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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 2 GALE COOPER, 3 Plaintiff-Appellant/Cross-Appellee, 4 v. NO. 33,876
5 RICK VIRDEN, LINCOLN COUNTY 6 SHERIFF and CUSTODIAN OF RECORDS; 7 and STEVEN M. SEDERWALL, FORMER 8 LINCOLN COUNTY DEPUTY SHERIFF,
9 Defendants-Appellees/Cross-Appellants.
10 APPEAL FROM THE DISTRICT COURT OF SANDOVAL COUNTY 11 George P. Eichwald, District Judge
12 Gale Cooper 13 Sandia Park, NM
14 Pro Se Appellant
15 Narvaez Law Firm, P.A. 16 Henry Narvaez 17 Carlos Sedillo 18 Albuquerque, NM
19 Brown Law Firm 20 Brown & Gurulé 21 Desiree D. Gurulé 22 Kevin Brown 23 Albuquerque, NM
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1 for Appellees
2 MEMORANDUM OPINION 3 VANZI, Judge. 4 {1} After seven years of litigation, Plaintiff Gale Cooper prevailed in her suit 5 against officials affiliated with the Lincoln County Sheriff’s Department (collectively, 6 Defendants), alleging the unlawful withholding of public records related to the 7 County’s 2003-2005 investigation into whether Pat Garrett really killed William 8 Bonney (commonly known as “Billy the Kid”) on July 14, 1881. The district court 9 applied the enforcement provisions of the New Mexico Inspection of Public Records 10 Act (IPRA), NMSA 1978, §§ 14-2-1 to -12 (1947, as amended through 2013), and 11 awarded nominal and punitive damages, costs, and “past attorney fees.” 12 {2} Plaintiff argues, in essence, that the district court erred in failing to consider and 13 award statutory per diem damages available under IPRA. Defendants dispute that 14 contention, and they also cross-appeal, arguing that the existing punitive damage 15 award is foreclosed by Faber v. King, 2015-NMSC-015, 348 P.3d 173, and that 16 attorney fees are barred by the doctrine of accord and satisfaction. We agree with 17 Defendants. All issues involving statutory and punitive damages have been resolved 18 by Faber, which was decided after the district court issued its order. Attorney fees
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1 have already been settled. We vacate Plaintiff’s award of punitive damages and 2 attorney fees and affirm the district court’s determination that statutory damages are 3 not available. Because this is a memorandum opinion and because the parties are 4 familiar with the case, we reserve discussion of the facts for our analysis of the issues 5 on appeal. 6 DISCUSSION 7 Standard of Review 8 {3} Interpretation of IPRA is a question of law that we review de novo. Id. ¶ 8. “We 9 construe IPRA in light of its purpose and interpret it to mean what the Legislature 10 intended it to mean, and to accomplish the ends sought to be accomplished by it.” Id. 11 (internal quotation marks and citation omitted). “[W]hen a party is challenging a legal 12 conclusion, the standard of review is whether the law was correctly applied to the 13 facts.” Sunwest Bank of Albuquerque, N.A. v. Colucci, 1994-NMSC-027, ¶ 8, 117 14 N.M. 373, 872 P.2d 346. 15 Statutory Damages Are Not Available 16 {4} “State agencies are supposed to make their documents available to the public 17 under [IPRA].” Faber, 2015-NMSC-015, ¶ 1. When an agency wrongfully denies a 18 request for documents, Section 14-2-12(D) provides actual damages, costs, and 19 reasonable attorney fees to any person who successfully enforces the provisions of 20 IPRA in court. Id. Separate statutory damages are available under Section 14-2-11(C)
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1 when the agency does not adhere to denial procedures. Faber, 2015-NMSC-015, ¶ 12. 2 Damages under the two sections serve distinct purposes. Section 14-2-11(B)(3) 3 ensures “prompt compliance” in apprising the requester of his or her request, and 4 “Section 14-2-12 ensures that IPRA requests are not wrongfully denied.” Faber, 5 2015-NMSC-015, ¶ 29. 6 {5} To meet the procedural requirements of Section 14-2-11, the custodian of 7 records must provide the requester with a written explanation of the denial. Section 8 14-2-11(B) provides that: 9 The written denial shall: 10 (1) describe the records sought;
11 (2) set forth the names and titles or positions of each person 12 responsible for the denial; and
13 (3) be delivered or mailed to the person requesting the records within 14 fifteen days after the request for inspection was received.
15 In the event of noncompliance, the custodian is subject to statutory damages. Section 16 14-2-11(C) provides that: 17 Damages shall:
18 (1) be awarded if the failure to provide a timely explanation of denial 19 is determined to be unreasonable;
20 (2) not exceed one hundred dollars ($100) per day;
21 (3) accrue from the day the public body is in noncompliance until a 22 written denial is issued; and
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1 (4) be payable from the funds of the public body. 2 “It is when the custodian fails to respond to a request or deliver a written explanation 3 of the denial that the public entity is subject to Section 14-2-11 damages.” Faber, 4 2015-NMSC-015, ¶ 16. When a timely denial letter is issued, but the request is 5 wrongfully denied, recovery is limited to the remedies available under Section 14-2- 6 12. Faber, 2015-NMSC-015, ¶¶ 29, 32. This construction of IPRA ensures that public 7 entities are allowed to present their reasons—right or wrong—for nonproduction of 8 documents without facing statutory per diem penalties that might otherwise accrue 9 over several years of litigation. Id. ¶¶ 30, 34. 10 {6} The district court found that Plaintiff made requests for four categories of public 11 records related to the Billy the Kid investigation undertaken by Defendant Rick 12 Virden, who was the Lincoln County Sheriff after 2005, and Defendant Steve 13 Sederwall, who was involved in the investigation as a sheriff’s deputy since 2003. The 14 County responded with letters denying those requests, but the district court found the 15 denial letters to be “improper” and “without valid IPRA exceptions.” The court then 16 entered a conclusion of law that the letters did not comply with IPRA’s procedural 17 requirements for written denials set forth in Section 14-2-11(B), subjecting Virden, 18 as the custodian of records, to monetary damages. 19 {7} But no damages were awarded under Section 14-2-11 for procedural violations. 20 And in fact, there were no procedural violations. See Bass Enters. Prod. Co. v. Mosaic
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1 Potash Carlsbad Inc., 2010-NMCA-065, ¶ 49, 148 N.M. 516, 238 P.3d 885 (“Upon 2 review, we will not defer to the district court’s conclusions of law.”). The initial IPRA 3 request for the first two categories of records was made to Sheriff Virden in a letter 4 dated April 24, 2007. On behalf of Sheriff Virden, counsel for Lincoln County 5 responded in writing three days later, denying the existence of both categories of 6 records. The second request was made on May 9, 2007. Counsel for Lincoln County 7 again promptly responded (in two days this time) on behalf of Sheriff Virden, denying 8 the existence of all of the remaining requested records. Section 14-2-11 requires 9 nothing more. 10 {8} That the denials were “improper” and “without valid IPRA exceptions[,]” as the 11 district court found, does not mean that they were out of compliance with IPRA’s 12 procedural requirements. See Faber, 2015-NMSC-015, ¶ 16 (“It is when the custodian 13 fails to respond to a request or deliver a written explanation of the denial that the 14 public entity is subject to Section 14-2-11 damages.”); id. ¶ 31 (“Section 14-2-11 15 ensures prompt compliance by allowing for statutory damages of up to $100 per day 16 if a public body fails to timely respond to a records request.”). Otherwise, every 17 wrongful denial would be subject to Section 14-2-11’s statutory damage provision, 18 and every public entity would face a penalty of up to one hundred dollars per day for 19 asserting its reasons—right or wrong—for not producing records. That is precisely the
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1 construction of IPRA that is now foreclosed by Faber, 2015-NMSC-015, ¶¶ 29, 30, 2 34. 3 {9} Plaintiff’s remedy for the wrongful denials of her records requests is entirely 4 contained within Section 14-2-12. Plaintiff’s related contention that the district court 5 evinced bias in failing to award statutory damages is not well taken. State v. 6 Fernandez, 1994-NMCA-056, ¶ 15, 117 N.M. 673, 875 P.2d 1104 (“Judicial bias 7 must be personal and cannot be based on adverse rulings.”). Plaintiff’s argument that 8 Faber is “fatally flawed” is better addressed to the Supreme Court in a petition for 9 certiorari. See State v. Manzanares, 1983-NMSC-102, ¶ 3, 100 N.M. 621, 674 P.2d 10 511 (stating that the Court of Appeals is governed by the precedents of the New 11 Mexico Supreme Court). 12 Punitive Damages Are Not Available 13 {10} Defendants acted egregiously in this case. The district court found that Sheriff 14 Virden feigned ignorance about the existence of the requested records, and Deputy 15 Sederwall resigned from his post, declaring that the records were “private property,” 16 which he offered for sale on his website. Defendants made minimal effort to comply 17 with IPRA, even after being ordered by the court to do so. Deputy Sederwall was 18 “wilful[ly]” involved in altering requested reports to remove law enforcement 19 information.
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1 {11} Since Plaintiff did not prove compensatory damages, which are recoverable 2 under Section 14-2-12(D), the district court awarded nominal damages of $1000 and 3 punitive damages of $100,000 for conduct that was willful, wanton, and in bad faith. 4 Our Supreme Court subsequently decided Faber, holding that “Section 14-2-12 does 5 not authorize punitive damages.” Faber, 2015-NMSC-015, ¶ 26. 6 {12} On appeal, Plaintiff characterizes the $100,000 damage award as involving 7 contempt damages, discovery sanctions, or “non-IPRA” penalties associated with the 8 litigation itself. The record does not support that characterization. The court’s order 9 awarding damages states that the “case at hand” is for “enforcement of IPRA.” 10 Defendants’ “actions and/or inactions in responding to Plaintiff’s IPRA requests,” the 11 order states “are in violation of IPRA law and subject to sanctions.” The order 12 expressly awards nominal and punitive damages pursuant to IPRA’s enforcement 13 provision, Section 14-2-12(D), relying on the apparent availability of those damages 14 after our opinion in Faber v. King, 2013-NMCA-080, ¶ 17, 306 P.3d 519, which was 15 later reversed. See Faber, 2015-NMSC-015, ¶ 41. Punitive damages that were 16 unquestionably awarded for enforcement of IPRA must be vacated. See id. ¶ 26.
17 Attorney Fees Were Already Settled 18 {13} Plaintiff, who is now pro se, was represented by several attorneys before the 19 district court. She does not dispute that claims for attorney fees payable to Martin
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1 Threet, John Tiwald, and William Riordan were resolved in court-ordered mediation 2 on March 26, 2013. She was a party to that settlement agreement. Plaintiff’s cost 3 affidavit, filed on May 23, 2014, characterized retainer and other payments to those 4 same attorneys as “costs,” totaling $10,994.28. The district court ultimately awarded 5 that amount as “past attorney fees” over Defendants’ objection. 6 {14} “[A] release given by one party pursuant to a settlement with a second party 7 constitutes an accord and satisfaction of all claims between the two parties arising out 8 of the incident giving rise to the liability, absent an express reservation of rights by 9 the settling party.” Vidal v. Am. Gen. Cos., 1990-NMSC-003, ¶ 13, 109 N.M. 320, 785 10 P.2d 231. Plaintiff has no quarrel with the doctrine of accord and satisfaction, but she 11 argues that the district court erroneously labeled the award as attorney fees, which are 12 barred by the settlement agreement, instead of costs, which were not settled—and are 13 still available under Section 14-2-12(D). She asserts that costs, under IPRA, includes 14 all out-of-pocket payments and all expenses of litigation, presumably including the 15 “[c]osts for [a]ttorney[s]” that she submitted in her affidavit. 16 {15} We conclude that the district court correctly designated the $10,994.28 as 17 attorney fees. The only error was in awarding them. Section 14-2-12(D) provides for 18 both costs and reasonable attorney fees. We assume that the Legislature did not 19 consider “[c]osts for attorney[s]” to be anything other than attorney fees, or else the 20 fee provision of the statute would be meaningless, and the two damage provisions
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1 would be redundant. State v. Javier M., 2001-NMSC-030, ¶ 32, 131 N.M. 1, 33 P.3d 2 1 (“[A] statute must be construed so that no part of the statute is rendered surplusage 3 or superfluous.” (internal quotation marks and citation omitted)). Pursuant to the 4 settlement agreement, the award for “past attorney fees” is hereby set aside. Plaintiff’s 5 request for sanctions against Defendants’ attorneys on the ground that the cross-appeal 6 is frivolous is denied. 7 CONCLUSION 8 {16} We affirm the district court’s determination that statutory damages are not 9 available. We vacate the punitive damage and fee awards. 10 {17} IT IS SO ORDERED.
11 __________________________________ 12 LINDA M. VANZI, Judge
13 WE CONCUR:
14 _________________________________ 15 JAMES J. WECHSLER, Judge
16 _________________________________ 17 M. MONICA ZAMORA, Judge