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COUNTY OF SIERRA
Plaintiffs,
No. D-0721-CV-2009-159
vs.
Judge: Matthew Reynolds
CITY OF TRUTH OR CONSEQUENCES,
et al.,
Defendants.
relief to enforce the Inspection of Public Records Act, damages and costs, and
other relief as the Court deems just should be granted based upon the pleadings on
and false,” and default judgment entered in favor of Plaintiffs. Willful violations
of NMRA 1-011 occurred in the Motion to Dismiss through dishonesty, bad faith,
lack of good grounds and interposed for delay. Appropriate sanctions, disciplinary
or other actions against Defendants and its attorney are respectfully requested of
this Court.
BACKGROUND
good ground and is interposed for delay. The number of purposeful misquotation
motion as an attempt by Defendants to mislead the Court with dishonesty and bad
faith. Rivera v. Brazos Lodge Corp., 111 N.M. 670, 808 P.2d 955 (1991).
numbering each paragraph. It is difficult for the Court and other parties to easily
on page 2.
understanding:
In giving citizens the right to sue if they are denied access to records
…, the legislature wisely created a large number of “private attorneys
general” to help enforce the Act. This concept of private attorneys
general is a tried-and true American legal mechanism by which
legislators ensure enforcement of important public policies when
public funds and public officials‟ resources are limited.
King, 5th Ed. 2008, open letter. “State ex rel.” does not refer to “claim of agency,
ex rel.” is the denomination for “private attorney general.” Individuals, who file
“State ex rel.” One example includes the most famous New Mexico pro se IPRA
enforcement action: State ex rel. Newsome v. Alarid, 90 N.M. 790, 568 P.2d 1236
(1977).
how the public would benefit from this lawsuit.” Such benefit is clearly alleged in
of Public Records Act” and in ¶35 that IPRA is the “stated public policy” of New
DISCUSSION
is not a public entity under IPRA; (2) the video recordings do not exist; and (2)
there is no legal requirement to make the video recordings and, therefore, the
recordings are not public records. There is no basis in law, fact or reality to these
arguments.
allege, and the Plaintiffs cannot prove, that Hopkins or the SCC are public
body and is required to comply with IPRA per 1978 NMSA 14-2-6.”
7. No one claims nor needs to claim that Jay Hopkins is a public entity.
Mandamus requires every person who has an act to perform in connection with
requested public records and has an act to perform on the requested relief.
Complaint ¶9.
8. SCC does not “fail the test” of requirements for public bodies as
admit in ¶11 of the Motion to Dismiss that SCC is a public entity when they state
the “funds provided by the City to SCC” are to operate the PEG.
public funding requires funds to be derived from “general tax revenues.” This
contractor to City. Motion to Dismiss ¶11; Complaint ¶18. Agency is not required
contend that they have never had any such recordings.” This is blatantly untrue.
“plainly stated that „there are no recordings of City Commission Meetings by the
Sierra Community Council or the City Clerk‟s office.‟” Exhibit G does not
“plainly state[s]” the recordings are not being “KEPT.” To use a favored phrase of
Defendants, “common sense dictates” for the video recordings to not be “KEPT,”
they must have existed. Defendants‟ misquotation and omission of “KEPT” in the
period of time. This allows the FCC to obtain a broadcast for investigation upon a
compliance with the FCC, it follows the recordings made and used by SCC for
15. Defendants Hopkins and SCC have admitted the existence of the
video recordings on several occasions and simply refuse to comply with IPRA
utilize Defendants‟ phrase, “common sense dictates” that TV for TorC viewers are
not watching miniature people inside their TV rather than a broadcast of the
based upon the recording format, this arumegnt has no basis in law. Plaintiffs‟
(emphasis added). 1978 NMSA 14-2-8(C). Additionally, IPRA does not require
the requestor to identify the “physical form or characteristic” of the public record.
1978 NMSA 14-2-6(E). Whether the video recordings are in DVD or other form
of video recording, the video recordings exist and are subject to IPRA.
1.15.3.122 is “misplaced.” Since the video recordings do exist, the retention and
Complaint accurately quotes the statute and clearly indicates that the records must
and misquotation is a lack of honesty and good faith in pleading. Rivera, supra.
requirement” exists to create the recordings, the video recordings are not
leaving out the last dozen words of the quoted sentence to mislead the Court. The
last dozen words are clear that records are public “whether or NOT the records are
pleading.
SCC to record City Commissioner meeting minutes as a basis for denial. Besides
and public funds to SCC to operate PEG for City (Exhibit B, page 1). Lease for
said physical space was signed by City and SCC in March 2009, and negotiated by
22. Additionally, the discussion held at the March 10, 2009, City
Commission meeting made it clear that SCC is to perform services for City in
exchange for public funds to operate PEG and for use of a City building in lieu of
rent and utility payment. The in-kind payment required from SCC so as to not
meetings.” (March 10, 2009 City Commission meeting, Exhibit A.) As such, the
leaving City fully liable for the fines imposed by IPRA regardless of possession of
said public records. Defendant City‟s attorney, Mr. Rubin, was present at the
was inappropriately instructed by the City Commission to “turn off the camera and
stop filming” the meeting. Mr. Hopkins complied, violating the nature and
bearing on IPRA.
25. Defendants also erroneously state SCC has “control of all content it or
its volunteers create.” This is untrue, as federal law and Ord. 577 forbids any
Additional Considerations
Hopkins, as “Board member” of SCC. Upon information and belief, the Secretary
of State has no record of Lorraine Doughtery as a Board member of SCC, and Ms.
Directors of SCC verified the Motion to Dismiss. The Motion to Dismiss should
be stricken and judgment made on the pleading. Hyde v. Bryan, 24 N.M. 457, 174
P.419 (1918).
wife of Jay Hopkins, is not the authorized signatory for SCC. Mr. Rubin
negotiated the contracts between City and SCC, as recently as March 2009, and is
under NMRA 1-011 and is wholly unsupported by existing law. The Motion to
Dismiss should not have been brought under 1-012(b)(6) as it has no basis in law
exhibits clearly demonstrate such acts were willful and knowing. Rivera, supra.
There is a serious conflict of interest unless all parties have signed waivers. The
of ethics. Sanctions should be imposed and disciplinary actions initiated for Mr.
CONCLUSION
record the governmental meetings. IPRA clearly states that a record is public
34. SCC receives public funding to operate City‟s PEG and is legally
meetings” as in-kind payment to City. The City Commission video recordings are
pleadings.
betrays the legal profession. Sanctions and disciplinary action is warranted upon
and default judgment entered and a Writ of Mandamus and/or Declaratory and
Injunctive Relief should be issued and damages paid of $100 per day for each
attorney, along with any other relief that the Court deems just and necessary.
______________________________
Kim Audette
618 Van Patten
Truth or Consequences NM 87901
Phone: (575) 740-1988