Certiorari Granted, No. 31,724, July 1, 2009, Certiorari Denied, No. 31,725; June
22, 2009

       IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 2009-NMCA-065

Filing Date: May 7, 2009

NO. 24,026; consolidated with 24,027; 24,042; and 24,425


ALBUQUERQUE COMMONS PARTNERSHIP,

       Petitioner-Appellee,

v.

CITY COUNCIL OF THE CITY OF ALBUQUERQUE,

       Respondent-Appellant.

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
Susan M. Conway and William F. Lang, District Judges


Mettler & LeCuyer, P.C.
Stephen T. LeCuyer
Albuquerque, NM

Bryan & Flynn-O’Brien
George R. Pat Bryan III
Timothy V. Flynn-O’Brien
Albuquerque, NM

Phillip B. Davis
Albuquerque, NM

for Appellee

Robert M. White, City Attorney
Mark Hirsch, Assistant City Attorney
Albuquerque, NM


                                         1
Lorenz Law
Alice T. Lorenz
Albuquerque, NM

Campbell & Wells, P.A.
John S. Campbell
Albuquerque, NM

Robinson & Cole LLP
Dwight H. Merriam
James A. Wade
Gregory W. McCracken
Hartford, CT

for Appellant
                                        OPINION

CASTILLO, Judge.

{1}    On motion for rehearing, the opinion filed October 30, 2008, is withdrawn, and the
following opinion is substituted in its place. The motion for rehearing is otherwise denied.

{2}     The operable event that forms the basis for these consolidated cases1 occurred over
thirteen years ago when the Albuquerque City Council (City) adopted the 1995 Uptown
Sector Plan (1995 USP), which affected property leased by Albuquerque Commons
Partnership (ACP). Until 1995, the leased property was governed by the 1981 Uptown
Sector Plan (1981 USP). In 1991, ACP selected Opus Southwest Corporation (Opus) as the
buyer for the leasehold. Opus submitted a site plan for the property in June 1994 and then,
in July 1994, withdrew the plan because of public outcry. In September 1994, the City
requested a comprehensive overview of the 1981 USP. Before the City could complete the
overview, Opus submitted another site plan (ACP/Opus site plan). The City deferred
consideration of the ACP/Opus site plan and implemented an expedited schedule to evaluate
proposed revisions to the 1981 USP. The City ultimately adopted the 1995 USP.

{3}     ACP sought review of the City’s adoption of the 1995 USP in the trial court. ACP
also claimed damages under 42 U.S.C. § 1983 (2000) for violations of due process and for
an unconstitutional taking in violation of the Fifth Amendment. Concluding that the 1995
USP was enacted contrary to law as applied to ACP, the trial court ordered the City to
consider the ACP/Opus site plan under the 1981 USP. The City complied and ultimately



The City separately appealed a jury verdict and two whole-record reviews that were
conducted by the trial court of the City’s decisions regarding ACP’s development of the
property. On a motion by the City, we consolidated the three appeals.

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rejected the ACP/Opus site plan under the 1981 USP. The claims for damages continued to
trial, and the jury found for ACP on both the due process and the takings claims. The
takings verdict was dismissed pursuant to the doctrine of election of remedies.

{4}     ACP appealed to this Court, and we reversed. Albuquerque Commons P’ship v. City
Council of the City of Albuquerque (ACP II), 2006-NMCA-143, ¶ 2, 140 N.M. 751, 149 P.3d
67. Among other things, we held that (1) the City’s adoption of the 1995 USP was a
legislative act, (2) ACP was not entitled to quasi-judicial process, and (3) the City did not
downzone ACP’s property. Id. ¶¶ 36-39, 71. ACP appealed, and on certiorari our Supreme
Court held that ACP’s property was downzoned by the adoption of the 1995 USP and that
as a result, the City had been required to provide ACP with quasi-judicial process.
Albuquerque Commons P’ship v. City Council of the City of Albuquerque (ACP III), 2008-
NMSC-025, ¶¶ 33, 43, 144 N.M. 99, 184 P.3d 411. The Supreme Court went on to hold that
because the City did not provide these enhanced procedures, ACP’s right to due process had
been violated and that the 1995 USP was not properly enacted. Id. ¶¶ 51-52. Finally, the
Supreme Court concluded that the City had wrongfully denied ACP approval of the
ACP/Opus site plan under the 1981 USP. Id. ¶¶ 58-59. The Supreme Court therefore
reversed ACP II and remanded the case to this Court to make the following determinations:
(1) whether ACP had a constitutionally protected property interest that would satisfy the
threshold requirement for a Section 1983 claim, (2) whether the 1995 USP was an
unconstitutional taking of ACP’s property by the City, and (3) whether damages were
properly awarded. Id. ¶¶ 53-60. We will also consider the City’s challenges to the trial
court’s award of attorney fees and costs.2 We address each issue in turn and hold as follows:
(1) we affirm the jury award of damages in the amount of $8,349,095 to ACP on its Section
1983 claim; (2) we need not address the issues related to the takings verdict because we
affirm the Section 1983 award; (3) we reverse the award of post-judgment interest; and (4)
we affirm the trial court’s award of attorney fees and costs.

{5}     The facts surrounding the adoption of the 1995 USP, the resulting law suits, and the
several appeals are set forth in ACP II, 2006-NMCA-143, ¶¶ 4-29, and in ACP III, 2008-
NMSC-025, ¶¶ 4-20. We need not repeat the long and complicated history of the case.
Instead, we rely on the short background summary that we have already recited and will
include additional facts as necessary. We now turn to the remaining issues on appeal.

DISCUSSION

A.     Section 1983 Claim

{6}    In order to prove its claim under Section 1983, ACP was required to show that the


 2The City’s appeal as to attorney fees and costs was a separate appeal before this Court.
Before the Supreme Court filed ACP III, we reversed the trial court’s allocation of costs and
fees in a memorandum opinion. Albuquerque Commons P’ship v. City Council of the City
of Albuquerque, No. 24,425, slip op. at 3 (N.M. Ct. App. Dec. 9, 2005). As a result of the
holding in ACP III, we now consolidate the fees and costs appeal with the other three
consolidated cases considered by the Supreme Court in ACP III.

                                             3
City, “acting under color of state law, cause[d ACP] to be deprived of a federally protected
constitutional right.” Miles v. Bd. of County Comm’rs, 1998-NMCA-118, ¶ 6, 125 N.M.
608, 964 P.2d 169. ACP argued at trial that the protected constitutional right violated by the
City was the right to procedural due process. The jury entered a verdict for ACP. In its
appeal to this Court, the City challenges the due process verdict on the following grounds:
(1) the trial court improperly found that ACP had a constitutionally protected property right;
(2) procedural due process protections do not apply in the present case because the adoption
of the 1995 USP was a legislative act, and ACP received all of the process that was due; (3)
the Section 1983 claim was not ripe; and (4) the trial court improperly awarded damages.
In addressing each argument, we look to the holdings of our Supreme Court in ACP III—that
ACP’s property was downzoned, that the City accomplished the downzoning in a manner
that violated ACP’s due process rights, and that the adoption of the 1995 USP required a
quasi-judicial hearing. ACP III, 2008-NMSC-025, ¶¶ 43, 51. We begin with the nature of
ACP’s property right.

1.     Property Right

{7}     To establish a violation of procedural due process, ACP was required to show that
the City deprived ACP of “life, liberty, or property, without due process of law.” U.S.
Const. amend. XIV, § 1. Here, we focus on the property interest portion of the equation.
In order to decide whether a party has a constitutionally protected property right, we first
must determine whether there is a state-created substantive property right and then consider
whether that right triggers federal due process protections. Memphis Light, Gas & Water
Div. v. Craft (Memphis Light), 436 U.S. 1, 10 (1978) (“Although the underlying substantive
interest is created by an independent source such as state law, federal constitutional law
determines whether that interest rises to the level of a legitimate claim of entitlement
protected by the Due Process Clause.” (internal quotation marks and citation omitted)).

a.     State-Created Property Right

{8}     Our Supreme Court has explained that constitutionally protected “property interests
are those to which an individual has a claim of entitlement.” Mills v. N.M. State Bd. of
Psychologist Exam’rs, 1997-NMSC-028, ¶ 15, 123 N.M. 421, 941 P.2d 502. Although it is
well settled under New Mexico law that a property owner has no vested right in a particular
zoning classification, Aragon & McCoy v. Albuquerque Nat’l Bank, 99 N.M. 420, 423, 659
P.2d 306, 309 (1983), ACP relies on requirements associated with “downzoning” in order
to establish a property right. According to ACP, because its property was downzoned, and
not simply re-zoned, the City was required to establish a mistake in the original zoning or
subsequent changed conditions in the neighborhood before the zoning could be legally
changed. Miller v. City of Albuquerque, 89 N.M. 503, 506, 554 P.2d 665, 668 (1976). The
requirement enunciated in Miller is referred to as the “change or mistake” rule. Our
Supreme Court agreed with ACP’s position and held that “the City’s actions did constitute
a downzoning of [ACP’s] property without complying with important standards set forth in
Miller and Davis [v. City of Albuquerque, 98 N.M. 319, 321, 648 P.2d 777, 779 (1982)].”
ACP III, 2008-NMSC-025, ¶ 2.



                                              4
{9}     In addition, the City’s applicable zoning regulation—Resolution 270-1980— tracks
the “change or mistake” requirement. ACP III, 2008-NMSC-025, ¶ 28. In order to
implement a map amendment to a zoning classification, Resolution 270-1980 requires the
City to “demonstrate that the existing zoning is inappropriate because (1) there was an error
when the existing zone map pattern was created, or (2) changed neighborhood or community
conditions justify the change, or (3) a different use category is more advantageous to the
community.” ACP II, 2006-NMCA-143, ¶ 64 (internal quotation marks and citation
omitted). In the present case, the Supreme Court has held that the 1995 USP was a map
amendment, which triggered the requirements of Resolution 270-1980. ACP III, 2008-
NMSC-025, ¶ 50.

{10} Based on these New Mexico cases and Resolution 270-1980, we agree with the trial
court that ACP had a right, under state law, to continued zoning in the face of downzoning
or a map amendment unless the City was able to justify a zoning change under the
requirements enunciated by Resolution 270-1980 and Miller. Accordingly, we conclude that
ACP had a state-created property interest.

b.     Federal Protection

{11} The next inquiry is whether the federal constitution extends its protection to this
state-created property right. A party claiming a federally protected property interest must
have a “legitimate claim of entitlement to it.” Bd. of Regents of State Colleges v. Roth, 408
U.S. 564, 577 (1972). “[A] legitimate claim of entitlement is created only when the statutes
or regulations in question establish a framework of factual conditions delimiting entitlements
which are capable of being explored at a due process hearing.” Eidson v. Pierce, 745 F.2d
453, 459-60 (7th Cir. 1984). In the context of municipal land use regulation, “[t]he
entitlement analysis centers on the degree of discretion given the decisionmaker and not on
the probability of the decision’s favorable outcome.” Hyde Park Co. v. Santa Fe City
Council, 226 F.3d 1207, 1210 (10th Cir. 2000) (internal quotation marks and citation
omitted). Accordingly, we must decide whether the applicable law, Resolution 270-1980
or Miller, substantively limited the City’s discretion to pass the 1995 USP. See Jacobs,
Visconsi & Jacobs, Co. v. City of Lawrence (Jacobs), 927 F.2d 1111, 1116 (10th Cir. 1991).
“Otherwise, the city’s decisionmaking lacks sufficient substantive limitations to invoke due
process guarantees.” Id.

{12} As we have explained, Resolution 270-1980 requires the City to justify zone map
amendments by establishing (1) errors at the time the existing zone map pattern was created,
or (2) changes in the neighborhood or community conditions that justify the amendment, or
(3) that a different use category is more advantageous to the community. These are
substantive and direct limitations on the City’s discretion: By its own rules, the City cannot
make a zone map amendment without demonstrating, in some fashion, at least one of these
criteria. See ACP III, 2008-NMSC-025, ¶ 28 (stating that Resolution 270-1980 requires the
proponent of a piecemeal downzoning to establish one of three criteria).

{13} In addition, Miller unequivocally limits the City’s ability to downzone a particular
piece of property. 89 N.M. at 506, 554 P.2d at 668. “[B]efore a piecemeal zoning change


                                              5
is sought, the above principles and considerations must be taken into account, particularly
when the zoning change of a piece of property is sought by the zoning authority instead of
by the owner of the property affected.” Id. (emphasis added) (internal quotation marks and
citation omitted). The ACP III Court concluded that passage of the 1995 USP created a zone
map amendment, 2008-NMSC-025, ¶ 50, and that it had the effect of downzoning ACP’s
property. Id. ¶ 43. The requirements of both Resolution 270-1980 and the requirements
under Miller were therefore triggered; however, ACP III again provides guidance. Because
rigid application of the Miller rule would “unduly impede the zoning authority’s ability to
make zoning decisions that are ultimately beneficial to the community at large,” our
Supreme Court concluded that the requirements of “Resolution 270-1980 adequately
accommodate[] the need for planning and zoning flexibility.” ACP III, 2008-NMSC-025,
¶ 30. As a result, it was necessary for the City to establish one of the three criteria set forth
in Resolution 270-1980, including that “the change is more advantageous to the community,
as articulated in the Comprehensive Plan or other City master plan.” Id. (internal quotation
marks and citation omitted).

{14} Our Supreme Court explained in ACP III that the zoning changes effected by the City
in the present case “must be justified pursuant to the Miller rule and Resolution 270-1980”
and that such changes “require specific factual findings relating to the affected properties.”
ACP III, 2008-NMSC-025, ¶ 32. The parties are entitled to individual notice, to “an
opportunity to be heard, to an opportunity to present and rebut evidence, to a tribunal which
is impartial in the matter—i.e., having had no pre-hearing or ex parte contacts concerning
the question at issue—and to a record made and adequate findings executed.” Id. ¶ 34
(internal quotation marks and citation omitted). All of these procedural requirements are
necessary in order for the City to properly establish the substantive criteria: change, mistake,
or a more advantageous use category. See id. ¶ 30 (establishing the minimum “proof”
required to demonstrate a more advantageous use category). When attempting to accomplish
the type of downzoning at issue in this case, the City has no discretion to proceed without
providing evidence to justify the change in accordance with these criteria. See id. ¶ 51 (“The
[95 USP] Intense Core restrictions singled out a small section of the Uptown Sector and
downzoned that area, requiring the City, as the proponent of the zone change, to justify that
change in accordance with the criteria set forth in Miller and Resolution 270-1980.”).

{15} The focus in this inquiry is not the City’s failure or success in establishing change,
mistake, or a more advantageous use. Rather, the property right is created in the language
of the Resolution, Miller, Davis, and most recently, ACP III, all of which eliminate the
City’s discretion to engage in spot downzoning without considering the factors. See ACP
III, 2008-NMSC-025, ¶ 32 (“[B]ecause such [spot downzoning] must be justified pursuant
to the Miller rule and Resolution 270-1980 (or a similar local policy), they require specific
factual findings relating to the affected properties.”). To reiterate, any failure by the City to
actually establish one of the criteria does not lead to a property deprivation or a due process
violation redressable under Section 1983. Such a deprivation or violation only arises in the
event that a party is denied notice or a meaningful opportunity to be heard.

{16} The City argues that it has enormous discretion in its application of the Resolution
270-1980 factors—particularly in the application of the “more advantageous use”


                                               6
criterion—and that because the factors do not dictate the outcome of the City’s spot
downzoning decision, Resolution 270-1980 and Miller do not create a protected property
right. We first observe that our Supreme Court has substantially narrowed the City’s
discretion in the application of this factor. In ACP III, the Court explained that the “proof”
of a more advantageous use category “would have to show, at a minimum, that ‘(1) there is
a public need for a change of the kind in question, and (2) that need will be best served by
changing the classification of the particular piece of property in question as compared with
other available property.’” 2008-NMSC-025, ¶ 30 (quoting Fasano v. Bd. of County
Comm’rs of Wash. County, 507 P.2d 23, 28 (Or. 1973), superceded by statute as stated in
Menges v. Bd. of County Comm’rs of Jackson County, 606 P.2d 681 (Or. Ct. App. 1980)).

{17} Second, we are not persuaded that the cases cited by the City require us to conclude
that in order for ACP to have a federally protected property interest to be free from spot
downzoning absent a Miller/Davis/Resolution 270-1980 inquiry, the outcome of the City’s
spot-zoning determination must be predetermined by the governing law. The City cites
Kentucky Department of Corrections v. Thompson (Thompson), 490 U.S. 454 (1989), Hyde
Park Co., Jacobs, and Sylvia Development Corp. v. Calvert County, 48 F.3d 810 (4th Cir.
1995).

{18} In Thompson, the Supreme Court of the United States concluded that prison
regulations did not place sufficient substantive limitations on the state’s discretion to allow
a prisoner to receive visitors. 490 U.S. at 464-65. As a result, the prisoner did not have a
protected liberty interest in the regulations that allowed for visitors. Id. at 465. The Court
explained that “the most common manner in which a [s]tate creates a liberty interest is by
establishing substantive predicates to govern official decision-making, and, further, by
mandating the outcome to be reached upon a finding that the relevant criteria have been
met.” Id. at 462 (internal quotation marks and citation omitted). Ultimately, the Court
reasoned that “[t]he overall effect of the regulations is not such that an inmate can reasonably
form an objective expectation that a visit would necessarily be allowed absent the occurrence
of one of the listed conditions.” Id. at 464-65. The Court continued: “Or, to state it
differently, the regulations are not worded in such a way that an inmate could reasonably
expect to enforce them against the prison officials.” Id. at 465.

{19} The City’s reliance on Thompson is misplaced. First, the case concerns the
constitutional rights of a prisoner, which have been construed narrowly over the past thirty
years. See Ahmed A. White, The Concept of “Less Eligibility” and the Social Function of
Prison Violence in Class Society, 56 Buff. L. Rev. 737, 777 (2008) (“[T]he courts made clear
that, while they are not entirely beyond the realm of constitutional protection, prisoners only
enjoy such constitutional rights as are consistent with legitimate penological interests; and
that in determining what those interests are, courts must generally defer to the discretion of
prison officials, granting them wide deference in fashioning and implementing penological
policies.” (internal quotation marks and footnotes omitted)). Second, the property right in
the present case is the right to continued zoning in the face of spot downzoning, absent a
showing of evidence under Miller/Davis/Resolution 270-1980. Considering the mandatory
language in Miller and Resolution 270-1980, ACP could “reasonably form an objective
expectation” that its zoning category would remain in effect absent evidence that could


                                               7
establish at least one of the required criteria. See Thompson, 490 U.S. at 465.

{20} In Hyde Park Co., the Tenth Circuit Court of Appeals was faced with a different
factual scenario. In that case, a developer applied to the City of Santa Fe for approval of a
proposed subdivision plat. 226 F.3d at 1209. The proposal was denied and the developer
appealed, arguing that it had a constitutionally protected property right in approval of its plat.
Id. The Hyde Park Co. Court disagreed because “the applicable ordinances read as a whole
fail to place any discernible substantive limitations on the [city’s] discretion in this matter.”
Id. at 1212. According to the ordinance in Hyde Park Co., the city “had the power to affirm,
reverse, or modify the . . . decision as ought to be made.” Id. “Without clearly defined
limitations on the [city’s] exercise of discretion to assist [in the] construction of local law,”
the Tenth Circuit hesitated “to infer such limits and involve [a] federal court in a land use
regulation dispute which is purely a matter of local concern.” Id. In order to have
demonstrated the requisite limitation on the city’s discretion, the plaintiffs in Hyde Park Co.
would have had to show that “a set of conditions exist under state and local law, the
fulfillment of which would give rise to a legitimate expectation” of plat approval—the
asserted federally protected right. Id. at 1210 (internal quotation marks and citation
omitted).

{21} In the present case, ACP had to show a set of conditions existing under local law
which, if fulfilled, would give rise to a legitimate expectation that the City would provide
evidence regarding the zoning change according to Miller and Resolution 270-1980. Unlike
the ordinance in Hyde Park Co., Resolution 270-1980 provides “clearly defined limitations”
on the City’s discretion to engage in spot downzoning, and there is no need to infer
substantive limitations—those limitations are delineated in the ordinance. See 226 F.3d at
1212.

{22} In Jacobs, the Tenth Circuit Court of Appeals also considered whether a zoning
body’s discretion was sufficiently limited such that the parties had a “legitimate expectation
to the rezoning of their property.” 927 F.2d at 1116. The landowners in that case argued
that certain factors set out in a state court opinion were sufficient to limit the discretion of
the city commissioners. Id. at 1114, 1116. The Jacobs Court disagreed because the state
supreme court had acknowledged that the factors were not meant to be limits but, instead,
“meant only as suggestions.” Id. at 1116. Therefore, the state law did not “arm [the]
appellants with sufficient rules or mutually explicit understandings that support [their] claim
of entitlement.” Id. at 1117 (second alteration in original) (internal quotation marks and
citation omitted). The limitations set forth in Miller and in Resolution 270-1980 are not
merely suggestions. The Miller Court expressed in no uncertain terms that prior to
piecemeal downzoning, the stated “principles and considerations must be taken into
account.” 89 N.M. at 506, 554 P.2d at 668. Resolution 270-1980 states that the applicants
“must demonstrate” at least one of the three requirements enumerated in the resolution. The
language of Miller and Resolution 270-1980 is sufficiently mandatory to support a claim of
entitlement.

{23} Sylvia Development Corp. is similar to Hyde Park Co. and Jacobs: a developer
applied to the county board of commissioners for a special zoning designation, which was


                                                8
denied after vociferous public outcry. Sylvia Dev. Corp., 48 F.3d at 815, 816. The
developer appealed and argued, in relevant part, that it was entitled to approval of its
application if all of the criteria set forth in the applicable zoning ordinance were met. Id. at
825-26. The Fourth Circuit Court disagreed for two reasons: (1) the county had complete
discretion to create the requested special zoning designation because of permissive language
in the ordinance and (2) the criteria in the zoning ordinance were merely preconditions to
be met by an applicant before the county would consider creating a special zoning
designation. Id. at 826. As we have explained, Resolution 270-1980 is neither permissive
in its language nor does it outline preconditions that a property owner is required to meet.
Instead, in the event of a spot downzoning, Resolution 270-1980 and Miller require the City
to provide proof of the listed criteria. See ACP III, 2008-NMSC-025, ¶ 34 (“The burden is
on the proponent of the zone change to establish that the change is justified.”).

{24} We note a further distinction between the present case and Hyde Park Co., Jacobs,
and Sylvia Development Corp. In these three federal cases, the plaintiffs sought to obtain
an as yet non-existent benefit: approval of a plat, Hyde Park Co., 226 F.3d at 1209, a zoning
change, Jacobs, 927 F.2d at 1113, or a special zoning designation. Sylvia Dev. Corp., 48
F.3d at 815. In the present case, ACP seeks to maintain an already existing benefit—a
zoning classification—in the face of the City’s attempt to downzone the property. See ACP
III, 2008-NMSC-025, ¶ 43. “[P]rocedural protection of property has been recognized as a
valid safeguard of ‘interests that a person has already acquired in specific benefits’ and as
a means ‘to protect those claims upon which people rely in their daily lives.’” Jacobs, 927
F.2d at 1118 (quoting Roth, 408 U.S. at 577). The City is required to justify piecemeal zone
map amendments according to Resolution 270-1980 and piecemeal downzoning under
Miller. That justification is a benefit that ACP acquired prior to the proposal and adoption
of the 1995 USP. See River Park, Inc. v. City of Highland Park, 23 F.3d 164, 166 (7th Cir.
1994) (“Those things people can hold or do without the government’s aid count as property
or liberty no matter what criteria the law provides.”).

{25} We consider the present case to bear a certain resemblance to Memphis Light. In that
case, the United States Supreme Court considered whether homeowners had a
constitutionally protected property interest in continued utility service. 436 U.S. at 3. The
Memphis Light Court concluded that “[t]he outcome of that inquiry is clear in this case,” id.
at 9, because the law of the state did “not permit a public utility to terminate service ‘at
will.’” Id. at 11. Instead, in that state, a public utility could “terminate service only ‘for
cause.’” Id. As a result, the homeowner had a continued right to utility service until the
public utility could establish cause to terminate service. See id. In the present case, the City
could only adopt the 1995 USP if it could establish at least one of the requirements of
Resolution 270-1980—just as the utility could only terminate service for cause. Neither
ACP nor the homeowner had “rights of undisputed ownership.” Memphis Light, 436 U.S.
at 11 (internal quotation marks and citation omitted). Nevertheless, both parties asserted a
“legitimate claim of entitlement within the protection of the Due Process Clause.” Id. at 12
(internal quotation marks and citation omitted).

{26} Although ACP’s pre-existing benefit, or entitlement, is limited and is triggered only
under the conditions explained in Miller or outlined in Resolution 270-1980, we conclude


                                               9
that ACP has a federally protected property interest to continued zoning under the narrow
circumstances presented by this case. Accordingly, we turn next to consider whether ACP
received all of the process that it was due in order to protect its property right.

2.     Process Due
{27} We next consider whether the process provided by the City was sufficient to
safeguard ACP’s constitutionally protected property right. The City argues that ACP
received all of the process that was due because the City provided and ACP participated in
seven hearings about the adoption of the 1995 USP. Further, the City argues that because
the adoption of the 1995 USP was a legislative act, constitutional due process was not
required. We first note that our Supreme Court held in ACP III that the adoption of the 1995
USP was a quasi-judicial, and not a legislative, act. ACP III, 2008-NMSC-025, ¶¶ 37-39,
43.

{28} We also observe that our Supreme Court in ACP III outlined the quasi-judicial
hearing process to which piecemeal or spot downzoned property owners are entitled. 2008-
NMSC-025, ¶ 34. While this process is certainly necessary to satisfy state law, Section 1983
actions are brought under federal law. The United States Supreme Court has explained that
“[p]rocess is not an end in itself. Its constitutional purpose is to protect a substantive interest
to which the individual has a legitimate claim of entitlement.” Olim v. Wakinekona, 461
U.S. 238, 250 (1983). The Olim Court concluded that while a state may choose to require
certain procedures, “making that choice . . . does not create an independent substantive
right.” Id. at 250-51. In particular, the characterization of a zoning process as quasi-judicial
does not engender the “expectation of a property interest or otherwise place substantive
limitations on official discretion.” Jacobs, 927 F.2d at 1117. From these authorities, we
conclude that the failure to hold a particular type of hearing was not by itself a failure of due
process actionable under Section 1983.

{29} “The fundamental requirement of due process is the opportunity to be heard at a
meaningful time and in a meaningful manner.” Mathews v. Eldridge, 424 U.S. 319, 333
(1976) (internal quotation marks and citation omitted), abrogated on other grounds as
recognized by State v. Gonzales, 2001-NMCA-025, ¶ 58 & n.1, 130 N.M. 341, 24 P.3d 776.
“[R]esolution of the issue whether the administrative procedures provided here are
constitutionally sufficient requires analysis of the governmental and private interests that are
affected.” Mathews, 424 U.S. at 334; see also Erica, Inc. v. N.M. Regulation & Licensing
Dep’t, Alcohol & Gaming Div., 2008-NMCA-065, ¶ 27, 144 N.M. 132, 184 P.3d 444. That
analysis includes three factors:

        First, the private interest that will be affected by the official action; second,
        the risk of an erroneous deprivation of such interest through the procedures
        used, and the probable value, if any, of additional or substitute procedural
        safeguards; and finally, the [g]overnment’s interest, including the function
        involved and the fiscal and administrative burdens that the additional or
        substitute procedural requirement would entail.

Mathews, 424 U.S. at 335. We have already identified ACP’s private interest: the right to


                                                10
continued zoning unless the City can justify downzoning according to the requirements of
Resolution 270-1980.

{30} The second factor considers (1) the risk of erroneous deprivation absent the requested
procedure and (2) the probative value of the additional safeguard. To analyze the second
factor, we must first consider what procedure ACP requested. The City points out that ACP
had an opportunity to participate in seven hearings and that seven hearings satisfied any
procedural due process right. ACP disagrees.

{31} In order to resolve this issue, we need only turn to one aspect of the hearing—the
type of tribunal. During its review of the downzoning issue, our Supreme Court concluded
that the City made “no effort to provide ACP with an impartial tribunal by limiting ex parte
contacts on the part of the council members.” 2008-NMSC-025, ¶ 36. The question
remains, however, whether an impartial tribunal would substantially reduce the risk of
erroneous deprivation of ACP’s protected right and what the probable value of an impartial
tribunal would be.

{32} It is well established that “a fair trial in a fair tribunal is a basic requirement of due
process.” Withrow v. Larkin, 421 U.S. 35, 46 (1975) (internal quotation marks and citation
omitted). Our Supreme Court has determined that the City Council was a biased tribunal.
ACP III, 2008-NMSC-025, ¶ 36. Hearings before a biased tribunal create a substantial risk
of erroneous deprivation. See NM Bd. of Veterinary Med. v. Riegger, 2007-NMSC-044, ¶
27, 142 N.M. 248, 16 P.3d 947 (“Procedural due process requires a fair and impartial hearing
before a trier of fact who is disinterested and free from any form of bias or predisposition
regarding the outcome of the case.” (internal quotation marks and citation omitted)). The
present case exemplifies the risk. The City perceived itself to be conducting a legislative
hearing. While a quasi-judicial hearing is not required to satisfy due process, a legislative
hearing before a legislative tribunal led to actual ex parte contact in this case. See Withrow,
421 U.S. at 47 (explaining that a contention of bias “must overcome a presumption of
honesty and integrity of those serving as adjudicators”). Prior to the adoption of the 1995
USP, a non-counselor contacted a counselor—outside of the hearings—and “encouraged”
her not to propose amendments to the 1995 USP that would have allowed ACP to proceed
with its project. ACP III, 2008-NMSC-025, ¶ 36 n. 3. The counselor acted on the contact,
withdrawing her proposed amendments. Id. Thus, this ex parte contact had a direct,
negative effect on ACP’s protected property right, and an impartial tribunal would have had
a great deal of value as an additional safeguard.

{33} Analysis of the third factor shows that there is no added burden on the City to
provide a meaningful opportunity to be heard before an impartial tribunal. Taking all of the
factors together, we conclude that the balance weighs in favor of providing a property owner
with an impartial tribunal—one free from ex parte contacts—prior to implementing a
piecemeal downzone.

3.     Adequacy of State Remedies

{34}   Despite our holding that the City’s procedure failed to provide ACP with adequate


                                              11
process to protect its property rights, we continue our analysis to determine whether ACP
properly established a Section 1983 cause of action in light of available state-law remedies.
See Starko, Inc. v. Gallegos, 2006-NMCA-085, ¶ 19, 140 N.M. 136, 140 P.3d 1085
(explaining that “not all deprivations of property interests, even if they are in violation of
state law, are actionable under [Section] 1983” because plaintiffs must show that “state
remedies provided inadequate procedural safeguards”). The City makes two arguments in
this regard: (1) a due process deprivation is not complete until the process has failed and
whether the process has failed cannot be determined until the deprived party has navigated
the entire system of available state appeals and (2) any procedural error that may have
occurred in the present case was simply a mistake and “is not tantamount to a violation of
a federal right.” We address each argument in turn.

{35} The City’s first argument is based on the multiple levels of state court review that
were available to ACP after the 95 USP passed. The City contends that at the first level of
review in the district court, ACP argued against remand for the City to conduct a quasi-
judicial review of the ACP/Opus site plan. Thus, the City argues, any due process violation
was never complete because review of the passage of the 95 USP was available in the district
court, this Court, and our Supreme Court, and ACP refused to participate in that procedure.
ACP maintains that no state remedy was available to adequately address its loss. With this
argument, ACP appears to focus on its financial loss rather than on any due process
violation. It is well established that “[a]lthough the state remedies may not provide the
respondent with all the relief which may have been available if he could have proceeded
under [Section] 1983, that does not mean that the state remedies were not adequate to satisfy
the requirements of due process.” Parratt v. Taylor, 451 U.S. 527, 544 (1981), overruled
on other grounds by Daniels v. Williams, 474 U.S. 327 (1986). Having disposed of ACP’s
challenge to the adequacy of the available state remedies to address the financial loss, we
turn to consider whether the state appellate process was adequate to address the due process
violation in the present case.

{36} The Supreme Court of the United States has explained that in some cases, “due
process requires a predeprivation hearing before the [s]tate interferes with any liberty or
property interest enjoyed by its citizens,” id. at 537, and, as a result, state appellate
procedures are not sufficient to cure a due process violation. In such cases, “deprivations
of property [are] authorized by an established state procedure and due process [requires]
predeprivation notice and [a] hearing in order to serve as a check on the possibility that a
wrongful deprivation [c]ould occur.” Id. at 538. In other cases, for example in Parratt itself,
“random and unauthorized” state acts that lead to deprivations of property are cured by a
postdeprivation hearing—or an appeal— because a predeprivation hearing is impractical.
Id. at 541, 543. We thus consider whether the City’s actions were random and unauthorized
in order to determine whether the available appellate process was a constitutionally sufficient
remedy for ACP’s due process deprivation.

{37} The City cites McKinney v. Pate, 20 F.3d 1550 (11th Cir. 1994), which held that a
biased decisionmaker is an inherently random and unauthorized act because bias is not
sanctioned by the state. Id. at 1563. As a result, the McKinney court concluded that the
plaintiff was not deprived of due process unless the state refused to address the alleged bias


                                              12
on appeal from the administrative proceeding. See id. at 1562. We are unpersuaded by
McKinney for two reasons.

{38} First, McKinney was decided in the context of employment termination proceedings
and the long line of cases that establish a fired employee’s due process rights. Id. (“[I]n the
case of an employment termination case, due process [does not] require the state to provide
an impartial decisionmaker at the pre-termination hearing. The state is obligated only to
make available the means by which [the employee] can receive redress for the deprivations.”
(internal quotation marks and citation omitted)). Second, although the logic of McKinney
is superficially attactive—that a biased tribunal is inherently not authorized by the state—the
facts of the present case do not bear out this presumption. The City’s improper process was
neither unpredictable nor the result of the rogue actions of one city councilor. The City
chose to proceed by legislative hearings—a procedure that did not provide an impartial
tribunal and allowed for ex parte contact. In addition, we are faced with the rare
circumstance of having allegations of bias borne out by the record: a city councilor had
indicated one course of action, was contacted by a constituent with an opposing view, and
after that contact, the councilor changed her position and her vote. See ACP III, 2008-
NMSC-025, ¶ 36 n.3. The decision to proceed legislatively is not sufficient alone to create
a due process violation; it is possible that a legislative hearing could provide a meaningful
opportunity to be heard or could be conducted without evidence of ex parte contact resulting
in improper influence. Under the facts of the present case, however, as recognized by our
Supreme Court in ACP III, there is substantial evidence to support the jury’s decision that
ACP did not receive an impartial tribunal and that the flawed process was selected and
endorsed as an official act of the whole governmental power of the City. See id. As a result,
we are unpersuaded by the presumption applied in McKinney.

{39} The present circumstances are more closely aligned with Zinermon v. Burch, 494
U.S. 113 (1990). The plaintiff in Zinermon was admitted as a voluntary mental patient even
though he was incompetent to provide informed consent for his admission. Id. at 114-15.
The defendants argued that a postdeprivation remedy was sufficient, in lieu of a Section
1983 action, because the constitutional deprivation was the result of a random and
unauthorized action by a state employee. Id. at 115. The Supreme Court of the United
States explained that generally, “the Constitution requires some kind of a hearing before the
State deprives a person of liberty or property.” Id. at 127. The random and unauthorized
rule articulated in Parratt represents “a special case . . . in which postdeprivation tort
remedies are all the process that is due, simply because they are the only remedies the [s]tate
could be expected to provide.” Zinermon, 494 U.S. at 128. In Zinermon, the state statute
delegated broad authority to hospitals to admit patients, effectively without informed
consent. Id. at 135. As a result, the hospital staff had “state authority to deprive persons of
liberty [and] the Constitution imposed on them the [s]tate’s concomitant duty to see that no
deprivation occur without adequate procedural protections.” Id. The Zinermon Court
concluded that the postdeprivation procedures were inadequate because the deprivation was
not unpredictable, predeprivation procedures were not impossible, and the deprivation was
not unauthorized. Id. at 136-38.

{40}   In the present case, the City—as it strenuously argues—has broad authority to make


                                              13
zoning decisions that can lead to deprivations of constitutionally protected property rights.
Part and parcel with that authority is the duty to provide adequate predeprivation procedural
protections. Similar to the deprivation in Zinernon, an impermissibly biased tribunal was
not unpredictable: the City’s decision to proceed legislatively carried with it the risk of ex
parte contact and bias and, based on the record, the risk was elevated to reality. In addition,
it was not impossible for the City to provide an unbiased tribunal. In Parratt, the deprivation
involved the loss of personal property by prison officials—an action which was impossible
for the state to predict and prevent by predeprivation hearing. 451 U.S. at 541. In the
present case, the City was contemplating spot downzoning of ACP’s property, had a working
knowledge of the common procedures involved in legislative hearings, and could have
anticipated that councilors would be contacted outside of the official proceedings. It cannot
be said that the instance of actual bias that resulted from the procedures employed was
unpredictable. Finally, we have already addressed the argument that the biased tribunal was
unauthorized and need not repeat our analysis here.

{41} We now reach the City’s second argument, which concerns the decision to proceed
legislatively. The City maintains that its decision to proceed legislatively was merely a
procedural error that does not rise to the level of a constitutional violation and that if ACP
is permitted to recover under Section 1983 based on a procedural flaw in the proceedings,
property owners will have “the unilateral option to cash in on any procedural flaw in an
administrative proceeding by declining remand and pursuing a [Section] 1983 action.” We
disagree.

{42} The bias in the present case was more than a procedural flaw because ACP had a
protected property interest, it was entitled to due process, and there is evidence of actual bias
in the process afforded by the City. An unbiased tribunal was a constitutional requirement
in the present case. See 1 E.C. Yokley, Zoning Law and Practice § 3A-1[d], at 3A-23 (4th
ed. 2008) (“Procedural due process, however, will apply where a decision is administrative
or quasi-judicial and the property owner has an entitlement rather than an expectancy to
whatever he or she sought.” (footnotes omitted)). In addition, the decision to proceed under
Section 1983, rather than to pursue administrative remedies, is a tactical and risk-laden
choice. See 2 Steven H. Steinglass, Section 1983 Litigation in State Courts § 17:3, at 17-7
to 17-8 (2008) (discussing the tactical reasons for resorting to a Section 1983 action or for
voluntarily submitting claims to administrative proceedings). The litigant takes the risk of
receiving no remedy at all should he neglect to pursue administrative remedies, and the
Section 1983 action may be blocked by the myriad of requirements that stand between a
plaintiff and relief.

{43} We recognize that other courts have concluded that minimal process is due under the
Constitution in zoning cases and that a municipality’s failure to provide the process required
under local law is a matter for state courts, not Section 1983. See River Park, Inc., 23 F.3d
at 166-67. The River Park, Inc. court succinctly explained that “the due process clause
permits municipalities to use political methods to decide, so that the only procedural rules
at stake are those local law provides, and these rules must be vindicated in local courts.” Id.
at 167. Nevertheless, our analysis of the present case leads to the conclusion that ACP had
a property right that was to be afforded federal due process protections. Due process


                                               14
requires notice of the pending deprivation and a meaningful opportunity to be heard. In the
present case, the meaningful opportunity to be heard was foreclosed by evidence of actual
and impermissible bias on the tribunal—bias that was the foreseeable result of the political
process chosen by the City as its official act to effectuate the deprivation of ACP’s property.
Under the unusual circumstances of this case, we therefore hold that ACP’s Section 1983
action was not foreclosed by available state remedies and that the City’s failure to provide
ACP with an impartial tribunal violated ACP’s right to procedural due process. See ACP III,
2008-NMSC-025, ¶ 52 (“[T]he City’s decision lacked procedural fairness and did not
comport with due process of law.”).

4.     Ripeness of the Section 1983 Claim

{44} The City contends that because ACP prevailed on both the due process and the
takings issues at trial, ACP cannot recover damages for the Section 1983 claim until it has
attempted to recover compensation for the taking. As a result of ACP’s failure to seek
recovery for the taking, the City argues that the due process claim is not ripe. For support,
the City cites Rocky Mountain Materials & Asphalt, Inc. v. Board of County Commissioners
(Rocky Mountain), 972 F.2d 309 (10th Cir. 1992). In that case, the Tenth Circuit provided
the following explanation:

       When a plaintiff alleges that he was denied a property interest without due
       process, and the loss of that property interest is the same loss upon which the
       plaintiff’s takings claim is based, we have required the plaintiff to utilize the
       remedies applicable to the takings claim. It is appropriate in this case to
       subsume the more generalized Fourteenth Amendment due process
       protections within the more particularized protections of the Just
       Compensation Clause. Accordingly, until a plaintiff has resorted to the
       condemnation procedures to recover compensation for the alleged taking, the
       procedural due process claim is likewise not ripe because it is in essence
       based on the same deprivation.

Id. at 311 (internal quotation marks and citation omitted). ACP argues that (1) federal
ripeness jurisprudence does not apply, (2) the takings claim was not coextensive with the due
process claim, and (3) no state remedy existed for the takings claim, and ACP was therefore
not required to pursue a non-existent remedy. For the reasons listed below, we agree with
ACP that the takings claim and the due process claim were not coextensive, and we therefore
do not address ACP’s other points.

{45} Rocky Mountain identified two sets of circumstances. In one scenario, the loss of the
property interest is the same loss upon which the takings claims is premised. Id. This is the
scenario which the City argues is similar to the present case. However, Rocky Mountain
goes on to explain that “[t]here are many intangible [property] rights that merit the protection
of procedural due process although their infringement falls short of an exercise of the power
of eminent domain for which just compensation is required under the Fifth and Fourteenth
Amendments.” Id. (alterations in original) (internal quotation marks and citation omitted).



                                              15
{46} In the present case, the property right that forms the basis for the due process claim
is an intangible right—the right to continuation of a certain zoning classification until the
City can establish specific circumstances, as we have identified in preceding paragraphs.
ACP’s loss resulting from the due process violation was a loss of opportunity to
meaningfully participate in a hearing related to the adoption of the 1995 USP. Our Supreme
Court has determined that ACP’s deprivation of this meaningful hearing resulted in its
inability to develop its property. See ACP III, 2008-NMSC-025, ¶ 59. The jury was
instructed accordingly on damages for that claim: place ACP in the position it would have
been in had it been permitted to develop its property as proposed. The basis for the takings
claim was that the passage of the 1995 USP did not advance a legitimate public interest and
deprived ACP of all economically viable use of the property without compensation. The
takings damages instruction directed the jury to award the value of the use of the property
taken. The differences between the claims were reflected in the jury’s verdict on
damages—six million dollars for takings and more than eight million dollars for due process.
It is further apparent that the right to receive meaningful process could not be redressed by
the remedy for the takings claim—adequate compensation for deprivation of the use of
property. We therefore conclude that the two claims were not coextensive and that ACP was
under no obligation to seek condemnation and compensation before recovering damages for
the due process violation.

5.     Damages Under the Section 1983 Claim

{47} In Section 1983 cases, the plaintiff must prove a causal connection between the
wrongful conduct and the injury in order to justify an award of compensatory damages.
Jacobs v. Meister, 108 N.M. 488, 495-96, 775 P.2d 254, 261-62 (Ct. App. 1989),
disapproved of on other grounds by Carrillo v. Rostro, 114 N.M. 607, 623 n.16, 845 P.2d
130, 146 n.16 (1992). The City contends that ACP’s evidence relating to damages measured
only the loss of profit that resulted from the inability to develop the property as planned.
Specifically, the City argues that ACP was required to prove that if the City had provided
due process, the 1995 USP would not have been approved and that the ACP/Opus site plan
would have been approved under the 1981 USP. We disagree.

{48} “It is recognized that a Section 1983 action is a species of tort liability, and that the
common law of tort damages will be a starting point for Section 1983 damages[.]” Wells v.
County of Valencia, 98 N.M. 3, 5, 644 P.2d 517, 519 (1982). Our Supreme Court has
explained that according to long-established principles of tort law, “the purpose of
compensatory damages is to make an injured person whole.” Lovelace Medical Center v.
Mendez, 111 N.M. 336, 349, 805 P.2d 603, 616 (1991). The Mendez Court continued and
stated that “one of the functions of compensatory damages is to indemnify the injured party
against financial losses proximately caused by the negligence of another.” Id. Thus, in the
context of the present case, ACP was required to prove that its financial losses were caused
by the City’s actions.

{49} As we have explained, the City failed to provide adequate process to protect ACP’s
constitutionally protected property right and, therefore, the passage of the 1995 USP violated
ACP’s due process rights. Absent the improperly passed 1995 USP, the 1981 USP governed


                                             16
the ACP/Opus site plan. Consequently, we turn to whether the ACP/Opus site plan would
have been approved under the 1981 USP.

{50}   In ACP III, the Supreme Court determined that

       [t]he record shows that the [ACP/]Opus site plan, though it needed some
       adjustments (adjustments that were in the process of being made at the time
       the City imposed the moratorium to consider the 1995 [USP] amendments),
       complied with the requirements of the 1981 [USP] and was no different from
       a number of projects that the City had previously allowed under that sector
       plan.

2008-NMSC-025, ¶ 59. This statement by our Supreme Court is the law of the case. “Under
the law of the case doctrine, if an appellate court has considered and passed upon a question
of law and remanded the case for further proceedings, the legal question so resolved will not
be determined in a different manner on a subsequent appeal.” Scanlon v. Las Cruces Pub.
Sch., 2007-NMCA-150, ¶ 7, 143 N.M. 48, 172 P.3d 185 (alterations omitted) (internal
quotation marks and citation omitted). We therefore conclude that the ACP/Opus site plan
would have been approved according to the 1981 USP, see ACP III, 2008-NMSC-025, ¶ 58,
and that ACP proved that its financial losses were caused by the City’s failure to provide
adequate process.

{51} The City also briefly contends that ACP did not prove a portion of the damages
related to reimbursement of a percentage of funds used to construct a road. The Supreme
Court did not address this argument in ACP III, and we thus consider whether ACP provided
substantial evidence to support the jury’s verdict that ACP’s damages were caused by the
City’s actions. The City argues that there was no agreement that the City would reimburse
ACP for construction of Loop Road, a road adjacent to the site, and that damages related to
the road were improperly awarded based on ACP’s assumption that the City would
reimburse for road construction costs. The record supports ACP’s assumption in that there
was evidence at trial that the City had paid a percentage of another access road, that the City
had identified the cost of such a road as a cost to the City, and that the 1981 USP required
public financing of the road. Accordingly, we conclude that ACP put on evidence to support
the jury’s assessment of damages in this regard.

B.     Post-Judgment Interest

{52} We review the trial court’s construction of the post-judgment interest statutes de
novo. Bird v. State Farm Mut. Auto. Ins. Co., 2007-NMCA-088, ¶ 36, 142 N.M. 346, 165
P.3d 343. New Mexico is somewhat unique in how it handles the payment of post-judgment
interest by the state and its political subdivisions. We look to NMSA 1978, § 56-8-4(D)
(2004), which exempts the state and political subdivisions from paying post-judgment
interest unless otherwise provided by statute or case law. This statute has been construed
narrowly, and in order for a prevailing party to recover post-judgment interest from the state
or a political subdivision, our courts have required an explicit waiver of sovereign immunity.
Nava v. City of Santa Fe, 2004-NMSC-039, ¶ 23, 136 N.M. 647, 103 P.3d 571 (refusing to


                                              17
award post-judgment interest when immunity from post-judgment interest is not expressly
waived); Trujillo v. City of Albuquerque, 1998-NMSC-031, ¶ 47, 125 N.M. 721, 965 P.2d
305 (same). The City argues that because Section 1983 and 42 U.S.C. § 1988 (2000) do not
provide for post-judgment interest, the trial court improperly assessed post-judgment
interest. ACP counters that post-judgment interest is mandatory in Section 1983 actions
filed in federal court and that it should therefore be allowed in state proceedings. We agree
with the City.

{53} As the City recognizes, post-judgment interest is routinely awarded in Section 1983
cases filed in federal court. The basis for those awards, however, is 28 U.S.C. § 1961
(2000). See, e.g., Transpower Constructors v. Grand River Dam Auth., 905 F.2d 1413, 1423
(10th Cir. 1990) (“[I]nterest shall be allowed on any money judgment in a civil case
recovered in a [federal] district court.” (internal quotation marks and citation omitted)); see
also 28 U.S.C. § 451 (1982) (defining “district court” according to Title 5 of Chapter 28
U.S.C. in which 28 U.S.C.§ 132 (1963) describes a district court as “a court of record known
as the United States District Court for the district”). Section 1961(c)(4) explicitly provides
that it “shall not be construed to affect the interest on any judgment of any court not
specified in this section.” State courts are not specified in the section; therefore, there is no
basis on which to apply the terms of Section 1961 to a Section 1983 claim filed in state
court. It becomes clear that the federal precedent which permits post-judgment interest in
Section 1983 claims does not supply the necessary authority to satisfy the mandate of New
Mexico’s Section 56-8-4(D). Apart from the requirements of Section 1961, ACP provides
no federal or state authority to establish that prevailing parties in Section 1983 claims filed
in state court are entitled to payments of post-judgment interest by a political subdivision of
the state. We, too, have researched federal law and can find no additional authority for such
a proposition.

{54} We have also conducted a survey of the law in other states. The majority of
jurisdictions do permit the recovery of post-judgment interest against the state or political
subdivisions, either by statute, by case law, or by both. See Alaska Stat. § 09.50.280 (1997);
Ariz. Rev. Stat. § 12-823 (1984); 735 Ill. Comp. Stat. 5/2-1303 (1987); Ind. Code § 34-54-8-
5 (1998); Kan. Stat. Ann. § 16-204 (1996); N.Y. State Finance Law § 16 (1982); Okla. Stat.
tit. 12, § 727.1(B) (2004); Tenn. Code Ann. § 9-8-307(d) (2005); State of Ala. Highway
Dep’t v. Milton Constr. Co., 586 So. 2d 872, 876 (Ala. 1991); Ca. Fed. Sav. & Loan Ass’n
v. City of Los Angeles, 902 P.2d 297, 300 (Cal. 1995); Palm Beach County v. Town of Palm
Beach, 579 So. 2d 719, 720 (Fla. 1991); Profit Recovery Group, USA, Inc. v. Comm’r, Dep’t
of Admin. & Fin. Servs., 2005 MC 58, ¶¶ 32-33, 871 A.2d 1237; Md. State Highway Admin.
v. Kim, 726 A.2d 238, 241(Md. 1999); Lienhard v. State, 431 N.W.2d 861, 865-66 (Minn.
1988); City of Jackson v. Williamson, 95-CT-01072-SCT (¶¶ 14-15) 740 So. 2d 818, 821-22
(Miss. 1999); Nault v. N & L Dev. Co., 767 A.2d 406, 407, 409 (N.H. 2001); Judy v. Ohio
Bureau of Motor Vehicles, 100 Ohio St. 3d 122, 2003-Ohio-5277, 797 N.E.2d 45, at ¶ 32;
Woods v. Dep’t of Transp., 641 A.2d 633, 635 (Pa. Commw. Ct. 1994); Mulvaney v.
Napolitano, 671 A.2d 312, 313 (R.I. 1995); Hart v. Salt Lake County Comm’n, 945 P.2d 125,
140 (Utah Ct. App. 1997).

{55}    There are a handful of other states that, as a general proposition, do not permit


                                               18
successful plaintiffs to recover post-judgment interest on verdicts against the state. See Chun
v. Bd. of Trs. of the Employees’ Ret. Sys., 106 P.3d 339, 356 (Haw. 2005) (requiring express
statutory relinquishment of the state’s sovereign immunity from post-judgment interest);
Kenton County Fiscal Ct. v. Elfers, 981 S.W.2d 553, 559-60 (Ky. Ct. App. 1998); C & M
Constr. Co. v. Commonwealth, 486 N.E.2d 54, 56 (Mass. 1985); Our Lady of Lourdes Hosp.
v. Franklin County, 842 P.2d 956, 966 (Wash. 1993) (en banc). Montana is unique in that
it provides a grace period of sorts. Its legislature has directed that under most circumstances,
“if a governmental entity pays a judgment within 2 years after the day on which the
judgment is entered, no penalty or interest may be assessed.” Mont. Code Ann. § 2-9-317
(1997).

{56} None of the states with law comparable to New Mexico have addressed the specific
question of post-judgment interest in a Section 1983 case filed in state court. Our research
thus reveals that there is no support for ACP’s position that the City is required to pay post-
judgment interest in this case.

{57} ACP argues that the denial of post-judgment interest for Section 1983 claims brought
in state court will have a twofold effect. First, ACP quotes Wells to argue that “[t]he
Legislature cannot enact a law which would have the practical effect of depriving a party of
his rights secured by the United States Constitution.” 98 N.M. at 7, 644 P.2d at 521. We
note that Section 56-8-4(D) circumscribes only a party’s ability to collect post-judgment
interest against the state and political subdivisions; in no way does the statute prevent a party
from bringing a cause of action against the state or its political subdivision in order to
vindicate constitutional rights. Second, ACP contends that “[s]tate law that creates different
outcomes in federal and state court cannot be given effect.” For support, ACP cites Felder
v. Casey, 487 U.S. 131 (1988). Felder considered whether a party must comply with a
state’s pleading procedures in order to properly bring a Section 1983 claim. Felder, 487
U.S. at 138. The United States Supreme Court held that

        [b]ecause the notice-of-claim statute at issue here conflicts in both its
        purpose and effects with the remedial objectives of [Section] 1983, and
        because its enforcement in such actions will frequently and predictably
        produce different outcomes in [Section] 1983 litigation based solely on
        whether the claim is asserted in state or federal court, we conclude that the
        state law is pre-empted when the [Section] 1983 action is brought in a state
        court.

Id. We do not believe that the New Mexico prohibition against the recovery of post-
judgment interest against the state and political subdivisions “conflicts in both its purpose
and effects with the remedial objectives of [Section] 1983.” Id. The remedial objectives of
Section 1983 are certainly achieved when a plaintiff successfully brings suit for damages
against the state to vindicate constitutional rights. The recovery of post-judgment interest
operates only as an enforcement mechanism to encourage the timely payment of damages
after judgment has been entered. See Bird, 2007-NMCA-088, ¶ 42 (“An award of post-
judgment interest serves three purposes: compensating the plaintiff for being deprived of
compensation from the time of the judgment until payment . . . by the defendant,


                                               19
discouraging unsuccessful defendants from pursuing frivolous appeals, and minimizing court
supervision of the execution of judgments.” (internal quotation marks and citation omitted)).
We therefore hold that the trial court improperly granted ACP post-judgment interest.
Because post-judgment interest is not permissible under Section 56-8-4(D) in these
circumstances, we need not consider whether the interest was properly assessed according
to the state, and not the federal, interest rate.

C.     Attorney Fees and Costs

1.     Recovery Under Section 1988 For State Law Claims

{58} The City first contends that the trial court improperly awarded attorney fees for the
first administrative appeal under Section 1988, which only allows recovery for federal civil
rights actions. See N.C. Dep’t of Transp. v. Crest St. Cmty. Council, Inc., 479 U.S. 6, 12
(1986) (“On its face, [Section] 1988 does not authorize a court to award attorney’s fees
except in an action to enforce the listed civil rights laws.”); Bogan v. Sandoval County
Planning & Zoning Comm’n, 119 N.M. 334, 345, 890 P.2d 395, 406 (Ct. App. 1994)
(explaining that a “plaintiff must prevail on some federal civil rights claim in order to be
eligible for a fee award” under Section 1988). We review the trial court’s award of attorney
fees for abuse of discretion. Nava, 2004-NMSC-039, ¶ 24. In the first administrative
appeal, the trial court determined that the City was required to review ACP’s proposal under
the 1981 USP and not the 1995 USP. The City’s position is that no part of the first
administrative appeal was necessary in order to vindicate ACP’s civil rights. Instead, the
City claims that the “sole issue under the petition . . . was an appellate review of the action
of the City Council to determine the validity of a zoning decision—the adoption of the 1995
[USP].”

{59} ACP contends that without the work performed for the first administrative appeal,
the civil rights claim would not have been successful. The trial court agreed and found that
“virtually everything [in the first administrative appeal] focused on whether there was a
downzone.” As we discussed above, ACP’s identifiable property right is to be free from
downzoning unless the City can establish certain criteria. Therefore, there was no abuse of
discretion to permit attorney fees for the first administrative appeal because that appeal
decided an issue that was crucial to the later and successful constitutional claim. See N.C.
Dep’t of Transp., 479 U.S. at 15 (“A court hearing one of the civil rights claims covered by
[Section] 1988 may still award attorney’s fees for time spent on administrative proceedings
to enforce the civil rights claim prior to the litigation.”).

2.     Costs

{60} The City next argues that specific costs awarded by the trial court were either (1)
improperly categorized in the cost bill or (2) not recoverable under state or federal law. We
review a trial court’s determination of costs for abuse of discretion. Bird, 2007-NMCA-088,
¶ 27. In a Section 1983 action brought in state court, the prevailing party may recover some
expenses of litigation under either federal or state law. Federal law permits the prevailing
party to recover attorney fees under Section 1988, and fees may include “reasonable out-of-


                                              20
pocket expenses not normally absorbed as part of law firm overhead.” Brown v. Gray, 227
F.3d 1278, 1297 (10th Cir. 2000). These costs under Section 1988 are considered to be
included in the award of attorney fees; therefore, amounts paid to third parties who are not
attorneys are not recoverable under Section 1988. Brown, 227 F.3d at 1297. However, other
costs may be awarded under the general costs statute. See id. Also, Rule 1-054(D)(2)
NMRA permits the recovery of certain costs under state law. It includes the recovery of the
following expenses under certain circumstances: filing fees; fees for service of summonses,
subpoenas, writs and other service of process; jury fees; transcript fees including those for
daily transcripts and transcripts of hearings prior or subsequent to trial; the cost of a
deposition if any part is used at trial or in successful support or defense of a motion for
summary judgment; witness mileage or travel fare and per diem expenses; expert witness
fees for services; translator fees; reasonable expenses involved in the production of exhibits
admitted into evidence; official certification fees for documents admitted into evidence; and
interpreter fees for judicial proceedings and depositions.

{61} The City contends that ACP improperly categorized some expenses under Section
1988 that were not recoverable under that section and other expenses under Rule 1-054 that
were not permitted under that rule. The trial court concluded that any improper
categorization of the requests did not “require that the request be disallowed [i]f it is
otherwise compensable under the law.” Although ACP acknowledges that it claimed some
items under both statutes, it repeatedly asserted that double recovery was not sought for
expenses that were claimed under both laws. We agree with the trial court that if certain
costs were permissible under any law—federal or state—ACP was entitled to recover those
costs. See Rule 1-054(D)(1) (“[C]osts, other than attorney fees, shall be allowed to the
prevailing party unless the court otherwise directs[.]”). We therefore review each of the
City’s arguments regarding whether a particular expense is allowable under either Section
1988 or Rule 1-054(D).

{62} The City disputes the trial court’s award of copy costs, subpoena fees, and transcript
fees. These arguments are without merit because either Rule 1-054(D)(2) or Section 1988
permit the recovery of these costs, and the City admits that copy costs are billed through as
attorney fees. See Case v. Unified School Dist. No. 233, 157 F.3d 1243, 1257 (10th Cir.
1998) (“Reasonable expenses incurred in representing a client in a civil rights case should
be included in the attorney’s fee award if such expenses are usually billed in addition to the
attorney’s hourly rate.”); see also Rule 1-054(D)(2)(b) (permitting the recovery of subpoena
fees); Rule 1-054(D)(2)(d) (permitting the recovery of transcript fees); H-B-S P’ship v.
Aircoa Hospitality Servs., Inc., 2008-NMCA-013, ¶ 27, 143 N.M. 404, 176 P.3d 1136
(holding that Rule 1-054(D)(2)(d) does not require advance approval of transcript requests
in order for the cost to be recoverable).

{63} The City also challenges the trial court’s award of mediation fees and deposition
costs. Section 1988 and Rule 1-054(D) are silent with regard to mediation costs. New
Mexico trial courts are cautioned that “[c]osts generally are recoverable only as allowed by
statute, Supreme Court rule[,] and case law,” Rule 1-054(D)(2), and “[w]e therefore expect
. . . courts to exercise their discretion sparingly with regard to costs that are not specifically
authorized.” H-S-B P’Ship, 2008-NMCA-013, ¶ 24. Nevertheless, we conclude that the trial


                                               21
court was within its discretion to award ACP mediation costs because the court “explain[ed]
the circumstances justifying the award.” Id. (internal quotation marks and citation omitted).
The trial court informed the parties that ACP was permitted to recover mediation fees
because the mediation was court-ordered and because the City did not participate in the
mediation with good faith. The trial court made a similar award for deposition costs and
expenses. Although Rule 1-054(D)(2)(e) normally requires that depositions be used at trial
or in a successful motion for summary judgment in order for the prevailing party to recover
the costs, the trial court in the present case permitted the recovery of all deposition costs.
The court explained that this was a complicated case and that the attorneys involved had to
sift through a great deal of information in order to determine what testimony was relevant
and not duplicative. The trial court noted that none of the depositions taken were
unreasonable and as a result awarded all deposition costs under Rule 1-054. Under these
circumstances, we see no abuse of discretion in the awards for mediation and deposition
costs. See H-S-B P’Ship, 2008-NMCA-013, ¶ 28 (“Because the district court affirmatively
explained its reasons justifying any deviation from Rule 1-054(D)(2), we affirm its
allowance of the . . . costs.”).

{64} In its final argument, the City contends that the trial court improperly allowed ACP
to recover costs related to expert witnesses. The parties do not dispute that Section 1988
does not permit recovery for expert witnesses in Section 1983 actions. See § 1988
(permitting the recovery of expert witness fees in proceedings to enforce the provisions of
42 U.S.C. §§ 1981 or 1981a (2000)—but omitting reference to Section 1983); see also James
v. Sears, Roebuck & Co., 21 F.3d 989, 995 (10th Cir. 1994) (“There must be an explicit
statutory authorization before expert witness fees will be awarded.”). ACP characterized
witnesses Phil Garcia and William Kraemer as paralegals and thereby recovered those costs
under Section 1988. The City argues that these witnesses were experts, and costs are
therefore not recoverable. The trial court did not permit ACP to recover for all of the work
performed by these witnesses because some of the work was more akin to expert work than
paralegal work. It was not contrary to logic and reason for the trial court to carefully
examine the work done by these witnesses, conclude that some work was investigatory, and
permit costs for that work. See Case, 157 F.3d at 1249 (applying Section 1988 and
concluding that “[a]s to services provided by non-lawyers, if law clerk and paralegal services
are . . . not reflected in the [attorney’s fee], the court may award them separately as part of
the fee for legal services” (some alterations in original) (internal quotation marks and
citation omitted)). Accordingly, we hold that the trial court did not abuse its discretion by
permitting the recovery by ACP of the costs related to Garcia and Kraemer.

{65} The City also objects to the recovery of costs for Rainhart, Dahlstrom, and Ricker.
The trial court found that Rainhart and Ricker testified at trial as experts and that the City
did not object. It was not therefore not an abuse of discretion to allow ACP to recover costs
for those experts. See NMSA 1978, § 38-6-4(B) (1983); Fernandez v. Española Pub. Sch.
Dist., 2005-NMSC-026, ¶ 5, 138 N.M. 283, 119 P.3d 163 (acknowledging that a party may
recover costs for experts who testify in person or by deposition). We observe that Dahlstrom
did not testify by deposition or in person at trial. Instead, ACP argues that it should recover
costs for the time that Dahlstrom spent preparing an affidavit for a summary judgment
motion. Generally, the preparation of an affidavit by an expert is insufficient to allow the


                                              22
recovery of costs for expert testimony under Rule 1-054(D)(2)(g). Pierce v. State, 121 N.M.
212, 231, 910 P.2d 288, 307 (1995). Nevertheless, the trial court questioned the parties
about Dahlstrom’s work in this case and learned that the preparation of the affidavit required
review of the entire, not insubstantial, record. The trial court’s rationale described above,
about the complicated nature of this case, also supports the decision to allow Dahlstrom’s
work to be recovered as costs. As a result, the trial court concluded that the costs were
reasonable and we agree. See H-S-B P’Ship, 2008-NMCA-013, ¶ 24 (“[C]ourts have the
discretion to grant a prevailing party the necessary and reasonable costs incurred in litigating
a case.”).

III.    CONCLUSION

{66} We affirm the trial court and the jury verdict on the Section 1983 claim and the
award of damages, costs, and fees, with the exception of the award of post-judgment interest.
We remand the matter to the trial court for an entry of judgment consistent with this opinion.

{67}    IT IS SO ORDERED.


                                                     ________________________________
                                                     CELIA FOY CASTILLO, Judge

WE CONCUR:

_________________________________
MICHAEL D. BUSTAMANTE, Judge

_________________________________
LYNN PICKARD, Judge Pro Tempore

Topical Index for Alb. Commons Partnership v. Alb. City Council, Nos.
24,026/24,027/24,042/24,425

CP                     CIVIL PROCEDURE
CP-DP                  Due Process
CP-ER                  Election of Remedies

CR                     CIVIL RIGHTS
CR-AF                  Attorney Fees
CR-PR                  Procedure
CR-SE                  Section 1983 Actions

CT                     CONSTITUTIONAL LAW
CT-DP                  Due Process
CT-RP                  Ripeness
CT-TC                  Taking Without Compensation

                                              23
GV      GOVERNMENT
GV-LU   Land Use
GV-ZL   Zoning Law

JM      JUDGEMENT
JM-IN   Interest

RE      REMEDIES
RE-CD   Compensatory Damages
RE-ER   Election of Remedy
RE-MD   Measure of Damages




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