Great Divide Wind Farm 2 LLC v. Aguilar

Decision Date26 November 2019
Docket NumberNo. CIV 19-0099 JB\CG,CIV 19-0099 JB\CG
Parties GREAT DIVIDE WIND FARM 2 LLC, a Delaware corporation, and Great Divide Wind Farm 3 LLC, a Delaware corporation, Plaintiffs, v. Theresa Becenti AGUILAR, Cynthia Hall, Jefferson Byrd, Valerie Espinoza, and Stephen Fischmann, in their official capacities as the Commissioners of the New Mexico Public Regulation Commission, and El Paso Electric Company, Defendants, and Southwestern Public Service Company, Intervenor-Defendant.
CourtU.S. District Court — District of New Mexico

Jason A. Marks, Jason Marks Law, LLC, Albuquerque, New Mexico --and-- Jonathon Guy, Adam Wenner, Cory Lankford, Orrick, Herrington & Sutcliff, LLP, Washington, D.C., Attorneys for the Plaintiffs.

Judith E. Amer, New Mexico Public Regulation Commission, Santa Fe, New Mexico, Attorney for the Defendants Theresa Becenti Aguilar, Cynthia Hall, Jefferson Byrd, Valerie Espinoza, and Stephen Fischmann.

Ron Moss, Winstead PC, Austin, Texas --and-- Carol A. Clifford, Jerry Todd Wertheim, Jones, Snead, Wertheim & Clifford, P.A., Santa Fe, New Mexico, Attorneys for Intervenor-Defendant El Paso Electric Company.

Will DuBois, Zoe Elizabeth Lees, Xcel Energy Service, Inc., Austin, Texas, Attorneys for Intervenor-Defendant Southwest Public Service Company.



THIS MATTER comes before the Court on: (i) the Defendants' Motion to Disqualify, filed March 1, 2019 (Doc. 18)("Motion"); and (ii) the Defendants' Amended Motion to Disqualify Jason Marks, Esq. and Motion to Stay on March 6, 2019 (Doc. 25)("Amended Motion"). The Court held a hearing on April 12, 2019. The primary issue is whether the Court should disqualify Jason Marks because Jason Marks' representation of the Plaintiffs, Great Divide Wind Farm 2 LLC and Great Divide Wind Farm 3, LLC, (collectively, "Great Divide"), without the written consent of the Defendants Theresa Becenti Aguilar, Jefferson Byrd, Valeria Espinoza, Stephen Fischmann, and Cynthia Hall (collectively, "the Commissioners"), where Mr. Marks served as a fellow Commissioner on the New Mexico Public Regulation Commission ("NMPRC"), violates rule 16-111(A)(2) NMRA of the New Mexico Rules of Professional Conduct. Rule 16-111(A)(2) forbids former government employees from representing clients in matters that they participated in during their tenure as government employees. Because rulemaking is not a "matter" under rule 16-111(A)(2) and Mr. Marks was not substantially involved in the rulemaking proceedings, the Court concludes that Mr. Marks' representation of Great Divide does not violate rule 16-111(A)(2). Moreover, the Court uses its flexibility in managing its docket to deny the stay, which will not harm the Commissioners who do not contend that there is even a shadow of impropriety.


1. Mr. Marks served as an NMPRC Commissioner from January 1, 2005, through December 31, 2012. See Motion ¶ 3, at 3.

2. He was the NMPRC Chairman in 2008.1 See Jason A. Marks, Ballotpedia, available at (last visited Nov. 11, 2019).

3. During his tenure as an NMPRC commissioner, the NMPRC "issued final dispositive orders concerning the Commission's Rule 570," Motion ¶ 3, at 3, the combined rulemaking cases In the Matter of an Inquiry Into Interconnection Standards for Electric Utilities, No. 07-0014-UT (NMPRC Nov. 20, 2007), filed March 6, 2019 (Doc. 25-1), and In the Matter of a Rulemaking Relating to Interconnection Standards for Electric Utilities and the Repeal of Rule Promulgated Relating to Interconnection Standards for Electric Utilities and the Repeal of Rule Promulgated Pursuant to the Electric Utility Industry Restructuring Act of 1999, No. 07-0422-UT (NMPRC Nov. 20, 2007), filed March 6, 2019 (Doc. 25-1)(collectively, "Combined Rulemaking Cases"). Motion ¶ 5 at 5-6.

4. Rule 570 was promulgated in 1988. See Response in Opposition re Motion to Disqualify Counsel at 8, filed March 15, 2019 (Doc. 28)("Response").

5. Rule 570.9's language is the same as it was in 1988. See Response at 8 (citing Case No. 2149, Third Revisions to General Order 37, March 10, 1988).

6. On November 15, 2006, Mr. Marks, who was an NMPRC Commissioner at the time, was the hearing officer for the Notice of Proposed Rulemaking in In the Matter of the Inquiry into the Provision of Net Metering Services by Public Utilities, No. 06-02241-UT (NMPRC Sept. 7, 2006), filed March 6, 2019 (Doc. 25-1)("NOPR for Provision of Net Metering"). Motion ¶ 5 at 5.

7. This NOPR for Provision of Net Metering was meant to revise rule 571 and Section 10 of rule 570. See Motion ¶ 5, at 5; id. at 5 n.2 (stating that the proposed rule 570 revision was "a modification ... to allow net metering on a billing cycle basis contained in section 10 of Rule 570"); Response at 2.

8. The final order in that case adopted rule 570.9 without alteration. See Motion at 5 n.2.

9. When Mr. Marks was the NMPRC Chairman, he signed the final order in the combined rulemaking cases. Motion ¶ 5 at 5-6.

10. These combined cases were about the "interconnection by electric utilities with customer-owned generation facilities." Amended Motion at 25-1. See Response at 8 (stating "that the subject of the 2006-07 rulemakings were Rules 570.10 & .15, both concerned with ‘net metering’ of customer-owned generation"); Motion ¶ 5, at 6 (stating that the combined cases "amended Rule 570 NMAC for the purpose of producing detailed interconnection standards for electric utilities").

11. On July 29, 2008, Mr. Marks, as Chairman of the NMPRC, signed the final order in the Combined Rulemaking Cases. See Motion ¶ 5, at 6.

12. The Final Order in the combined cases adopted, but did not alter, rule 570.9. See Motion ¶ 5, at 6.

13. Mr. Marks is not listed as a participant in the public hearing for the 2006-2007 rulemaking. See Response at 7 (citing Motion at 1-162).

14. Great Divide's Amended Complaint for Declaratory and Injunctive Relief, filed May 30, 2019 (Doc. 56)("Amended Complaint") raised an "as-implemented" challenge. Great Divide v. Aguilar, et al. Memorandum and Opinion, 414 F.Supp.3d 1369, 1375, 2019 WL 5847060, No. CIV 19-0099 JB\CG at 2 (Nov. 7, 2019) (Doc. 89).

15. In 2015, under N.M. Stat. Ann. § 8-8-19(E) (1978),2 Mr. Marks became eligible to participate in cases before the NMPRC. See Response at 9.

16. Mr. Marks acted as counsel in a 2015 case in which he based arguments on rule 570.7, rule 570.10, and rule 570.14. See Response at 9 (citing Case 15-00127-UT (NMPRC, 2015)).

17. The NMPRC did not object to Mr. Marks acting as counsel in the 2015 case. See Response at 9.

18. Mr. Marks also "appeared before the Commission in a matter related to rule 570 (again rooftop solar surcharges)." Response at 9 (citing Case No. 17-00255-UT (NMPRC, 2017)).

19. In the 2017 case, the Commission raised a conflict of interest in a show cause order, but voted three-to-two against finding a conflict. See Response at 9 (citing NMPRC Open Meeting Minutes, Nov. 8, 2017, Exhibit C at 9-16).

20. Mr. Marks acted as counsel in Case No. 18-00268-UT, "which has led to the present enforcement action." Response at 9 ("Great Divide NMPRC Case").

21. The NMPRC did not object to Mr. Marks acting as counsel in that case. See Response at 9.


Great Divide filed its Amended Complaint on May 30, 2019. See Amended Complaint at 1. In the Amended Complaint, Great Divide asks: (i) for a declaratory order stating that NMPRC, "through its Rule 570 and its interpretation of Rule 570, has adopted an implementation plan that violates" the Public Regulatory Policies Act of 1978, 16 U.S.C. § 824a-3 ("PURPA") and its Federal Energy Regulatory Commission's ("FERC") regulations; and (ii) for the Court to enjoin the Commissioners to lawfully implement federal law. Amended Complaint at 1. The Amended Complaint challenged the implementation of the plan's "unlawful" prerequisite that QFs need to be ready to interconnect before they can establish a legally enforceable obligation with a utility. Amended Complaint at 2.

1. The Commissioners' Motion.

The Commissioners filed the Motion on March 1, 2019. See Motion at 1. In its Motion, the Commissioners ask: (i) for the Court to disqualify Mr. Marks as Great Divide's counsel; and (ii) for the Court to stay the case until the Court decides whether to disqualify Mr. Marks to prevent irreparable harm. See Motion at 1-2. The Commissioners argue that Mr. Marks' representation of Great Divide, without the Commissioners' written consent, violates rule 16-111(A)(2) of New Mexico's Rules of Professional Conduct. See Motion at 2. Rule 16-111(A)(2) states that former government attorneys " ‘shall not otherwise represent a client in connection with a matter in which the lawyer participated personally and substantially as a public officer or employee " without consent. Motion at 4 (quoting NMRA Rule 16-111(A)(2) (emphasis in Motion)). Great Divide further argues that federal cases support its proposition that disqualification is appropriate for former government attorneys and public officials who represent "clients in matters which the former government attorney/public official participated in personally and substantially to protect the integrity of the federal court process and the legal profession." Motion at 6-9 (citing Dexter Rogers v. Ind. Supreme Court, et al., 2017 WL 894477 (N.D. Ind. Mar. 7, 2017) )(Collins, J.); Heyliger v. Collins, 2014 WL 910324 (N.D.N.Y. Mar. 10, 2014) (Peebles, J.); Allied Realty of St. Paul v. Exchange Nat'l Bank of Chi., 283 F. Supp. 464 (D. Minn. 1968) (Neville, J.). The Commissioners use these three cases to support three arguments. First, the Commissioners argue that they are the "proper party to raise disqualification of Mr. Marks." Motion at 7 (citing Dexter Rogers v. Ind. Supreme Court, 2017 WL 894477, at *2 ). Second, the Commissioners argue that Mr. Marks should be disqualified regardless of whether his representation constitutes...

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