News analysis: Legal precedents for citizens seeking relief from denied elections

by Kathleen Sloan | September 24, 2021
10 min read

Editor’s Note: This is the second and final part in a series examining the refusal by the Truth or Consequences City Commission twice in the past two years to hold referendums on citizens’ proposed smart meter legislation. (The link to Part 1, recapping these events and laying out the commissioners’ and city staff’s reasoning, can be found in the Related section below.) As filing suit in district court is the only recourse available to petitioners denied their proposed legislation’s day at the ballot box, Part 2 examines pertinent case law precedents that may support or rebut the city’s rationale.

On Jan. 29, 2020, and Aug. 25, 2021, the Truth or Consequences City Commission refused to pass special election resolutions that would put citizen-led referendums on legislation concerning smart meters on the ballot.

Both times City Attorney Jay Rubin cited a single New Mexico Supreme Court case as legal precedent for denying the people’s right to compel referendums.

Under a commission-manager form of municipal government, if enough legally registered voters sign a petition to put legislation up for a popular vote, the city commission “shall” hold an election, according to state laws.

The first special election to be denied would have considered the ordinance to place a 10-year moratorium on T or C’s acquisition and installation of smart meter readers.

Activist Ron Fenn, a leader of the petition drive for this “initiative ordinance,” immediately filed suit in local district court, claiming that the city had violated state law 3-14-18 by not holding an election. After a year and a half, his case has yet to be scheduled for a hearing. Fenn did not ask for an injunction, which would have perhaps put the case on the “rocket docket” and might have prevented the city from implementing its analog meter replacement program until the case was resolved. 

The second special election to be denied would have asked voters to decide whether to repeal the city commission’s resolution imposing a $50 monthly fee on utility customers who opt not to have smart meters.


In both instances, City Attorney Rubin advised the commissioners that the city had a good chance of the court’s upholding their decisions to deny the citizens an election, should the petitioners file suit. Rubin based his advice on the precedent set by Harold Johnson, et al. v. City of Alamogordo, a 1996 New Mexico Supreme Court case.

The events involved in that case began 20 years earlier, when Alamogordo’s city commission had taken out a bond to repair water and wastewater systems. Before indebting its rate payers, the commission held a public hearing and passed an ordinance governing the bond issuance. In 1996 the city enacted a water and wastewater rate increase by ordinance, as required by the bond-issue ordinance.

A group of citizens garnered enough signatures on a petition referendum to put the question of the increase to popular vote. The city commission nonetheless refused to hold an election. The citizens filed in district court, claiming their rights under the U.S. Constitution had been violated (presumably the right to petition their representatives). They sought monetary and injunctive relief.

Alamogordo justified the rate increase by providing the court evidence that it was out of compliance with the loan requirements. This assertion was borne out by yearly audits and a consultant’s study showing that the utilities’ rates had been insufficient to cover the utilities’ debt and operations. Also submitted as evidence was a letter from the bond underwriter informing the city it was violating the terms of the bond agreement.

The district court ruled in favor of the city, accepting its argument that the 1996 rate increase ordinance was an administrative and not a legislative action and was therefore not subject to referendum.

The citizens appealed the lower court’s decision, and the New Mexico Supreme Court heard the case. It also ruled in Alamogordo’s favor, finding there is an “implied exception” to state law 3-14-17 giving the right to the people to put local laws to referendum.

“The rationale [for the implied exception] is commonsense. Subjecting day-to-day administrative and executive decision-making to popular referendum would paralyze local government,” the New Mexico Supreme Court stated.

City Attorney Rubin repeated this statement nearly word for word to the city commissioners while advising them on Aug. 25 not to hold a special election on the $50 monthly charge imposed on city utility customers who wish to opt out of having a smart meter.

In making its decision, the New Mexico Supreme Court adopted a four-part test to distinguish legislative from administrative actions propounded by the Kansas Supreme Court in City of Wichita v. Kansas Taxpayers Network, Inc., 1994. In that case the judges ruled that establishing a storm water utility was an administrative act and not subject to referendum.

It is difficult to see how any of Johnson v. Alamogordo four tests apply to Fenn’s filing, since the Johnson case dealt with referendum ordinance petitions, not initiative ordinance petitions such as Fenn’s.

The $50 monthly fee was created by a resolution, a government enactment that is subject to referendum. But this particular resolution does not meet the prerequisite established in Johnson v. Alamogordo for defining a local law as “administrative.” The New Mexico Supreme Court opined that an administrative ordinance provides a means to achieve the purposes of a primary or “legislative” law that preceded it. Alamogordo’s administrative rate increase law was preceded by the legislative bond-issue law. The T or C City Commission had passed no prior law on smart meters when it approved the fee resolution.

The following analysis looks more closely at how each of Johnson’s four tests applies to Rubin’s argument that the city’s commission’s smart meter decisions were “administrative” and, as such, were not subject to referendum.


The first part of the test defines legislative acts as “new laws,” in contradistinction to “ordinances executing existing laws,” which can be regarded as “administrative.”

T or C can point to no existing law on smart meters in its municipal code. The commission approved the replacement of its analog electric meter equipment with “advanced metering infrastructure” by motion. Only ordinances and resolutions qualify for consideration as either legislative or administrative under the terms of the first test.

The commission’s resolution imposing the $50 monthly fee does not qualify as an administrative act executing a prior legislative action, since there is no overarching ordinance or resolution to which it relates.


The second test in the Kansas Supreme Court case states: “Acts that declare public purpose and the ways and means to accomplish that purpose” are legislative acts, while those that “deal with a small segment of an overall policy question generally are administrative.”

Since the city has passed no overall law on smart meters, neither the motion to purchase and install that equipment nor the fee resolution can be deemed an administrative act dealing a small segment of a prior enactment.


The third test states that a “decision that requires specialized training and expertise in municipal government” in order to “make a rational decision” is an administrative act.

The city commission’s only enactment that qualifies for definition as either legislative or administrative under the third test is the fee resolution. The fee amount was suggested by Mayor Pro Tem Amanda Forrister, who pointed out that the electric cooperative serving rural Sierra County levied a $50 trip charge for home or business visits.

Since neither specialized training nor expertise informed the fee resolution, it does not qualify as an administrative act. 


No governmental act is “likely to be solely administrative or legislative,” the New Mexico Supreme Court stated in its interpretation of the fourth test. It quoted from the Kansas case in stipulating, however, that citizens “are restricted” to seeking referendums only on “’measures which are quite clearly and fully legislative and not principally executive or administrative.’”

Again, only the $50 fee resolution qualifies as an enactment on the municipal code books. It is neither legislative, because it does not propound an overarching smart meter policy, nor administrative, since it does not relate to a previously enacted smart meter law.


In advising the T or C commission not to hold a special election on the duly certified initiative ordinance petition of 2020, City Attorney Rubin rightfully warned the city commission that Johnson v. Alamogordo concerned only referendum ordinances, and did not pertain to initiative ordinances. In fact, there are no New Mexico Supreme Court precedent-setting cases mentioned in the New Mexico Statues Annotated section on state law 3-14-18 governing initiative ordinances.

The NMSA does cite two New Mexico Supreme Court cases in the section on state law 3-14-17 governing referendum ordinances.

In advising the city commission on whether to hold the special election on the duly certified petition calling for a referendum ordinance in 2021, Rubin again mentioned only Johnson v. Alamogordo. He did not warn the city commission that a second case, City Commission of Albuquerque v. State Ex Rel. Nichols, provides legal precedent for honoring the people’s authority to bring referendum and initiative ordinances and the city commission’s duty to hold elections on those ordinances.

The state Supreme Court’s ruling on Albuquerque v. Nichols came down in 1965, the same year the state legislature enacted 3-14-17, giving the people the right to compel referendums.

The case established this precedent: “Provisions reserving to the people the power of referendum are to be given a liberal construction. . . .”

The triggering event for the case came when the Albuquerque City Commission refused to hold an election on a referendum ordinance petition that sought to repeal a one-cent-per-gallon gas tax imposed on all gas purchases in the city. The petitioners filed a case in district court, which ruled in the people’s favor and required the city commission to “provide for and hold an election.” 

Albuquerque had unsuccessfully argued that the petition, signed by 24,500 residents, wasn’t timely filed. Since the city commission had passed the tax as an emergency measure, which had served to limit residents’ awareness of the new tax and shorten the allotted filing time for a referendum ordinance petition, the court ruled that deadlines for all referendum petitions on emergency ordinances should be lifted.

Albuquerque presented another unsuccessful argument during its appeal to the New Mexico Supreme Court. The city claimed that the lower court had no authority to order the city to hold an election. The reason given by the city’s attorneys was that it was the city commission’s “duty” to evaluate the “sufficiency, validity and legality of the [petition] signatures.”

The Supreme Court found that no state law gave city commissions the judicial authority to evaluate the validity of petitioners’ signatures. This lack of jurisdiction is still true today. Only municipal or county clerks have the authority to verify whether the signers of a referendum ordinance petition or an initiative ordinance petition are registered voters. 

The Supreme Court upheld the lower court’s decision and ordered the Albuquerque City Commission to hold an election on the referendum seeking to overturn the gas tax.

The T or C commission’s refusal to hold elections on the citizens’ ordinances seem to have more in common with the findings of the 1965 case than the 1996 case.

The T or C City Commission questioned the validity of the 2021 petition before voting down the resolution to hold a referendum on the $50 monthly fee. City Commissioner Paul Baca said he doubted the 240 signers knew the fee applied to only a few people and accused those leading the petition drive of spreading “misinformation.” Mayor Sandra Whitehead and Mayor Pro Tem Forrister agreed with Baca’s assertions.

The Albuquerque City Commission passed an emergency ordinance to impose the gas tax in an apparent effort to limit public awareness and response. Similarly, the T or C City Commission hired a company to provide the equipment and to oversee the installation of a $1 million smart electric meter system by mere motion, bypassing a public hearing, any vetting process and seemingly precluding a referendum effort. The commission also imposed the $50 month fee by motion without providing any agenda notice. When correcting this Open Meetings Act violation, the city commission again declined to go through the process of passing an ordinance. It chose to bypass a public hearing and fact-finding and re-imposed the fee by resolution.

It is not clear whether or when the T or C City Commission will be asked to defend its denials of duly certified referendums in court.

The Sun asked the New Mexico Ethics Commission to opine on T or C City Commission’s refusal to hold elections, but Public Information Officer Sonny Haquani demurred, stating the issue was not within the ethics commission’s purview. After consulting with various staff members, Haquani suggested the Sun contact the New Mexico Municipal League, which did not respond to the Sun’s request for an opinion.

Kathleen Sloan is the Sun’s founder and chief reporter. She can be reached at or 575-297-4146.
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Understanding New Mexico's proposed new social studies standards for K-12 students

“The primary purpose of social studies is to help young people develop the ability to make informed and reasoned decisions for the public good as citizens of a culturally diverse, democratic society in an interdependent world.”
—National Council for the Social Studies 

Reader Michael L. Hayes of Las Cruces commented: What impresses me is that both the proposed standards and some of the criticisms of them are equally grotesque. I make this bold statement on the basis of my experience as a peripatetic high school and college English teacher for 45 years in many states with many students differing in race, religion, gender and socioeconomic background, and as a civic activist (PTA) in public education (My career, however, was as an independent consultant mainly in defense, energy and the environment.)

The proposed social studies standards are conceptually and instructionally flawed. For starters, a “performance standard” is not a standard at all; it is a task. Asking someone to explain something is not unlike asking someone to water the lawn. Nothing measures the performance, but without a measure, there is no standard. The teacher’s subjective judgment will be all that matters, and almost anything will count as satisfying a “performance standard,” even just trying. Students will be left to wonder “what is on the teacher’s mind?” or “have I sucked up enough.”

Four other quick criticisms of the performance standards. One, they are nearly unintelligible because they are written in jargon. PED’s use of jargon in a document intended for the public is worrisome. Bureaucrats often use jargon to confuse or conceal something uninformed, wrong or unworthy. As a result, most parents, some school board members and more than a few teachers do not understand them.

Two, the performance standards are so vague that they fail to define the education which teachers are supposed to teach, students are supposed to learn, and parents are supposed to understand. PED does not define words like “explain” or “describe” so that teachers can apply “standards” consistently and fairly. The standards do not indicate what teachers are supposed to know in order to teach or specify what students are supposed to learn. Supervisors cannot know whether teachers are teaching social studies well or poorly. The standards are so vague that the public, especially parents or guardians, cannot know the content of public education.

Three, many performance standards are simply unrealistic, especially at grade level. Under “Ethnic, Cultural and Identity Performance Standards”; then under “Diversity and Identity”; then under “Kindergarten,” one such standard is: “Identify how their family does things both the same as and different from how other people do things.” Do six-year-olds know how other people do things? Do they know whether these things are relevant to diversity and identity? Or another standard: “Describe their family history, culture, and past to current contributions of people in their main identity groups.” (A proficient writer would have hyphenated the compound adjective to avoid confusing the reader.) Do six-year-olds know so much about these things in relation to their “identity group”? Since teachers obviously do not teach them about these other people and have not taught them about these groups, why are these and similar items in the curriculum; or do teachers assign them to go home and collect this information?

Point four follows from “three”; some information relevant to some performance measures requires a disclosure of personal or family matters. The younger the students, the easier it is for teachers to invade their privacy and not only their privacy, but also the privacy of their parents or guardians, or neighbors, who may never be aware of these disclosures or not become aware of them until afterward. PED has no right to design a curriculum which requires teachers to ask students for information about themselves, parents or guardians, or neighbors, or puts teachers on the spot if the disclosures reveal criminal conduct. (Bill says Jeff’s father plays games in bed with his daughter. Lila says Angelo’s mother gives herself shots in the arm.) Since teacher-student communications have no legal protection to ensure privacy, those disclosures may become public accidentally or deliberately. The effect of these proposal standards is to turn New Mexico schools and teachers into investigative agents of the state and students into little informants or spies.

This PED proposal for social studies standards is a travesty of education despite its appeals to purportedly enlightened principles. It constitutes a clear and present danger to individual liberty and civil liberties. It should be repudiated; its development, investigated; its PED perpetrators, dismissed. No state curriculum should encourage or require the disclosure of private personal information.

I am equally outraged by the comments of some of T or C’s school board members: Christine LaFont and Julianne Stroup, two white Christian women, who belong to one of the larger minorities in America and assume white and Christian privileges. In different terms but for essentially the same reason, both oppose an education which includes lessons about historical events and trends, and social movements and developments, of other minorities. They object to the proposal for the new social studies standards because of its emphasis on individual and group identities not white or Christian. I am not going to reply with specific objections; they are too numerous and too pointed.

Ms. LaFont urges: “It’s better to address what’s similar with all Americans. It’s not good to differentiate.” Ms. Stroup adds: “Our country is not a racist country. We have to teach to respect each other. We have civil rights laws that protect everyone from discrimination. We need to teach civics, love and respect. We need to teach how to be color blind.”

Their desires for unity and homogeneity, and for mutual respect, are a contradiction and an impossibility. Aside from a shared citizenship, which implies acceptance of the Constitution, the rule of law and equality under the law, little else defines Americans. We are additionally defined by our race, religion, national origin, etc. So mutual respect requires individuals to respect others different from themselves. Disrespect desires blacks, Jews or Palestinians to assimilate or to suppress or conceal racial, religious or national origin aspects of their identity. The only people who want erasure of nonwhite, non-Christian, non-American origin aspects of identity are bigots. Ms. LaFont and Ms. Stroud want standards which, by stressing similarities and eliding differences, desire the erasure of such aspects. What they want will result in a social studies curriculum that enables white, Christian, native-born children to grow up to be bigots and all others to be their victims. This would be the academic equivalent of ethnic cleansing.


This postmortem of a case involving a 75-year-old women who went missing from her home in Hillsboro last September sheds light on the bounds of law enforcement’s capacity to respond, especially in large rural jurisdictions such as Sierra County, and underscores the critical role the public, as well as concerned family and friends, can play in assisting a missing person’s search.

Reader Jane Debrott of Hillsboro commented: Thank you for your article on the tragic loss of Betsey. I am a resident of Hillsboro, a friend of Rick and Betsey, and a member of H.E.L.P. The thing that most distresses me now, is the emphasis on Rick’s mis-naming of the color of their car. I fear that this fact will cause Rick to feel that if he had only gotten the facts right, Betsey may have been rescued before it was too late. The incident was a series of unavoidable events, out of everyone’s control, and we will never know what place the correct color of her car may have had in the outcome. It breaks my heart to think that Rick has had one more thing added to his “what ifs” concerning this incident.

Diana Tittle responded: Dear Jane, the Sun undertook this investigation at the request of a Hillsboro resident concerned about the town’s inability to mount a prompt, coordinated response to the disappearance of a neighbor. From the beginning, I shared your concern about how our findings might affect Betsy’s family and friends. After I completed my research and began writing, I weighed each detail I eventually chose to include against my desire to cause no pain and the public’s right to know about the strengths and limitations of law enforcement’s response and the public’s need to know about how to be of meaningful assistance.

There was information I withheld about the state police investigation and the recovery. But I decided to include the issue of the car’s color because the individuals who spotted Betsy’s car emphasized how its color had been key to their identification of it as the vehicle described in Betsy’s Silver Alert. Because the misinformation was corrected within a couple of hours, I also included in this story the following editorial comment meant to put the error in perspective: “The fact that law enforcement throughout the state was on the lookout in the crucial early hours after Betsy’s disappearance for an elderly woman driving a “light blue” instead of a “silver” Accord would, in retrospect, likely not have changed the outcome of the search” [emphasis added].

I would also point to the story’s overarching conclusion about the inadvisability of assigning blame for what happened: “In this case, a perfect storm of unfortunate circumstances, many of them beyond human control, hindered the search that it would fall to Hamilton’s department to lead.”

It is my hope that any pain caused by my reporting will eventually be outweighed by its contribution to a better community understanding of what it will take in the future to mount a successful missing person’s search in rural Sierra County.


News analysis: Has T or C flouted state election laws—again?
by Kathleen Sloan | September 13, 2021

Twice in the last two years the Truth or Consequences City Commission has refused to hold a referendum on citizens’ proposed smart meter legislation. Part...

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