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A sworn affidavit filed during last month’s injunction hearing indicates that former County Attorney Mary McInerny advised petitioner Richard Hannemann, that in her opinion, the wording in the petition he intended to circulate was illegal.
His petition called for an election where voters would decide whether a new municipal building should replicate the original structure at the site near Ashley Pond.
The county council settled the matter during its final meeting of the year Dec. 21 in a 5-2 vote. The county hired outside counsel for representation at the injunction hearing and it was set for a full hearing before a Santa Fe County District Court Judge in early February.
But councilors opted to settle the matter when their attorney confided in a recent executive session that she, too, found the petition question to be illegal.
McInerny told the Los Alamos Monitor, “I felt that the question he was asking, in my opinion, was illegal and I gave him a copy of the case, Johnson vs. Alamogordo.” Her statement was included in an affidavit entered into the record for the case, Chandler vs. Los Alamos County.
In Johnson vs. Alamogordo, the court determined that only petitions legislative in nature may be placed on a ballot – those of an administrative nature may not. McInerny said in her opinion, Hannemann’s petition was administrative in nature.
Hannemann said he met with McInerny because she had questions with the wording on the petition and said there could be a problem due to the Johnson vs. Alamogordo ruling.
Hannemann said McInerny told him at the end of their meeting that no matter how carefully written, it would still probably get challenged because of the subject matter.
“She did not say it was illegal,” Hannemann said. “She never used the word illegal. She said it could be problematic.”
Part of the petition process involves filing the paperwork with the county clerk’s office, where it then gets passed on to the county attorney, Hannemann said, adding that the attorney can make recommendations but not re-writes. When the petition was resubmitted, McInerny allowed it through, he said.
Later, Acting County Administrator Randy Autio, who was by then serving as county attorney following McInerny’s retirement, said the petition was in a “very gray area,” Hannemann said.
He obtained more than 1,600 signatures and filed his petition last spring. During its Oct. 19 meeting, council approved the requested special election to let voters decide whether to construct a replica of the muni building at its former site. The ballots were scheduled to be mailed Nov. 29 and the referendum would be concluded by Dec. 20.
But local lawyers George and Christine Chandler filed an injunction a couple of days later to stop the election, arguing that the petition question was illegal. A hearing was held Nov. 22 in First District Court in Santa Fe. Judge Barbara Vigil granted a preliminary injunction and set a hearing for Feb 4. The court action occurred in time for the county clerk’s office to avoid the expense of printing ballots.
Although the storm surrounding the petition seems to have calmed, the conversation continues.
“One of the things we submitted was an affidavit ... the county attorney … expressed her belief but Richard Hannemann is not bound by that,” George Chandler said. “However everyone down the road agreed with McInerny’s opinion. After a while you have to get the message. He claims that he modified his petition after he talked to the county attorney but it seems he only fixed a couple of typos. The second petition was essentially the same. Obviously the judge thought we were right.”
Los Alamos resident Patricia Max does not agree.
“Lawyers have opinions and judges rule – I am not swayed … we should not do what the attorney says,” Max said. “If you read trials, lots of attorneys have opinions in trials. Prosecutors have opinions and defense lawyers have opinions. What counts is how the jury rules or the judges rule.”
Johnson v. Alamogordo dealt with referendums while Hannemann’s petition focused on ordinance initiative, she said.
Hannemann said he is unsure what the next step will be for this issue. “I don’t know if the new council can get out of the settlement or not. I know the settlement itself could be challenged in court on a number of levels, I suspect.”