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"Buying Justice: No Penalty to Play" by Deborah

Toomey
Threatened "SLAPP" Lawsuit Punishing Community Activists in Truth or
Consequences, New Mexico

The Truth or Consequences City Commission announced after


Executive Session on Feb. 25, 2010, that they will be seeking
attorney’s fees and costs for defending themselves in the
HSLD zoning appeal filed by Kim Audette, Sophie Peron and
Ariel Dougherty. I am confident the City Commission gave the
go-ahead after recommendation by City Attorney Rubin that
such an action was legal and righteous. It is neither.

It should not escape the attention of our reader’s that HSLD


will not be attempting to recoup their attorney’s fees.

The City unsuccessfully filed a motion for sanctions three


years ago against Gerald Trumball when he sought an
injunction against the construction of Wal-Mart. Federal Judge
Bruce D. Black denied said motion. The Sentinel carried on
article on this issue, and remarks from Santa Fe attorney Paul
Mannick, quoted in “Judge Denies ‘Pay Back’ Motion” is even
more appropriate today than it was in March 2007. The City
“made it clear that if you exercise certain fundamental rights
they are going to threaten you.” Mannick went on to state
“They also sent the message that if people come to meetings,
try to understand what’s going on, and try to demand
accountability they will get hit in the pocketbook. It is
astounding that a city would participate in that type of thing.
I’ve never seen it before.”

We’ve seen it twice now. The City regularly utilizes


intimidation, threats and harassment to quench any and all
attempts to keep the City accountable. The City will once
again lose on a motion for sanctions. The City knows this, but
their goal is not to recoup attorney fees. The goal is to
intimidate, harass and quench future public participation.

The American Rule

Under the “American Rule,” win or lose, you pay your own
attorneys' fees. The “American Rule” provides that each party
is responsible for paying its own attorney's fees unless specific
authority granted by statute or contract allows the assessment
of those fees against the other party.

The rationale for the “American Rule” is that people should not
be discouraged from seeking redress in court, including
enforcement or extending coverage of the law. The rationale
continues that WE THE PEOPLE suffer if a person is unwilling to
pursue a meritorious claim merely because they would have to
pay the defendant's expenses if they lost. It is a double-edged
sword, however, as the “American Rule” can work against this
goal simply by the sheer cost involved in seeking redress
through the courts, regardless of the merits of the petition.

In other words, with the “American Rule,” one still has to “buy
justice.” You just don’t get a refund if you win or a penalty if
you lose, unless specifically granted by statute.

The statute under which Audette et al. appealed the HSLD


zoning does not allow the assessment of attorney’s fees or
costs by either party. As such, there is zero chance the City
will prevail in any motion for attorney’s fees. The New Mexico
Court of Appeals upheld in 2007 its commitment to the
American Rule: “In determining whether an attorney fee
award is appropriate, New Mexico follows the American rule
which states that, in the absence of statute, court rule, or
contractual agreement, the prevailing party will not normally
receive attorney fees.” PAZ V. TIJERINA, 2007-NMCA-109, 142
N.M. 391, 165 P.3d 1167

A New Mexico statute, however, that does allow for recovery of


attorney’s fees is the Inspection of Public Records Act.
Attorney’s fees are granted to “any person whose written
request has been denied and is successful in a court action to
enforce the provisions of the Inspection of Public Records
Act.” (NMSA 14-2-12.) Interestingly, no such award of
attorney’s fees is granted to the public body if they should
prevail. Why the “double standard”?

The Constitution of the United States of America.

Ask anyone on the street about the First Amendment and


chances are they will reply, “That guarantees freedom of
religion and freedom of speech.” There is a third freedom
listed in the First Amendment that seems to have been
forgotten: petition your government for grievances.

While oft-forgotten, this right is one of the most important


rights in our Constitution. It was a cornerstone of our
founding principles and is what makes our Constitution unique
in the world. It is easy to forget that our founding fathers
were first and foremost dissenters. They firmly believed and
established our founding documents upon the basic core
believe that WE THE PEOPLE decide how we are governed.
That WE THE PEOPLE must be heard by the government. Our
government is given its authority by WE THE PEOPLE.
Everything the government does is at the request and for the
benefit of WE THE PEOPLE, whether in the minority or the
majority.

We rid ourselves of the notion that the King—the government


at the time—was “above” WE THE PEOPLE. The King chose
whether he would hear an issue, and we found that
intolerable. So, we ensured that if WE THE PEOPLE had a
problem, the government had to listen. The right to petition
the government for grievance is part and parcel the right to
our freedom of speech.

The judicial branch—the Court—is one of the three branches of


government. The original intent and purpose of the judicial
branch was to create a check and balance to the abuse of local
government.

The courts are utilized to petition one branch to hear a


grievance against another branch of government. It is a
fundamental right in the United States of America. A right this
community refuses to acknowledge and attacks with
intimidation and harassment any citizen courageous enough to
hold our local governmental accountable to the law.

Besides un-Constitutional and contrary to the American Rule,


the City’s stated intent to go after Audette et al. for attorney’s
fees can also be construed as a “strategic lawsuit against
public participation” (SLAPP). This is where a lawsuit, or
threat of a lawsuit, is utilized to curtail public participation and
to quiet dissent. New Mexico is one of 27 states that has
specific statutes to curtail SLAPP, but it appears our City
Attorney, City Commissioners and local print newspapers are
unaware of this simple fact. It also appears our County
Commission is unaware of that fact when they, too, suggested
they will attempt to recover legal fees from the Sheriff’s
“frivolous lawsuit” as he petitioned the government for his
grievances. It certainly has not escaped my notice that every
lawsuit is considered “frivolous.” No doubt the Sheriff did not
like being called frivolous, but welcome to our team.

As two Commissioners take the oath of office, once again they


will be required to give allegiance to defend and uphold the
Constitution of the United States of America. Someone the
other day told me it was a bit ridiculous to require our City
Commissioners to take an oath to the Constitution since they
had nothing to do with defending the Constitution. I almost
fell over in disbelief. It begins right here. Everything our
Governing Body does is required to honor, defend and obey
the Constitution of the United States of America. Too bad they
don’t know that.