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.
JOHNSON V. CITY OF ALAMOGORDO, 1996
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.
FIRST TEST
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.
SECOND TEST
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.
THIRD TEST
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.
FOURTH TEST
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.
ALBUQUERQUE V. NICHOLS, 1965
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.