The Municipal Building Initiative — a Primer

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Now that the judge has approved the settlement we reached with the county council halting an election on the question posed in a petition regarding the location of the new municipal building, we feel an obligation to explain our position to Los Alamos.  
After watching the various public hearings held before the council both on the petition and on the settlement, and after reading letters to the editor and popular blogs, we were struck by the lack of basic information on local government and the initiative and popular referendum processes that prevails both among the public at large and, regrettably, even among the principal players in our local drama.  
 We therefore offer, as brief as we can make it, a survey of the major legal factors affecting this process.
“Initiative” means proposing a statute by petition for voters to consider.  “Popular referendum”  means petitioning to present a legislatively passed statute to the voter.  Both were non-existent in the United States until the late 19th century.  
In the study of the direct democracy movement, the shorthand employed for Initiative and Referendum is I&R, for Initiative and Referendum.  There is another form of direct democracy, inherited from colonial times, in states that allow town meeting forms of local government.  
To understand I&R, one must first recognize that it is an extraordinary, direct-democracy limitation grafted onto a representative democracy system.  Representative democracy begins with removing the responsibility for government function from the people and placing it on their elected representatives.  
I&R is a check on limited aspects of the authority of elected representatives, not a substitute.   Don’t be misled by the assertion heard frequently that somehow this so-called “petition right” derives from the First Amendment of the U.S. Constitution:  there is no connection – the latter guarantees the right to petition the government for a redress of grievances, not to circulate a referendum or initiative petition (that ought to be obvious considering that there is no national initiative or referendum).  Neither does it derive from the Magna Carta or any other fundamental ancient source of civil rights.   I&Rs oldest roots seem to be in Switzerland.  In the US it is a choice made by the people of some states.
These I&R rights were established in some states either by the amendment of existing state constitutions or they were incorporated into new constitutions.  There are varieties of I&R.  New Mexico has statewide popular referendum but no statewide initiative.  
All states have some form of “legislative referendum,”  whereby the legislature can present questions to the voters, but only about half the states have initiative or popular referendum or both.  Likewise, not all states permit cities to incorporate initiative and popular referendum; New Mexico provides one or both by statute to the various forms of local government.
New Mexico also provides for home rule charters, which allow municipalities to choose any form of government not inconsistent with the constitution, and to choose functions of government not expressly denied by general law.  Many home rule charters (perhaps all, we’re not sure) have adopted both initiative and popular referendum, even though the home rule statute only explicitly provides for popular referendum.  
Similar provisions for local government exist in most states with I&R.  One issue that has arisen frequently in I&R states is the one that we have dealt with here on the proposed municipal building:  which decisions of local government can or should be put to the voters?  Governments make decisions on everything from the death penalty to the purchase of paper clips.  
Some decisions are made by the passage of laws, others by motion of the governing body, and others by staff exercising authority delegated by the governing body.  The New Mexico Home Rule statute provides no guidance; the Los Alamos County Charter provides some exceptions to I&R (e.g., salaries, utility rates).
 Where there is uncertainty or ambiguity in the law, and conflicts arise, the courts are called on to interpret constitutions or statutes to divine the intent of the people or legislators, respectively, regarding particular issues.
Alamogordo has a home rule charter, and when the voters there challenged by petition a utility rate increase passed by the city commission, the city manager refused to put it to an election because he believed it was an administrative decision not subject to referendum.  This is the way legal questions make it into the courts:  an official or body interprets the law governing their authority, as all officials do every day, and someone disagrees and asks a court to find the decision incorrect.
The Alamogordo petitioners took it to Federal Court, which dropped it on the New Mexico Supreme Court for a reading on New Mexico’s law.  There were some earlier New Mexico cases that supported the position of the city, but none directly on point.
 The New Mexico Supreme Court cited cases from California, Colorado, Kentucky and Oregon recognizing the distinction between legislative acts, which are subject to Initiative and Referendum, and administrative or executive acts, which are not.
To determine which is which, the Court reviewed cases from many different states and adopted a four-part test from the Kansas Supreme Court, which interpreted a Kansas I&R statute in a referendum dispute.  Look it up:  the New Mexico case is Johnson v. Alamogordo, 121 N.M. 232 (1996).
That decision makes binding New Mexico law, valid until either the legislature changes it by statute or the New Mexico Supreme Court overrules itself in another case.
The principles apply to Initiative as well as to Referendum; the court decisions cited in Johnson do not distinguish them.
Los Alamos has a home rule charter that provides for both initiative and popular referendum.
 A petition was circulated under the initiative provision of the charter that proposed an election on an ordinance that would require the original Municipal building be “fully rebuilt and restored to its original site and design for the specific purpose and original intent.”  
Applying the Johnson test, the then-county attorney advised the petition author his petition was illegal;  the next county attorney advised the council in October that the municipal building petition question was administrative or executive and thus illegal to put on a ballot; and we argued in our case for the injunction that it is illegal.
The Judge granted the preliminary injunction in November in part because she found that we were likely to succeed on that argument at trial.
With some members reconsidering their October decision, the then-County Council agreed to settle the lawsuit, and Judge Vigil signed the stipulated order this week.
When thinking about this issue, we urge you to consider that for voters, there are two sets of rights at stake:  The I&R rights of dissenters to challenge a decision by the elected representatives, and the rights of the rest of us to be called to I&R elections only on those subjects
properly in the purview of I&R.
In other words, we have a right to expect our elected representatives to do their duty and only pass it off to the voters under the legally prescribed circumstances.
These are limits established by law, and the observance of these types of limits is the essence of the rule of law.  And it is the rule of law that principally distinguishes the United States from Ivory Coast, Somalia, Sudan and Venezuela.

Christine and
George Chandler
Los Alamos