STATE OF NEW MEXICO COUNTY OF BERNALILLO SECOND...

STATE OF NEW MEXICO

COUNTY OF BERNALILLO

SECOND JUDICIAL DISTRICT COURT

THE ASSOCIATION OF COMMERCE AND INDUSTRY,

NAIOP, AND THE NEW MEXICO RESTAURANT

ASSOCIATION;

Plaintiffs,

v.

THE CITY OF ALBUQUERQUE; THE CITY COUNCIL

OF THE CITY OF ALBUQUERQUE, NEW MEXICO; KEN

SANCHEZ, ISAAC BENTON, KLARISSA PEÑA, BRAD

WINTER, DAN LEWIS, PAT DAVIS, DIANE GIBSON,

TRUDY JONES, AND DON HARRIS, in their capacities as

Albuquerque City Councilors;

Defendants, and

Case No. D-202-CV-2017-

02314

ORGANIZERS IN THE LAND OF ENCHANTMENT AND

EL CENTRO DE IGUALDAD Y DERECHOS, New Mexico

membership-based organizations representing low-income

workers, OLÉ EDUCATION FUND AND REBECCA

GLENN, proponents of the Albuquerque Minimum Wage

Ordinance,

Intervenor-Defendants.

INTERVENOR-DEFENDANTS’ MOTION TO DISMISS CLAIMS TO OVERTURN

THE ALBUQUERQUE MINIMUM WAGE ORDINANCE (COUNTS II, IV, AND V)

I. INTRODUCTION

Plaintiffs’ challenge to the validity of the Albuquerque Minimum Wage Ordinance

(“MWO”) represents a race to the bottom by business interests that are bent on increasing their

own corporate profit margins at the expense of Albuquerque’s lowest-paid workers. Over four

years after 66% of Albuquerque voters approved the MWO ballot measure, Plaintiffs now seek

to cut impoverished workers’ wages across Albuquerque by $1.30 – from $8.80 per hour to

$7.50 per hour. They do not stop there, however. They also ask this Court to take away the

voters’ democratic right, established in the Albuquerque City Charter, to propose and vote on

ballot initiatives ever again.

The Court should reject Plaintiffs’ anti-democratic attempt to win through litigation what

they could not win at the ballot box. First, the Court lacks jurisdiction to hear two of Plaintiffs’

meritless MWO claims (Counts II and IV), because the Municipal Election Code requires an

election contest to be filed by 20% of the voters within 30 days of the post-election canvass. That

deadline passed on December 10, 2012. NMSA 1978 §3-8-63(C). Second, these three MWO

claims must be dismissed for failure to state a claim upon which relief can be granted. Count II

fails because the proposed measure amending the MWO concerned a single subject, and the

Supreme Court vacated the district court order on which Plaintiffs rely. Count IV fails because

Albuquerque voters plainly have a right under the Albuquerque City Charter to propose and

adopt direct legislation by voter initiative. Finally, Count V fails because the MWO has no

extraterritorial reach; it only applies to businesses with a physical premises in the City of

Albuquerque, and Plaintiffs do not have standing to raise this claim.

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II. STATUTORY FRAMEWORK

1. Under the direct legislation by voter initiative provision at Article III, Section 3 of

the Albuquerque City Charter (“the Charter”) and ROA 1994, Sections 2-4-1 through 2-4-14,

Albuquerque voters have the right to propose and vote annually on legislation that the City

Council does not enact on its own.

2. There are several steps that proponents of direct voter legislation must follow to

put a measure on the ballot. First, they must submit “a notice of intent to circulate a petition

proposing any measure” to the City Clerk, signed by five Albuquerque voters, and also file the

proposed measure with the City Clerk. Charter, Art. III, § 3(a)(1)-(2). Then, proponents must

obtain a minimum number of signatures within a 60-day period. Id. § 3(a)(3)-(5).

3. After the City Clerk “files a certification with the Council that the petition has

been signed by the required number of voters,” the City Council must either: (1) approve the

measure as proposed; (2) approve a modified version of the measure, in which case each version

would be placed on the ballot, or (3) place the proposed measure on the ballot. Id. § 3(a)(6).

4. In either scenario 2 or 3, under the relevant Charter provision in effect in 2012,1

“an election on the issues must be held within ninety days after the date of filing the petition.”

Id., § 3(a)(6). The Municipal Election Code further provides that a “municipal election may be

held concurrently with, but shall not be held within forty-two days prior to or within thirty days

after, any statewide special, general or primary election or any regular school district election.”

NMSA 1978, § 3-8-9A. Therefore, if the City Council declines to adopt the proposal or fails to

act, then the City Clerk must administer a special election 90 days after the final petition

1 This provision of the Charter was amended in 2015 to require that “an “election on the

issues must be held at the next general election or regular municipal election.” Id., § 3(a)(6).

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signatures are submitted. If the special election must be held concurrently with the general

election, then the City Clerk must coordinate with the County Clerk to place the measure on the

general election ballot that Bernalillo County administers. The County Clerk then prepares the

general election ballot with the Albuquerque direct voter legislation question, and it goes to the

voters on Election Day.

5. The Municipal Election Code contains provisions for contesting the results of an

election on a ballot question. An election contest must be filed by verified complaint by twenty

percent of the people who voted in the election, no later than 30 days after completion of

canvassing for the election. NMSA 1978 § 3-8-63.

III. STATEMENT OF FACTS

6. At the 2005 regular municipal election, the voters of the City of Albuquerque

adopted a voter-initiated Albuquerque Minimum Wage Ordinance (“MWO”) pursuant to the

procedures set forth in the Charter, Art. III, § 3(a) and ROA 1994, §§ 2-4-1- through 2-4-14. The

2005 MWO passed, and went into effect in January 2006.

7. At the November 2012 general election, 66% of Albuquerque’s voters approved a

proposed measure to amend the MWO to increase the Albuquerque minimum wage. Ex. A at 13

(excerpts from 2012 election returns). The measure raised Albuquerque’s minimum wage – then

$7.50 – to $8.50 in 2013, with annual adjustments to the minimum wage to keep pace with the

rising cost of living in future years. The measure also raised the minimum wage for tipped

employees first to 45% of the minimum wage starting in 2013, and then to 60% of the minimum

wage in 2014 and future years. Ex. B (measure amending MWO). The 2012 amendment left

unchanged the 2005 Albuquerque MWO’s definition of “employer:” people or businesses

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employing any employee that are “required to have a business license or business registration

from the City of Albuquerque.” ROA § 13-12-2.

8. Like the 2005 Albuquerque MWO, the 2012 proposed measure to amend it was

placed on the ballot pursuant to the direct voter legislation provisions of the Charter, Art. III, §

3(a), and the Albuquerque Code of Ordinances, ROA 1994, §§ 2-4-1 through 2-4-14. To qualify

the proposed measure for the ballot, its proponents took the following steps:

9. On June 12, 2012, the proponents notified the City Clerk of their intent to pursue

an ordinance by voter initiative. On three dates, the last of which was August 13, 2012, the

proponents submitted to the City Clerk signed petition forms from a total of more than 20,000

Albuquerque voters who supported raising the Albuquerque minimum wage. See Ex. C

(Certification of Petition for Direct Legislation on Minimum Wage Increase, Aug. 24, 2012). On

August 24, 2012, the City Clerk certified that the proponents had gathered the required number

of signatures to place the measure on the 2012 general election ballot. Id.

10. The ninety-day period for holding the election on the measure ran from August

13, 2012 until November 11, 2012. Charter, Art. III § 3(a)(6). Due to the Municipal Election

Code’s constraints on holding municipal elections within forty-two days prior to a general

election (October 25, 2012) or thirty days after the general election (December 6, 2012), the

general election on November 6, 2012 was the only date that the measure amending the MWO

could have been placed before the voters. NMSA 1978, § 3-8-9A.

11. The City Council failed to act on the proposed petition within the fourteen-day

deadline specified by Article III, Section 3(a) the Charter. At the City Council hearing held on

September 5, 2012, the City Council did not act at all; it did not vote to adopt the proposed

measure, nor to place it on the ballot together with a competing proposal. As a result, the City

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Clerk refused to coordinate with the County Clerk to place the measure on the 2012 general

election ballot, taking the position that she needed direction from the City Council to do so.

12. On September 6, 2012, proponents of the measure to amend the MWO brought an

emergency motion for a writ of mandamus in the Second Judicial District Court, claiming that

the City Clerk was wrongfully refusing to place on the measure on the 2012 general election

ballot. See Petition for Writ of Mandamus, OLÉ Education Fund et al. v. Amy Bailey, Case No.

2012-08182 (2nd Judicial Dist. Sept. 11, 2012)).

13. The district court in OLÉ v. Bailey, Judge Nan Nash presiding, incorrectly ruled

that the amendment to the MWO combined multiple proposals in a single initiative in violation

of New Mexico law, a principle commonly known as “logrolling.” Ex. D (Order on Petition for

Writ of Mandamus).

14. On September 12, 2012, the Supreme Court issued a writ of superintending

control vacating the district court’s ruling on the logrolling issue, and ordering the County Clerk

to place the proposed measure on the November 6, 2012, ballot. See Ex. E (Order and Writ, OLÉ

v. Nash, No. 33,805 at 2 (N.M. Sup. Ct. Sept. 12, 2012) (non-precedential)).

15. The proposed measure to amend the MWO appeared on the 2012 general election

ballot, Ex. F (2012 ballot), and it passed with the approval of 66% of Albuquerque’s voters. Ex.

A at 13 (excerpts from 2012 election returns). Until now, no one has filed an election contest to

the Albuquerque MWO.

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IV. ARGUMENT

A. This Court does not have jurisdiction to hear Plaintiffs’ election contest.

Plaintiffs’ challenges at Counts II and IV to the results of the 2012 special municipal

election on the MWO must be dismissed for lack of subject matter jurisdiction under Rule 1-

012(B)(1) because they are untimely election contests brought well outside of the statutory 30-

day period for election contests imposed by NMSA 1978 Section 3-8-63. See Wilson v. Denver,

1998-NMSC-016, ¶ 11, 125 N.M. 308 (“untimely filing of the notice of contest deprived the

district court of jurisdiction to consider the matter”).2 New Mexico courts have broadly defined

the term “election contest” as “any challenge as to the underlying validity of an election that

would necessarily require overturning the results or effects of an election[.]”Glaser v. LeBus,

2012-NMCA-028 ¶ 18, 274 P.3d 114 (applying Dinwiddie v. Board of County Commissioners of

Lea County, 1985-NMSC-099 ¶ 7, 103 N.M. 442). In Glaser, the Court of Appeals determined

that it did not have statutory jurisdiction to hear an election content concerning the validity of a

public improvement district formation election. The Court of Appeals held that the challengers’

claims – (a) that the election should not have been held in the first place and (b) elements of the

ballot question should have been presented to voters as separate questions – were statutory

election contests because these challenges “would necessarily require overturning the election

results.” Id. ¶¶ 22, 24. Here, like the challengers in Glaser, Plaintiffs here argue that the election

should not have occurred (Count IV) and that elements of the measure amending the MWO

should have been presented as separate questions (Count II). These challenges are election

contests because they would “necessarily require overturning” the 2012 election results Id.

2 Plaintiffs’ complaint must also be dismissed because an election contest must be brought “by

verified complaint of contest” by “[t]wenty percent of those people who voted at the municipal

election.” NMSA 1978, § 3-8-63. Plaintiffs are business and industry groups; not one of them is

a 2012 voter.

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The statutory deadline to file the election contest that Plaintiffs present here was December 10,

2012, 30 days after the election canvass was complete. NMSA 1978 § 3-8-63(C). “One has the

right to contest an election only in the manner and to the extent prescribed by statute.” Wilson,

1998-NMSC-016 ¶ 10 (citation omitted). “The statutory provisions for an election contest must

be strictly followed.” Dinwiddie v, 1985-NMSC-099 ¶ 9. “This accords with the need for speedy

resolution of elections contests[.]”) Gunaji v. Macias, 2001-NMSC-028 ¶ 26,130 N.M. 734. The

time limits for an election contest are jurisdictional; the Court has no discretion to reduce them.

See Wilson 1998-NMSC-016 ¶ 9 (“[T]ime limitations contained in statutes which establish a

‘condition precedent to the right to maintain an action’ are jurisdictional and not subject to

waiver.”) (citation omitted); see also Eturriaga v. Valdez 1989-NMSC-080, ¶ 18, 109 N.M. 205

(the thirty-day election contest time limit “granted by the legislature represents a substantive

right which this Court has no power to reduce.”) Here, the mandatory 30-day period under

NMSA § 3-8-63 began to run upon completion of canvassing for the special municipal election.

NMSA § 3-8-63(C). The statutory deadline for completing the canvass on the November 6, 2012

election was 5:00 p.m. on the third day following the election, or November 9, 2012. NMSA § 3-

8-53. Thirty days following November 9, 2012 is December 10, 2012. Plaintiffs’ challenge, filed

1,575 days later, is therefore untimely and must be dismissed. See Wilson, 1998-NMSC-016 ¶

11 (remanding action to district court for dismissal for lack of subject matter jurisdiction because

the election challenge was not filed within the mandatory statutory time period).3

Like New Mexico, other jurisdictions recognize the importance of stability and finality of

election results by imposing similar time limits for election contests. These time limits have

3 Counts II and IV must also be dismissed on jurisdictional grounds because Plaintiffs have

not pled or shown compliance with the statutory requirement that “[t]wenty percent of those

people who voted at the municipal election may contest the election on a question.” NMSA § 3-

8-63(A).

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been upheld by courts across the country. For example, in Chandler v. City of Winchester, 973

S.W.2d 78, 82 (Ky. Ct. App. 1998), the Kentucky Court of Appeals upheld a trial court’s

dismissal of a challenge to the description of a constitutional amendment on the ballot because

“the fifteen day limitation period [set by statute for an election challenge] was applicable and

that the attorney general’s challenge to the election some two years later was time-barred.”

Similarly, in Shoemyer v. Missouri Sec’y of State, 464 S.W.3d 171, 173 (Mo. 2015), the Missouri

Supreme Court held that an “election contest under [state statute] must be filed ‘not later than

thirty days after the official announcement of the election result by the election authority,’”

which, in that case, began to run when the results of the election were certified six weeks after

the election. See id. at 174-75 (quoting relevant state statute). See also Scribner v. Sachs 164

N.E.2d 481, 484 (Ill. 1960) (“[T]he judicial contest of an election cannot be commenced . . . later

than thirty days after the canvass has been completed.”); Ala. Code § 17-16-49 “All contests of

elections provided for in this article must be commenced within 20 days after the result of the

election is declared, except in this article otherwise provided [.]”); Cummings v. Stanley, 177

Cal. App. 4th 493, 507 (Cal. CoA 1st Dist. 2009) (“[A] contest to a primary election must comply

with the five-day time limit of section 16421; contests to any other elections are governed by

section 16401, which imposes a 30-day time limit.”); Jordan v. Norman, 711 S.W.2d 358, 359

(Tex. App. 1986) (“The filing of an election contest must be within 30 days and the 30-day time

limit is jurisdictional and non-waivable.”)

B. Plaintiffs’ logrolling challenge (Count II) should be dismissed because the

Supreme Court has held that no single subject rule applies to municipal

ordinances, and the 2012 measure concerned a single subject.

In Count II of their complaint, Plaintiffs incorrectly allege that the measure amending the

MWO included more than one subject and therefore constituted ostensibly unlawful

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“logrolling.”4 Compl. ¶¶ 38-39. Plaintiffs cannot “prevail under any state of facts provable under

this claim,” New Mexico Life Ins. Guar. Ass’n v. Quinn & Co., 1991-NMSC-036, ¶ 9, 111 N.M.

750, because the New Mexico Supreme Court has held that the prohibition against logrolling in

state legislative enactments at Article IV, Section 16 of the New Mexico Constitution does not

apply to municipal ordinances. State ex rel. Ackerman v. City of Carlsbad, 1935-NMSC-053, ¶

24, 39 N.M. 352 (“[i]t is not our understanding . . . that N.M. Const. art 4, § 16 is applicable to

ordinances.”); see also City of Clovis v. North, 1958-NMSC-077, ¶ 13, 64 N.M. 229 (relying on

Ackerman to extend the inapplicability of the constitutional single-subject rule to whatever the

form the city government might be). The single-subject rule does not apply to Albuquerque’s

legislative enactments because Albuquerque is a home rule municipality that “may exercise all

legislative powers . . . not expressly denied by general law or charter.” N.M. Const. Art X, §

6(D). “Not expressly denied” means “some express statement of the authority or power . . .

contained in such general law [.]” Apodaca v. Wilson, 1974-NMSC-071 ¶ 16, 86 N.M. 516.

The purpose of home rule in New Mexico is “to provide for maximum local self-government,”

and the powers of municipalities under home rule must be given a “liberal construction.” N.M.

Const. Art X, § 6 (E). In the absence of an express denial of municipal authority in the state

constitution or state statutes, the only source of law for any limitation on Albuquerque’s

authority is the Charter and Albuquerque’s local ordinances. The Charter imposes no logrolling

or single-subject limitation on the process for enacting legislation, enacting ballot initiatives, or

for amending the Charter itself. Given the broad powers granted to home rule municipalities,

which are only limited by express provisions of state law, there can be no implicit single-subject

4 According to the New Mexico Supreme Court, Logrolling is the joining of “two or more

independent measures to ensure that voters who support any one of the measures will be coerced

into voting for the entire package in order to secure passage of the individual measure they

favor.” State Ex Rel. Clark v. State Canvassing Board. 1995-NMSC-001 ¶ 8, 119 N.M. 12.

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rule applicable to local ordinances, as Plaintiffs allege. Furthermore, the Supreme Court has

twice rejected Plaintiffs’ argument. Ackerman, 1935-NMSC-053, ¶ 24; City of Clovis, 1958-

NMSC-077, ¶ 13.

Even though there is no law prohibiting logrolling in the municipal context, the 2012

measure amending the MWO easily conforms to any single-subject rule because it is “germane

to one general object or purpose” of increasing the minimum wage. City of Raton v. Sproule,

1967-NMSC-141 ¶ 19, 78 N.M. 138. The concept of a “single subject” must be “given broad and

extended meaning so as to authorize the legislature to include in one act all matters having a

logical or natural connection.” Silver City Consol. Sch. Dist. No. 1 v. Bd. Of Regents of N.M.W.

College, 1965-NMSC-035 ¶ 8, 75 N.M. 106. “The fact that two points of change are involved,

the fact that either might have been presented to the electorate separately, and the fact that there

may be reasons why an elector might have desired one change, and not the other, are not in

themselves sufficient to hold the adoption of the amendment invalid” under the single subject

rule. Sproule, 1967-NMSC-131, ¶ 21. There must only be a “rational linchpin joining the various

elements of an amendment [which] serves to prevent the linking of independent propositions

simply by the selection of a sufficiently broad overarching theme.” State Ex Rel. Clark v. State

Canvassing Board, 1995-NMSC-001, ¶ 14, 119 N.M. 12. An overarching theme can be a

“rational linchpin” if the provisions joined by that theme are “interdependen[t]” or have a

“necessary connection.” Id. ¶ 16 (discussing State ex rel Chavez v. Vigil-Giron, 1988-NMSC-

103, ¶ 14 108 N.M. 45 (rejecting a logrolling challenge to a single amendment providing for

“merit selection of judges, their numbers, their districting, and the selection of their chief

administrative officers” because “the changes proposed are germane to an overarching theme of

‘judicial reform.’”)). Like the reforms at issue in Vigil-Giron, the rational linchpin joining the

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2012 amendments to the MWO is the policy goal of increasing the minimum wage. Id. The 2012

measure increased the minimum wage for all workers, including those who earn tips, and tied the

minimum wage to inflation. The measure set the tipped minimum wage as a percentage of the

non-tipped minimum wage, and included a cost of living adjustment to ensure that the

ordinance’s protections would not become meaningless due to inflation. These amendments are

interdependent and necessary to strengthen the minimum wage ordinance across the board. Had

any of these elements not been included, then the law would have contained loopholes

undermining the policy purpose of ensuring a minimum wage higher than the state-level

minimum wage for all Albuquerque workers.

Plaintiffs’ logrolling claim here is identical to – and relies entirely on – the district court’s

erroneous ruling on the 2012 measure amending the MWO in OLÉ v. Bailey, which the New

Mexico Supreme Court vacated. See SOF ¶¶ 12-14. If there were any validity to the district

court’s logrolling decision in that case, or to Plaintiffs’ claim here, the Supreme Court would not

have allowed the MWO measure to go to the voters in 2012. Id. Furthermore, as discussed in the

previous section, although the Supreme Court issued the writ “without prejudice to any party

challenging the minimum wage ordinance should it be passed,” id. at 3, the window of time to

file that election contest expired years ago.

C. Count IV should be dismissed because Albuquerque voters have the power to

propose and enact direct voter legislation.

In Count IV, Plaintiffs incorrectly allege that home rule municipalities do not have the

power to enact voter initiated legislation. This is an attempt to take away Albuquerque voters’

right to propose and adopt direct voter legislation, and must also be dismissed for failure to state

a claim. Albuquerque is a home rule municipality whose citizens adopted a Charter in 1971

granting voters the right to propose and vote on direct voter legislation. “A municipality which

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adopts a charter may exercise all legislative powers and perform all functions not expressly

denied by general law or charter.” N.M. Const. Art. X § 6(D) (emphasis added). The purpose of

home rule is “to enable municipalities to conduct their own business and control their own

affairs, to the fullest possible extent, in their own way . . . upon the principle that the

municipality itself knew better what it wanted and needed than did the state at large.” Apodaca v.

Wilson, 1974-NMSC-071, ¶ 10, 86 N.M. 516 (citation omitted). There is no prohibition

whatsoever against the right to enact legislation by voter initiative in the mayor-council form of

government in the New Mexico Constitution or any state statute. In fact, the Municipal Charter

Act expressly allows for direct voter legislation. NMSA 1978 § 3-15-7 (“The charter may

provide for any system or form of government . . . including . . . the petition and referendum of

any ordinance, resolution, or action of the municipality.”) The “petition and referendum of any

ordinance” is exactly what Article III, Section 3 direct voter legislation is. Even if this provision

did not exist, the list of permissible charter provisions in the Municipal Charter Act is illustrative

and not restrictive; the word “including” introduces a nonexhaustive list. See Federal Bank of St.

Paul v. Bismarck Lumber Co. 314 U.S. 95, 100 (1941), (“[T]he term ‘including’ is not one of all-

embracing definition, but connotes simply an illustrative application of the general principle.”)

Since Albuquerque voters plainly have the power to propose and vote on ballot initiatives,

Plaintiffs’ challenge to this basic democratic right must be dismissed.

D. Count V should be dismissed because the MWO only applies to employers with a

physical premises in Albuquerque, and Plaintiffs do not have standing.

Plaintiffs’ argument that the MWO has an impermissible extraterritorial reach (Count V)

must be dismissed because the MWO is narrowly tailored to apply only to employers with a

business premises in the City of Albuquerque. The Minimum Wage Ordinance defines an

“employer” as an individual and/or corporate entity “who is required to have a business license

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or business registration from the City of Albuquerque.” ROA § 13-12-2. The Albuquerque

Business Registration Ordinance only covers businesses that have a physical place of business in

the City of Albuquerque. ROA § 13-1-2, 13-1-3. The Business Registration Ordinance defines

“place of business” as “[t]he premises, whether it be a personal residence, main business location

or an outlet, branch or other location thereof, temporary or otherwise, to which the public is

expressly or impliedly invited for the purpose of transacting of business.” ROA § 13-1-2.

Companies that do not have a such a premises meet the “place of business” requirement only if

“business is transacted at the location of the buyer” in Albuquerque and if the company has a

“general sales area” in Albuquerque (the “salesperson provision”) or, in the case of construction

companies, if the company has a construction site in Albuquerque. Id. Other types of businesses

without a physical premises within Albuquerque city limits are not covered by the requirements

of the Business Registration Ordinance. Id. They are therefore not covered by the requirements

of the MWO, either. ROA § 13-12-2.

Plaintiffs ask the Court to find that the salesperson provision in the Business Registration

Ordinance swallows the general rule that a company must have a business premises within the

City of Albuquerque. Compl. ¶ 62. This interpretation is backwards and renders superfluous the

physical premises requirement in the definition of “place of business.” Whitely v. N.M. State

Personnel Bd., 1993-NMSC-019, ¶ 5, 115 N.M. 308 (“No part of a statute should be construed

so that it is rendered surplusage”); High Ridge Hinkle Joint Venture v. City of Albuquerque,

1998-NMSC-050, ¶ 5, 126 N.M. 413 (“where several sections of a statute are involved, they

must be read together so that all parts are given effect”); State v. Ordunez, 2012-NMSC-024, 283

P.3d 282, 286 (“courts must try to adopt an interpretation that upholds the constitutionality of the

statute”). No employer in the hypothetical scenarios Defendants imagine would be covered by

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the business registration requirement unless the employer (a) has a general sales area in

Albuquerque and (b) makes in-person sales at the “location of the buyer” in Albuquerque. ROA

§ 13-1-2. The MWO therefore does not apply to “every business transaction” with an

Albuquerque buyer, as Defendants claim, nor to “an employer shipping a product into the City”

that has no Albuquerque premises, nor to employees “providing services in, attending business

meetings in, delivering to, or telecommuting from within the City” if their employers have no

Albuquerque premises. Compl. ¶ 62. The City Council would not have specified that only

physical business premises are subject to the Business Registration Ordinance if it had intended

to enact such a broad business registration requirement. Instead, the Council wrote in an express

and narrow exception to the business premises requirement only for salespeople and for

construction companies.

Plaintiffs are also wrong that the Minimum Wage Ordinance “impose[s] its requirements

on employers whose employees work in the City for as little as two hours per week.” Compl. ¶

62. Both the definition of “employer” and “employee” must be met for coverage under the

Minimum Wage Ordinance because the two provisions reference each other. ROA § 13-1-2

(employee is “[a]ny person who performs work for an employer…”). Even if an employee works

within Albuquerque for two hours a week, she is not covered if her employer does not meet the

“place of business” requirement in the Business Registration Ordinance. Id.5

Finally, Plaintiffs’ “extraterritoriality” claim must be dismissed because Plaintiffs do not

have standing to raise it. Plaintiffs must “allege three elements: (1) they are directly injured as a

5 Even if, as Plaintiffs allege, the MWO applied to employees working at least 56 hours within

Albuquerque, regardless of whether their employers had a physical premises in Albuquerque –

and MWO is narrower than this – the MWO’s reach would still be lawful because Albuquerque

has general welfare and police powers as to employees working within its own borders. New

Mexicans for Free Enter. v. The City of Santa Fe, 2006-NMCA-007, ¶¶ 29-30, 138 N.M. 785.

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result of the action they seek to challenge; (2) there is a causal relationship between the injury

and the challenged conduct; and (3) the injury is likely to be redressed by a favorable decision.”

ACLU of New Mexico v. City of Albuquerque, 2008-NMSC-045, ¶ 1, 144 N.M. 471 (“a

hypothetical possibility of injury will not suffice to establish the threat of direct injury required

for standing”) (quotation omitted). Plaintiffs’ allegation that “many businesses, including

members of the Plaintiffs New Mexico Restaurant Association and Association of Commerce

and Industry, are located outside the City but employ those who work at least 2 hours during a

week within the City” does not meet any element of this test because Plaintiffs do not allege any

injury. Compl. ¶ 62. Plaintiffs do not allege a “high probability” of enforcement action against

members with no business premises in Albuquerque. ACLU of New Mexico, 2008-NMSC-045,

¶¶ 25-29 (to show injury-in-fact, “at the very least a plaintiff must be able to demonstrate a high

probability of” enforcement action against him for his actions). Plaintiffs here do not even allege

that members with no business premises in Albuquerque have actually paid the MWO to

employees who work at least 2 hours a week within the city. Even if they had made such an

allegation, they do not allege “a causal relationship between the injury,” i.e. the decision to pay

that wage, and the possibility of Albuquerque MWO enforcement action. Absent any allegations

concerning injury in fact, Plaintiffs’ hypothetical claims simply cannot confer standing to

challenge the MWO. Id.

E. A preliminary injunction should not issue.

Plaintiffs’ application for preliminary injunction should be denied because they cannot

meet any of the four factors for issuance of an injunction. See LaBalbo v. Hymes, 1993-NMCA-

010, ¶ 11, 115 N.M. 314. First, Plaintiffs will not suffer irreparable harm if the MWO remains in

effect and enforceable. Plaintiffs’ argument that paying minimum wage in itself constitutes

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irreparable harm, Compl. ¶ 70, is belied by their decision to wait over four years to file this case.

Second, Plaintiffs’ alleged injury is not outweighed by the damage injunctive relief would cause

Intervenors’ members who earn the Albuquerque minimum wage, which at $8.80 per hour

translates to $18,304 annually for a full-time worker. This is below the annual poverty level for a

family of four.6 Reducing the minimum wage by $1.30 to the state rate of $7.50 would shave off

$2,704 from this annual amount. Hardworking people who earn a poverty-level wage simply

cannot afford to earn any less. Third, enjoining the MWO will be adverse to the public’s interest

for the same reasons the Supreme Court gave in upholding the Santa Fe minimum wage

ordinance:

We have had opportunity to perceive more clearly that a wage insufficient to support the

worker does not visit its consequences upon him alone; that it may affect profoundly the

entire economic structure of society and, in any case, that it casts on every taxpayer, and

on government itself, the burden of solving the problems of poverty, subsistence, health

and morals of large numbers in the community. Because of their nature and extent these

are public problems.

New Mexicans for Free Enter., 2006-NMCA-007, ¶ 30 (internal quotation omitted). Finally, an

injunction should not issue because Plaintiffs will not prevail on the merits, for all of the reasons

described in this brief.

V. CONCLUSION

WHEREFORE, because this Court does not have jurisdiction over Counts II and IV, and

because Plaintiffs have failed to state a claim upon which relief can be granted in Counts II, IV,

and VI, Intervenors respectfully request that this Court dismiss these Counts from Plaintiffs’

Complaint.

6 The poverty rate for a family of four is $24,600. U.S. Department of Health and Human

Services, U.S. Federal Poverty Guidelines Used To Determine Financial Eligibility For Certain

Federal Programs, available at https://aspe.hhs.gov/poverty-guidelines (last viewed April 27,

2017).

https://aspe.hhs.gov/poverty-guidelines

17

Respectfully submitted,

____________________

By: Elizabeth Wagoner

Gail Evans

[email protected]

Elizabeth Wagoner

[email protected]

Tim Davis

[email protected]

NEW MEXICO CENTER ON LAW AND POVERTY

924 Park Avenue, SW, Suite C

Albuquerque, NM 87106

(505) 255-2840

Attorneys for Intervenors

CERTIFICATE OF SERVICE

I hereby certify that on this this 4th day of May, 2017 the foregoing pleading was e-filed and

served on counsel for all parties through the Court’s electronic filing system, and I further certify

that on that date I served a copy on Christopher Tebo and Hessel E. Yntema IV, counsel for

Defendants, [email protected] and [email protected] and on Patrick Rogers, counsel for

Plaintiffs, at [email protected].

____________________

Elizabeth Wagoner

mailto:[email protected]






EXHIBIT A

RETAIN JUDGE VIGIL

Candidate Party Election Day Absentee Early Total Percentage YES NON 44,119 21,178 81,820 147,117 73.230/o NO NON 17,093 7,258 29,429 53,780 26.770/o

AMAFCA- DISTRICT 3

Candidate Party I Election Day I Absentee I Early I Total I Percentage_ TIM EICHENBERG NON I 10,970 I 6,232 I 19,453 I 36,655 I 100.000/o

AMAFCA - DISTRICT 4

Candidate I Party I Election Day I Absentee I Early I Total I Percentage RONALD D. BROWN I NON I 9,299 I 6,131 I 21,477 I 36,907 I 100.000/o

AMAFCA BOND QUESTION

Candidate Party Election Day Absentee Early Total Percentage FOR NON 45,371 21,818 89,126 156,315 68.150/o

AGAINST NON 24,138 9,915 38,993 73,046 31.850/o

Paseo Del Norte And I-25 Improvements CITYQl


AGAINST NON 24,223 9,452 38,318 71,993 34.650/o

ALBUQUERQUE MINIMUM WAGE CITYQ2


AGAINST NON 20,886 10,340 39,952 71,178 33.770/o

13

EXHIBIT B

:WAGES. CURRENTLY TIPPED EMPLOYEES ARE ALLOWED TO BE PAID

MOSTLY WITH TIPS. T-HE MEASURE WILL CONTINUE THE CURRENT

ORDIN~NOE'S PR·OVISION ALL:OWfNG EMPLOY.ERS THAT PROVIDE

CERTAIN ,HE'ALTH CAR·E OR CHILD CARE BENEFITS TO PAY $1.00 LESS

"FHAN T:ME ~INIMIJM \WAGE.

The ··City :Cterk 'Shall ··cause '.the full ·text .of the Proposition ·that follows to

be published for four consecutive weeks in English .and Spanish, the last

publication •to ·be 1notmor.e than ·two weeks :prior to tf:le election at whidh time

satd Proposition .shall be ·submitted to the electors of the City for : their

approval or r~jection; and shall further provide notice of 1he content and

purpose •of~the Proposition ·in ~both English and Spanish ·to inform electors

about the amendments in the time iind manner provided by law. rhis

resolutiml •for special .electioTI shall be published once a week for four

consecutive weeks with ihe ·first publication between ·fifty and sixty 'days

before the electron. The publication of this special ,election resolution shall

contain the summary ofthe ·proposition set forth ,herein but shall not contain

the full 1eKt of-the proposition. The full text of ihe Proposed ·Ordinance that

-follows·shall ·appear·on ·the :ballot.·

'URDfNANCE ·(full text)

· ·Establishing Tile Albt1quer-que·1Minimum \Wage Ordinance; Setting Minimum

Wages For·Employees; Creating Exemptions; Establishing Procedures For

Enforcement.

'BE IT ORD'AJNED;BY'THE :couNCIL, THE ·GOVERNING BODY OF THE ·crrv ,QF A.LBlllQ()J·ERQUE:

Sedion·1. 'SHGRT'TITLE. rhis ordinance may be cited as ''The

Albuquerque ·Minimum ·Wage10rdinance."

Section .2. DEFINtif:IONS.

CITY. The -.City of :Albuquerque.

EMPl.!OYER. -Any'person, partnel'Ship, association, corporation,

business trust, legal representative, or any other entity, or group of persons

I

or entities, including·corporate•officers or executives, who is required to

have a business license·or business·registration from the City of

Albuquerque ;and·who directly .or indirectly or through an agent or any other

·person including, but·not·limited to, through a subsidiary or through 1he

services of a1emporary services agency, a staffing agency, a building

services :contractor, or any simitar·entity, employs or exercises control

over the wages, ·hours or working conditions of any Emplayee. "Employer"

shall· include 1he·City ·of ~Albuquerque.

EMPLOYEE. Any ·person :who performs wane for.an Employer for

·monetary compensation for at"least two (2) ·hours in a given week within the

municipal·Umits of1he'City. "Employee" shall:tnclude persons who perform

work·for an Employer on a·full•time, part•time, seasonal, or temporary: basis.

Employee"Shall not include any person who is excluded from the definition

of emphi>yee under-NMSA§§ 50-4,.,21(c)(3H5), (7) of1he New Mexico

Minimum Wage Act, except that persons employed by the City of

.Atbuquerqw are employees. "Employee" shall not include interns working

for an Employer-for academic credit in connection with a course of study at

an acer.edited school, college or university or•employees working for an

accredited >School, college ·or,university ·pursuant to a work-study program

while attending that-school, college or university. "'Employee" shall not

include any person who has received a certificate from the state labor

commissioner purswrnt·to-§ 50-4-23 NMSA 1978 or§ 50-4-21(C)(12) NMSA

1978.

MINIMUM WAGE, !MINIMUM WAGE RA"JTE. The minimum hourly rates

of monetary compensation for·wonc as specified in this ordinance.

TIP. A sum presented :by a customer as a gift or gratuity in

recognition ·of some service performed for1he customer. "Tip" shall include

only tips actually·received·byan 'Employee as money belonging to him or

her. Where Employees practice tip pooling or splitting, as where wait staff

give a portion of their tips to bus persons, both the actual amounts retained

~by the waiters or waitresses and·those ·given ·the bus persons shall be

considered ''T-ips" of the individual Employee who retains 1hem. A

compulsory charge for·service;·imposed on a customer by an Employer's

establishment·shall not·be.considered a "Tip" unless it is distributed by the

,E~pto.yer:1o its "Employees.

TIPPED"EMPL'OY'EE. Any:Employee engaged ·in an occupation in

which heor·she··customarilyand ·regularly receives Tips from customers.

T:IPPED~MINIMUM 'WAGE. The minimum cash wage that a Tip.Red

Emp,!gy:ee must receive .fr.om .his .or her Empjgy.!!:,. .!§..P.rovided under

;Sectialil 3(A).

:section 3. :MfN(Ml!JM\W~GE.

-(A) 'Minimmn ~wage Payment ;Required. Except as provided herein,

Employers ·shall ·pay all .. Employees no less than the :Minimum ·Wage for· each

hourwor-k-edwithin·the111unicipal limits of1he·City. Tips or commissions

received and·retained•bY·!.!!P.1~ed·EmP.19yee·rnay aR em13loyee sttall be

counted as wages and credited towards P.artial satisfaction of.the minimum .· -wage. Provided. however. that!the cash wag~aid to a TiP.Red EmpJgY,ee bV.

his or her.EmpJ2Y.er shall be no less than the Tip,P.ed Minimum Waa!1 which.,

!!!gi!!!l!!Jg Janua[Y..1, 2013. shall be 45% of the Minimum Wag@., .!!J.S! J?!giJ::!D.iDg .Jan.uarx..:!, 2014 and.each Y.ear thereafter. shall be 60% of tbe

Minimum Wage. An EmP.!gyer maY. credit tiP.s as part of the wages of a

!!P.P.ed EmP.!,gY,ee onlY. if the EmpJgY,er infonns the TiP.P.!!d 1Emp.J.2v.ee in

advance in writing,.Qi!Y.S the T:IP.p.ed.EmP.!gyee a cash wag~ual to or

greater than the TipP.ed Minimum Wag!t and is able to establish by the

!iP.P.ed .EmP.!gyee's declaration for Feder.al Insurance Contributions Act

(FICA) PJ!..f'.P.Oses or bv its recor.ds of charged tips that the total of the tip..§.

received .bv the Tip.Red EmpjgY,ee and the cash wages paid bY. the Empjgy.!J:

is egual to or greater than the Minimum Wage. The tips received bv a Tipp~

Employee become the P.fOP.erty of the Tip~yee and may not be

shared with the .EmP.IOY.er. This subsection shall not be construed to

I I I

P-!Qhibit the,pooling of-tips :among Em$yees who customarily and regularlY.

r:eceive ;tifls.

(B) Minimum -Wage 1Rate. ·Beginning January 1, 2007, the Minimum Wage

for Employees shall be an hourly rate of-$6.75. Beginning January 1, 2008,

the Minimum ·Wage for Employees shall be an· hourly rate of $7.15.

Beginning January 1, 2009, the Minimum Wage for Employees shall be an

hourly rate of·$7.50. ·Beginning_Jan1:1a01_1, 2013, the·Minimum Wag!U.2!:

EmpjgY,ees shall be .an ho1:1rlY. rate of $.8.50. For employers who provide

healthcare and/or childcare benefits to an employee during any pay period

for which ·the employer·pays an amount for those healthcare benefits equal

to or0in excess· of an annualized -cost ·of $2500~00, be·ginning January 1.,

2007, the·Minimum ·Wagefor·that employee shall be an hourly rate of $5.75,

in addition to the ·healthcare benefits and/or childcare benefits, beginning

January 1, 2008, the·Minimum Wage for.that employee shall be an hourly

rate of $6.1·5, in addition· to the healthcare and/or childcare benefits, SftEI

beginning January 1, 2009, the 1Minimum Wage for that employee shall be an

hourly·rate,,of $6.50, in addition to the healthcare and/or childcare benefits,,

and•bggmning Januarx.,j. ·2013(and each Y.ear:thereafter. 1ihe Minimum ·Wag!

for thatempjgY,ee shall be an hourly rate of $1..00 less than the current

Minimum Wage otherwise ao.P.licable to empjgY,ees who do not receive such

benefits.

~Cl ·.Annual Cast:of:Living Adjustmem. -Beginning on January...:L,1.Q,li

and annuallY, on each January 1 ther.eafter, the Minimum Wage shall be

adjusted based on the increase. if any., in the cost of living, and rounded to

the nearest multiP.le of five cents. The Iner.ease in the cost of living shall be

calculated based on the P-ercentage increase, if any., as of August of the

lmmediately..12receding_xear over the level as of August of the previous }!ear

of the Consumer Price Index (All Urban Wage Earners and Clerical Workers.

U.S. CitY. Aver.age for All Items~ or its successor index as gublished .bY. the

U.S. Deoartment of labor or its successor agency,. The adlusted Tig2§9

·M'mimum·Wage :shall 'be ·calculated based on the adiusted Minimum 1Wagg,

and rounded to the nearest multiele of five cents. The Ci!Y. shall J!Ublish the

§djusted ,Minimum Wage and .the adiusted Tipped Minimum Wage for the

forthcomlng.Y.ear on Its Internet home [email protected] by October 15 of each year. and

theY. shaU .become effective on Januarv 1 of the forthcoming.Y.ear.

Section 4. NOTICE, POSTING AND RECORDS.

(A) Notice:to-Empl·oyees. ·every Employer shall post in a conspicuous

place at any worrkplace ·orjob site where any ·Employee works a notice

published,each year ,by the· City ·Attorney informing Employees of the

curFent Minimum ·Wage·rates and of1heir rights under this ordinance. Every

Employer-shall post·such notices in English and Spanish.

(B) Records. ,Employers ·shall maintain payroll records showing the

hours wor.-ked·daily·by and1he wages paid to all Employees. Employers 1shall

retain payroll records -pertaining to ·Employees for a period of three years.

When the Employer uses tips to meet the Minimum Wage for an Employee,

the Employer must have a Tip declaration signed 'by the Tipped Employee

for .each 1p~ :period.

Section ·s. 'IMPLEMENTA'ffON AND ENFORCEMENT.

(A) Rulemaking. The·City·shall have the authority to coordinate

implementation ·and enforcement ·of-this ordinance and may promulgate

appropriate· guidelines or rules for such purposes. Any guidelines or rules

promulgated 0bythe City shall have the force and effect of law and·may be

relied on ·'by Employers, Employees, and other parties to determine their

rigbts and responsibilities under1his ordinance. Any such guidelines or

rules may establish ·procedures for ensuring fair, .efficient and cost·

effective implementation of'this ordinance, including supplementary

procedures for helping to inform Employees of their rights under this

ordinance and for monitoring Employer compliance with this ordinance.

(B) Civil Enforcement. Any Employee receiving less than the wage to

which the ·Employee is entitled under this ordinance may bring a civil action

I {

I

in a court ·of-competent jurisdiction and, apon prevailing, shall recover'the

balafllce of the wages ·owed, including interest thereon, and an additional

amount equal 1o twice 1he wages owed, and any other appropriate legal ·or

equitable.relief. Any Employee'who has suffered ·discrimination in any

manner or,had adverse action taken against that Employee in retaliation for

exercising-rights,protected under1his ordinance may bring a civil actiom in a

court of competent jurisdiction :and, upon prevailing, shall recover actual

damages plus reinstatement in·the case of'discharge. In any case where an

Employee has ibeen,dischar.ged In retallation·for exercising rights under this

ordinance, the•period of violatian .extends from the day of discharge until the

day the Empl·oyee is reinstated, ihe day the Employee agliees to waive

reinstatement or, tn ·the case of an ·Employee who may not be rehired, from

the day .of discharge ··until:the -day legal judgment isiinal. The requirements

of.this ordinance may ·also be enforced by the City Attorney. In such case,

unpaid ~ges and actual damages recovered shall ·be payable to the

individual ~Employee :as .. to whom the violation occurred. A plaintiff prevailing

in an action to·enforce1hts ordinance shall ·be·entitled to recover his or her

costs and expenses ofsuit ·and ·reasonable attorney's fees.

Section·6. RELATIONSHIP TO OTHER REQUIREMENTS. This ordinance

provides for·payment ofiMtnimum Wage rates and shall not be construed to

preempt or· otherwise limit or affect the applicability of any other law,

regulation, ·requirement, policy·or standard ·that provides for payment of

higher or·supplemental wages, !benefits, or protections. Nothing contained

in this ordinance prohibits an Employer from paying ·more than the Minimum

Wage rates established ·under this ordinance.

Section 7. SEVEAABrLITY CLAUSE. If any section, paragraph, sentence,

clause, word or-phrase ofthis ·ordinance is for any reason held to be invalid

or unenforceable by any· court of competent jurisdiction, such decision ·shall

not affect the validity ofthe ·remaining provisions of this ordinance. The

Council her.eby declares that itwould have passed this ordinance and each

I I l

. . 1 .

section, paragraph, ·sentence, clause, word or phrase·therreoHrrespective of

any provision ·being declared unconstitutional or otherwise invalid.

Secti·on 8. COMPILATION. This ·ordinance shall be incorporated in and

made part of1he Revised Ordinances of Albuquerque, New Mexico, 1994.

Section 9. EFFECTIVE DATE. This ordinance shall take effect five days

after publicatton;by;title and ~general ·summary.

--·~

City of Albuquerqtie N

>

Office of' the City Clerk

Hidtard .J. Berry, Mayor

Interoffice iVlemorandum August 24, 20 J 2:5

To:

From: Amy B. Baih~y, City Ckrk ..... ... -

Suhject: Ccrtifirntion of Pditions for Direct Legislation on Minimum Wagl' JmTcast·

Pursuant IO the provisinns or Article Ill . Secti1lll >(Direct Legislation by Voter lnitialiW) or the City Clwrtl~ I'. I, Allly B. Bailey, Ille City Clerk of tlw City of Albuqut~rquc hereby C(~ rtil'y that my officl' has H'rifit~d thi; required llltmbcr of signat ures to allow the pt\>flOSl:d legislation lo m11w forward co the City Council.

011 .lune 12, 2011, I approved the lor111 of pl'titiun. The group ini1iating tlw dirn'. t legislation had until August 11, 2012 tu vircuialL' the pctit iill1 and gather sig1iat11n~s. l.ltKkr lilt' pn)visio11s of §2-4-1 .' ROA 1994, 1he group delivered p~litinns to my office in 11ln.'c stages and my office initi:tl(!d 1he pn1ccss of veril\1ing signatun:s. Be~'.a11se tl1t• tkad line to gmllcf sign:1tures fel l lltl a w1:eki'•11d. tile final nl\lnd ol'pelitinns wns pnw ided on Augw;t U, 201 2, llH: 1w.x1 bus iness day. (*2-4- U (Fl RUA 1994).

Under tk provisions uf §3-1 ·:'i NMSA I 1J78, my office IJad ten dnys 10 veril'y the signatures. 011 August 23.1<1l2, 1w eompletl:!d Ille vc~rifkatinn process wilh tht~ l'ollowing stat istics :

Signatures rcvieWl~d: 2ll,8.i.:J Signatures approved: l 2.206 Signal u res rejected: 8.504 Signatures pending: 124 ipl'nding signatures an~ neillwr approved nur rejected,

inuirating that 1he pcrsnn n:vkwing the signallll'L's l·a1111ot nwke a dl!!L\nnination . Pending signatmc.-; art• rev ie\wd :it !he end of tlk' f\rl)C (~ss, if needed)

Pursuant lo Arlil'le Ill , Sec: lion J (a)(t1) "Ir \he Council fai ls tu ad upun a mt:.<1sun: so pmp11sed within fourteL' ll days after !he City Ckrk l'iks a certil1c:11inn with thi.: Couucil that tilt~ pe1i1io11 has been signed by the required n111nber or voters. or lhl: Co11ndl m:ts ndvt:rsely thneon or amends it an electinn on the issues must be lldd wilhin nint'ty days after tilt.! tbtl' of fil ing Ille petilinn."

re: tfahan.l .l . Berry. lvtayor lfohtlll J. 1\m·y, Chief Ad111in istra1i vt· Oflicer [X1vid Tnurck. City 1\itorm·.y City ( 'm1111.:ilors I .aura MaMHl, Uircc:tor \lf Cuuucil Servin •,

..

-.;

EXHIBIT C

EXHIBIT D

considered the pleadings, record, and arguments of counsel and being otherwise fully informed, now

FINDS and ORDERS:

1. Petitioner's Petition for a Writ of Mandamus is DENIED.

2. Council's Motion to Dismiss is GRANTED

3. Bernalillo County Clerk Maggie Toulouse Oliver's Motion to Intervene is

GRANTED.

4. Association's Motion to Intervene is DENIED. However, the Association is granted

leave to file an amicus curare brief.

5. Petitioners seek a Preemptory Writ of Mandamus ordering Bailey, City and Toulouse

Oliver to place the minimum wage petition on the November 6, 2012 municipal election ballot.

6. Mandamus is a summary and specific remedy to enforce performance of a ministerial

duty incident to an existing right, in cases in which, without such appropriate redress, serious injustice

would occur. Conklin v. Cunningham, 7 N.M. 445, 38 P. 170 (1894). The ministerial duty must be clear

and indisputable. Amer. Fed. of State, County, and Mun. Employee, et al:, v. Martinez, 2011-NMSC-

018, if 4, 150 N.M. 132, 257 P.3d 952.

7. In June 2012, Petitioners initiated a petition for a proposed ordinance to raise

Albuquerque's minimum wage for employees working in the City in 2013 and years following.

8. Petitioners followed the procedure for qualifying a proposition for a proposed ordinance

(herinafter "proposition") as set forth in Albuquerque City Charter, art. III, section 3(a) and Regulations

of Albuquerque 1994, sections 2-4-1through2-4-14.

9. On August 23, 2012, Bailey certified to the Council that her office had verified the

required number of signatures and forwarded the proposition to the Council.

10. Once the proposition was forwarded, the Council had fourteen (14) days to act on it or to

amend it. Albuquerque City Charter, art. III, section 3(a)6.

2

11. The Council met on September 5, 2012, and failed to act on the proposition. 1

12. When the Council fails to act on a proposition within fourteen (14) days after the matter

is certified to them by the city clerk "an election on the issues must be held within ninety days after the

date of filing the petition." Albuquerque City Charter, ati. III, section 3(a)6.

13. The ninety-day period for holding the election on the proposition runs from August 13,

2012 until November 11, 2012.

14. A general election for the nation and state is scheduled for November 6, 2012. In May

2012, the City Council adopted a resolution scheduling an Albuquerque municipal special election for

November 6, 2012, on a City Street Bond Question. Council chose not to adopt a similar resolution

regarding the proposition herein.

15. It is undisputed that the proposition that would be placed on the ballot contains an error.

It reads as follows:

Proposing to amend Albuquerque's 2006 minimum wage ordinance to raise the minimum wage in the city from the current rate of $7.50 to $8.50 per hour starting in 2013, and to adjust the minimum wage each year after that to keep up with the rising cost of living. The ordinance will also require that, starting in 2013 [employers of] tipped employees like waitresses and waiters be paid at least 45% of the minimum wage in cash wages from their employers, and that starting in 2014, tipped employees be paid at least 60% of the minimum wage in cash wages from their employers, with the rest of the minimum wage provided in either tips of cash wages. Currently tipped employees are allowed to be paid mostly with tips. The measure will continue the current ordinance's provision allowing employers that provide certain health care or child care benefits to pay $1.00 less than the minimum wage.

16. This error is bolded and bracketed above. While it is clearly an error - it is inconsistent

with the other language in the proposed ordinance and it is also illogical - is not the type error that would

1 It is somewhat disturbing that the Council, made up of duly elected representatives, chose not to act or even discuss this proposition opting instead to force Petitioners to seek a judicial remedy.

3

justify the Council's refusing to place the petition on the ballot. It does not invalidate the proposed

proposition because it does not render the proposition illegal. See Kiddy v. Board of County Com 'rs of

Eddy County, 57 N.M. 145, 150, 255 P.2d 678, 681-682 (1953) (proposal invalid because two unrelated

questions were presented to the public as one).

17. However, as in Kiddy, the proposition requires voters to consider four distinctly different

options presented as one question. The four options are:

a. to raise the minimum wage from $7.50 to $8.50 per hour;

b. to prospectively tie the minimum wage to increases in the consumer price index;

c. to pay [employers of] [sic] tipped employees at least forty five percent of the

minimum wage in cash wages beginning in 2013; and

d. to pay tipped employees at least sixty percent of the minimum wage in cash

wages beginning in 2014.

18. The proposition, as written is an "all or nothing" proposal. Voters who favor one option

but not the others either must vote for the options with which they do not agree in order to cast a vote for

the option they prefer or, must vote against an option they favor in order to prevent the options with

which they disagree from passing.

To present both propositions in a single submission, thus rendering the success of the one dependent upon the success of the other, or the defeat of the one dependent upon the defeat of the other, is clearly unfair to the voters, and not at all conducive to a free and untrammeled expression of public sentiment as to the merits of either.

Carper v. Bd. of County Comm 'rs of Eddy County, 57 N.M. 137, 145, 255 P.2d 673, 678 (1953)

(quoting Rea v. City of La Fayette, 61 S.E. 707, 708 (Ga. 1908). See also Carper, 57 N.M. at

145, 255 P.2d at 678 (quoting Hartv. Bd. of Educ., 252 S.W. 441, 442 (Mo. 1923) ("It may

4

compel the voter, in order to get what he earnestly wants, to vote for something which he does not

want.")

19. Presenting more than one unrelated question to the voter as one question has

been called "the vice of doubleness" and is "universally condemned" as a species of voter fraud.

Hart, 252 S.W. at 442.

20. The "vice of doubleness" presented itself to the Court in Kiddy where petitioners

proposed two separate hospitals, to be located in two different cities, and with two distinct funding bonds

as one proposal. The Court found the petition invalid because it submitted two propositions as one

question. Kiddy, 57 N.M. 145, 148, 255 P.2d 678, 680. See also Carper, 57 N.M. at 140, 255 P.2d at

675 (1953) ("[W]hile two propositions may be submitted at the same election, or upon the same ballot,

each proposition must stand alone so that the voter has an opportunity to express his choice upon each

question independent of the other.")

21. For the same reasons as cited in Kiddy, the proposal here is invalid; an invalid or illegal

act may not be compelled through mandamus.

WHEREFORE, because the proposed voter initiative presents more than one issue for voters to

decide with only one vote, it is invalid on its face. Therefore, Petitioners' Motion for a Writ of

Mandamus is DENIED and Respondents' Motion to Dismiss is GRANTED.

IT IS SO ORDERED.

5

Hon. Nan G. Nash, District Judge

6

EXHIBIT E

02/05/2017 16: 10 nm supreme court (FAX)827 4178 P.003/004

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9

10

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13

14

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so 21

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WHEREAS, the Court was assured by the County Clerk of Bernalillo

County and the New Mexico Secretary of State that time is of the essence if the

minimum wage initiative at issue in this proceeding is to be placed on the

November 6, 2012, ballot;

WHEREAS, there is not enough time to issue a writ to the Albuquerque

City Council to schedule a public meeting to exercise its discretion as to when

to place the initiative on the ballot, which therefore leaves this Court no

alternative other than to order that the initiative be placed on the November 6,

2012, ballot; and

WHEREAS, in light of the foregoing, having considered the pleadings

and oral arguments of the parties, and being otherwise sufficiently advised,

Chief Justice Petra Jimenez Maes, Justice Richard C. Bosson , Justice Edward

L. Chavez, and Justice Charles W. Daniels concurring, Justice Paul J. Kennedy i

concurring in part and dissenting in part; I '

NOW, THE~FORE1 IT IS ORDERED that the petition for writ of ·

superintending control is GR.ANTED and a writ shall issue to vacate the

decision of the district court;

IT IS FURTHER ORDERED that the writ shall require the City Clerk of

Albuquerque and the County Clerk of Bernalillo County to place the minimum

wage initiative on the November 6, 2012, ballot;

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IT IS FURTHER ORDERED that, given the unorthodox procedure used

in this case, the writ shall be issued without prejudice to any party challenging

the minimum wage ordinance should it be passed by the voters.

IT IS SO ORDERED.

(SEAL)

WITNESS, Honorable Petra Jimenez Maes, Chief Justice of the Supreme Court of the State of New Mexico, and the seal o · this 12t ay of September, 2012.

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STATE OF NM SUPREMECT Fax:505B274178 Sep 14 2012 10:40 P. 03

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GREETINGS!

WHEREAS, a petition· for a writ of superintending control having been · . . ' .

filed in this matter and having been granted by this Court on September 12,

2012; and the Court being sufficiently informed and good cause appearing for

the issuance of a writ; and

WHEREAS, this Court has concluded that the minim.um wage initiative .

should be placed on the November 6, 2012, ballot and that time is of the essence

for doing so;

NOW, THEREFORE, the district court's order denying the petition for

writ of mandamus and granting the motion to dismiss is Y ACA TED;" and

IT IS FURTHER ORDERED that the petition for wrif of mands.thus filed . in the district court is GRANTED and the City Clerk of Albuquerque and

County Clerk of Bernalillo County shall take all steps necessary to place the

minimum wage initiative on the November 6, 2012, ballot.

IT IS SO ORDERED.

(SEAL)

/ I \

WITNESS Honorable Petra Jimenez Maes, Chief Justice of the Sup:Cme Court of the State of New Mexico. and the seal o · 12 day o{September, 2012.

2

of the Supreme Court te of New Mexico

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+

OFFICIAL GENERAL ELECTION BALLOT - BALOTA OFICIAL DE ELEGGION GENERAL November 6; 2D12- 6 de noviembre, 2012 +

INSTRUCTIONS: To vote complete lhe oval to the LEFT of your choice, like this ( - ).

INSTRUCCIONES: Para volar complete el 6valo a la IZQUIERDA de su selecci6n, coma esto ( • ).

Albuquerque Metropolitan Arroyo Flood Control Authority {AMAFCA) Bond Question

Shall the Albuquerque Metropolitan Arroyo Flood Control Aulhortly be aulhonzed lo Issue lls general obligallon bonds in principal amounl nol exceeding $25,000,000 for Iha exlenslon,

,___P_R_E_S_l_D_E_N_T_A_N_D_V_l_C_E_P_R_E_S_l_D_E_N_T _ _,_ _ ___ D_IS_T_R_l_C_T_J_U_D_G_E ____ ,....betterment, allerallon, reconslrucaon, repair and olher OF THE UNITED ST ATES JUEZ DE DISTRITO Improvements of lhe Authority's flood control system?

PRESIDENTE y VICE PRESIDENTE 2nd JUDICIAL DISTRICT. 'Z' DISTRITO JUDICIAL La Autoridad de Control de lnundacion de DE LOS EST ADOS UNIDOS DIVISION 10. OIVISl6N 10 Arroyo de Albuquerque Metropolitano

VOTE FOR ONE- VOTE POR UNO VOTE FORONE- VOTE PORUNO {AMAFCA) Pregunta de Bono LS• debera autonzar que la Autorldad de Conlrol de

~ BARACK OBAMA ~ CHRISTINA p ARGYRES 1nundaciones de 10s Arroyos Melropolllanos de Albuquerque • ~~l~~~~·PARJIOOD6JXRATA DEMOCRATIC PARTY -PARTIDO OEMOCRATA em!ta SUS bones de obllgacl6n general par la canlldad prlnctpa\

que no exceda los $25,000,000 para la extensl6n, mejora, liar._ MJTI ROMNEY ~ SHARON D. WALTON alleraci6n, reconslrucr;i6n, reparacl6n u otros lipos de mejoras l\\Ji !'~~~~~"noo"''"'''"" REPUBLICAN PAR1Y. PARTIDO REPUBUCANO de! slslema de conlrol de lnundaclones de la Aulorldad?

~VIRGIL GOODE DISTRICT JUDGE c:J FOR I (EN FAVOR) . JJM CLYMER JUEZ DE DISTRITO

-.::-~"'::c3'0'"""""':::7'7'"'7'"'o:-·7"":':'""":c"""::=='m:C""'"c=--i 2nd JUDICIAL DISTRICT· 2° DISTRITO JUDICIAL •' , GARY JOHNSON DIVISION 19 -DIVISl6N 19

JAMES P. GRAY VOTEFOR ONE-VOTE POR 8NO ~ AGAINST I (EN CONTRA) U!lERT.oJl!~PAIUY ·PARTIOOLl!lrnlNllO

ROSS C. "ROCKY" .ANDERSON

···· • LUIS J. RODRIGUEZ HC\¥~1EX!COINDEPOOEUTPARTY -PARTlllO CE U1'JEPEllJIEHTEOE!IU(VOMEXfCO

~ BENJAMIN CHAVEZ MUNICIPAL DEMOCRATIC PARTY-PARTIDO DEMOCRATA

c:J SAMUELL. WINDER MUNICIPAi.: BOND QUESTION REPUBUCANPARTY-PARTIOOREPUBUCANO Shall !he City of Albuquerque issue up to $50,000,000 o( lls

-,,,,.---...,..--,-------+-----------------;gross receipts lax revenue bonds lo study,.acqulre property ror, ~ ;J~ JILL STEIN DISTRICT JUDGE design, develop, Improve, construcL reconslruct, rehabllllate,

CHERI HONKALA JUEZ DE DISTRITO renovate, modernize, siiJn, enhance, landscape and olherwise · ' 2nd JUDICIAL DISTRICT. 2' DISTRITO JUDICIAL Improve the Paseo Del Norte and ~25 lnlerchange?

UNITED STATES SENATOR SENADOR DE LOS EST ADOS UNIDOS

VOTE FOR ONE - VOTE POR UNO

DIVISION 21 ·DIVISION 21 PREGUNTA DE MUNICIPAL DE BO NOS VOTE FOR ONE- VOTE POR UNO LDebera la Ciudad de Albuquerque errl\ir hasla un maximo de

~ ALISA ANN HADFIELD DEMOCRATIC PARTY ·PARTIDO DEMOCRAT A

$50,000,000 de sus booos de la reeaudacl6n de impues\os a los lngresos brulos para esludlar, adqulrlr propledades, disel\ar, desarrollar, mejorar, construlr, reconstrulf, rehabililar, renovar,

,----.., DAVID A. STANDRIDGE modemlzar, seiiallzar, realzar, ajardlnar y de cualquier olra ..__, manera melorar el cruce de Pase<> Del Norte y la Carrelera

f------REP'-'-UBU=-CAN---PA_R_TY._.-.... PA_R .... TID .... o_R._.EP .... u_eu .... c_.AN_O--j lnie(eStalal l·25?

~ MARTIN T. HEINRICH DEMOCRATIC PARTY · PARTIDO DEMOCRATA

~ HEATHER A. WILSON REPUBLICAN PARTY -PARTIDO REPUBLICANO

~ JON ROSS BARRIE INDEPENDENT AMERICAN PAR1Y ·PARTIDO AMERICANO INDEPENDIENTE

DECIAREO WRITE-IN CANDIDATE CANDIDATO OECW<AOO POR ESCRITO

DISTRICT A HORNEY FISCALES DE DISTRITO

2nd JUDICIAL DISTRICT - 2" DISTRITO JUDICIAL


~ KARI E. BRANDENBURG DEMOCRATIC PARTY ·PARTIDO OEMOCRATA

~ FOR I (A FAVOR)

~ AGAINST I (EN CONTRA)

PROPOSITION Proposing to amend Albuquerque's 2006 minimum wage ordinance lo raise lhe minimum wage ln the city from the current rale of $7.50 lo $8.50 per hour slarting in 2013, and lo adjust lhe

___________ _,minimum wage each year aner that lo keep up wllh lhe rising cost of llvlng. The ordinance will also require that, starting In 2013, employers of Upped employe~ like wallresses and waiters be pald al least 45% of lhe minimum wage In cash

DECIAREO WRITE-IN CANDIDATE CANDIDATO DECIARADO POR ESCRITO

r----------------1-----------------Jwages from !heir employers, and Iha! slaf11ng In 2014, Upped UNITED ST ATES REPRESENTATIVE JUDGE OF THE METROPOLITAN COURT employees be paid at least 60% or the minimum wage rn cash

REPRESENT ANTE DE LOS EST ADOS UNIDOS JUEZ DE LA CORTE METROPOLITANA wages from lhelr employers, with lhe rest of !lie minimum wage DISTRICT 3 - DISTRITO 3 DIVISION 17. DIVISl6N 17 provided in either lips or cash wages. CurrenUy lipped

VOTE FOR ONE- VOTE POR UNO VOTE FOR ONE- VOTE POR UNO employees are allowed lobe paid mosUywilh lips. The measure will conUnue the current ordinance's provision allowing

~ BEN R. LUJAN DEMOCRATIC PARTY· PARTIDO OEMOCRATA

~ JEFFERSON L. BYRD REPUBLICAN PAR1Y- PARTIDO REPUBUCANO

JUSTICE OF THE SUPREME COURT JUEZ OE LA CORTE SUPREMA


~ BARBARA J. VIGIL DEMOCRATIC PAR1Y ·PARTIDO DEMOCRATA

c:J PAULJKENNEDY REPUBLICAN PARTY· PARTIDO REPUBUCANO

JUDGE OF THE COURT OF APPEALS JUEZ DE LA CORTE DE APELACIONES


c:J . M. MONICA ZAMORA DEMOCRATIC PAR1Y ·PARTIDO DEMOCRAT A

~ J . MILES HANISEE REPUBLICAN PARTY· PARTIDO REPUSUCANO

ST ATE SENATOR SENADOR DE ESTADO

DISTRICT 23 - DISTRITO 23 VOTE FOR ONE· VOTE POR UNO

~ SANDERRUE REPUBLICAN PARTY- PARTIDO REPUBLICANO

STATE REPRESENTATIVE REPRESENTANTE DE ESTADO


LLOYD S GINSBERG DEMOCRATIC PARTY· PARTIDO OEMOCRATA

THOMAS ANTHONY ANDER.SON REP\JSUCAN PARlY - PARTIDO RE?UBUCANO

PUBLIC REGULATION COMMISSION COMISl6N DE REGULATORIA

DISTRICT 3 - DISTRITO 3 VOTE FOR ONE - VOTE POR UNO

~ VALERIE L. ESPINOZA DEMOCRATIC PARTY · PARTIDO DEMOCRATA

DISTRICT JUDGE JUEZ DE DISTRITO

2nd JUDICIAL DISTRICT · 'Z' DISTRITO JUDICIAL DIVISION 6 - DIVISl6N 6

VOTE FOR ONE -VOTE POR UNO

c::::::i BRIANA H. ZAMORA DEMOCRATIC PARTY -PARTIDO DEMOCRAT/\

~ HENRY A. ALANIZ REPUBLICAN PAR1Y -PARTIDO REPUSLICANO

COUNTY COMMISSIONER COMISIONADO DE CONDADO


~ LONNIE C TALBERT

employers that provide certain health care or child care benefl ls lo pay $1.00 less lhan lhe minimum wage.

PROPUESTA Propuesla para enmendar la ordenanza del 2006 del salario minima de Albuquerque para lncremenlar el salario mlnlmo en la cludad de la canUdad actual de $7.50 a $8,50 por hora comenzanda en el 2013 y para ajuslar el salario minima cada afio que sigue despues pa<a mantenerse acluafizada de acuerda al caslo de vida. la ordenanza lamb!en requlere que, comenzando en el 2013, los empleadOles de empleados que reciben propinas coma meseras y meseros se Jes pague por la menos el 45% del sa!ario. minlmo en salario en efectivo par sus

f----===="'--====="'--l empleadores, y que camenzando en el 2014, a los empleados REPUBLICAN PAR1Y -PARTIDO REPUBLICANO

COUNTY CLERK ESCRIBANO DE CONDADO


~ MAGGIE TOULOUSE OLIVER DEMOCRATIC PARTY -PARTIDO DEMOCRAT A

que recfban proplnas se /es pague por lo menos 60% de s:u salarto minima en salarlo en efecllvo par sus empleadores, con el reslo del salarlo mlnlmo proveldo en pr:oplnas o salado en efecllvo. Aclualmente se permlte que los empleados que reciben propinas se les pague m:ayormenle con proplnas. Esta medida conlinuara la provision ac\ual de la ordenanza perrnlliendo a los empleadores que proveen cle~os beneficlos de culdado de la salud o beneficlos de! cuidado de nlnos a

1----------------tpagar $1.00menos que el sa!arlo minima. COUNTY TREASURER TESORERD DE CONDADO

VOTE FOR ONE - VOTE POR UNO ~ FOR I (EN FAVOR)

~ MANNY ORTIZ ~ AGAINST I (EN CONTRA) DEMOCRATIC PARTY ·PARTIDO DEMOCRAT A

~ GEORGE E TORRES REPUBLICAN PARTY· PARTIDO REPUBLICANO

ELECTION OF NON-PARTISAN JUDGES ELECCl6N DE JU EC ES NO PARTIDARIOS

VOTE YES OR NO FOR EACH JUDGE -VOTE {Sf) 0 (NO) POR CADA JUEZ

Shall RICHARD C. BOSSON be ~ YES/ (SI) retained as SupremeCourtJus6ce7

lRetendremos a RICHARD C. BOSSON como Juez de la Corte

c:J NO/ (NO) Supremal

Shall RODERICK T. KENNEDY be c:J YES/ (SI) retainedasCourto!AppeolsJudgo7

tRelendremos a RODERICK T. KENNEDY como Jue.t de la Corie de

............ NO / (NO) Apelaclooes? ..__,

~ ShaD MICHA8.. VIGIL be retained as

YES/ (SI) CourtorAppealsJudge? LRelendremos a MJCHAB. VIGIL como Juez de la Corte de

~ NO / (NO) Apetaclones?

AMAFCA FOR BOARD MEMBER· POR JUNTA DE MIEMBRO

DISTRICT 4 • DISTRITO 4 VOTE FOR ONE· VOTE POR UNO

~ RONALD D. BROWN

c::) BRETI ROGERS LOVELESS SAMPLE SAMPLE REPUBLICAN PAR1Y-PARTIDO REPUBUCANO

C 3- SR 29- SS 2J. PRJ- PE-I -CC -1-AMAFCJ..0-1-CITY -MAFCA PRECINCT 001.1 c Typ:01 Seq:OOl

Turn Ballot Over_ Vote Both Sides 1C>Elect1onsys1ems&sortware,lnc.1

Dale Vuelta A La Balota - Vote En Los Dos Lados

EXHIBIT F

+ BERNALILLO COUNTY

CONSTITUTIONAL AMENDMENT 1 Proposing an amendmenl lo Article 6, Secllon 32 of !he Constitution of New Mexico to provide for two addltlonal members lo sit on the judicial standards commission, a municipal judge and a public member.

ENMIENDA CONSTITUCIONAL 1 Propane una enmlenda al Arllculo 6, Seccl6n 32 de la Conslilud6n de Nuevo Mexico para permllir que dos mlembros ad!clonales se slenlen en la comlsl6n de esl.3ndares judlclales un juez munlclpal y un mlembro pi.Jblico.

CJ FOR/(AFAVOR)

BOND QUESTION B Bond Question 3 The 2012 Capital Projecls General Obllgallon Bond Ac! Shall Bernalillo Counly, New Mexico, be aulhorlzed lo Issue lls authorizes lhe Issuance and sale of library acquisition and general obllgaUon bonds, ln one series or more, In an aggregate construction bonds. Shall !he stale be authorized to Issue principal amount not exceeding $1,800,000 for !he purpose of general obligation bonds In an amount not to exceed nine mUlion acquiring property, constructing, and equipping recreaUonal eight hundred thirty thousand dollars ($9,830,000) lo make facilities, Including compliance with the Americans With capital expenditures for academic, public school, ~ibal and Disabilities Act, within the County, said bonds lo be payable publlc library resource acqulslUons and conslrucUon and provide from general (ad valorem) taxes and lo be Issued and sold at for a general property tax Jmpos!Uon and levy for the payment of such time or limes, upon such terms and conditions as the principal of, Interest on and expenses Incurred In connection Board of County Commissioners may determine and as with the Issuance of the bonds and the collection of the lax as permllled by law? permltled by Jaw? PreQunta de Bono 3

PROPUESTA DEL BONO B lOebera el Condaao de Bernalillo, Nuevo Mexico, ser El Acla del Proyeclo Capital de Bonos de ObUgacl6n General aulorlzade a em!lir bones de obligacl6n general, en una serie o 2012 autorlza la emls!6n y venla de bones para la adquisicl6n y mils, en una cantidad conjun\a principal qua no exceda

C) AGAINST/ (EN CONTRA) cons~ccl6n de blbliolecas. lDebera aulorizarse al Eslado que $1,800,000 para el prop6slto de adquirir propledad, cons~lr, y emlta bonos de obllgaci6n general en una canUdad que no equipar lnslalac!ones recreaclonales, lncluyendo la conformldad

f------------------1exceda nueve mlllones, ochoclenlos trelnla mll d61ares con el Acla de Amerlcanos con Dlscapacidades, denlro del CONSTITUTIONAL AMENDMENT 2 ($9,830,000) para hacer gaslos de capllal para lnvertir en la Condado, dlchos bonos seran pagables de lmpueslos generales

Proposing an amendment lo Article 11, Seclion 1 of the adqulslc16n y construccl6n de blbllolecas academlcas, publlcas, (proporclonal al valor) y seran emllldos y vendldos en clerto Constitution of New Mexico lo Increase the qualifications ror y de trlbu y dlsponer un lmpueslo general sobre la propiedad Uempo o liempos, de acuerdo con las termlnos y condlciones public regulation commissioners. impuesto y recaudar para el pago del principal de, el lnteres en coma la Junta de Com!slonados del Condado determine y coma

ENMIENDA CONSTITUCIONAL 2 y los coslos lncurridos en conexl6n con la emlsl6n de los bonos es permilldo por la ley? Propone una enmienda al Artlculo 11, Seccl6n 1 de la y la recaudacl6n del lmpueslo segun lo permile la ley? Conslituc16n de Nuevo Mexico para aumentar las callficaclones CJ FOR/(AFAVOR) para las comisionados de regulac16n pi.Jblica

FOR I (A FAVOR) FOR I (A FAVOR) AGAINST I (EN CONTRA)

Bond Question 4 AGAINST I (EN CONTRA) AGAINST I (EN CONTRA) Shall Bernalillo County, New Mexico, be aulhorized lo Issue Its

f------------------+-----------------i general obllgatlon bonds, In one series or more, In an aggregate CONSTITUTIONAL AMENDMENT 3 BOND QUESTION C principal amount not exceeding s1,ooo,ooo for the purpose of

Proposing to amend Article 11, SecUon 2 of !he Constllullon of The 2012 Capital Projects General Obligation B~nd Act acquiring property, ~lannlng, desl~nlng, cons"ucll~g and New Mexico and to enact a new section of Arllcle 11 to remove authorizes the Issuance and sale of higher education and equipping County buddings, Including, but not llmited to, authority to charier and regulate corporaUons from the pubUc special schools capital Improvement and acquisition bonds. facilities construction and Improvements required by tha regulaUon commission and provide authority to charter Shall the slate be authorized lo issue general obligation bonds Americans With Disabilities Act, within Bernalillo County, New corporations to the secretary of stale. tn an amount not lo exceed one hundred twenty miUlon dollars Mexico, said bonds to be payable from general (ad valorem)

ENMIENDA CONSTITUCIONAL 3 ($120,000,000) lo make capital expenditures for certain higher taxes and lo be Issued and sold al such time or limes, upon Propone una enmienda al Artlculo 11, Seccl6n 2 de la education and special schools capllal Improvements ~nd such terms and condlUons as the Board of Counly ConsUtuc16n de Nuevo Mexico y para promulgar una nueva acquisitions and provide for a ge~er~I propert,Y lax Imposition Commissioners may determine and as permitted by law? Seccl6n del Arliculo 11 para remover la autoridad de and levy for the payment of pnnc1pal of, interest on and Pre!'.!Unta de Bono 4 conceder carta y regular las corporaclones desde la expenses Incurred In connectlon with the Issuance of the bonds lDebera el Condacfo de Bernalillo, Nuevo Mexico, ser comisi6n de regula::i6n ptiblica y proveer autoridad para and the col!ecUon of the tax as permitted by law? autorlzado a em!l!r bones de obl!gacl6n general, en una serfe o conceder carta las corporaclones a la secrelaria de eslado. PROPUESTA DEL BONO C mas, en una canlldad conjunla principal que no exceda

El Acta de! Proyeclo Capital de Bonos de Obllgac16n General $1,000,000 para el prop6silo de adqulrlr propledad, planlficar,

FOR I (A FAVOR)

AGAINST I (EN CONTRA)

2012 auloriza la emlsl6n y venla de bonos para las mejoras y la disefiar, cons~ulr y equipar edificlos del Condado, lncluyendo, adqulslcl6n de capital para las escuelas de educl:i!i6n superior pero no limllado a, conslrucci6n de instalaclones y mejoras y escuelas especiales. lDebera aulorizarse al Estado que requer!das par el Acta de Amerlcanos con Discapacldades, emlla bonos de obllgac!6n general en una canUdad que no denlro del Condado de Bernalillo, Nuevo Mexico, dlchos bonos exceda clenlo veinle millones de d6lares ($120,000,000) para seran pagables de lmpueslos generales (proporclonal al valor) hacer desembolsos para clertas escuelas de educacl6n y seran emllldos y vendldos en Uempo o Uempos, de acuerdo

1------------------t superior y escuelas especiales, mejoras y adquisici6n de con las termtnos y condiclones coma la Junia de Comlsionadas CONSTITUTIONAL AMENDMENT 4 capital y disponer un lmpuesto general sobre la propiedad del Condado determine y como es permllido porla ley?

Proposing to amend Article 11 of the ConsUtullon of New lmpueslo y recaudar para el pago del princlpal de, el lnteres en Mexico to remove the regulallon of Insurance companies and y las coslos incurrldos en conexi6n con la emis!6n de las bones others engaged in risk assumption from the public regulation y la recaudac16n del impueslo segUn lo permite la ley? commission and place It under a superintendent of Insurance FOR I (A FAVOR) appointed by the insurance nomlnallng committee as provided bylaw.

ENMIENDA CONSTITUCIONAL 4 Propone una enmienda al Artlculo 11 de la Constitucl6n de Nuevo Mexico para ellmlnar la regulac!6n de compartlas de seguros y otras envuellas en suposici6n de riesgo desde la comlsi6n de regulacl6n pUbllca y ponerta bajo un supertnlendenle de seguros aslgnado por el comll8 de nomlnacl6n de seguros como provlslo por la ley.

FOR I (A FAVOR)


FOR I (A FAVOR)



Bond Question 5 Shall Bernalillo County, New Mexico, be authorized lo Issue Its general obllgatlon bonds, tn one series or more, ln an aggregate principal amount not exceeding $10,000,000 for the purpose of securing funds for the acqulslUon of property, design, construcUon and repair of roads and related non-motor vehicle

Bond Question 1 pathways within Bernalillo County, New Mexico, said bonds lo Shall Bernalillo County, New Mexico, be authorized lo Issue Its be payable from general (ad valorem) taxes and lo be Issued general obllgallon bonds, in one series or more, Jn an aggregate and sold at such lime or Urnes, upon such terms and condlUons princlpal amount not exceeding $1,300,000, for the purpose of as the Board of County Commissioners may determine and as securing funds for the purchase of library materials and library permilled by law?

1------------------t resources for the libraries within Bernalillo County, New Mexico, PreQunta de Bono 5 CONSTITUTIONAL AMENDMENT. 5 said bonds to be payable from general (ad valorem) laxes lo be lOebera el Condadii de Bernalillo, Nuevo Mexico, ser

Proposing an amendment to Article 6 of the Constitution of New Jssu~d and sold at such time or limes, upon such terms and aulorlzado a em!tir bones de obligaci6n general, en una serie o Mexico lo add a new secllon that provides for the organization cond1\lens as the Board of County Commissioners may mas, en una cantldad conjunta principal que no exceda or an Independent publlc defender department determine and as permllled by law? $10,000,000 para el prop6sllo de asegurar rondos para adqulrir

ENMIENDA CONSTITUCIONAL 5 . PreQunta de Bono 1 propledad, disefiar, cons~uir y reparar calles y camlnos de Propane una enmienda al Arllculo 6 de la ConsUtuc16n de lDeber.3 el Condacfo de BemaUUo, Nuevo Mexico, ser vehlculos no molorizados relacionados dentro del Condado de NueVo .Mexico para afiadlr una seccl6n nueva que provea autorlzado para emitlr sus bones de obllgaci6n general, en una Bernalillo, Nuevo Mexico, d!chos bonos seran emJUdos y para la· organlzacl6n de un departamenlo de un defensor serie o mas, en una canlidad conjunla principal que no exceda pagables de impueslos genera!es (proporclonal al valor) y seran pUblico lndependlente. $1,300,000, para el propbsilo de asegurar fondos para la emltldos y vend!dos en llempo o Uempos, de acuerdo con las

FOR I (A FAVOR)


compra de malerlales de bibliolecas y recurses para bibliolecas termlnos y condiclones como la Junia de Comisionados del para las bibllolecas dentro de! Condado de Bernalillo, dichos Condado determine y como es permlUdo por la ley? bones seran pagables de lmpuestos generales (proporclonal at valor) qua seriln emiUdos y vendldos en cierto tiempo o C) llempos, de acuerdo con tales termlnos y condlctones coma la Junta de Comlslonados del Condado determine y coma es perm!Udo por la ley?

FOR I (A FAVOR)


BOND QUESTION A C) F RI (A ,... VOR) Bond Question 6 The 2012 Capllal Projects General Dbllgallon Bond Act 0 r A Shall the Counly of Bernalillo, New Mexico, be authorized to authorizes the Issuance and sale of senior clllzen faclllly Issue lls general obllgatlon bonds, In one series or more, In an improvement, conslrucllon and equipment acqulsllion bonds. C) AGAINST/ (EN CONTRA). aggregate principal amount not exceeding $2,500,000 for the Shall the slate be authorized to Issue general obligation bonds purpose of securing funds for !he acqulslUon of property, design, in an amount not lo exceed ten mill!on three hundred thirty-five 1------------------t construction and repair or storm sewer and wastewater systems thousand dollars ($10,335,000) lo make capital expenditures for Bond Question 2 within Bernalillo County, New Mexico, said bonds lo be payable certain senior cllizen facility Improvement, construction and Shall Bernalillo County, New Mexico, be authorized to Issue !ls from general (ad valorem) taxes and lo be issued and sold al equipment acquisition projects and provide for a general general obl!gallon bonds, In one series or more, In an aggregate such Ume or limes, upon such terms and conditions as the property lax Imposition and levy for the payment of principal of, principal amount not exceeding $3,500,000 for the purpose of Board of County Commissioners may determine and as interest on and expenses Incurred in connection with the acquiring property, conslrucling, and equipping County bulldings permitted by law? Issuance of the bonds and the colleclion of the lax as permilled used for public safely purposes, said bonds lo be payable from PreQunta de Bono 6 by law? general (ad valorem) taxes and to be Issued and sold at such lOebera el Condacfo de Bernalillo, Nuevo Mexico, ser

PROPUESTA DEL BONO A lime or limes, upon such lerms and conditions as the Board of autorizado a errullr bonos de obllgacl6n general, en una serle o 8 Acta del Proyecto Capital de Bcnos de ObUgaci6n General County Commissioners may_ determine and as permitted by mas, en una canUdad conjunta principal que no exceda 2012 auloriza la emlsl6n y venta de bonos para las mejoras, law? $2,500,000 para el prop6sllo de asegurar fondos para adquirir conslrucci6n y adqulslci6n de equipo para los eslableclmlenlos PreQunta de Bono 2 propledad, disefiar, construlr y reparar los alcanlarlllados y para personas de la lercera edad. lDebera aulorizarse al lDebera el Condacfo de BemaUllo, Nuevo Mb:lco, ser sistemas de agua residua\ denlro del Condado de Berna!lllo, Estado que emlta bones de obllgacl6n general en una cantidad autorlzado a emJUr sus bones de obllcacl6n general, en una Nuevo Mexico, dichos bones seran emllldos y pagables de que no exceda dlez millones, "escienlos lrelnla Y cinco mil serle o mas, en una canlldad con)unla principal qua no exceda impuestos generales (proporclonal al valor) y seran emllldos y d61ar~. ($10,335,000) para hacer gastos de capital para lnvertir $3,500,000 para el prop6sllo de adqulrlr propledad, contruir, y vendldos en liempo o Uempos, de acuerdo con los termlnos y en mejorar, conslruir Y adquirir equlpo para proyeclos en las equ!par edificlos def CondOOo usOOos para el prop6sl!o de condic!ones coma la Junta de Comlslonados del Condado estableclmlenlos de cenlros de personas de la tercera edad y seguridad pUbllca, dichos bones seran pagables de impueslos determine y coma es perm!Udo par la ley? dlsponer un lmpueslo y recaudar para el pago de! principal de, generales (proporclonal al valor) y seran emllldos y vendidos el lnleres en y los costos lncurrldos en conexl6n con la emlsl6n en, clerto llempo o tiempos, de acuerdo con tales termlnos y ~ de las bones y la recaudaci6n del lmpueslo segiJn.10 permlle la condiciones coma la Junia de Comislonados del Condado FOR/ (A FAVOR) ley? determine y coma es permltldo por la ley?

CJ AGAINST I (EN CONTRA)

FOR/ (A FAVOR) FOR I (A FAVOR)

AGAINST I (EN CONTRA) AGAINST I (EN CONTRA)

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STATE OF NEW MEXICO COUNTY OF BERNALILLO SECOND...

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