September 23, 2019- John Marquez v. Board of Trustees for the Anton Chico Land Grant, No. A-1-CA-36463

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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

2 Opinion Number: Court of Appeals of New Mexico
: Filed 9/23/2019 11:24 AM
3] Filing Date: September 23, 2019 Lh [>
Mark Reynolds

4| No. A-1-CA-36463

3] JOHN MARQUEZ, HOPE GUTTERREZ
dl Y MARQUEZ, GLORIA GUITERREZ,
7| and GILBERT GUTTERREZ,

8 Plaintiffs-A ppellants,

; BOARD OF TRUSTEES FOR THE

10] ANTON CHICO LAND GRANT,

11} CRISTOBAL MARQUEZ, ROBERT

12} MONDRAGON, MAX SISNEROS,

13] ROMIE MAESTAS, and STONEY

14! JARAMILLO, individually and in their
15] capacity as members of the Board of

16 Trustees of the Anton Chioo Land Grant,

17 Defendants-A ppellees.

18] APPEAL FROM THE DISTRICT COURT OF GUADALUPE COUNTY
19] Kevin R. Sweazea, District Judge

20) Egolf + Ferlic + Harwood
21) Kate Ferlic

22) Kristina Caffrey

23} Santa Fe, NM

24) for Appellants

4

Padilla Law Firm, P.A.
Emest L. Padilla
Santa Fe, NM

for Appellees

OPINION	1
BOGARDUS, Judge.	2
{1} 	John Marquez, Hope Gutierrez y Marquez, Gloria Gutierrez, and Gilbert	3
Gutierrez (Plaintiffs) appeal from the district court’s order denying their motion for	4
attorney fees and costs. At issue is whether Plaintiffs were the “prevailing party”	5
under 42 U.S.C. § 1988 (2018) in their claim against the Board of Trustees of the	6
Anton Chico Land Grant (the Board). We hold that Plaintiffs were not the prevailing	7
party in the underlying litigation and therefore affirm, although on grounds different	8
from those relied on by the district court.	9
BACKGROUND	10
{2} 	Plaintiffs petitioned the district court for a temporary restraining order and	11
injunctions against the Board on March 29, 2013. They asserted that they were heirs	12
and qualified voting members of the Anton Chico Land Grant. Among other	13
remedies, they sought to postpone an election scheduled for April 1, 2013, of the	14
land grant’s board; Plaintiffs alleged that if the Board conducted the election as	15
planned, the Board would violate the land grant’s bylaws and state law and would	16
“deprive[ Plaintiffs] of their rights.” Specifically, Plaintiffs alleged that the board	17
election process was “rife with illegalities and corruption.” In response, the district	18
court issued a temporary restraining order preventing the Board from taking a vote	19
until certain criteria were met.	20

2
{3} 	On April 22, 2013, the Secretary of State filed a motion to intervene in the	1
case. The district court held a hearing on the motion and then granted it on May 8,	2
2014; in so doing, the court ordered the Secretary of State to investigate the issues	3
raised in Plaintiffs’ complaint.	4
{4} 	The next day, Plaintiffs filed an amended petition. The amended petition	5
added a claim premised on both the facts alleged in the original petition and on	6
additional, related facts. The new claim asserted violations by the Board of	7
Plaintiffs’ rights under the equal protection clauses of the Federal and State	8
Constitutions and the Voting Rights Act of 1965. Plaintiffs invoked 42 U.S.C.	9
§ 1983 (2018), which establishes liability for civil rights violations, and § 1988(b),	10
which provides that a court may award a reasonable attorney fee to the prevailing	11
party in an action to enforce § 1983.	12
{5} 	On August 25, 2016, Plaintiffs notified the district court of a partial settlement	13
reached sometime in 2015. Plaintiffs explained that (1) the parties had agreed to	14
changes in the land grant’s bylaws on April 29, 2016; (2) the Board had enacted the	15
changes on August 2, 2016; and (3) the parties had agreed to a settlement on liability.	16
Plaintiffs stated that the only outstanding issue in the case was the amount of attorney	17
fees to which Plaintiffs were entitled.	18
{6} 	Plaintiffs then petitioned the district court for attorney fees and costs, claiming	19
entitlement under § 1988. After a hearing, the district court denied Plaintiffs’	20

3
motion. The court reasoned that land grants are not governmental entities for	1
purposes of constitutional claims or the Voting Rights Act and, because such status	2
is 	required 	for 	recovery 	under 	§§ 1983 	and 	1988, 	Plaintiffs’ 	contention 	of	3
entitlement to attorney fees and costs lacked merit.	4
DISCUSSION	5
{7} 	As a preliminary matter, we address this Court’s jurisdiction to hear this	6
appeal, an issue we instructed the parties to brief. The instruction was based on a	7
possible interpretation of NMSA 1978, Section 1-14-5 (1969), which provides that	8
our Supreme Court has jurisdiction over an appeal “from any judgment or decree	9
entered in” a proceeding over the contest of an election governed by the Election	10
Code, NMSA 1978, §§ 1-1-1 to 1-26-6 (1969, as amended through 2019). Having	11
considered the issue further, we now conclude that Section 1-14-5 does not apply	12
here because, among other reasons, Section 1-14-1 provides in relation to Section 1-	13
14-5 that it is an “unsuccessful candidate for nomination or election to [a] public	14
office” who may contest the election of another candidate, and Plaintiffs are not	15
unsuccessful candidates for nomination or election to a public office. Rather, they	16
are a party seeking an attorney fee award against an already-elected board of trustees	17
of a land grant. This case thus does not fit the criteria our Legislature has established	18
for election-related matters that proceed directly to our Supreme Court on appeal.	19

4
We therefore conclude that jurisdiction is proper in this Court, and we proceed to	1
the merits.	2
{8} 	We generally review a district court’s award of attorney fees for an abuse of	3
discretion. N.M. Right to Choose/NARAL v. Johnson, 1999-NMSC-028, ¶ 6, 127	4
N.M. 654, 986 P.2d 450. However, this appeal presents one essential question:	5
whether Plaintiffs are entitled to an attorney fee award under § 1988. This question	6
is one of law; accordingly, our review of the district court’s order is de novo. See	7
N.M. Right to Choose/NARAL, 1999-NMSC-028, ¶ 7.	8
{9} 	Plaintiffs argue that the district court erred by denying their request for an	9
attorney fee award under § 1988(b), which, they clarify on appeal, is the sole basis	10
for their attorney fee claim. That statute, part of the Civil Rights Attorney’s Fees	11
Award Act of 1976, provides that “[i]n any action or proceeding to enforce a	12
provision of [§ 1983] . . . the court, in its discretion, may allow the prevailing party,	13
other than the United States, a reasonable attorney’s fee as part of the costs[.]”	14
§ 1988(b).	15
{10} 	Plaintiffs maintain on appeal that they were the prevailing party, as that term	16
is used in § 1988(b), in the underlying litigation. Because we conclude otherwise,	17
we do not, as the district court did, reach the attendant question whether land grants	18
are subject to § 1983 liability. That is, we may affirm a district court order on	19
grounds it did not rely on if doing so would neither be unfair to Plaintiffs, see	20

5
Rosette, Inc. v. U.S. Dep’t of Interior, 2007-NMCA-136, ¶ 30, 142 N.M. 717, 169	1
P.3d 704, nor require “look[ing] beyond the factual allegations that were raised and	2
considered below[,]” Atherton v. Gopin, 2015-NMCA-003, ¶ 36, 340 P.3d 630	3
(internal quotation marks and citation omitted). Because the parties addressed the	4
question of whether Plaintiff was a prevailing party both in the district court and now	5
on appeal, and because our consideration of the issue encompasses only those facts	6
previously raised and considered, the applicable criteria are met. Turning to the	7
question of whether Plaintiffs were the prevailing party in the underlying litigation,	8
we look to principles established by federal case law to determine the answer.	9
{11} 	The United States Supreme Court considered the status of a plaintiff who	10
pursued a § 1983 claim and whose case was resolved through a settlement enforced	11
by a consent decree in Maher v. Gagne, 448 U.S. 122 (1980). Remarking that the	12
plaintiff having prevailed through settlement—not litigation—did not “weaken her	13
claim to fees” and that “[n]othing in the language of § 1988 conditions the [U.S.]	14
District Court’s power to award fees . . . on a judicial determination that the	15
plaintiff’s rights have been violated[,]” the Court held that the plaintiff was the	16
prevailing party. Maher, 448 U.S. at 129, 133. In further support of its position, the	17
U.S. District Court cited text from a Senate report stating that “for purposes of the	18
award of counsel fees, parties may be considered to have prevailed when they	19

6
vindicate rights through a consent judgment or without formally obtaining relief.”	1
Id. at 129 (internal quotation marks and citation omitted).	2
{12} 	Shortly after Maher was decided, the Supreme Court made two statements	3
introducing the requirement that a party’s claim have at least some merit before an	4
award in this context is made. These statements influence our analysis here. First,	5
the Court stated:	6
[O]nly when a party has prevailed on the merits of at least some of his	7
claims . . . has there been a determination of the substantial rights of the	8
parties, which Congress determined was a necessary foundation for	9
departing from the usual rule in this country that each party is to bear	10
the expense of his own attorney.	11
Hanrahan v. Hampton, 446 U.S. 754, 758 (1980) (internal quotation marks omitted).	12
Second, it stated that “[r]espect for ordinary language requires that a plaintiff receive	13
at least some relief on the merits of his claim before he can be said to prevail.” Hewitt	14
v. Helms, 482 U.S. 755, 760 (1987).	15
{13} 	The Supreme Court further clarified the prerequisites for prevailing party	16
status—and articulated points central to our holding in this case—in Buckhannon	17
Board & Care Home, Inc. v. West Virginia Department of Health & Human	18
Resources, 532 U.S. 598 (2001). The Buckhannon plaintiffs sued the State of West	19
Virginia and others, alleging that a state statutory provision, to which the plaintiffs	20
were subject, violated federal law. Id. at 600-01. The West Virginia legislature then	21
amended the statutory provision and the case was dismissed. Id. at 601. The plaintiffs	22

7
sought an attorney fee award under a fee-shifting statute and under a “catalyst	1
theory” of having prevailed: that is, a theory accepting that “a plaintiff is a	2
‘prevailing party’ if it achieves the desired result because the lawsuit brought about	3
a voluntary change in the defendant’s conduct.” Id.	4
{14} 	The Buckhannon Court, however, rejected the catalyst theory. The Supreme	5
Court denied the award of attorney fees because, in its words, “[w]e cannot agree	6
that the term ‘prevailing party’ authorizes federal courts to award attorney’s fees to	7
a plaintiff who, by simply filing a nonfrivolous but nonetheless potentially meritless	8
lawsuit (it will never be determined), has reached the sought-after destination	9
without obtaining any judicial relief.” Id. at 606 (internal quotation marks and	10
citation omitted). The Court clarified Maher, stating that such judicial relief can take	11
the form of a consent decree because it “is a court-ordered change in the legal	12
relationship between the [parties].” Buckhannon, 532 U.S. at 604 (alterations,	13
internal quotation marks, and citation omitted). The Court reasoned that such a	14
change is distinct from the situation of “[a] defendant’s voluntary change in	15
conduct,” which, it commented, “lacks the necessary judicial imprimatur on the	16
change.” Id. at 605.	17
{15} 	Based on principles established by these cases, we reason that, in lawsuits	18
resolved by settlement agreement, prevailing party status for § 1988 purposes is	19
available only when a party secures judicial relief. This relief must take the form of	20

8
a “material alteration of the legal relationship” between the party and its adversary.	1
Buckhannon, 532 U.S. at 604 (internal quotation marks and citation omitted).	2
{16} 	Such judicial relief is absent in this case. Here, the parties entered into a	3
settlement agreement, but the agreement was not enforced through a consent decree,	4
as was the settlement in Maher. And although there can be a “prevailing party” when	5
judicial enforcement of a settlement takes a form not formally titled “consent	6
decree,” see Bell v. Bd. of Cty. Comm’rs of Jefferson Cty., 451 F.3d 1097, 1103 (10th	7
Cir. 2006) (“Most circuits recognize that some settlement agreements, even though	8
not explicitly labeled as a ‘consent decree’ may confer ‘prevailing party’ status, if	9
they are sufficiently analogous to a consent decree.” (internal quotation marks and	10
citation omitted)), the fact remains that the litigation in this case did not produce the	11
court-ordered change in the legal relationship between Plaintiffs and the Board	12
necessary for Plaintiffs to receive a fee award under § 1988.	13
{17} 	Plaintiffs argue that the election-related changes to the land grant’s bylaws	14
“materially altered the legal relationship between the parties.” But this argument	15
fails because the district court did not order those changes. To the contrary, our	16
review of the record reveals that the court had no substantive involvement in the case	17
from the time it ordered the Secretary of State’s investigation until the time the court	18
decided the attorney fee issue. By then, the dispute fueling Plaintiffs’ merit-based	19
claims had been resolved by settlement agreement. It was resolved because, much	20

9
like the West Virginia legislature in Buckhannon voluntarily amended the offending	1
law, the Board voluntarily amended its bylaws to Plaintiffs’ satisfaction. Such a	2
voluntary change in conduct—even though constituting the change Plaintiffs sought	3
in suing the Board—is insufficient under 	Buckhannon 	to make Plaintiffs the	4
prevailing party under § 1988(b). Cf. Sanchez v. Bd. of E. N.M., 361 F. App’x. 980,	5
984 (10th Cir. 2010) (holding that the plaintiff who alleged civil rights violations by	6
a college’s use of its board election system and who entered into a settlement	7
agreement with the defendants to rectify those alleged violations was not a prevailing	8
party under § 1988(b) because there was no judicial imprimatur on the agreement).	9
Furthermore, Plaintiffs’ and the Board’s settlement agreement memorializing the	10
Board’s change in conduct never received the judicial imprimatur needed to give	11
rise to prevailing party status. See generally Anthony DiSarro, Six Decrees of	12
Separation: Settlement Agreements & Consent Orders in Federal Civil Litigation,	13
60 Am. U. L. Rev. 275, 321-28 (2010) (explaining the difference between an	14
instrument, like a private settlement agreement whose terms are not incorporated	15
into a court order, and an instrument enforceable through judicial oversight and	16
remarking that the first type of instrument does not produce a “prevailing party”).	17
{18} 	We conclude that Plaintiffs are not a “prevailing party” and therefore are not	18
entitled to an attorney fee award under § 1988. The district court thus did not err by	19
denying Plaintiffs’ request for an attorney fee award.	20

10
CONCLUSION	1
{19} 	We affirm.	2
{20} 	IT IS SO ORDERED.	3
_____________________________	4
KRISTINA BOGARDUS, Judge	5
WE CONCUR:	6
_______________________________	7
J. MILES HANISEE, Judge	8
_______________________________	9
JACQUELINE R. MEDINA, Judge	10