

Judge

of

stay

forum

to:

would

Appeals,

1978];

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as

of

even

the

court

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AG to

and tenure.

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602

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material

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for

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personal

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facts.

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be

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allowed

uses

not

of

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statutory

knowledge);

is

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to

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follow

state

or

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to

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statute);

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to

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required

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pursue

(hearsay);

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as

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for

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law

of

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staff,

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fee

not

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litigants

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provide

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on

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only

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proceed

early Mr.

action permanent

provides

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complaint

5(B), Council

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state

Act.

complaint

Taxpayers

Foy

D-101-CV-200801895.

court

election Mexico’s

Foy’s

On

While

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Frank

on

with

and

and

retirement

July

behalf

qui

alleged

on

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Act

funds

counsel

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the

Foy’s

his

the

whether

behalf

tam

14,

Educational

(“FATA”).

of

Education

law

case, Foy’s

FATA.

which

2008,

a

plaintiff

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qui

negotiated

benefits

massive

STATEMENT

of

firm

to

State.

tam

the

Gary

complaint

support

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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

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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 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 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

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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

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from

small

allowed

Bland,

for

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this

Gary

from

is

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testimony

and

chose

meaningless.

which

3547-3714],

production

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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

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there

but

and

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4160].

2537],

documents.

witnesses.

with

$100,000

case.

discovery

they

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were the

e.g.,

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all

whatever

rather

were

of

defendants

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no

the

by

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12

upon

when

depositions.

blocked

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information

qui

Weinstein

identification

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engaged

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admissions.

the

are

the

plaintiffs

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of

and

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court

disputes

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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

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to

of

[RP

and

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in These

stay.

but

to

FATA

negotiated required

defendant global which

release

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only

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small

judge

Judge

not

1819-24;

qui

had

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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

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Austin

to

released

Austin.

[RP

example,

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Judge

case

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or

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to

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not

4159-64].

on

present

repeatedly

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Austin

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13

see

judge do

Appeals,

Gary

case.

each

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dismissed

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to

subject

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settlement

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shopping.

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of

King

negotiated

release

The assigned

her,

complaint

and

who

them

or

AGO

SIC,

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not

decided

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had

objections

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FATA

to

of

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that

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settlement,

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Supreme

Judge

the

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Austin

jurisdiction

exchange

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instead

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fiduciary

includes

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have

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to

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lift

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tams,

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were

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and relation

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without rejected going

dollars. no

settlement

See conclusions

over the

her, automatic

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Austin

Part

the

and

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same

Judge

Judge

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to

SIC.

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to

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Judge

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case.

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the with

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no-discovery

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Pfeffer

[RP

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Pfeffer’s

discovery,

[RP

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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

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Pitney,

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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

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¶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,

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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

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eleven-member

maintain

the

operating

argued

unanimously

through

According

any

who

agendas,

SIC

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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

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public

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Gary

Gary

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immediate

and

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exception

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to

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subject

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Open

than

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525

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44

used

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642

cannot

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to

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also

plain

open

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whole.”).

to

as

secret,

all

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522 “Surely

any pretext

contradicted

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meeting

texts

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exceptions

S.W.2d

Act.

have

decision

729,

the

meetings

792

of

a

to

part

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minutes

IPRA

closing

statute,

742 the

(N.C.

350,

attorney-client

making

the

(of

which

rule

(Minn.

to

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354

advice

a

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may

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ensure

of board)

the

it

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public

subentities.

2002).

therefore

claims.

be

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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

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may

contracts

contract

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