United States of America v. City of Albuquerque

Filing 330

MEMORANDUM in Support re 309 Joint MOTION to Clarify filed by United States of America. (Attachments: # 1 Proposed Order) (Saucedo, Luis) Modified document type on 11/28/2017 (am).

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
__________________________________________
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UNITED STATES OF AMERICA,
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Plaintiff,
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v.
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THE CITY OF ALBUQUERQUE,
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Defendant,
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CIVIL NO: 1:14-cv-1025-RB-SMV
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v.
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THE ALBUQUERQUE POLICE
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OFFICERS’ ASSOCIATION,
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Intervenor.
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UNITED STATES’ MEMORANDUM IN SUPPORT OF THE
JOINT MOTION FOR CLARIFICATION [DOC. 309]
Plaintiff, United States of America, respectfully submits its memorandum in support of
the Joint Motion for Clarification (Doc. 309) regarding Paragraph 315 of the Court-Approved
Settlement Agreement (CASA). In the Joint Motion, the Parties requested an order clarifying
whether the text of the paragraph requires the City to protect written “communications between
the Monitor and the parties” from disclosure. As set forth below, the United States does not
intend that the Court issue a prohibited advisory opinion and, therefore, respectfully requests that
the Court consider the attached alternate proposed order. The alternate proposed order is limited
to defining the scope and purpose of Paragraph 315, rather than answering questions on any
future controversies involving the City’s obligations under New Mexico’s Inspection of Public
Records Act (IPRA), NMSA 1978, Section 14-2-1, et seq. (2011). This kind of clarifying order

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is within this Court’s equitable powers and necessary to ensure effective compliance with the
CASA.
I.

The United States Does Not Request an Advisory Opinion.

Federal courts have neither the power to render advisory opinions nor to decide questions
that cannot affect the rights of litigants in the case before them. In re Special Grand Jury 89-2,
450 F.3d 1159, 1170 (10th Cir. 2006) (quoting Preiser v. Newkirk, 422 U.S. 395, 401 (1975))
(internal quotation marks omitted). The Tenth Circuit has interpreted the relevant limits of
Article III jurisdiction to mean that a court’s judgments “must resolve a real and substantial
controversy admitting of specific relief through a decree of a conclusive character, as
distinguished from an opinion advising what the law would be upon a hypothetical state of
facts.” Id. The Tenth Circuit explained further that the “[t]he real value of the judicial
pronouncement—what makes it a proper judicial resolution of a ‘case or controversy’ rather than
an advisory opinion—is in the settling of some dispute which affects the behavior of the
defendant towards the plaintiff.” Id. (quoting Hewitt v. Helms, 482 U.S. 755, 761 (1987))
(emphasis omitted).
The proposed order lodged with the Joint Motion requests clarification of Paragraph 315
in the context of potential disclosures related to requests received by Defendants under IPRA.
Proposed Order attached to Email from Saiz to Chambers of 10/23/17. The proposed order calls
for the Court to indicate prospectively whether Defendants would or would not be in violation of
Paragraph 315 if it produced “written ‘communications’” or “the Monitor’s draft reports” in
response to IPRA requests. The United States did not intend for the lodged proposed order to
require an advisory opinion and submits that the references to IPRA are superfluous and not
dispositive of the Joint Motion. There are no pending controversies involving IPRA before this
Court, and neither party has asserted any claims or defenses involving IPRA. The reference to
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IPRA in the lodged proposed order would not resolve any dispute involving the Parties nor
clarify the requirements of the CASA.
To avoid any potential misinterpretation that the Parties are seeking a prohibited advisory
opinion, the United States respectfully requests that the Court consider the attached alternate
proposed order. The alternate proposed order does not refer to the City’s external obligations
under IPRA or other issues that are not properly before this Court. The alternate proposed order
is limited to clarifying that Paragraph 315 requires that “communications between the Monitor
and the parties” are protected from disclosure.
II.

An Order Clarifying the Scope and Purpose of Paragraph 315 is Proper and
Necessary to Ensure Full Compliance with the CASA.

The alternate proposed order clarifying the scope and purpose of Paragraph 315 is within
this Court’s equitable powers and necessary to ensure full and effective compliance with the
CASA. Paragraph 315 provides as follows:
The Monitor is not a state or local agency or an agent thereof, and accordingly, the
records maintained by the Monitor or communications between the Monitor and the
Parties shall not be deemed public records subject to public inspection.
(Doc. 247-1, ¶ 315.) The plain language of the paragraph excludes “communications between
the Monitor and the parties” from public records that are subject to public inspection and, thus,
conveys the Parties’ intention to protect these communications from disclosure. Nonetheless, the
City has pointed to tension between its obligations under Paragraph 315 and disclosure of public
records under IPRA, and the need for guidance on the scope of Paragraph 315:
So the City is just in a difficult position trying to decide how to reconcile what the
Settlement Agreement [CASA] says with State law requirements, and we are
hopeful we can get some guidance from the Court on how to comply with your
expectations in the Settlement Agreement [CASA] so that we can best balance
these competing obligations that we have.
(Doc. 285, 6/8/17 Hr’g Tr. 25:10-15; see also Doc. 304, 9/7/17 Hr’g Tr. 20:4-8.)
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A court has inherent authority to interpret the terms of a consent decree when its
language results in confusion. EEOC v. Safeway Stores, Inc., 611 F.2d 795, 798 (10th Cir.
1979), cert. denied, Courtwright v. EEOC, 446 U.S. 952 (1980) (internal citations omitted). The
Tenth Circuit has defined the breadth of this authority by holding that courts should adopt an
interpretation that renders the judgment “more reasonable, effective, and conclusive.” Id.
(internal citations omitted). In their Joint Motion, the Parties seek an order clarifying the effect
of excluding “communications between the Monitor and the parties” from public records that are
subject to public inspection to assist the City in complying with the CASA. While Defendants
raise possible tensions with their disclosure obligations under IPRA, the specific query presented
in the Joint Motion focuses exclusively on the requirements of the CASA: “Specifically, the
Parties and Monitor seek clarification whether the text of the paragraph requires them to protect
written ‘communications between the Monitor and the Parties’ from disclosure.” (Doc. 309 at
2.)
Here, the reasonable, effective, and conclusive interpretation of the CASA militates that
the Parties protect “communications between the Monitor and the parties” from disclosure in a
public records request, as any other interpretation would render the paragraph meaningless. This
interpretation also serves important purposes as the City strives to come into compliance with the
CASA, as the Monitor assesses the City’s efforts, and as the Court considers and resolves issues
that the Parties may bring before it.
Protecting communications from disclosure ensures that the Parties and Monitor are able
to engage in a free exchange of proposals, positions, and information. Being able to
communicate with one another with candor and thoroughness ensures that barriers to compliance
are identified early and resolved quickly. Open channels of communication also help the Parties

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and Monitor work through misunderstandings without having to involve the Court. Protecting
the Monitor’s draft reports, in particular, avoids unnecessary confusion by ensuring that each
report has one authoritative, public version that the Parties have vetted for possible errors or
omissions.
In these ways, Paragraph 315 protects the Monitor’s ability to fully “assess and report
whether the requirements of [the CASA] have been implemented” (Doc. 247-1, ¶ 294) pursuant
to “the supervision and orders of the Court” (id. ¶ 295). By shielding from disclosure the
Monitor’s draft reports and preliminary discussions among the Parties about compliance issues,
Paragraph 315 aids this Court’s exclusive jurisdiction over this matter as the sole finder of fact.
The attached alternative proposed order is limited to this scope and purpose, and provides
Defendants with the necessary guidance to ensure compliance with the CASA.
III.

Conclusion

For the reasons set forth above, a clarifying order setting forth the scope and purpose of
Paragraph 315 of the CASA is within this Court’s equitable powers and necessary to ensure
effective compliance with its terms. The United States respectfully requests that the Court
consider the attached alternate proposed order, rather than the proposed order lodged with the
Joint Motion, to avoid any misinterpretation that the Parties are seeking a prohibited advisory
opinion.
Respectfully submitted this 27th day of November, 2017,
JAMES D. TIERNEY
Acting United States Attorney
District of New Mexico

JOHN M. GORE
Acting Assistant Attorney General
Civil Rights Division

MICHAEL H. HOSES
Assistant United States Attorney
Chief, Civil Division

STEVEN H. ROSENBAUM
Chief

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/s/ Luis E. Saucedo
PAUL KILLEBREW
Special Counsel
LUIS E. SAUCEDO
Counselor to the Chief
COREY M. SANDERS
STEPHEN RYALS
Trial Attorneys
Special Litigation Section
Civil Rights Division
U.S. Department of Justice
Washington, DC 20530
950 Pennsylvania Avenue, N.W.
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]

RUTH F. KEEGAN
Assistant United States Attorney
U.S. Attorney’s Office
District of New Mexico
P.O. Box 607
Albuquerque, NM 87103
Telephone: [phone]
Email: [e-mail]

CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on the 27th day of November, 2017, I filed the foregoing
pleading electronically through the CM/ECF system, which caused the parties, counsel of record
and independent monitor on the service list to be served by electronic means.

/s/ Luis E. Saucedo
LUIS E. SAUCEDO
Counselor to the Chief

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