What happens with muni case could impact local charter

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By Richard Hannemann

Is the muni petition “illegal?”  There are those opposed to the petition who certainly would like it to be. George Chandler certainly thinks it is. I disagree.
I don’t want to interfere with the county’s case and presentation thereof, so I am not going to argue the merits of the Chandler case here.  I could.  The county attorney and I had a lengthy conversation of the issues involved and I was provided with a copy of the Johnson case, which I studied in-depth to make any final edits to the petition. However, as the case goes to the charter provisions for Right of Petition there are some points of which the public needs to be aware.
Federal statutes, case law, and the U.S. Consititution First Ammendment would all tend to favor the muni petition. At the state level there is no statute which applies.  Nor is there a body of case law at the state level developed over time which applies.  The contention of “illegality” rests exclusively on a single case — Johnson v. City of Alamogordo.  One case.  That’s it.
Does the granting of an injunction “prove” the petition is “illegal?”  No. What it does is make it possible to hear the main case without the additional burden of the results of an election.  To get the injunction, the Chandlers needed only show that there are undefined legal areas and issues which must be taken up by the courts.
The court could find that Johnson does not apply — and there are good grounds for this.  But, if the court finds for Chandler, does that mean the Muni Petition is “illegal?”  Not necessarily.  The court of origin does not usually have the authority to clarify, modify, or overturn a higher court ruling.  If the court finds for Chandler, that simply is a statement by the court that the case has issues which are not within its perview and which must be taken up in the appellate court.
If the state appellate court finds for Chandler, does that make the petition “illegal?” Again, not necessarily.  The issues of the petition, and of the Johnson case upon which the litigants rely, go to the U.S. Constitutional guarantee of the Right of Petition.  Strictly speaking, this is a matter for the federal courts to determine 1) the Constitutionality of Johnson and 2) the applications/implications of Johnson to the Muni Petition and future petitions of similar nature.
The Chandler case hangs on a single ruling the Constitutionality and applications/implications of which are untested.  What happens with this case will impact our charter and its provisions.  This is the second petition within the calendar year 2010 that has been politically challenged as being “illegal.” There is no easy “out.” Neither the petition nor the Chandler case can be withdrawn.  Should the court find for Chandler, the council could adopt Ordinance 577, which is the petition, or Councilor Chiravalle’s substitute ordinance 588.  But the over-arching uncertainty would remain. We cannot continue to have our charter and our citizens’ rights constantly challenged, for purely political purposes, with what amounts to a coercive threat upon council of strategic lawsuits against public participation.
The county council, our duly elected representatives under our charter who are sworn to uphold the charter and the U.S. Constitution, must be prepared to go the distance in defense of the charter, the public’s rights and council’s own functional independence.  That means, that if neseccary,  council must vigorously pursue all legal avenues available at both the state and federal levels.
The municipal building was dedicated to the proposition of the independence and constitutional rights of the citizens of Los Alamos.  The charter is the codified embodiment of that proposition and those rights. The issue is no longer simply about a construction project.  But then again, it never was.

Richard Hannemann
Los Alamos