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NM runs up legal tab defending education suit

Copyright © 2019 Albuquerque Journal

SANTA FE – The state of New Mexico has spent at least $5.9 million since 2014 defending itself in court against allegations of under-funding public schools.

But the state government isn’t on the hook for the other side’s attorney fees, even after the plaintiffs won a landmark ruling last year.

In New Mexico, state law doesn’t usually require the losing party in a case to cover the cost of a winner’s attorney fees. Only a limited category of expenses – the costs of expert witnesses, printing transcripts and the like – can be recovered in the education lawsuit.

Many attorneys for the plaintiffs, in fact, have worked pro bono, or without charge.

Defending the state, meanwhile, is a host of private attorneys in Santa Fe and St. Louis. This year’s state budget authorizes an additional $1.25 million for legal fees – on top of the $5.9 million already spent.

The plaintiffs, in turn, have a variety of funding sources for its nonlegal fee expenses.

Thomas Saenz, president and general counsel of the Mexican American Legal Defense and Educational Fund, which is representing some plaintiffs in the school lawsuit, said his organization has no financial motive to pursue the case.

Instead, he said, the nonprofit group – funded in general by private donations, philanthropic efforts and legal fees won in other cases – is pursuing the lawsuit to ensure Latino students in New Mexico get the education they’re guaranteed under the state Constitution.

“If we were able to recover fees at market rates for the work our attorneys put into the case,” Saenz said in an interview, “we’d be talking into the millions. But New Mexico law doesn’t permit that.”

Saenz and others involved in the case – including the New Mexico Center on Law and Poverty, which represents a separate group of the plaintiffs – won the landmark decision when Judge Sarah Singleton ruled in July 2018 that New Mexico was violating the constitutional rights of some students by failing to provide a sufficient education. She later ordered the state to pay about $429,000 to the plaintiffs to cover the travel costs for witnesses, fees for experts and similar expenses.

But the award didn’t include attorney fees and represented only a fraction of how much the plaintiffs say they have spent working on the case.

Singleton died this summer, and the lawsuit is now assigned to 1st Judicial District Judge Matthew Wilson.

The 2018 ruling played a role in this year’s decision by state lawmakers and Gov. Michelle Lujan Grisham to ramp up spending on public schools by an extra $446 million, an increase of 16%. It was the first state budget since Lujan Grisham took office at the beginning of this year.

As for legal fees, the state has spent about $5.9 million on the lawsuit since at least 2014, said Connor Boyle, a spokesman for the Public Education Department. That estimate covered spending only through May this year.

The New Mexico Center on Law and Poverty, meanwhile, says its role in the lawsuit isn’t funded by the state.

A handful of school districts, however, has contributed to a litigation fund to help pursue the case.

About a half dozen districts are plaintiffs in the case, alongside a host of parents and students.

Santa Fe Public Schools set aside $100,000 about six years ago to help pay for the litigation. It wasn’t immediately clear how much the district has spent on the case since then.

Rio Rancho Public Schools is also a plaintiff in the case and has spent about $194,000 over the last four years. To cover the cost of the suit, the district tapped other revenue, not the state funds it gets through the school funding formula, said Beth Pendergrass, a spokeswoman for Rio Rancho Public Schools.

Maria Archuleta, a spokeswoman for the New Mexico Center on Law and Poverty, said the nonprofit group is “funded by foundations and individual donors. Legal and any other services the Center provides are free to low-income clients.”

In the education lawsuit, she said, “many entities, including school districts, contributed to a litigation fund to help cover expenses. No state funds were used.”

The case – actually two separate lawsuits, named after the Yazzie and Martinez families – is still playing out in court. The plaintiffs are questioning whether New Mexico has complied with the court orders to ensure all students receive a sufficient education.

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