BY MAIRE O’NEILL
maire@losalamosreporter.com
First Judicial District Judge Jason Lidyard has granted a request by Prashant Jain, owner of Sirphey, LLC for sanctions against Los Alamos County’s attorney for in a case involving an appeal by Sirphey of a stop work order placed by former County Building Official Michael Arellano. The stop work order was upheld by the County Board of Appeals and that action was affirmed by Los Alamos County Council in 2020. The issue has been in District Court since October 2020.
Following lengthy comments during a telephonic hearing early Friday morning, during which he discussed multiple cases on which he relied for his decision, Judge Lidyard announced that the Court is obligating the government of Los Alamos County and its attorney to compensate Sirphey, LLC for all attorney fees necessary to pursue their appeal in the cause before this Court in D132CV202100002 “because the position taken by the government was not a reasonable extension of the law and it was interposed for the improper purpose of maintaining the deprivation that it imposed on Mr. Jain without fulfilling the ordinance’s obligation or the due process obligations it had to him in hopes of never having to”.
“It is a fundamental concept of the due process rights afforded by our state and federal constitutions that when a government deprives one of its citizens of the right to use their property, the government is obligated to inform that citizen of the reasons for its actions and the resulting deprivation. And when such deprivation occurs, and a private citizen asks their government why, the government does not have the privilege of responding, ‘Because I said so’,” Judge Lidyard began. “That is the crux of this case – the government’s duty to inform and the citizen’s reciprocal right to know.”
He said despite all of the procedural irregularities in the administrative proceeding before the Board of Appeals, the primary objections to those proceedings made and pursued by Mr. Jain were the lack of a decision and findings. He said under the County’s Ordinance 10-84, the Board was obligated to make findings and a decision and forward to County Council so that Council could review them to determine whether it should sustain or overturn the decision or remand the matter to the Board to obtain additional evidence.
“The reason why citizens are entitled to know the reasons why, and the government has a duty to inform them of the reasons why they are depriving a citizen of their right to use property, is so that they may know whether or not the reasons are supported by the evidence submitted to the tribunal or if they are based on bias, prejudice or some other bases prohibited by law,” Judge Lidyard said. “The findings and decision that the Board was obligated to make under procedural due process rights as well as Ordinance 10-84 never occurred and therefore Mr. Jain went before the Council for the review of the Board’s decision and asked for the decision and findings to the County Council.”
He said the County Council gave Jain no answer despite the fact that the County Council expressed their own concerns for the lack of a decision and findings.
“Instead of remanding the matter to the Board of Appeals for fulfillment of their obligation under the Ordinance and requirements of due process, the Council simply affirmed the legal conclusion that was contained in the Board of Appeals minutes,” Judge Lidyard said.
He said as a result, in order to vindicate his rights, Jain was obligated to pursue an appeal to the District Court and that he had filed an appeal pro se on October 8, 2020.
“In his notice of appeal, Mr. Jain maintained his objection to the lack of findings and a decision by the Board of Appeals, stating verbatim the following: ‘I, Prashant Jain attest that I am the owner of Sirphey, LLC and have received no written decision of the Los Alamos County Board of Appeals in Case 2020-001 in which is Sirphey, LLC is the appellant. The Board verbally voted against my company’s appeal on July 14, 2020, and last met on July 27, 2020. Repeated entreaties were made by email and in filings for a written decision, but none was provided. The County Council of Los Alamos which was required under the procedural and scheduling order to receive a written decision in the Board of Appeals before considering the case heard it without a written decision to review and voted against me on September 8, 2020. This followed entreaties to delay until a decision had been provided to all parties to review. I have not received the Council’s written decision either, but must file an appeal or show (inaudible) the prescribed 30-day window in which to file one in the First Judicial District. I am concerned at the failure of Los Alamos County to provide a written decision within the norms of New Mexico law as codified at NM Statute Section 39-3-1.1 2018, shall impact my right to due process but still ask the First Judicial District hear the appeal’.”
Judge Lidyard said Jain’s prayer to the District Court was answered by two County motions to dismiss -one for appearing before the District Court as a representative of the limited liability company Sirphey, LLC pro se in violation of a local rule and second, for failure to properly cite the rule provisions for his notice of appeal.
“The matter came before this Court’s for consideration of the notice of appeal and the motions to dismiss and based upon the lack of counsel representing Sirphey, LLC and the requirement of a First Judicial District local rule requiring or prohibiting limited liability companies from being represented by a pro se litigant in court, the Court struck Mr. Jain’s notice of appeal and dismissed the case,” he said. “Mr. Jain in his interactions with the Court on that day was informed that he needed to retain counsel if he wanted to seek his appeal and the basis for his appeal and he did just that. He obtained counsel and then filed a notice of appeal in D132CV202100002 demanding again that findings and a decision be made.”
Judge Lidyard said this notice of appeal was again met by a motion to dismiss by Los Alamos County – this time citing again the improper citation to the rule by which the appeal could be reviewed. He said Jain corrected the citation and was again met with a request for dismissal citing that he should not be permitted to modify or amend his pleading to conform to the proper rule.
“The filings in opposition to the appeals in both (cases) clearly demonstrate the level of sophistication of counsel for Los Alamos County as well as their ability to thoroughly research legal concepts and principles in order to challenge on numerous levels technical insufficiencies to the notices of appeals that were filed by Mr. Jain pro se and then filed on his behalf by counsel. This sophistication continued to be illustrated by continued motions to dismiss after Mr. Jain could not any longer maintain possession of the property that was the subject of the deprivation,” Judge Lidyard said.
When a motion to dismiss as moot was filed, he said, motion was then later filed by the County seeking reconsideration of his previous ruling to allow for the amendment of the rule under which the appeal was made. Then, he said, objections were made to a proposed form or order concerning the denial of the motion to dismiss and a reply was filed in support of the motion to reconsider.
“After overcoming all of the technical grounds for which dismissal was requested, the Court finally had the opportunity to hear the government’s position as to why their requirement of findings and a decision had been fulfilled. In hearing the argument, the Court went round and round with counsel for the government about what a finding is. Motions for reconsideration seemed to fly in the face of the Court’s position regarding why findings are necessary,” Judge Lidyard said. “I’m not going to recite all of the grounds for which the Court had previously ruled for why a finding is a finding of fact and why findings of fact are necessary as they are clearly in the record. At the end of the day, the Court ruled in Mr. Jain’s favor and remanded the matter for the Board of Appeals to create findings of face and a decision so that the County Council could fulfill their obligation in reviewing the decision and the findings.”
After that, Attorney Philip Dabney, Jain’s counsel requested Rule 11 sanctions against the County.
“At that time, the Court heard from the government’s counsel who informed the Court that they had a reasonable basis for filing their claim as there was the ability under existing law for a reasonable extension of existing law that findings may refer to something else other than findings of fact, that this was the first time that this ordinance ever had to be interpreted,’ Judge Lidyard said. “Generally speaking, when entering into uncharted territory, one enters slowly and with caution and circumspection. Instead of doing that, the government of Los Alamos County decided to disregard fundamental concepts of law, statutory interpretation and apply a strict interpretation of the word finding, indulging all possible interpretation against upholding its citizen’s right.”
He said there was a claim there was “a claim of ambiguity due to the lack of specific and unequivocal reference to a finding of fact”.
“Generally when lawyers are unsure what a term means, the first place of reference is Black’s Law Dictionary. Searching the term ‘finding’ in Black’s Law Dictionary, one finds the entry for ‘finding’ which states ‘see finding of fact’. One then goes down one line from the word ‘finding’ and finds the phrase ‘finding of fact’, which is defined as a determination by a judge, jury, or administrative agency of a fact supported by the evidence in the record. It goes on to say ‘often shortened to ‘finding’,” Judge Lidyard said. “There is no entry under the definition of ‘finding’ that contains anything other than a finding of fact. There is no finding of law. One is referenced to the cross-reference for ‘conclusions’. Going to ‘conclusions’ one finds that there are conclusions of law and conclusions of fact but there are no findings of law in Black’s Law Dictionary.”
Judge Lidyard said to this day as he reads rulings by the Court of Appeals and the Supreme Court and sees references to the word “findings” it almost is humorous when he sees such phrase lacking the words “of facts” because it’s obvious, self-evident, that the phrase “finding” means a finding of fact.
“At one time, counsel for the government displays their sophistication and strong ability to research by defending against Mr. Jain’s appeal with technical motions to dismiss claiming Mr. Jain’s counsel’s inability to follow the law and follow the rules, and then when asked to show why this appeal is before the Court without a decision and findings, seems to lose all sophistication and ability to research. The arguments that have been made before this Court are reflective of an ‘Emperor has no clothes’ argument,” he said.
Judge Lidyard said the government of Los Alamos County knew at the time of the County Council’s review of the Board’s decision that there were issues with satisfying the obligation under the ordinance of findings and a decision.
“Despite that knowledge Council affirmed the Board of Appeals conclusion of law contained in their minutes. They then pursued motions to dismiss Mr. Jain’s appeals at every opportunity to avoid having to correct the error that they were well aware of. They then had their attorney take the boldest of positions regarding the interpretation of a word that is clear to any lawyer if one were to open up Black’s Law or any general principal guidance reference material to know that a finding is a finding of fact and the reasons why it’s necessary for an administrative agency to state the findings of fact on which their conclusions of law are made on which their decisions rest. The government of Los Alamos signed off on these interpretations,” Judge Lidyard said.
He asked Dabney to prepare an order reflecting the Court’s findings and conclusions.
“Those are findings of fact and conclusions of law by the way,” Judge Lidyard said,
The Los Alamos Reporter reached out to Los Alamos County for a comment on today’s ruling.
“We are waiting for the written order from the court and will consider our options at that time. Today’s ruling did not address the validity of the November 2019 stop-work order. Hearings on the main matter are still pending,” responded County Attorney Alvin Leaphart.