Another Fired County Employee Gets a Good Pay Day

We should hear soon that yet another employment case against the County has been resolved: Veronica Apodaca v. County of Dona Ana is being settled, I believe for a payment to her of $450,000.

That's a lot less than the County paid after adverse jury verdicts in Granados v DAC and Stewart v. DAC.  It clearly reflects that the county's lawyers -- or more likely the insurer, New Mexico Association of Counties, or both -- learned from those verdicts.  In the Kim Stewart case, as here, the County tried to argue that Ms. Stewart was not being retaliated against, but had screwed up in ways that hurt the County.  Jurors roundly rejected that argument.  Earlier this month, Judge Marci Beyer denied the County's motion for a new trial or reduction of the $1.5 million verdict.  The County had argued that the award of $1 million in "emotional distress" damages was "excessive, shocks the conscience, [and] without support in the record."

Losing lawyer Randy Bartell also said the award reflected "passion and prejudice" against the County.   Maybe it was, but that argument always amuses me in these cases.  The jurors were, necessarily, citizens of the County.  Voir dire was an opportunity for each side's lawyers to eliminate biased jurors -- say, someone who hated the County.  To the extent that the damage award is paid by the County, the jurors themselves will pay a little toward it.  So if there was "passion and prejudice" it arose solely from what the jurors heard in that courtroom; and it must have been strong, given their [admittedly small] pecuniary interest in a low damage award.  (In Granados, I spoke to jurors afterward, and they were incensed at the County's conduct and grateful to Jorge for making things public; and I've heard one juror embraced Ms. Stewart after that verdict.  The County, I think, tried to argue that that showed strong anti-County feelings; but if it did, those weren't a pre-trial bias, but rather a natural human reaction to news of very bad conduct by county officials.  (And perhaps irritation at, as jurors felt, being lied to.)

The same two lawyers, Daniela Labinoti and Brett Duke, represented Mr. Granados and Ms. Stewart. 

One important observation about this case is that, unlike the others, it arose solely on Julia Brown's watch.  There's no argument that this one reflected the shortcomings of any previous county manager.  This one too reflected badly on the County's HR Department, in that Plaintiff initially complained she was being discriminated against by HR, and sought a transfer to DASO.  Ms. Brown, according to allegations in the lawsuit, initially purported to be helping her, but quickly fired her.  So this one arose on Ms. Brown's watch; and if Ms. Apodaca's allegations were accurate, Ms. Brown was the major actor -- the single person most responsible for the fact that Ms. Apodaca no longer works for the County but is getting paid a bunch of money.

Interestingly, in what I thought was a truly discourteous and unwise talk to county employees, Mr. Brown responded to the Stewart verdict by speaking of employees who -- when their performance was inadequate or they'd made serious mistakes -- ginned up complaints of discrimination and harassment and retaliation to make it difficult for the County to take warranted action against them.  She could have been thinking of Ms. Apodaca's case, in the sense that the County seems to have made pretty much that argument in this lawsuit. 

That $450,000 payment doesn't prove conclusively that Ms. Brown acted improperly; it may be, as the County will say it is, a product of watching two other (in the County's view) unwarranted employee retaliation cases end badly for the County.  In the that view, jurors make mistakes and a jury in this case would have likely made a similar mistake. 

But if I were a commissioner, this would be a serious demerit for Ms. Brown.  Other employee lawsuits against her and the County are almost certainly imminent.  That doesn't mean the employees should win those, and we (and potential jurors) should keep our minds open.  

Most or all of the commissioners, to varying degrees, have been dissatisfied with Ms. Brown.  They'll undoubtedly factor this new event into their thinking.

I'll revise this post (or publish a column) once I've had a chance to reread the Complaint and Answer in this matter, and once the settlement becomes final.  I'll also keep an eye and ear open for the details of the County's appeal of the Stewart verdict. 
                                                           -30-

[Note: I sat through almost the entire Granados trial, posting nightly reports, and part of the Stewart trial, and searching those names on this blog should yield access to those if someone needs to consult them.]

March 2016 - a few images

March Rose I

Just got a chance to play around a little with this stuff.  First time in a long time.  Fun. The white peaks, the daffodils, and the slumping barn were up in or near Port Townsend.  The rest, at home or nearby. 

Red Penstemon

The Last Iris

Rose Stalk at Sunset

Horse Portrait at Sunset

Early Bee I

Practice

Yellow Daffodils, White Peaks

Winter Sail

Still Standing

Early Bee II

March Rose II

Desert Cardinal

Louisiana Cares about Dona Ana County!

NMSU hosted a panel discussion Wednesday on outside money spent to influence local elections. Is this a small example?

In 2014 two gentlemen from Louisiana (Glenn Hebert and Steve Afeman) contributed $2300 each to a candidate for Doña Ana County Sheriff. 

Louisiana's a good way off. Apparently, neither man had previously contributed to candidates in other states. Mr. Afeman is the CEO of Emerald Companies, a private prison outfit. Mr. Hebert is Emerald's founder and board chairman. Each gave $5,000 to Louisiana Governor Bobby Jindal in 2007. Governor Jindal has pushed hard for more private prisons. 

Disclosure: I find private prisons unappealing; and the scandal where private managers of a prison for young offenders were found to have bribed Pennsylvania judges to give youthful offenders longer sentences was just what I've always feared from these outfits.

Why would Mr. Hebert and Mr. Afeman (who do run a private prison in Lincoln, New Mexico) take an interest in who's sheriff in our little corner of the world. 

In Doña Ana County, the sheriff doesn't run the jail. 

On the other hand, Sheriff Enrique Vigil, the beneficiary of their largesse, not only has been quite diligent in investigating allegations against the jailer, Chris Barela, but briefly took over the jail this year. Allegations against Barela did deserve a vigorous but fair investigation. County officials differ over whether the jail incident was legal or illegal. And over DASO's motives. (I'm convinced that the actual DASO deputies involved in locking down the jail for awhile had no idea that Emerald had supplied $4,600 – upwards of 20% – of the total $21,274 donated to Vigil's campaign during the general election.) 

Coincidence? Maybe. 

Emerald has run (or tried to get built) a lot of prisons, mostly in Texas and Louisiana.

Some local communities have been very unhappy with Emerald. There's at least a suggestion that Emerald wasn't fully candid with local citizens.

In one town, many citizens strongly opposed Emerald's plans, but community political leaders kept on pushing those plans. 

In Lake Providence, Emerald cut a deal with the lame-duck sheriff, and the incoming sheriff sued to get rid of Emerald. In mid-2012 authorities made a surprise search, found a great deal of contraband, and removed 350 prisoners – more than a third of the population there, apparently. Mr. Afeman reportedly said the search was a ploy by the sheriff to pressure Emerald, and shrugged, “You're always going to find contraband in a prison.” Emerald is no longer running the prison there. “There's not a lot of people here that like them,” one person told me.

One newspaper said Emerald “hustled” small towns: “Like the Music Man, they'd go into small, isolated, and impoverished counties and persuade local officials that an economic boom was just a detention center away. Local officials had only to pay to build the facility and pay them to operate it. Emerald . . . leaves behind . . . some business success but some bad feelings.” In La Salle County, commissioners reached an agreement with Emerald without much public involvement; but when the public realized the bonds “paid an outrageous 12-percent interest, underwriter fees were six percent, [and] Emerald would get a flat amount for operating the prison no matter how small the inmate population, . . . the public was not amused. Lawsuits ensued. It was too late to stop the bond fiasco.” [Links to sources on my blog.] Emerald left. The local government couldn't.

Our concern is Kiki. Was his conduct tied to these donations? Don't know. He hasn't returned my several phone calls. 

                                              -30-

[The column above appeared in the Las Cruces Sun-News this morning, Sunday, 27 March, 2016, although I haven't found it yet this morning on the Sun-News website, and should presently appear also on the KRWG-TV website.  I invite comments and criticism, here or at either or both of those sites.]

[Let me be real clear: I can't state that any of Sheriff Vigil's conduct resulted from these campaign contributions.  I regret that he didn't accept my invitation to comment, so that I could include his views.  He got the messages.  He knew I was writing a column he probably wouldn't like, and that I wanted to talk with him, so as to include his views and make the column as fair and accurate as possible.]

[I understand that he (and they) may say that these two guys who head Emerald Correctional Management met him in the course of his work with the U.S. Marshal's Office and were deeply impressed, and that they had no mercenary motives in contributing to his campaign.  I also understand that there are arguments on both sides of the dispute over why the sheriff took temporary control of the Dona Ana jail -- and whether that was justified, legally or factually.  I've taken no position on that, and take none now.]

[If you want to read more about Emerald, here, in no particular order, are: a December 2015 piece in something called "Prison Bidness" , a November 2015 piece on a town moving ahead with Emerald despite a warning , an April 2009 article in "Prison Bidness" , material from the "Private Prison Working Group" , Emerald's website , a blog post from an organization critical of Emerald ]

[I should add that the panel discussion mentioned at the start of the column went well.  It was the annual Sunshine Week panel at Zuhl Library.  Always a topic related to freedom of the press, openness in government, public access to public documents, etc.  This time it concerned contributions, often anonymous and often from outside the local area, to political campaigns, and the Citizens United decision.  It generated a lively discussion among some prominent folks with very divergent views, and kept a relatively large audience interested throughout.  A lot of people were left with things they wanted to say (or ask) and I'm told that there may be a "Great Conversation" on the subject as a follow-up.  (If there is, I'll likely be there.)  Looking back at the Citizens United decision I realize it was even worse than I'd recalled -- not so much in its ugly consequences as in the way the majority ignored basic law and principles, not only on the merits but even more blatantly with regard to basic judicial principles the Supreme Court follows.]

Wanna Know What the Constitution Says? -- Try Reading It!

The next time a columnist or letter-writer wants to tell us what the U.S. Constitution says, s/he should read it – and maybe examine its context and history.

Randy Lynch's column, “The Constitution Is Not a Living Document,” sparked this revolutionary suggestion. 
 

He wrote: “Our nation was founded by honorable men who understood that they were imperfect and limited. It’s part of why they made it clear that our rights come from God and not from any document or government.”

This belief that the U.S. Constitution grounds our rights in religion is wishful thinking. Without mentioning “God” the Constitution insists that religion not dictate our political decisions. No “establishment of religion.” “No religious Test shall ever be required” for any public office. Our founders knew the word “God.” They even used it to make the Declaration of Independence sound less revolutionary. No one imagines they omitted it from the Constitution because they fell asleep or weren't paying attention.

Mr. Lynch cited the Constitution's “purpose to limit government, not expand it” as a bedrock principle. Indeed, the founders inserted checks and balances among the three branches, and they focused federal power on subjects like interstate commerce that needed federal control. 
 

But the basic purpose of the new Constitution, despite limitations on government, was exactly opposite to what Mr. Lynch seems to assume. Upon winning independence from a distant and dictatorial king, the founders set up a weak central government under the Articles of Confederation. It failed, miserably. They met in Constitutional Convention to strengthen the federal government and make it more “vigorous.”

Mr. Lynch mourns Justice Scalia, opining that “Focusing on results instead of our foundational principles will lead us away from the rule of law.” But when the chips were down (as in, for example, Bush v. Gore) Justice Scalia's great fault was doing exactly what Mr. Lynch bemoans. Scalia's much-vaunted originalism and states' rights principles went out the window when they cut against important results he wanted to reach.

Mr. Lynch criticizes SCOTUS for changing or broadening its interpretations of certain rights, contrasting this with what he seems to assume was the clear the time-honored certainty of 2^nd Amendment protections.

Rights to contraception and abortion are not explicitly stated in the Constitution. The Court interpreted the liberty interest and 9^th Amendment rights made applicable to the states by the 14^th Amendment. Ironically, in Roe v. Wade the Court did just what Scalia and Lynch would have wanted it to do: Justice Brennan discussed at length how the law treated abortion at (and before) the time of the Constitution!

Meanwhile, until recently the Court had rejected “2^nd Amendment gun rights” as we now understand them. Nineteenth Century cases held that the Constitution didn't protect the individual's right to bear arms against state interference. A 1939 case upheld a gun-control law absent “evidence that [a sawed-off shotgun] has some reasonable relationship to the preservation or efficiency of a well-regulated militia.” Even in 1997 the majority didn't seem to recognize that gun control might violate the Second Amendment!

Thus, the expanded gun rights Lynch applauds came about in rather the same way as (though a little more slyly than) clearer recognition of women's rights to decide what to do with their own bodies. Both are contemporary interpretations of old words.

A principled “strict Constructionist” might disagree with Griswold and Roe v Wade, but would be at least as startled by the sharp change in judicial interpretation of the Second Amendment. 
 

How profusely the weeds of convenient misinterpretations grow, how passionately believers espouse them, and how easily dispelled they are by facts!

                                                             -30-
[The column above appeared in the Las Cruces Sun-News this morning, Sunday, 20 March, and will appear later this morning on the KRWG-TV website.]

[The column contains links to the U.S. Constitution and to Mr. Lynch's column in the Sun-News.  I'm not hiding the ball.  The Constitution says what it says.  And it doesn't say our rights or politics are grounded in religion.  It trumpets quite the opposite: that your religion may influence your political views, but not the conduct of our government!  Couldn't be clearer.  Our founders didn't even put God in the oath of office.  You just swear or affirm you'll follow and obey and defend the Constitution.  
I can't quite figure out why so many Tea Party acquaintances suppose otherwise.  What they often say when I point out God ain't in the Constitution is, "But they mention God in the Declaration of Independence!"  Well, yeah.  And although I haven't examined the history, I can guess why, as a lawyer.  Rebelling against Great Britain was a big deal.  Britain didn't like it.  Other empires might see it as a danger.  Even among the populace on our side of the pond, I've often heard that about a third favored Revolution, about a third were Tories, and about a third didn't much care or didn't know.  If that's remotely so, mentioning God was a no-cost effort to make what the rebels were doing more acceptable to some of the doubters.  "You're usurping the King's powers!" "No, our rights come from God!"  "Oh, I see."   But it's clear: when they were organizing the government, setting up a system for the ages, God had no place in it.  Wisely, I think, since so many have such different concepts of God.]  
 
 

Stuff I Don't Understand

What sense does any of this make?

Why should state legislators who oppose abortion because they contend that a fetus is already a full-human person, and will feel pain if a woman aborts a pregnancy, object to that woman being educated about and able to obtain contraceptives that would obviate the need for either an abortion or an unwanted pregnancy? Why do folks complaining that we spend too much to feed and clothe poor women's proliferating offspring oppose making sure those poor women understand and can afford contraceptives?

For that matter, should anyone be allowed to oppose abortion who hasn't adopted at least three unwanted children? Shouldn't folks who advocate increasing the burden of unwanted children be required to pitch in to deal with the problem?

Why are conservatives, particularly Christian conservatives, flocking to support an egomaniac with a slew of divorces and bankruptcies in his background?

Why are folks who supposedly care about families so unconcerned that the scientific community, as measured by peer-reviewed papers, is nearly unanimous that there's an urgent need (if it ain't already too late!) to act to mitigate the environmental damage we're doing to our kids' and grandkids' futures?

For that matter, when the Koch brothers and oil-and-gas organizations trot out the same obfuscation tactics against climate-change that the tobacco industry turned to in desperation, often using the same P.R. minions as front-men and front-women, why are people so slow to see through them?

Why don't their constituents see through legislators who are well-paid by private prison profiteers and duly push for draconian sentencing laws that even criminologists and cops now see are wrong?

Why do folks who supposedly want to balance governmental budgets push for more costly wars and longer costly prison sentences while decreasing governmental income by pushing tax breaks for corporations and the super-rich? 

For that matter, why do many of those folks oppose having their states legalize and tax marijuana?

Why are people who purport to follow the teachings of Jesus Christ the loudest advocates of un-Christian conduct toward poor immigrants?

Why do folks who purport to value life and children say we should leave kids in orphanages rather than allow them the love and care of gay couples who want them? 

Why do some folks think that taking wildlife refuges away from the public to have them destroyed by private profit-makers somehow helps the public?

Why do some folks, who claim to honor freedom and the U.S. Constitution, favor restrictions on people's freedoms regarding speech, privacy, and their own bodies, but argue that the least regulation regarding guns is unconstitutional? 

On the other hand, how do others, who've read about Prohibition and lived through the fruitless and wasteful “War on Drugs” outlawing marijuana, suppose that although those prohibitions didn't work (while eroding respect for law and increasing respect for law-breakers), outlawing all guns would somehow work just fine?

I don't have answers. I do suspect that folks get too trapped in their ideologies to consider and analyze facts in a careful way. Quite probably, a great numbers of citizens, distracted by television and making a living and raising children, just don't care. Or don't care enough to study any issues.

I do have a final question. We are not in Congress. Or the state legislature. We citizens aren't being paid off by corporations. Why don't we talk to each other? Why don't we communicate honestly instead of behaving like armed camps in a war zone, sniping snidely at each other but never risking human connections with folks we don't agree with? 

                                                             -30-

[The above column appeared in the Las Cruces Sun-News this morning, Sunday, 14 March, is up on the newspaper's website under "Opinion", and will appear shortly on the KRWG-TV website  [click "News" then "Local Viewpoints"] -- so please feel free to comment here and/or on either of those sites.]

[There are also a few things I do understand, including (I think) the appeal of Donald Trump.  Many people are angry about many things.  Trump stands up and says, "I'm pissed off!"  A whole lot of people shout, "Right on!" without really assessing whether his (largely feigned) anger arises from the same sources as theirs.  Further, he offers easy answers.   People like that.  They forget or fail to notice that he can't explain even superficially how he'd accomplish any of what he promises.  Further, the field of contestants in the Republican race is even less appealing than usual: Rubio is a pretty face saying whatever seems likely to go over well, a cipher, really; Cruz is the most single-mindedly self-promoting member of the U.S. Senate, a body of men and women notoriously un-shy about tooting their own horns; Kasich seems reasonable and at times even sweet-natured, but unexciting, particularly to the Republican "base."  I'd prefer either of the two leading Democrats; without question; though with concerns there too.  But those concerns pale beside the severe damage electing any of the leading Republicans would do.]
[14March note: just read this interesting column by Paul Krugman offering a more perspicacious view on why we shouldn't be surprised by Donald Trump.]
[14March note: just read this Bloomberg News report on the many reasons Republican U.S. Senators don't much care for Ted Cruz.  Many show his exceptional self-obsession.  Some could be viewed as saying less about him than about the Senate Republicans; but even the tamer ones show a man more obsessed with presenting himself as he wants to be seen than with reality, pragmatics, or the convenience of others.  I get it, a few could just mean he's strictly tied to his convictions; but you kind of want someone a little different as President.]

Sheriffs Hire Interesting Top Assistants

I've voiced strong (and warranted) criticism of the county's Human Resources Department; but there are reasons to have HR. 

The previous sheriff hired someone with an interesting record but no law enforcement experience. Sheriff Garrison admired him. Many deputies didn't. They complained. I wrote several columns. Eventually he left, though on his way out he sued everyone in sight, including me. (A year later the nonsensical lawsuit was dismissed.)

Sheriff Vigil hired a suspended lawyer as his right-hand man. The NM Supreme Court decision upholding his suspension makes one wonder how a competent HR specialist would view the hire. (Practicing law is not among his duties.) 

The court wrote of “a deeply troubling mosaic of ethical misconduct” that included “repeatedly violat[ing] his duty of candor to the court,” “dishonesty to the Court [and] lack of candor to others” including “a false statement” to a life insurance company, and “frivolous claims.” The lawyer, Dennis Montoya, stipulated to the facts.

In one case, a man died when a tire failed. He was survived by his girlfriend, who apparently had substance-abuse problems; their son, three years old; and her daughter. Montoya allegedly ignored the son's legal rights. He told courts that the girlfriend was the decedent's widow, which wasn't true. (There was a possible argument that she might have been the man's common-law wife in Utah.) Montoya allegedly told courts that the decedent was the father of the girlfriend's daughter. A great deal of money that should have gone to the son went to the troubled mother, inappropriately. 

Meanwhile, “several federal judges in separate proceedings publicly reprimanded Montoya for numerous, well-documented ethical lapses. . . . While it is rare for even one federal judge to single out and publicly admonish an attorney, several federal judges found it necessary to reprimand” him. The violations included filing a motion as “unopposed” when he knew it was opposed; filing an Age Discrimination suit alleging his client was 40+ and refusing to dismiss the case when he learned she was just 35; “he altered deposition testimony to favor his client”; and “he brought many frivolous claims and filed many frivolous motions in the federal courts.” (I'll try to include a link to the opinion in my blog post today.)

Mr. Montoya, who was running for the Court of Appeals at the time, says the Supreme Court was politically motivated. He was running against a Richardson appointee, and nearly won. At the start of the campaign, there was one complaint, from the judge he was running against. Then many more charges came in, timed to maximize harm to his campaign. He says the charges from federal cases went back as far as six years; and he adds that while federal judges have an obligation to report ethical misconduct that should be disciplined, the judges had not previously reported these incidents.

He says he “never claimed I never made mistakes” but that the Court's action, in vetoing a settlement agreement (in which his reinstatement was automatic, rather than subject to difficult conditions) and writing such a strongly-worded opinion, was political revenge. (I've found Montoya smart, forthcoming, and cooperative.)

I'm not on either side in the civil war between the sheriff and county manager. I see right and wrong on both sides. 

I do know some excellent deputies. They should have the tools and time they need. I hope the county manager and sheriff won't lose sight of the ball because they're concentrating on squabbling, or on avenging perceived slights; and Sheriff Vigil shouldn't undermine his own credibility as an advocate for his men by creating unnecessary rancor.

                                           -30-

[The above column appeared in the Las Cruces Sun-News this morning, Sunday, 6 March, and will appear shortly on KRWG-TV's website.  I invite comments -- here, on the newspaper's website, or on the KRWG site.]

[There's also a 10th Circuit U.S. Court of Appeals opinion in "an unfortunate case of poor lawyering by Mr. Montoya.  Seventy-five year old John Smith sued the City of Las Cruces.  Smith heard noises, went outside, saw a lot going on, and asked an officer if something was wrong.  No answer.  He was told instead to go back inside.  The old man mumbled, "Well that just beats me, a man is not able to find out what happens in his front yard.  (In fact, there was a suicidal man with knives on the sidewalk.) The cops battered the old man, took him to jail, , after which he went to a medical center with two sprained wrists, contusions, and a back strain.  He sued.  City officers moved for summary judgment, saying they had qualified immunity against a suit.  The opinion says Smith's lawyer, Montoya, didn't really respond, so the court granted defendants summary judgment -- "though, as the court says, that doesn't mean Smith lacked "a meritorious case.   It is to say only we will never know, because clients like Mr. Smith are usually bound by their lawyers' actions -- or, as here, inactions.  Sometimes that means good cases are lost by bad lawyers, a lamentable cost of our legal system."]

[I should stress that I'm not equating Mr. Montoya with Mr. Seeberger.  I'm a bystander, with a healthy curiosity about what will turn out to be the reason(s) Mr. Montoya was placed on Administrative Leave a while back, apparently without a clear account of why.  That seems to be the new style of the County Manager -- as if county business were military or industrial secrets such that anyone suspected of anything had to be hustled out of the building instantly and not spoken to by anyone.  I'd also question having the "investigation" done by a lawyer who represents the county in litigation.  Nothing illegal about that, so far as I know; but it'd probably not seem fair to me if I were the target of the investigation.   Too, when Ms. Brown puts people on Administrative Leave for a lengthy period, you and I pay those people's salary for the period, while getting no useful work from those people.  When she hires a law firm to investigate, we might be paying $100 or $200 per hour -- essentially, I fear, for someone to find adequate support for an action she's already decided on.  Well, it's only money.  Ours.]

[Meanwhile, is it true she's also engaged an "expert" to prove the county sheriff's office is overstaffed?  I keep meaning to send in an IPRA Request on that subject, and maybe will add one regarding the contract with the investigating lawyer, to find out how much he's being paid?  I'll also call her and try to ask her, but she doesn't always answer or call me back.]

[Meanwhile, the county's expenditure of more bad lawyer-money (I mean the money's badly spent, not that the lawyers are bad; it'd be unfair to conclude that just because they lose) trying to get the judge in the Kim Stewart case to overrule the jury's award of damages?  Unsuccessful.  Judge Marci Beyer said no last week, in a six-page opinion.  I'd characterize it as saying not only "no" but "hell, no", albeit in courtesy and appropriate legal language.  One big selling point the county's lawyers pushed was that one of the jurors had hugged Plaintiff Kim Stewart afterward.  Unfortunately, what that says to me isn't that they were pals or the juror came to the case with prejudice, but rather that the appalling conduct of county officials created a certain sympathy in jurors for someone who they felt stood up against that conduct.  I sat through almost the whole trial in the Jorge Granados case a couple of years ago, and interviewed jurors on the way out, and they were saying things that sounded a lot like the hug in this case.  They told me to thank him for standing up.  
To lead with that as a major argument why the jury award should be reduced is understandable legally but kind of amusing in a human sense.  Or just plain sad.  
I'll analyze the case in more detail in an upcoming column, and add a link to the opinion; but the three or four arguments offered by the county's outside counsel didn't look like winners when filed and don't look like winners now.  But the county -- or, more likely, the New Mexico Association of Counties -- will likely pay these or another set of lawyers to dress up those arguments for the Court of Appeals.]