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Judge finalizes verdict in Kim Stewart case in Las Cruces

LAS CRUCES — State District Judge Marci E. Beyer on Wednesday signed off on a final verdict in the Kim Stewart case, approving damages against the county that total more than $1.5 million.

Stewart, a former Doña Ana County internal affairs investigator, was awarded slightly more than $1.2 million in July after a jury determined county officials violated her rights under New Mexico’s Human Rights Act and Whistleblower Protection Act.

Stewart in 2010 was fired from the county, and she contended she was dismissed in retaliation for conducting an investigation of Curtis Childress, who was accused of discriminating against Hispanic and African-American workers in the county’s animal control and codes enforcement department.

The jury, in part, found that retaliation was a motivating factor in Stewart’s termination. It also concluded that county officials subjected Stewart to a hostile work environment after she reported and filed complaints of discrimination and retaliation, which is legally protected under the two laws.

On Friday, in 3rd Judicial District Court in Las Cruces, Beyer heard arguments from one of Stewart’s attorney, Brett Duke of El Paso, and the county’s contracted attorney, Randy Bartell of Santa Fe, concerning proposed judgments on the jury verdict.

Bartell said the county objected to the proposed judgment because it applied a prejudgment interest rate of 10 percent over four years. Bartell said that interest rate was “far out of line with market rates that would have been applied over the past four years.”

He asked the court to apply an annual interest rate of 1.5 percent to the $154,840 award for lost wages, which would have totaled $309,600 with interest.

Bartell, citing the Tort Claims Act, also contended that the judgment on the jury verdict could not exceed $400,000.

Duke, however, argued that Stewart’s case was not a “cause of action” that arose under the Tort Claims Act. “It’s been explicably made clear that there is no application of the New Mexico Tort Claims Act, nor any limitations contained in that provision” Duke said.

Duke also said, “Defense counsel (Bartell) is so wrong in the argument being made to this court that he should be sanctioned.”

In Stewart’s proposal, her attorneys said she also was entitled to double back pay with prejudgment interest under the New Mexico Whistleblower Protection Act, which added $154,840 to the total damages.

The proposal also noted that Stewart’s attorneys made an offer to settle the lawsuit for $150,000 in February 2012. The county, however, did not accept that offer. “There’s a law that says if the defendant did not accept it (the offer), they run the risk of paying twice the amount of costs by rejecting that — and that’s what they did. So we’ll get an additional reward for that, but that amount hasn’t been determined,” Duke said.

After hearing arguments from Duke and Bartell, Beyer said, “It looks to me like the plaintiff’s proposed judgment on the verdict is the appropriate form to sign.” She then signed the proposal, which lists a total amount for damages as $1,513,000.

Next, Duke said he and Stewart’s other attorney, Daniela Labinoti, also of El Paso, will file a motion to have the county pay for attorney fees and court costs. Those figures haven’t been determined, he said. Beyer will hear arguments on those fees at a later date.

“We’re talking thousands of hours, so it’s going to be a large amount because the defendant made us work very hard,” Duke said.

Duke also said he presumed that the county would appeal the verdict. However, Bartell did not immediately respond to an email request asking for comments.

An appeal could delay for several years when Stewart would receive any money from the county.

On Wednesday, County Finance Director Bill Noland said payment of legal judgments typically stems from both insurance and county funds, depending on the specific type of award. He said back wages, for instance, generally are paid by the county.

As for the Stewart lawsuit, Noland said he doesn’t yet know the amount county government — not insurance — will pay directly. But it will have to be factored into the county’s overall budget.

While addressing damages during Wednesday’s hearing, Beyer asked Duke whether Stewart had taken back her former job at the county, since she was awarded the right to return to the same job with the same pay. Duke said that wasn’t the case.

“Too bad,” Beyer said with a tone of disappointment in her voice.

“She’s been courted by certain divisions” in the county, Duke said, “and it is a shame because I think she’s well suited for the job.”

Carlos Andres López can be reached at 575-541-5453. Sun-News reporter Diana Alba-Soular contributed to this story.


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