Colorado Supreme Court Ruling Kicks Trump Off Ballot; Michigan Supreme Court Keeps Trump On Ballot; Main Secretary of State Kicks Trump Off Ballot; Analysis and Commentary: US Supreme Court Front And Center Of Trump’s Fate

Posted on December 28, 2023 by

More than two dozen states are seeking to keep former President Donald Trump off the 2024 ballot because of his actions surrounding the January 6 riot and relying on the insurrection clause of the United States Constitution. It is Section 3, Disqualification from Holding Office, of the Fourteenth Amendment that is referred to as the insurrection clause and it states as follows:

No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

The cases in Michigan and Colorado are among the most notable. Many have been dismissed, while secretaries of states in places like New Hampshire and Oregon have said they don’t have the authority to exclude Trump from the ballots in their states.

THE COLORADO SUPREME COURT RULING

The decision from the Colorado Supreme Court finding Trump cannot hold the presidency was unprecedented and marks the first time a presidential candidate has been deemed ineligible for the White House under Section 3 known as the insurrection clause the the United States Constitution. Trump is appealing the ruling and it sets up a politically charged showdown before the Supreme Court that has huge implications for the 2024 presidential election.

On December 19, the Colorado Supreme Court kicked former President Trump off the state’s Republican primary ballot under the 14th Amendment in a 4-3 ruling, making it the first state to block him from seeking the presidency because of his role in the Jan. 6, 2021, Capitol attack. The court put its ruling on hold until January 4, so Trump can first seek review from the U.S. Supreme Court. Trump’s spokesperson quickly vowed to do so, meaning Trump’s name automatically remains on the ballot until the justices in Washington resolve the appeal.

“The Colorado Supreme court affirmed he engaged in insurrection by inflaming his supporters with false claims of election fraud and directing them to the Capitol — preventing him from a second White House term under the 14th Amendment’s “insurrection clause.” The state justices determined that the office of the president is covered under the insurrection clause, which specifically lists those who previously took oaths to support the Constitution as “a member of Congress,” “officer of the United States,” “member of any State legislature” or an “executive or judicial officer of any State.” The district court had ruled that the office of the president was not covered under the clause.”

“We do not reach these conclusions lightly,” the upper court wrote in its decision. “We are mindful of the magnitude and weight of the questions now before us. We are likewise mindful of our solemn duty to apply the law, without fear or favor, and without being swayed by public reaction to the decisions that the law mandates we reach.”

If allowed to take effect, Colorado’s secretary of state may not list Trump’s name on the 2024 presidential primary ballot, nor may she count any write-in votes cast for him.

Steven Cheung, a spokesperson for Trump’s campaign, blamed the decision on the “all-Democrat appointed” court, swearing to appeal the ruling to the U.S. Supreme Court. The seven-member bench of Colorado’s Supreme Court was entirely appointed by Democratic governors; six later faced voters and won retention elections, while the seventh will do so next year.

“The Colorado Supreme Court issued a completely flawed decision tonight and we will swiftly file an appeal to the United States Supreme Court and a concurrent request for a stay of this deeply undemocratic decision,” Cheung said. “We have full confidence that the U.S. Supreme Court will quickly rule in our favor and finally put an end to these unAmerican lawsuits.”

Norma Anderson, a petitioner and former Republican majority leader of the Colorado House and Senate, said in a statement that the plaintiffs’ win bolstered their efforts to protect the state’s elections.

“My fellow plaintiffs and I brought this case to continue to protect the right to free and fair elections enshrined in our Constitution and to ensure Colorado Republican primary voters are only voting for eligible candidates,” Anderson said. “Today’s win does just that.”

… .

The Colorado Supreme Court decision has been stayed until the U.S. Supreme Court decides whether Trump is barred by the Civil War-era provision, which prohibits those who “engaged in insurrection” from holding office.

The link to the quoted news source is here:

https://thehill.com/regulation/court-battles/4368569-trump-kicked-off-colorado-ballot-in-14th-amendment-case/

The link to read the full Colorado Supreme court ruling is here:

https://www.npr.org/2023/12/20/1220583273/trump-colorado-supreme-court-ruling#:~:text=The%20Colorado%20Supreme%20Court%20on,to%20the%20U.S.%20Supreme%20Court.

A NEW MEXICO CASE CONNECTION

Citizens for Responsibility and Ethics in Washington (CREW) is also pushing to remove Trump from State Ballots. CREW was successful in its effort to remove a New Mexico County Commissioner Couy Griffin from his post due to his participation in the January 6 attack on the U.S. Capitol.

A district judge in New Mexico barred Otero County commissioner and “Cowboys for Trump” founder Couy Griffin, citing a clause in the 14th Amendment that prohibits those who have engaged in insurrection from serving. Griffin was convicted of a misdemeanor trespass charge. The judge’s ruling was the first time in 150 years that the provision has been used to disqualify an official and the first time that a court has ruled the events of January 6 were an “insurrection.”

Griffin was arrested on January 8, 2021, on a federal misdemeanor trespassing charge related to the January 6, 2021 insurrection. Griffin was convicted of the charge on March 22 and sentenced on June 17 to 14 days’ time served, ordered to pay $500 restitution, pay a $3,000 fine, complete community service and one year of supervised release.

Following Trump’s announcement that he would make a third bid for the White House, CREW released a statement saying it would work to ensure that Trump is disqualified from ever holding office again. A statement from CREW said this:

“We warned him that should he decide to run again, we would be taking action to ensure the Constitution’s ban on insurrectionists holding office is enforced. Now we will be. Trump made a mockery of the Constitution he swore to defend, but we will see that it is defended.”

In an interview with ABC News, a CREW official said its focus now is doing whatever possible to keep Trump off the ballot. CREW Executive Vice President and Chief Counsel Donald Sherman said this:

“I will say we are focused on winning. We are not focused on getting our name in the paper … We are focused on bringing the strongest cases possible in order to win and hold the former President accountable. And we are making the strategic choices in order to effectuate that.”

MICHIGAN SUPREME COURT REJECTS BID TO KEEP TRUMP OFF 2024 PRIMARY BALLOT

On December 27, the Michigan Supreme Court rejected an appeal from a group of voters in the state who challenged former President Donald Trump’s candidacy for the presidency under the US. Constitution’s “insurrection clause.”

“In a brief order, the state high court denied a request from four voters to review a Michigan Court of Appeals decision that allowed Trump to remain on the Republican presidential primary ballot. The Michigan Supreme Court, composed of seven justices, said it is “not persuaded that the questions presented should be reviewed by this court.” The order was not signed, and a vote count was not noted.

The decision means that Trump’s name will be listed on Michigan’s presidential primary ballot. The primary is scheduled for Feb. 27.

One justice, Elizabeth Welch, dissented and wrote the only legal issue properly before the state supreme court is whether the lower courts erred in finding the Michigan secretary of state lacks the authority to exclude Trump’s name from the presidential primary ballot. Welch wrote that she agrees with the Court of Appeals that Secretary of State Jocelyn Benson must place Trump on the primary ballot regardless of whether he is disqualified from holding office under Section 3 of the 14th Amendment, known as the “insurrection clause.”

Under Michigan law, Welch wrote, “the secretary of state is not legally required to confirm the eligibility of potential presidential primary candidates. She lacks the legal authority to remove a legally ineligible candidate from the ballot once their name has been put forward by a political party in compliance with the statutes governing primary elections.”

Unlike in Colorado, the Michigan Court of Claims did not conduct a trial or reach the question of whether Trump was disqualified under the insurrection clause. Instead, Judge James Robert Redford dismissed the case on technical grounds, finding it involved a political question that cannot be decided by the courts and concluding that the political parties determine their presidential candidates for the primary.

A three-judge Court of Appeals panel agreed with the lower court in rejecting the challenge to Trump’s candidacy, finding that the Michigan secretary of state’s role in the context of presidential primary elections is limited and, beyond publishing a list of potential candidates, “purely administrative.”

The head of each political party ultimately identifies which candidates will be placed on the primary ballot, the judges said.

“The Secretary of State’s role in presidential primary elections is chiefly that of an administrator,” the Court of Appeals panel concluded. “In particular, when it comes to who is or is not placed on the primary ballot, the statutory scheme leaves nothing to the Secretary of State’s discretion. As the Court of Claims explained, who to place on the primary ballot is determined by the political parties and the individual candidates.”

The judges wrote it would be “improper” to decide whether to declare Trump ineligible for the presidency at this time.

“At the moment, the only event about to occur is the presidential primary election. But as explained, whether Trump is disqualified is irrelevant to his placement on that particular ballot,” the appellate court found.”

The link to the quoted news source is here:

https://www.cbsnews.com/news/michigan-supreme-court-decision-donald-trump-2024-primary-ballot/

MAINE’S SECRETARY KICKS TRUMP OFF BALLOT

On December 28, Maine’s Democratic Secretary of State Shenna Bellows removed former President Donald Trump from the state’s presidential primary ballot under the Constitution’s insurrection clause, becoming the first election official to take action unilaterally as the U.S. Supreme Court is poised to decide whether Trump remains eligible to return to the White House.

Bellows found that Trump could no longer run for his prior job because his role in the Jan. 6, 2021, attack on the U.S. Capitol violated Section 3, which bans from office those who “engaged in insurrection.” Bellows made the ruling after some state residents, including a bipartisan group of former lawmakers, challenged Trump’s position on the ballot.

Bellows issued the decision after presiding over an administrative hearing earlier this month about Trump’s eligibility for office. A bipartisan group of former state lawmakers filed the challenge against Trump. In her decision, Bellows concluded that she has a legal obligation to adhere to the 14th Amendment’s insurrectionist ban and remove Trump from the primary ballot.

Bellows wrote in part in her 34-page decision:

“I do not reach this conclusion lightly. … I am mindful that no Secretary of State has ever deprived a presidential candidate of ballot access based on Section 3 of the Fourteenth Amendment. I am also mindful, however, that no presidential candidate has ever before engaged in insurrection. … The oath I swore to uphold the Constitution comes first above all, and my duty under Maine’s election laws … is to ensure that candidates who appear on the primary ballot are qualified for the office they seek,”

The Trump campaign immediately slammed the ruling. Trump campaign spokesman Steven Cheung said in a statement:

“We are witnessing, in real-time, the attempted theft of an election and the disenfranchisement of the American voter”.

The Trump campaign said it would appeal Bellows’ decision to Maine’s state courts. Bellows suspended her ruling until that court system rules on the case.

Legal experts said that Thursday’s ruling demonstrates the need for the nation’s highest court, which has never ruled on Section 3, to clarify what states can do.

Links to quoted news sources are here:

https://apnews.com/article/maine-trump-presidential-ballot-election-insurrection-081fd38ce1f20be9b8423cb2f8c66dee

https://www.cnn.com/2023/12/28/politics/trump-maine-14th-amendment-ballot/index.html

ANALYSIS AND COMMENTARY

On December 20, CNN offered the following analysis and commentary by Jeremy Herb of the Colorado Supreme court ruling:

HEALINE: Unprecedented Colorado ruling puts courts at the center of Trump’s fate next year

Analysis by Jeremy Herb, CNN

“The Colorado Supreme Court’s decision that Donald Trump is constitutionally ineligible to appear on the ballot in next year’s state primary represents a stunning rebuke of the former president and a new level of accountability for his efforts to overturn the 2020 election, threatening his 2024 electoral prospects in a way the four criminal indictments against him have not.

While the court’s 4-3 decision Tuesday may not ultimately lead to the former president’s removal from the ballot in Colorado or any other state – because of expected appeals – the ruling puts the country in uncharted territory, raising the shocking prospect that a major party’s candidate could be barred from office.

It’s perhaps the final exclamation point to cap off a year of unprecedented events encircling Trump, posing new and potentially grave challenges to American democracy heading into a tumultuous election year from a former president who embraces political chaos.

Outside of the courtroom, Trump has increasingly embraced inflammatory rhetoric, musing about being a dictator should he retake power next year and launching attacks against his opponents reminiscent of Nazi propaganda. Trump repeated his incendiary comments about immigrants at an event in Iowa Tuesday evening, pushing back against criticism from the Biden campaign and others that he was echoing Adolf Hitler.

“It’s crazy what’s going on. They’re ruining our country. And it’s true, they’re destroying the blood of our country. That’s what they’re doing. They’re destroying our country. They don’t like it when I said that,” Trump said. “And I’ve never read ‘Mein Kampf.’”

To Trump’s detractors, the Colorado decision signals that the legal system is finally beginning to hold the former president accountable for his efforts to overturn his election loss in 2020 and the attack on the US Capitol that unfolded on January 6, 2021.

“Accountability for inciting an insurrection. It’s about time,” wrote Rep. Adam Schiff, a California Democrat who led the House’s first impeachment against Trump.

But Tuesday’s ruling also could help propel Trump back to the White House, emboldening his supporters who have embraced the former president’s message that the criminal cases against him are unjustified and are a key reason he should be returned to power. Trump’s allies railed against the Colorado decision, coming to his defense just as they have following each of his four criminal indictments this year.

“Democrats are so afraid that President Trump will win on Nov 5th 2024 that they are illegally attempting to take him off the ballot,” Rep. Elise Stefanik of New York, the House’s No. 3 Republican, said in a statement.

Even former New Jersey Gov. Chris Christie, the most prominent anti-Trump Republican running for president, was critical of the Colorado decision. “I don’t believe it’s good for our country if he’s precluded from the ballot by a court,” he told voters in New Hampshire.

Next year may end up as one of the most chaotic in American legal history.

The US Supreme Court will be faced with both deciding if Trump is eligible for the White House and whether he’s immune from prosecution for his efforts to subvert the 2020 presidential election.

“I can’t overstate the consequences of this evening, and I also want to stress how we now have two major, very critical Trump election issues barreling toward the court. They will have to decide both of these one way or another,” said CNN’s Senior Supreme Court analyst Joan Biskupic.

The former president has been indicted four times, with criminal trials that could play out at the same time he’s campaigning against President Joe Biden and potentially simultaneously fighting in court to get back on the ballot.

In a poll from The New York Times and Siena College released Tuesday, there was no clear leader between the two, with Trump taking 46% to Biden’s 44% among registered voters. Among those who are, at this early stage, considered likely to vote, Biden takes 47% to Trump’s 45%. Importantly for Trump, the Times/Siena survey finds the former president leading Biden among registered voters who did not participate in the 2020 election, a finding that mirrors other recent polling, CNN’s Ariel Edwards-Levy wrote.

IMPACT OF RULING

“Up until the Colorado Supreme Court’s ruling, the numerous court-driven efforts to disqualify Trump from the ballot were not succeeding at blocking him from office, as one state court after another ruled against the lawsuits. Even in Colorado, the trial judge concluded last month that Trump had engaged in an insurrection but that Section 3 of the 14th Amendment’s “insurrectionist ban” doesn’t apply to the presidency.

The Colorado Supreme Court reversed that finding … . Now with that court’s unprecedented ruling, the notion of the courts removing Trump from the ballot in 2024 is no longer theoretical – it’s a real possibility.

In its decision, the state Supreme Court’s majority wrote that it had “little difficulty” in determining that January 6 was an insurrection. The court found that Trump “engaged in” the insurrection and that Trump’s messages to his supporters in the lead-up to the attack on the Capitol “were a call to his supporters to fight and that his supporters responded to that call.”

The four justices stressed that they “do not reach these conclusions lightly.”

“We are mindful of the magnitude and weight of the questions now before us,” the court’s majority wrote. “We are likewise mindful of our solemn duty to apply the law, without fear or favor, and without being swayed by public reaction to the decisions that the law mandates we reach.”

The three dissenting justices cited several reasons they disagreed with the majority, including due process concerns that Trump has not been convicted of any insurrection-related crime. Chief Justice Brian Boatright wrote in his dissent that he believes Colorado election law “was not enacted to decide whether a candidate engaged in insurrection,” and said he would have dismissed the challenge to Trump’s eligibility.

Trump is not charged with engaging in an insurrection in the election subversion federal case against him brought earlier this year by special counsel Jack Smith. But the January 6-related charges involve many of the same actions cited by the Colorado court’s majority on Tuesday night.

The judge in Trump’s federal election subversion case had set a trial date for March 4, 2024, but that is now on hold as the DC US Circuit Court of Appeals considers whether Trump is immune and can be tried. In a bid to speed that appeals process, the special counsel has asked the US Supreme Court to step in.

It’s still unclear whether that trial or any of the other criminal charges against Trump will be heard before Election Day next year.

But the special counsel’s appeal to the US Supreme Court last week – and Trump’s plan to appeal the Colorado decision to the nation’s high court – means that the federal justices are all but assured to play a key role in both Trump’s legal and electoral fate next year.

“When Donald Trump was in office, every single case of his from administration policy to his own business cases that came to the court, they were all fraught,” Biskupic said, “and these are especially fraught because they will affect his election process.”

The link to the article is here:

https://www.cnn.com/2023/12/20/politics/colorado-trump-ruling-analysis/index.html

Public Education Department’s Mandatory 180 Day Teacher In School Rule Severely Challenged By Legislators And Public; Bad Policy For Rural New Mexico; 40% Chronic Student Absentee Rate Defeats Purpose Of Rule; Rule Deserves A Grade Of “F” And Should Be Rejected

Posted on December 22, 2023 by

The 2023 New Mexico Legislature enacted House Bill 130 which was signed into law by Governor Lujan Grisham. The law requires public schools in New Mexico to increase instructional time from 990 hours to 1,140 hours. Schools in session for five-day work weeks are required to have 180 instructional days, while schools in session for four-day work weeks are required to have 155 instructional days.

There are rural school districts in New Mexico that have adopted a four-day work week. The PED’s proposed changes would require all schools to adopt five-day weeks with 180 instructional days a year. State Education Secretary Arsenio has said the proposed changes are part of a multi-pronged approach to help students succeed.

https://www.koat.com/article/new-mexico-four-day-school-weeks-proposal/46109066

EDUCATION SECRETARY ARSENIO ROMERO CONFRONTED

On December 15, State Public Education Secretary Arsenio Romero gave as presentation on the Public Education Department’s multi-billion-dollar budget before the LESC. The postscript to this blog article reports on the proposed budget changes and legislation that will be considered by the 2024 legislature.

After Education Secretary Romero gave his presentation, many of the committee members took the opportunity to challenge him about the controversial rule that will require public schools to spend at least 180 days in school outside of teachers’ professional development or other work time. The rule also restricts school districts that have implemented four-day school weeks, requiring all public schools to spend more than 50% of their time on five-day school week schedules.

The Public Education Department reported that it has received well over 800 hundred written public comments on the rule change. Many of those public commenters were extremely critical the rule. During the December 15 LESC meeting, lawmakers had little to nothing good to say about the proposal. LFC Chairman Sen. George Muñoz, D-Gallup, told Romero this:

“You’re making a mistake right now. … House Bill 130 … was all vetted through the Legislature … a long-term approach on how to make that change, and we get a report and you guys want to change it by rule. It’s not gonna work.”

The proposed rule comes after lawmakers passed House Bill 130, increasing the amount of instructional time students must spend in school to 1,140 hours while allowing some educator professional work time during instructional hours. Previously, first through sixth graders were required to go to school for at least 990 hours per year, and secondary students for 1,080 hours per year.

The Public Education Department (PED) has argued that many school districts and charter schools actually lost time with students, and proposed the 180-day rule as a way of getting it back. Romero told the LEFS committee members this:

“There are many other things that play into why schools can either be successful or not. But in all of my experiences, having more time with teachers has always been a positive thing. … The 180 rule is not to pick on four-day districts. It is to increase instructional time for students and teachers across New Mexico.”

There are many rural school districts that have implement four-day school week schedules to accommodate students’ and teachers’ long commutes to school. State Representative Gail Armstrong, R-Magdalena, recounted a similar experience in her elementary school years and worried the rule would strip such districts of local control to determine what works best for them.

Representative Joy Garratt, D-Albuquerque, one of HB 130’s sponsors, pointed out the legislation represented a year’s worth of feedback from people across the state and questioned the effort to quickly change how class-time requirements work. Garratt said this:

“It wasn’t just something that came out of the head of Zeus. … And so I was appalled when, after only four months of implementation … Suddenly, a rule is being proposed without any discussion ahead of time. I’m deeply troubled by that.”

Citing the flood of public comments, the department has received on the proposed rule, Romero said he welcomed feedback and that it will inform the department’s decisions on how to move forward.

“We’ve got a lot of it, and I really love that we have a lot of it coming from all over the state of New Mexico. … I am looking forward to looking at every single piece of feedback as we move forward.”

https://www.abqjournal.com/news/youre-making-a-mistake-lawmakers-take-education-secretary-to-task-over-proposed-180-day-rule/article_b26cc90a-9bc2-11ee-af2c-1b8c3fc42063.html#tncms-source=home-featured-7-block

13 LESC MEMBERS OPPOSE 180 INSTRUCTIONAL DAYS

Soon after the December 15 Legislative Education Study Committee meeting 13 of its members signed a letter to PED in opposition to the rule change stating the mandate goes against the purpose of House Bill 130 increasing instructional hours. The 13 legislators wrote:

“The mandate of 180 instructional days for all school districts and charter schools does not align with the Legislature’s clear intention to allow local flexibility, while still requiring 1,140 instructional hours with no requirement for a specific number of days.”

The letter added that the requirement of at least half of school weeks needing to be five days “effectively eliminates” the four-day school week due to practicality.

PUBLIC HEARING HELD ON RULE

On December 20, the Public Education Department held a public hearing on the 180 day rule to take public comments before making a final decision on approving the rule. If approved, its final version will be published in January.

Many educators, parents and administrators from rural communities hoping to keep their modified schedules testified at the December 20 public input hearing. Many expressed concerns that teachers would leave if the rule was adopted. Several speakers called the rule a “one size fits all” approach to educational schedules.

One speaker argued that the shorter week attracts teachers to the rural community. Switching to a five-day week would increase operational costs and potentially push away teachers lured by a flexible schedule. The 2023 New Mexico Educator Vacancy Report, produced by New Mexico State University, found 751 teacher vacancies and an overall educator vacancy of 1,471. The number of teacher vacancies was up about 9% from last year.

It will be rural communities such as ranching and farming communities that will be affected the most by the 180-day rule. Many include districts with four-day school week. The Springer School District is a good example of a District that will be affected. Springer has had a four-day school week in place since 1983 and it no doubt is threatened by a PED proposal mandating a 180-day school schedule across the state.

The proposal has been made despite the Legislature’s passage earlier this year of a bill that increased instructional time from 1,080 hours to 1,140. PED has said the measure hasn’t successfully increased class time in all schools. A department spokesperson said 1 in 3 districts didn’t increase instructional time and that in fact, they decreased educational time. PED spokesperson Nate Williams said in a statement that improving student outcomes was the impetus for the proposal and said this:

“Additional time with teachers can only be a good thing … This is an attempt to equalize instructional time across the state so that New Mexico students have every chance to succeed.”

https://www.abqjournal.com/news/educators-parents-and-administrators-turn-out-against-180-day-school-year-proposal/article_ea227a2a-9dfc-11ee-b1d5-abb58c148ca6.html

40% STUDENT CHRONIC ABSENTEE RATE

A November 17, 2023 a report prepared by the Legislative Education Study Committee found that nearly 40% of students were chronically absent from school in New Mexico during the 2022-23 school year. The number is slightly less than the previous year, but it’s still a major concern for educators and lawmakers who say children can’t learn if they aren’t in class. According to the report nearly 60.8% of students who are experiencing housing insecurity are also chronically absent.

The relevant portion of the LESC report states in part as follows:

Chronic absenteeism is defined in New Mexico state law as missing 10% or more of classes or school days for any reason, whether excused or unexcused. Missing 10% of school equates to missing two school days every month, or 18 days (more than 3 full weeks) over a 180 day period.

…

Statewide chronic Absenteeism Rates data from the Public Education Department shows an alarming nearly 40% chronic absenteeism rate for the 2022-2023 school year. What this means is that 134,259 students in New Mexico are chronically absent at an average school calendar of 180 days, this means students are missing more than 3 weeks of school. …

Chronic absence rates for Fiscal Year 2023 are highest for NATIVE AMERICAN students at 48.4%, followed by NATIVE HAWAIIAN OR PACIFIC ISLANDER students at 45.7%, BLACK OR AFRICAN AMERICAN students at 40.8%, HISPANIC Students at 40.7%, CAUCASIAN students at 38% and ASIAN STUDENTS at 23.37%.

Factors such as housing status, English learner status, family income, and whether a student has disabilities are frequently associated with chronic absences [and] … chronic absence rates are often highest among such students. [For example] 60.8% of students experiencing housing insecurity in New Mexico where chronically absent during the 2022-2023 school year. For all of the student groups (students experiencing housing insecurity, students with disabilities, English learners, and economically disadvantaged students) chronic absentee rates were above the state average of 39.2% for the 2022-2023 school year.”

https://www.nmlegis.gov/handouts/ALESC%20111523%20Item%208%20.1%20School%20Attendance%20and%20Chronic%20Absence-Final%20Attendance%20Report%20-%20All%20Files.pdf

During the December 16 meeting, Senator and LESC Committee Co-chair William Soules said there are many factors for the absentee numbers and said most of those factors are out of the reach of any school district. Soules said this:

“It tends to be problems with housing. It tends to be problems with transportation. It tends to be problems with drug addiction and mental health, all things that are not education. … So much of the problem is a non-education problem yet we’ve tried to approach it as if it’s an education problem and punish the kids who are chronically absent when it’s not their fault, it’s our fault.”

The Public Education Department said early invention is the key and needs to start as early as kindergarten to deal with absenteeism. The PED told lawmakers there needs to be continued support for statewide attendance initiatives, funding for schools to implement the Attendance for Success Act and behavioral health initiatives and restorative methods to eliminate exclusionary practices, and legislation to focus on attendance interventions and reduce administrative burdens.

https://www.ksfr.org/education/2023-11-17/new-mexico-school-absentee-rates-still-at-high-levels

2023 KIDS COUNT DATA BOOK, STATE TRENDS IN CHILD WELL BEING

The 2023 Kids Count Data Book substantiates and identifies the problems that need to be overcome that are the major continuing factors that contribute to the 40% absentee rates. On June 14, 2023, the New Mexico Voices for Children released the “2023 Kids Count Data Book, State Trends In Child Well Being.” The annual “Kids Count” Data Book is prepared by the Annie E. Casey Foundation. The Casey foundation is a nonprofit based in Maryland focusing on improving the well-being and future of American children and their families. It assesses how New Mexico children are faring in a number of areas including economic well-being, education, health, and family and community. The “Kids Count Data Book” this year is a 50 page document with an extensive number of tables, graphs charts and statistics.

The link to the 2023 Kids Count Data Book is here:

Click to access aecf-2023kidscountdatabook-2023.pdf

New Mexico ranked 49^th in ECONOMIC WELL-BEING RANKING, with 24% (111,000) of New Mexico children living in poverty, 35% (165,000) of New Mexico Children whose parents lack secure employment, 26% (125,000) of New Mexico children living in households with a high housing cost burden, and 12% (14,000) of teens not in school and not working.

New Mexico ranked 50^th in education, with 59% (30,000) (years 2017 to 2021) young children ages 3 to 4 not in school, 4^th graders not proficient in reading (year 2022) grew from 76% to 79%, 87% of eighth graders not proficient in math (year 2022) and 23% of high school students not graduating on time (years 2019 to 2020). (Page 35) Fourth graders not proficient at reading

New Mexico 44^th in health rankings , above Alabama (45), Wyoming (46) South Carolina (47) Texas (48) Louisiana (49), Mississippi (50). New Mexico had 9.4% (2,009) low birth rate babies in 2021, 6% (32,000) children without health insurance in 2021, 217 child and teen deaths per 100,000 in 2021 ranking the state 43, and with the state ranking 36 in children and teens (ages 10 to 17) who were overweight or obese. (Page 36)

New Mexico ranked 48^th in family and community (above Louisiana (49) and Mississippi (50)) with 44% (196,000) children living with single parent families, 12% (59,000) of children living in families where the household head lacks a high school diploma in the years 2017 to 2021, and the state having a 19% teen birth rate per 1,000 births, 1,324 births in 2021. (Page 37)

NATIONAL ASSESSMENT OF EDUCATIONAL PROGRESS PROFIENCY SCORES

On October 24, 2022, the National Assessment of Educational Progress (NAEP) released its 2022 Proficiency Test Scores in Math and Reading. Results for all 50 states, the District of Columbia, Puerto Rico, and 26 participating districts were released. Students’ academic achievement during the COVID-19 pandemic was compared to pre-pandemic performance on the 2019 NAEP mathematics assessment as well as to previous mathematics assessments dating back to 1990. No state improved in 4^th or 8^th grade math, and only a few states improved in reading. Those that did, did so by a maximum of two points

https://nces.ed.gov/nationsreportcard/

NAEP NEW MEXICO PROFIENCY TEST SCORES

According to education officials, the NAEP tests were conducted in 29% of elementary schools and 42% of middle schools. The highest possible score on the NAEP test is 500.

In 4^th and 8^th grade reading and math, New Mexico students came in shy of dead last in proficiency out of the over-50 states and jurisdictions where the testing was administered. According to the report, New Mexico 4^th and 8^th graders lost ground in both math and reading. This was the case across the country. National and New Mexico education officials attributed the declines in large part due to the corona virus pandemic and when there was widespread school closings and remote learning was instituted.

According to the 2022 NAEP report, New Mexico’s 4^th graders fell upwards of 14 points behind national public school student averages overall. It was the same for 8^th graders in math, but 8^th graders lagged about 11 points behind in reading.

In math, New Mexico 4th and 8th graders dropped about 10 points from state scores in 2019. They lost less ground in reading, where fourth graders dropped about five points and eighth graders dropped four.

That came out to 21% reading proficiency and 19% math proficiency rates of and among 4^th graders which was 3% and 10% points lower than in 2019.

A little more than 18% of eighth graders were proficient in reading and about 13% were proficient in math – a drop of five and eight percentage points, respectively.

APS SCORES

Students at Albuquerque Public Schools, the largest district in the state, mostly held steady in their proficiency levels. While there were drops in both subjects for eighth graders, the NCES found they were “not significantly different” from 2019 scores.

However, fourth grade math proficiency, at about 24%, was around six percentage points lower than it was in 2019.

Overall APS student scores also dropped across the board from their pre-pandemic levels, though not as much as statewide numbers did. The largest declines came in math, where both fourth and eighth graders lost roughly seven points each.

APS students suffered from the pandemic, Superintendent Scott Elder said. Still, he noted that Albuquerque was in a “much better place” than a lot of other places in New Mexico when it comes to accessibility to things like the internet. And while APS students were still behind other large cities in both grades and subject areas, those gaps didn’t widen as some thought they would, he pointed out.

Elder told the Albuquerque Journal this:

“You don’t look at the scores and think ‘OK, great. … We lost a little bit, but we didn’t lose as much as I think people were afraid [we would. … We [did] see a significant decline in the math, but that’s similar to what we see nationally.”

COMMENTARY AND ANAYSIS

There is absolutely no doubt that the biggest crisis that our public school system is facing is its miserable ranking of 50^th place in education. As found by the 2023 Kids Count Data book, New Mexico ranks 50^th in education, with 59% (30,000) (years 2017 to 2021) young children ages 3 to 4 not in school, 4^th graders not proficient in reading (year 2022) grew from 76% to 79%, 87% of eighth graders not proficient in math (year 2022) and 23% of high school students not graduating on time (years 2019 to 2020). (Page 35) Fourth graders not proficient at reading.

The blunt reality is that until the States Public Education Department gets a handle on and solves the 40% absentee rate, do not expect proficiency rates to improve at all. You can not teach a student if the student is no where to be found 40% of the time and a mandatory 180 hours lecturing to an empty class gets you nowhere. The states student absentee rates are growing even worse all the while the state spends more and more on education.

State Senator and LESC Committee Co-chair William Soules was absolutely correct when he said there are many factors for the absentee numbers and said most of those factors are out of the reach of any school district. Notwithstanding, the Public Education Department has come up with a “one size fits all” solution that essentially highlights the divide between the State’s rural and urban communities.

The rule eliminates all discretion and strips districts of local control to determine what works best for them. It highlights the major differences between rural and urban New Mexico communities. The 180 day teacher in school rule promulgated by the state’s Public Education Department deserves the grade of “F” and the department needs to reject it.

___________________________________

POSTSCRIPT

On December 14, State Education Secretary Arsenio Romero made a 50 minute presentation on the Public Education Department’s multi-billion-dollar budget to the New Mexico Legislative Education Study (LESC) Committee. The LESC announced several draft bills for consideration for the upcoming 2024 legislative session. Following is the proposed legislation for consideration by the 2024 New Mexico legislature:

INCREASING SALARIES

The most talked about bill the LESC endorsed increases the minimum salaries of educational assistants and provide a 2½-fold minimum pay increase in general. Under legislation endorsed by the LESC, all public school employees are guaranteed a minimum wage of $6 per hour with no set minimum salary. The bill would bump that up to $15 per hour and establish a $30,000 minimum salary for all full-time employees.

Under the bill, educational assistants also would be again bumped from $25,000 minimum salaries to $30,000. During the 2023 legislative session, lawmakers approved a more than twofold minimum salary increase for educational assistants, from $12,000 to $25,000. Last year, educational assistants argued that even $25,000 was still low. Educational Assistant Cyndi Garcia said this last year:

“You could make more money working at McDonald’s flipping burgers than you could going into a classroom and doing this job. … But this is a great start … in recognizing how valuable we are.”

According to LESC staff estimates, the 6% committee recommendation to increase public school employees’ of all full-time personnel salaries is passed will cost the state another $24.7 million.

TRAINING OF SCHOOL BOARD MEMBERS

A second draft bill the LESC endorsed would require training for school board members that is not currently mandated by the state. Under the legislation, new school board members would have to complete at least 10 hours of mandatory training covering a range of topics, including budget responsibilities, laws affecting school boards and student achievement, during their first year on the job. Present school board members would have to complete five hours of mandatory training on the same or similar topics, under the draft.

During the LESC hearing, there were doubts raised that without more teeth, such a bill wouldn’t actually hold school board members accountable. LESC Vice-Chair Sen. William Soules, D-Las Cruces said this:

“Passing a law that doesn’t have an enforcement mechanism, I don’t think is going to have much effect on the recalcitrant members that aren’t going to meetings now.”

Ultimately, Senator Soules voted to endorse the bill, but said he likely would propose an amendment in committee to give the bill more teeth. The draft bill does call for the amount of time board members spend in training to be posted to New Mexico Vistas, the state’s education information system, but that’s the primary enforcement mechanism.

In all, the LESC endorsed 5 draft education bills to be considered during the 2024 upcoming session. The remaining three are:

The third bill would create a pilot program that distributes between $250 and $750 for each student in a district that successfully earns a credential in a specific industry that shows their competence in that field of work.

The fourth bill would lay the groundwork for preparation programs for aspiring school administrators like principals and assistant principals, as well as an institute to develop their skills. Under the draft bill, the minimum salaries of principals and assistant principals also be increased to the minimums of Level 3 teachers of at least $70,000. That is then multiplied by a factor that takes into account their additional responsibilities, based on whether they work in an elementary, middle or high school.

The fifth bill would tweak legislation passed during the last session, clarifying how school districts would be eligible for waivers from local dollars they would need to spend on brick-and-mortar projects the state also is investing in.

https://www.abqjournal.com/news/legislators-lay-out-education-priorities-ahead-of-upcoming-session/article_a0ee3fe2-9ae6-11ee-9430-a787bbbe9e1c.html#1

Colorado Supreme Court Kicks Trump Off Ballot In Case Filed By Republicans; Analysis and Commentary: US Supreme Court Front And Center Of Trump’s Fate

Posted on December 20, 2023 by

“We do not reach these conclusions lightly,” the upper court wrote in its decision. “We are mindful of the magnitude and weight of the questions now before us. We are likewise mindful of our solemn duty to apply the law, without fear or favor, and without being swayed by public reaction to the decisions that the law mandates we reach.”

If allowed to take effect, Colorado’s secretary of state may not list Trump’s name on the 2024 presidential primary ballot, nor may she count any write-in votes cast for him.

“The Colorado Supreme Court issued a completely flawed decision tonight and we will swiftly file an appeal to the United States Supreme Court and a concurrent request for a stay of this deeply undemocratic decision,” Cheung said. “We have full confidence that the U.S. Supreme Court will quickly rule in our favor and finally put an end to these unAmerican lawsuits.”

… .

The link to the quoted news source is here:

https://thehill.com/regulation/court-battles/4368569-trump-kicked-off-colorado-ballot-in-14th-amendment-case/

The link to read the full Colorado Supreme court ruling is here:

https://www.npr.org/2023/12/20/1220583273/trump-colorado-supreme-court-ruling#:~:text=The%20Colorado%20Supreme%20Court%20on,to%20the%20U.S.%20Supreme%20Court.

A NEW MEXICO CASE CONNECTION

Citizens for Responsibility and Ethics in Washington (CREW) is also pushing to remove Trump from State Ballots. CREW was successful in its effort to remove a New Mexico County Commissioner Couy Griffin from his post due to his participation in the January 6 attack on the U.S. Capitol.

In an interview with ABC News, a CREW official said its focus now is doing whatever possible to keep Trump off the ballot. CREW Executive Vice President and Chief Counsel Donald Sherman said this:

ANALYSIS AND COMMENTARY

On December 20, CNN offered the following analysis and commentary by Jeremy Herb of the court ruling:

HEALINE: Unprecedented Colorado ruling puts courts at the center of Trump’s fate next year

Analysis by Jeremy Herb, CNN

“Accountability for inciting an insurrection. It’s about time,” wrote Rep. Adam Schiff, a California Democrat who led the House’s first impeachment against Trump.

Next year may end up as one of the most chaotic in American legal history.

IMPACT OF RULING

“Up until the Colorado Supreme Court’s ruling, the numerous court-driven efforts to disqualify Trump from the ballot were not succeeding at blocking him from office, as one state court after another ruled against the lawsuits. Even in Colorado, the trial judge concluded last month that Trump had engaged in an insurrection but that Section 3 of the 14th Amendment’s “insurrectionist ban” doesn’t apply to the presidency.

The Colorado Supreme Court reversed that finding on Tuesday. Now with that court’s unprecedented ruling, the notion of the courts removing Trump from the ballot in 2024 is no longer theoretical – it’s a real possibility.

The four justices stressed that they “do not reach these conclusions lightly.”

It’s still unclear whether that trial or any of the other criminal charges against Trump will be heard before Election Day next year.

The link to the article is here:

https://www.cnn.com/2023/12/20/politics/colorado-trump-ruling-analysis/index.html

Gun Control Measures Proposed By NM Senator Martin Heinrich, Governor Michelle Lujan Grisham and Santa Fe Mayor Alan Webber; Efforts Will Likely Fall Short; NM Legislature Should Enact Comprehensive Gun Control Act During Special Session

Posted on December 19, 2023 by

NM Sen. Martin Heinrich, Governor Michelle Lujan Grisham and Santa Fe Mayor Allen Weber are now all getting into the act of proposing changes to gun laws on a National, State and City levels. This blog article explores all 3 efforts at gun control and advocates the New Mexico Legislature enact comprehensive gun control legislation.

UNITED STATES MARTIN HEINRICH

In October, a gunman in Lewiston, Maine, went on a rampage and killed 18 people in a mass shooting while using a high-capacity, semi-automatic rifle that had been modified rapid fired shooting. Police found a high-capacity, semi-automatic AR-10 rifle made by Ruger in the car of the Lewiston gunman. the gunman had reportedly duct-taped two large-capacity magazines together so that when one was depleted, he could quickly flip to the next magazine.

After an intensive manhunt that lasted a full week, the mass shooter was found dead from self-inflicted gunshot wound. It turns out the shooter had an extensive history of mental disorder and hospitalization. the Lewiston gunman reportedly spent two weeks in a psychiatric hospital in New York and was banned by his U.S. Army Reserve unit in Maine from possessing military weapons because of his increasing paranoia and aggressive behavior. His family also expressed concerns about his deteriorating mental health and access to guns.

On November 30, caused in part by the mass shooting, Maine Independent Senator Angus King announced the introduction of a Senate Bill that if it becomes law would regulate rifles and shotguns. New Mexico’s Senior Democrat Senator Martin Heinrich is cosponsoring the bill. King and Heinrich have worked together on similar bills for years. In addition to Heinrich, the bill has two other co-sponsors so far: Democratic Sens. Mark Kelly of Arizona and Michael Bennett of Colorado.

Senator Angus King said this about the legislation:

“If I had any doubts [about this legislation], they were resolved by what happened [in my state of Main]. … The shooter in Lewiston had a high-capacity magazine, duct-taped together, that could be [quickly reloaded]. That’s what would be prohibited by this law.

“The key is the lethality of the weapon. … How do you make it less dangerous? Not what it looks like, but how do you make it less dangerous? … The key here is in the midst of a mass shooting, it’s when the shooter needs to re-load that there’s an opportunity either for people to escape or for first responders or for people in the room to disarm the shooter. … But if there’s not lapse in the firing, that can’t happen. … My goal straight up is saving lives. We believe that the legislation we’re proposing today will do exactly that.

We were very careful to craft this pragmatically to stand up to the Supreme Court we have today. … We reviewed all of the appropriate case law and tried to stay on the safe side of that line. And also, frankly, gun-rights folks, of whom there are many in Maine, are very much attune to the idea of confiscation, and this bill is very clearly not that.”

New Mexico Senator Martin Heinrich for his part said he and King had been working on legislation for years to regulate certain firearms that are particularly lethal. Heinrich, who is a gun owner and avid hunter, said he hopes the bill’s focus on the mechanisms that make some semi-automatic guns so lethal will win bipartisan support. Heinrich said this:

“I firmly believe our families and children should feel safe when they go to a bowling alley, when they enter the classroom or when they go to a place of worship. They shouldn’t have to live in fear that they might fall victim to the next mass shooting tragedy. And I refuse to accept the premise that Democrats and Republicans or gun safety advocates and gun owners are so divided that we can’t take common-sense actions that save lives. … The key is that this bill is not aimed at a particular weapon. It’s aimed at the lethality based upon the magazine size.”.

THE “GOSAFE” BILL

The introduced senate bill is entitled the Gas-Operated Semi-Automatic Firearms Exclusion (GOSAFE) Act.

Unlike other proposed assault weapons bans that he opposed, King said their bill focuses on the mechanisms that can make some semi-automatic guns so deadly rather than their appearance or model numbers. The bill would also make it illegal to make certain modifications to semi-automatic guns. But it would exempt certain types of common gun used by hunters and for self-defense, such as semi-automatic shotguns and handguns that operate with a recoil mechanism. The bill would limit the number of rounds in a gun magazine and require gas-operated, semi-automatic firearms to have permanent or fixed magazines to prevent shooters from rapidly reloading.

The legislation would regulate rifles and shotguns that can fire more than 10 rounds before reloading and handguns that fire more than 15 rounds. It would also prohibit machine gun conversion devices and other modifications that make the guns more deadly. The bill specifically exempts several types of firearms from any regulation, including breach-loading and smooth-bore rifles or handguns. A .22-caliber rifle or a bolt-action rifle would also be exempt, for example. The bill would also “grandfather in” all currently owned guns, though those gun owners would be restricted on to whom they could sell the weapon to.

The legislation if enacted would regulate the sale, transfer, and manufacture of gas-operated semi-automatic weapons by:

Establishing a list of prohibited firearms;
Preventing unlawful modifications of permissible firearms;
Mandating that future gas-operated designs are approved before manufacture; and
Preventing unlawful firearm self-assembly and manufacturing.

The bill would limit the number of rounds that large capacity ammunition feeding devices are permitted to carry to 10 rounds of ammunition or fewer. The capacity must be “permanently fixed ” meaning the firearm cannot accept a detachable, high-capacity magazine that would increase the number of rounds that can be fired before reloading and make reloading easier.

The bill includes exemptions based on maximum ammunition capacity according to a firearm’s individual class: a rifle, shotgun, or handgun. Exemptions include:

.22 caliber rimfire or less firearms
Bolt action rifles
Semi-automatic shotguns
Recoil-operated handguns
Any rifle with a permanently fixed magazine of 10 rounds or less
Any shotgun with a permanently fixed magazine of 10 rounds or less
Any handgun with a permanently fixed magazine of 15 rounds or less

The bill would also “grandfather in” all currently owned guns, though those gun owners would be restricted on to whom they could sell the weapon

OPPOSITION QUICK TO EMERGE

The proposed legislation drew quick opposition and encountered skepticism and opposition from gun owners’ rights groups. David Trahan, the executive director of the Sportsman’s Alliance of Maine, said this:

“Sen. King’s legislation has a slim chance of getting out of Congress and an even slimmer chance of getting through the Supreme Court.”

Randy Kozuch, executive director of the NRA’s Institute for Legislative Action, said this in a statement:

“This legislation blatantly violates the U.S. Constitution and U.S. Supreme Court rulings by banning the very types of firearms and magazines most often utilized by Americans for defending themselves and their families. … This bill unjustly and improperly places the full burden of the law on law-abiding residents, while doing nothing to take guns out of the hands of dangerous criminals.”

https://www.abqjournal.com/news/heinrich-joins-maine-senator-on-gun-bill/article_43046712-8ede-11ee-8922-af6f753a4c3d.html

https://www.koat.com/article/bill-introducing-approach-to-gun-regulation/46004642#

https://www.mainepublic.org/maine/2023-11-30/angus-king-proposes-limits-on-semi-automatic-guns-magazine-capacity-after-lewiston-shooting

https://www.newscentermaine.com/article/news/politics/maine-politics/gosafe-act-sen-angus-king-lewiston-maine-shooting-gun-bill/97-34139651-17f2-4d67-ae4d-83fc90a1ec33

GOVERNOR MICHELLE LUJAN GRISHAM

On December 15, at a news conference in Santa Fe, Gov. Michelle Lujan Grisham said she will encourage the New Mexico Legislature to consider the proposed federal Go Safe Act, co sponsored by Senator Martin Heinrich, aimed at reducing a shooter’s ability to fire off dozens of rounds a second and attach new magazines to keep firing. If approved, it would mean assault-style weapons would have permanently fixed magazines, limited to 10 rounds for rifles and 15 rounds for some heavy-format pistols. Lujan Grisham said this:

“I’ve got a set of lawmakers that are more likely than not to have a fair debate about guns, gun violence, weapons of war and keeping New Mexicans safe than members of Congress are. … We will have to see how those votes all shake out.”

Bans on assault rifles in several states are under legal challenge after the U.S. Supreme Court in June broadly expanded gun rights in a 6-3 ruling by the conservative majority. The decision overturned a New York law restricting carrying guns in public and affected a half-dozen other states with similar laws. After the ruling, New York and other states have moved to pass new gun restrictions that comply with the decision.

The 2024 New Mexico legislature is a 30 day session and opening day on January 16 and it ends on February 15. However, from January 2 to January 12, legislators can “prefile” proposed legislation. The session will focus primarily on budget matters but other bills can be heard at the discretion of the governor.

GOVERNOR’S EMERGENCY HEALTH CARE ORDER

Lujan Grisham recently suspended the right to carry guns at public parks and playgrounds in New Mexico’s largest metro area under an emergency public health order, first issued in response to shootings that included the death of an 11-year-old boy outside a minor league baseball stadium. The governor’s health orders include directives for gun buybacks, monthly inspections of firearms dealers statewide, reports on gunshot victims at New Mexico hospitals and wastewater testing for illicit substances.

The order sparked public protests among gun rights advocates and legal challenges in federal court that are pending. The Governor has scaled back restrictions on carrying guns from her initial order in September that broadly suspended the right to carry guns in most public places. Bernalillo County Sherriff John Allen and Albuquerque Police Chief refused to enforce the orders while Attorney General Raul Torrez announced he would not defend those orders in court.

Lujan Grisham claims her emergency health care orders restricting guns and its approach to violent crime is resulting in more arrests and reducing gun violence a claim that is repeatedly discredited as gun gun violence continues to be reported in Albuquerque, especially involving teenagers. A good example is a 14 year old teenager discharging a gun at Coronado Mall the day after Thanksgiving during a foot chase.

https://www.lcsun-news.com/story/news/2023/12/15/governor-wants-nm-to-legislators-to-debate-new-approach-to-regulating-assault-style-weapons/71911358007/

SANTA FE MAYOR ALAN WEBBER

On November 16, the Sant Fe City Council adopted on a 7 to 2 vote as part of its legislative agenda for the 2024 New Mexico Legislature Santa Fe Mayor Alan Webber’s proposal for a ballot measure that would amend the state constitution and give local government more power when it comes to gun regulations. If the legislature passes the proposal, it would be up to New Mexicans to vote on the issue.

The New Mexico Constitution does not allow local governments, such as cities or counties, to make gun regulations that are more restrictive than the state. If approved, that provision would be removed from the state constitution, giving power to local governments to add more restrictions if it still falls in line with the United States Constitution.

Mayor Alan Webber said this about his proposal:

“We just had a horrific mass shooting in Maine. It is the worst nightmare of every mayor in America that someday something like that will happen in your community. … When we see something happen anywhere in America and lives are lost … local officials, a mayor or a county official in that community is put in the position of saying ‘I wish I’d done more. I wish I’d tried more.’ … The point [of the legislation] is simply to allow more local choice and more local control so that we at the local level can reflect the views of our residents and indicate that we take seriously trying to reduce or eliminate gun violence at the local level. [This amendment is needed] so that city governments, local governments, are no longer preempted by the constitution of New Mexico from having gun laws, gun safety provisions that are more restrictive than what the State currently has . … Talk to our residence and say, ‘What would you support in the way of limitations, sensible gun limitations.”

https://www.krqe.com/news/new-mexico/santa-fe-mayor-proposes-constitutional-amendment-on-gun-laws-heading-into-legislative-session/#:~:text=(KRQE)%20%E2%80%93%20Santa%20Fe%20Mayor,provision%20in%20the%20state%20constitution.

https://www.santafenewmexican.com/news/local_news/city-council-oks-mayors-call-for-state-constitutional-amendment-on-gun-laws/article_dd6735ea-7cc4-11ee-b65d-d395df6e2ae7.html

https://www.koat.com/article/new-gun-proposal/45704152

COMMENTARY AND ANALYSIS

The proposed legislation by Senator Heinrich, Governor Lujan Grisham and Mayor Alan Webber are no doubt well intentioned efforts by all 3 but in reality are very weak at best when it comes to enacting legislation that will actually accomplish anything dealing with gun violence.

If Heinrich, Lujan Grisham and Webber are serious about the State’s crime crisis and want to do something about it, all three should be calling for the New Mexico Legislature to enact an “Omnibus Gun Control And Violent Crime Sentencing Act” and do so during a special session of the legislature. The message that must be sent out loud and clear to violent criminals by our elected officials is that New Mexico has a zero tolerance of violent crimes committed with firearms. The only way to do that is with responsible gun control measures to reduce the availability of guns and to enhance criminal sentencings.

CRIME AND PUNISHMENT MEASURES

The following crime and sentencing provisions should be included in the “Omnibus Gun Control And Violent Crime Sentencing Act”:

Allow firearm offenses used in a drug crime to be charged separately with enhance sentences.
Making possession of a handgun by someone who commits a crime of drug trafficking an aggravated third-degree felony mandating a 10-year minimum sentence.
Increase the firearm enhancement penalties provided for the brandishing a firearm in the commission of a felony from 3 years to 10 years for a first offense and for a second or subsequent felony in which a firearm is brandished 12 years.
Create a new category of enhanced sentencing for use of a lethal weapon or deadly weapon other than a firearm where there is blandishment of a deadly weapon in the commission of a felony with enhanced sentences of 5 years for a first offense and for second or subsequent felony in which a lethal weapon other than a firearm is brandished 8 years
Increase the penalty of shooting randomly into a crowded area a second-degree felony mandating a 9-year sentence.
Increase the penalty and mandatory sentencing for the conviction of the use of a fire arm during a road rage incident to a first degree felony mandating a life sentence.
Change bail bond to statutorily empower judges with far more discretionary authority to hold and jail those pending trial who have prior violent crime reported incidents without shifting the burden of proof from the prosecution to the defense.

GUN CONTROL MEASURES

Gun control measures that should be included the “Omnibus Gun Control And Violent Crime Sentencing Act” would include legislation that failed in the 2023 legislative session and other measures and would include the following:

Call for the repeal the New Mexico Constitutional provision that allows the “open carry” of firearms. This would require a public vote and no doubt generate heated discussion given New Mexico’s high percentage of gun ownership for hunting, sport or hobby, but what is the real rational for allowing side arms and rifles to be carried down the street other than to intimidate others.
Restrict the sale, manufacture and possession of AR-15-style rifles along with semiautomatic firearms and make it a fourth-degree felony to purchase, possess, manufacture, import, sell or transfer assault weapons in the state.
Prohibited magazines with more than 10 rounds.
Prohibited the possession of semiautomatic firearm converter that allows the weapon to fire more rapidly.
Established a 14-day waiting period for the purchase of any firearm and requires a prospective seller who doesn’t already hold a valid federal firearms license to arrange for someone who does to conduct a federal background check prior to selling a firearm.
Institute a Federal and State background check system with a mental health component that would disqualify a person with a history of mental health violent outbursts or a history of threats to others from making a gun purchase.
Established a minimum age of 21 for anyone seeking to purchase or possess an automatic firearm, semiautomatic firearm or firearm capable of accepting a large-capacity magazine.
Ban the manufacture, sale, trade, gift, transfer or acquisition of semiautomatic pistols that have two or more defined characteristics.
Revised the state’s Unfair Practices Act to target the sale of illegal firearms and parts, allowing the filing of lawsuits to enforce the act.
Prohibit in New Mexico the sale of “ghost guns” parts. Ghost guns are guns that are manufactured and sold in parts without any serial numbers to be assembled by the purchaser and that can be sold to anyone.
Require in New Mexico the mandatory purchase of “liability insurance” with each gun sold as is required for all operable vehicles bought and driven in New Mexico.
Mandate the school systems and higher education institutions “harden” their facilities with more security doors, security windows, and security measures and alarm systems and security cameras tied directly to law enforcement 911 emergency operations centers.
Require a permit to purchase all rifles and handguns. There are 15 other states require a permit to purchase or licensing. The best predictor of future performance is past performance. Firearm licensing has past performance. A John Hopkins University study in a comparative analysis, describes licensing as the most effective firearm policy. Connecticut notes a 28% decrease in homicides, 33% decrease in suicides 10 years post licensing. When you compare states with and without licensing, there is a 56% decrease in mass shootings. Studies reveal a decrease of gun trafficking of more than 60% after licensing. Missouri found similar increases in homicides and suicides when removing their purchase restrictions. Licensing is constitutional it has broad public support. Licensing brings in revenue to the state vs simply cost the state money.

The Omnibus Gun Control And Violent Crime Sentencing Act Omnibus Gun Violence And Sentencing Act must include funding for the criminal justice system. This would include funding District Attorney’s Offices, the Public Defender’s Office, the Courts and the Corrections Department and law enforcement departments across New Mexico.

FINAL COMMENTARY

When it comes to gun control legislation, it’s not at all likely anything is going to actually in get done in the upcoming 30 day legislative session that begins on January 16. That is why the Governor should again consider calling a special session to deal with gun control measures immediately after the 2024 session.

Until the New Mexico legislature get serious about New Mexico’s gun violence crisis and enacts reasonable gun control measures in conjunction with crime and punishment measures, we can expect our violent crime rates to continue to increase, and God forbid, yet another killing of a child which is what prompted the Governor to issue her executive orders in the first place.

The link to a related article is here:

Comprehensive Report On “Gunshot Victims Presenting at Hospitals in New Mexico”; Scathing Indictment Of New Mexico Legislature’s Failure To Address New Mexico’s Gun Violence Crisis; Crime Statistics Reflect Epidemic; Combined Both Identify Need For Comprehensive Gun Control Measures

New Mexico Supreme Court Affirms Democratic Congressional Redistricting; US Supreme Court Appeal Likely Futile Effort By GOP; Legal Analysis And Commentary

Posted on December 18, 2023 by

On Monday, November 26, the New Mexico Supreme Court affirmed a State District Court’ s ruling that the congressional voting district maps drawn by the 2021 NM Legislature do not rise to the level of “egregious” gerrymandering. The New Mexico Supreme Court ruled congressional districts drawn up by state lawmakers in 2021 are not gerrymandered, even though there is evidence the new boundaries diluted votes between political opponents. This blog article is an in depth legal analysis of the decision.

SOUTHERN NEW MEXICO DISTRICT GROUND ZERO

It was the redrawing of the Sothern New Mexico District that was ground zero to insure the election of a Republican to congress. Republican and Democratic lawmakers argued in court primarily over the map that set the boundaries for the southernmost congressional district in New Mexico. The Democratic-drawn congressional map divvied up a conservative, oil-producing region and reshaped a swing district along the U.S. border with Mexico . The lower court found that the Democratic lawmakers did purposely choose the map in order to try to entrench power, but that the map didn’t violate voters’ constitutional rights under the Equal Protection Clause of the state’s constitution.

The Republican Party challenged the maps in court. District 2 is typically a battleground between Democrats and Republicans every two years, but GOP leaders argued the Democrats gave themselves an unfair advantage in the last election. They argued that the Democratic lawmakers essentially violated voters’ rights by choosing a gerrymandered map.

The Republican Party argued unsuccessfully that the new district boundaries would entrench Democratic officials in power, highlighting the 2022 defeat of incumbent GOP Congresswoman Yvette Herrell by Democratic U.S. Rep. Gabe Vasquez. Democratic state lawmakers argued that the 2nd District in southern New Mexico remains competitive, with just a 0.7% margin of victory in the 2022 election. The two are squaring off once again in 2024

All 5 of New Mexico Supreme Court justices signed a shortly worded order affirming the lower District Court decision that the redistricting plan enacted by Democratic state lawmakers in 2021 succeeded in substantially diluting votes of their political opponents but that the changes fell short of “egregious” gerrymandering.

DISTICT IN NATIONAL SPOTLIGHT

The district is one of about a dozen in the national spotlight as Republicans campaign to keep their slim U.S. House majority in 2024. Courts ruled recently in Alabama, Louisiana and Florida that Republican-led legislatures had unfairly diluted the voting power of Black residents. Legal challenges to congressional districts are also ongoing in Arkansas, Kentucky, South Carolina, Tennessee, Texas and Utah.

New Mexico was among several states to use a citizen’s advisory board with the aim of tempering political inclinations without taking redistricting powers away from state lawmakers. Groups, including Common Cause, said the process resulted in fairer maps. But Republicans in the state’s legislative minority argued that they were effectively shut out of the final legislative process amid conversations beyond legislative hearings via email and text messages that were subpoenaed at trial. Democrats gained a 12% advantage in voter registrations over Republicans in the newly drawn 2nd District, where major party registration previously was roughly evenly split.

PARTIES REACTION TO RULING

State Republican Party Chairman Steve Pearce said the legal outcome in New Mexico “leaned heavily on the closeness of the previous election” in which a “popular Republican incumbent” was defeated by a lesser-known rival.

The New Mexico Republican Party in a statement said this:

“We are disappointed in the NM Supreme Court’s ruling to uphold the gerrymandered map that disenfranchises the voices of conservative Democrats, Republicans, and Independents alike and divides up vital industries.”

The Democratic Party of New Mexico said in a statement

“We are glad that the State Supreme Court ordered that the District Court’s redistricting decision will be upheld, hopefully putting to rest months of frivolous distractions”.

Democrats hold every statewide elected office in New Mexico, along with its three House and two Senate seats. Though Republicans won control of the U.S. House from Democrats in the 2022 election, the closely divided chamber more accurately reflects the ratio of Republicans to Democrats among voters nationally than at any time in recent years.

Links to quoted news sources are here:

https://www.koat.com/article/nm-supreme-court-upholds-democratic-congressional-map/45966673

https://www.kob.com/new-mexico/new-mexico-supreme-court-upholds-decision-on-redistricting-case/

https://nmpoliticalreport.com/2023/11/28/state-supreme-court-upholds-congressional-maps/

https://www.sfreporter.com/news/morningword/2023/11/28/nm-supreme-court-affirms-democrats-congressional-map/

https://www.abqjournal.com/ap/new-mexico-supreme-court-upholds-democratic-drawn-congressional-map/article_abed4030-249a-5de8-b59a-1619a899d069.html#tncms-source=home-featured-7-block

REVISTING LAWSUIT ALLEGATIONS

The lawsuit was filed back in 2021 when the New Mexico legislature redrew all 3 of New Mexico’s political boundaries in the process known as redistricting. The process of congressional redistricting occurs every 10 years to keep political voting boundaries relatively fair as local populations change.

The plaintiffs in the case include the New Mexico Republican Party, Republican State Senator David Gallegos and Roswell Democrat Mayor Tim Jennings. It was filed against Governor Michell Lujan Grisham, Lt. Gov. Howie Morales and all Democrat State Senate and House legislative leaders.

In 2020, the state asked an independent redistricting committee to recommend new maps to the legislature. After considering 3 maps for redrawn congressional districts, New Mexico’s Democratically controlled legislature was not satisfied with what was submitted and approved a fourth map instead, one drawn up by the lawmakers.

For decades, New Mexico has had 3 congressional districts. The First Congressional District (CD1) was based almost entirely in Albuquerque. The 2^nd Southern Congressional District (CD2) was the entire southern portion of New Mexico. The 3^rd Northern Congressional District (CD3) covered Santa Fe and entire northern New Mexico.

The Albuquerque and Northern New Mexico Districts have been decidedly Democrat leaning while the Southern-most district has been decidedly Republican. The new congressional map for District 3 moves southern parts of Albuquerque into the Southern Congressional District, creating a Democratic leaning district. Following its adoption, Republican Yvette Herrell lost her reelection bid in 2021.

The lawsuit controversy centered primarily around the new Congressional District 2 approved by state officials and signed into law by Lujan Grisham in 2021 during a special session of the Democrat-controlled Legislature. The map divides Lea County in half. Lea County now straddles the border between the Second and Third congressional districts and adds parts of Albuquerque to the southern Second Congressional District (CD2).

Republicans argued this change to Congressional District 2 was the cause of former U.S. Representative Yvette Harrell losing the seat to U.S. Rep Gabe Vasquez in 2022. Herrell had previously won the seat in 2020 against former-U.S. Rep. Xochitl Torres Small, who defeated Herrell in 2018 after Republican Party of New Mexico Chairman Steve Pearce vacated the seat in a losing bid for the governorship.

The Republican Party argued that the map was developed to intentionally curb Republican influence. The map once approved drew immediate backlash from the state Republican Party and Republican local officials in southeast New Mexico who argued that its conservative stronghold was being diluted

MOTION TO DISMISS

It was in February, 2022 that a Motion to Dismiss the case was filed by attorneys for Defendants Governor Lujan Grisham and Lt. Governor Howie Morales. The New Mexico’s Supreme Court denied the Motion To Dismiss and the case was remanded back to Judge Van Soelen for a trial on the merits. The New Mexico Supreme Court ruled the equal protection clause of the New Mexico Constitution allows the state courts to take up claims of illegal partisan gerrymandering. The New Mexico Supreme Court rejected the arguments made by Governor Michelle Lujan Grisham and other high-ranking Democrats who said the courts had no way to determine what constitutes illegal “partisan” gerrymandering.

The New Mexico Supreme Court acknowledged the “inherently political nature of redistricting” and said some partisan gerrymandering is permissible. The New Mexico Supreme Court ruled the three-part test outlined by U.S. Supreme Court Justice Elena Kagan in her dissenting opinion in the US Supreme Court case of RUCHO V. COMMON CAUSE should be used in the case to determine whether the map goes too far and violates the law. This meant the Republican plaintiffs had to prove Democrats redrew the map to keep them in power, and that they achieved what they wanted to degree that was “egregious in intent and effect.”

REVISITING JUDGE VAN SOELEN’S RULING

On October 6, after a weeks long trial, State District Judge Fred Van Soelen of the 9^th Judicial District based in Clovis, ruled in a 14 page decision to strike down a lawsuit file by State Republicans alleging Democratic lawmakers gerrymandered New Mexico’s three congressional districts to favor and elect Democrats, especially in the southern congressional district. Judge Van Soelen in siding with Democrats ruled Republicans’ votes were diluted, but it did not rise to an “egregious gerrymander” and upheld the legislature’s approved redistricting maps. Republicans have vowed to appeal to the New Mexico Supreme Court.

In his ruling, District Judge Fred T. Van Soelen wrote in part:

“[The] predominant purpose of redrawing CD 2 [the southern district] in Senate Bill 1 was to entrench the Democratic Party in power by diluting the votes of citizens favoring Republicans. … Because ‘entrenchment’ is the touchstone of an egregious partisan gerrymander which the New Mexico Constitution prohibits, the court finds that the congressional redistricting map enacted under Senate Bill 1 does not violate the plaintiff’s equal protection rights.”

Van Soelen wrote that there is sufficient evidence to say Republicans were “cracked.” In other words, the evidence showed the maps split up Republican voters into multiple districts in order to dilute their voting power. As an example Van Soelen noted Lea and Eddy Counties were split into two separate congressional districts.

During the trial, Democrats argued the contrary and said the boundaries in the map approved were meant to allow the oil industry in the southern portion of the state to have multiple voices in Washington, D.C. To accomplish this, the map adds land from southeast New Mexico to both Congressional District 1 and Congressional District 3. Judge Van Soelen wrote that the defendants didn’t prove that splitting up that land was beneficial for residents.

Judge Van Soelen pointed to the 2022 congressional election, the only one held since the boundaries were redrawn, as evidence that Democratic and Republican candidates have a competitive chance to win in Congressional District 2. In the 2022 race for the District 2 U.S. congressional seat, Democrat Gabe Vasquez defeated Yvette Herrell, a first-term Republican incumbent, by the slim margin of 0.7% The Republican Party countered that Herrell’s “very high name recognition” makes that race an unfair test of District 2’s competitiveness.

Judge Van Soelen wrote that while the case shows evidence of partisan political vote dilution, the dilution itself “does not rise to the level of gerrymandering that violates the rights of voters.” Van Soelen wrote that while the maps were intended on “entrenching” Democratic power, there was not sufficient evidence to prove that they were actually successful in entrenching their power. Judge Van Soelen concluded that the legislative approve map does not violate residents’ equal protection rights under the state’s constitution.

Judge Van Soelen applied the three-part Kagan test and other criteria and he evaluated the maps and has made a decision that there was no “egregious in intent and effect.” The postscript to this blog article provides a report on the Supreme Court ruling in the case of RUCHO V. COMMON CAUSE and provides an explanation of the Kagan 3 part test.

FINAL COMMENTARY AND ANALYSIS

It is more likely than not that any effort to appeal the New Mexico Supreme Court’s ruling to the United States Supreme Court will fail miserably with the US Supreme Court denying certiorari with a one sentence order affirming the decision and denying any further hearings. At this point, efforts would be better served trying to seek the creation of a congressional, non-partisan redistricting committee with final say that would be convened every 10 years to coincide with the United States Census to redraw districts for final approval of the courts.

___________________________________

POSTSCRIPT

RUCHO V. COMMON CAUSE

In 2019, the United States Supreme Court in a 5-4 vote in the case of Rucho v. Common Cause ruled that partisan gerrymandering claims cannot be brought under the U.S. Constitution. The Ruch decision was a major set back for voting right advocates but in her dissent Justice Elena Kagan’s outlined and provided a blueprint on how state judges can set aside and kill the practice of gerrymandering by legislatures under their own constitutions. Every state constitution protects the right to vote or participate equally in elections, and the Kagan dissent shows how state courts can enforce those protections under state law.

In her dissent, Justice Kagan annunciates the precise harms inflicted by partisan gerrymandering and explains how they can be measured and remedied. Kagan identified two distinct but intertwined constitutional violations. First, gerrymandered maps “reduce the weight of certain citizens’ votes,” depriving them of the ability to participate equally in elections. Second, they also punish voters for their political expression and association. Kagan concluded that these dual injuries, implicate fundamental principles of both equal protection and freedom of speech. Kagan illustrated the ease with which courts can address them.

In his Rucho majority opinion, Chief Justice John Roberts insisted that federal courts were unable to determine when a partisan gerrymander goes “too far.” Kagan pointed out that, in fact, plenty of lower courts have already done exactly that. These courts deployed a three-part test. First, they ask whether mapmakers intended to entrench their party’s power by diluting votes for their opponents. Second, they ask whether the scheme succeeded. Third, they ask if mapmakers have any legitimate, nonpartisan explanation for their machinations. If they do not, the gerrymander must be set aside and declared void.

Justice Kagan wrote:

“If you are a lawyer … you know that this test looks utterly ordinary. It is the sort of thing courts work with every day.”

In practice, the most important part of the test is its evaluation of a gerrymander’s severity and that boils down to an analysis and hard look at the data. The North Carolina’s congressional map contained 10 Republican seats and 3 Democratic ones. Experts ran 24,518 simulations of the map that used traditional, nonpartisan redistricting criteria. More than 99% of them produced at least one more Democratic seat. The exercise verified that North Carolina’s map isn’t just an outlier but “an out-out-out-outlier.”

Chief Justice Roberts rejected Kagan’s reasoning and asserted that her test was “indeterminate and arbitrary.” But the North Carolina Superior Court rested its decision precisely on the three-part test that Kagan proposed. The North Carolina court adopted Kagan’s methods to demonstrate that North Carolina’s legislative gerrymander was indeed an “out-out-out-outlier.” Experts ran thousands of simulations to gauge the severity of the map’s partisanship and found that the current gerrymander is more favorable to Republicans than about 99.99 percent of maps drawn using nonpartisan redistricting factors.

This fact would not matter if North Carolina courts were powerless to stop partisan gerrymandering. But state courts are free to interpret their constitutions differently from the United States Supreme Court and are not bound by the Rucho decision. The North Carolina Superior Court therefore refused to adopt Roberts’ rejection toward the judiciary’s competence to defend voting rights.

The North Carolina Court agreed that Kagan’s view of gerrymandering is an assault on equal protection and free speech. The North Carolina Court wrote the state constitution safeguards “the fundamental right of each North Carolinian to substantially equal voting power.” The Northe Carolina court also found that the state constitution protects citizens’ ability to engage in “core means of political expression,” including “voting for the candidate of one’s choice and associating with the political party” without retaliation. Partisan gerrymandering infringes upon these freedoms, diluting citizens’ vote on the basis of their political expression. In short, the court ruled the North Carolina constitution contains the same protections that Kagan sought under the First and 14^th Amendments to the U.S. Constitution.

The North Carolina court took a step further than Kagan, because unlike the U.S. Constitution, the North Carolina constitution declares that “all elections shall be free.” This clause, the court held, means “that elections must be conducted freely and honestly to ascertain, fairly and truthfully, the will of the people.” Partisan gerrymandering violates that guarantee by “specifically and systematically designing the contours of the election districts for partisan purposes and a desire to preserve power.”

The link to quoted new source material is here:

https://slate.com/news-and-politics/2019/09/partisan-gerrymander-kagan-state-courts.html

Federal Monitor Issues 18th Federal Monitors Report On APD; Primary Compliance At 100%, Secondary Compliance At 99%, Operational Compliance At 94%;Civilian Police Oversight Advisory Board Found In Crisis; Police Union President Calls Monitoring Process “A Scam”; City Should Seek Dismissal Of Case

Posted on December 14, 2023 by

On November 14, 2014, the City of Albuquerque, the Albuquerque Police Department and the United State Department of Justice (DOJ) entered into a stipulated Court Approved Settlement Agreement (CASA). The settlement was the result of an 18-month long investigation by the Department of Justice (DOJ) that found that the Albuquerque Police Department engaged in a pattern of “excessive use of force” and “deadly force”, especially when dealing with the mentally ill. The DOJ investigation also found a “culture of aggression” existed within the APD.

The Court Approved Settlement Agreement mandates 271 police reforms, the appointment of a Federal Monitor and the filing of Independent Monitor’s reports (IMRs) on APD’s compliance with the reforms. There are 276 paragraphs in 10 sections within the CASA with measurable requirements that the monitor reports on.

The link to the 118-page CASA is here:

https://documents.cabq.gov/justice-department/settlement-agreement.pdf

18^th FEDERAL MONITOR’S COMPLIANCE REPORT FILED

On November 8, 2023, Federal Court Appointed Monitor James Ginger filed his 18th report. The 18th Independent Monitor’s Report covers the time period of February 1, 2023 through July 1, 2023. The report is 168-pages long. It is the shortest report filed to date with the previous reports averaging about 300 pages. The link to review the entire 18^th report is here:

Click to access final-imr-18.pdf

The 18^th report finds that APD is only ONE percentage point from full compliance in “Operational Compliance” going from 92% to 94%. APD went down by 1% in “Secondary Compliance” going down from 100% to 99%. APD and sustained Primary Compliance at 100%.

Under the terms and conditions of the CASA, once APD achieves a 95% compliance rate in all 3 identified compliance levels and maintains it for 2 consecutive years, the case can be dismissed. Originally, APD was to have come into compliance within 4 years and the case was to be dismissed in 2018.

The 3 compliance levels are explained as follows:

PRIMARY COMPLIANCE

Primary compliance is the “policy” part of compliance. To attain primary compliance, APD must have in place operational policies and procedures designed to guide officers, supervisors and managers in the performance of the tasks outlined in the CASA. As a matter of course, the policies must be reflective of the requirements of the CASA; must comply with national standards for effective policing policy; and must demonstrate trainable and evaluable policy components.

SECONDARY COMPLIANCE

Secondary compliance is attained by implementing supervisory, managerial and executive practices designed to and be effective in implementing the policy as written, e.g., sergeants routinely enforce the policies among field personnel and are held accountable by managerial and executive levels of the department for doing so. By definition, there should be operational artifacts such as reports, disciplinary records, remands to retraining, follow-up, and even revisions to policies if necessary, indicating that the policies developed in the first stage of compliance are known to, followed by, and important to supervisory and managerial levels of the department.

OPERATIONAL COMPLIANCE

Operational compliance is attained at the point that the adherence to policies is apparent in the day-to-day operation of the agency e.g., line personnel are routinely held accountable for compliance, not by the monitoring staff, but by their sergeants, and sergeants are routinely held accountable for compliance by their lieutenants and command staff. In other words, the APD “owns” and enforces its policies.

DRAMATIC PROGRESS MADE IN COMPLIANCE LEVELS OVER 4 REPORTING PERIODS

Operational Compliance is considered the most difficult to implement and achieve. The 14^th, 15^th and 16^th reports saw significant gains in Operational Compliance but the 17^th report brought APD the closest it had ever been to full compliance with 92% reported and with 95% needed to be achieved and sustained for 2 years in all 3 compliance levels.

In the Federal Monitors IMR-14 report filed on November 12, 2021, the Federal Monitor reported the 3 compliance levels were as follows:

Primary Compliance: 100 %; (No change from before)
Secondary Compliance: 82 %; (No change from before)
Operational Compliance: 62 % (An increase 3% points from before)

15^th FEDERAL MONITOR’S REPORT COMPLIANCE LEVELS

On May 11, 2022, Federal Court Appointed Independent Monitor filed his 15th Report on the Compliance Levels. APD’s compliance levels in the IMR-15 Federal Monitor’s report were as follows:

Primary Compliance: 100%
Secondary Compliance: 99%
Operational Compliance: 70%.

The 15th Federal Monitors report was a dramatic reversal from the past 3 monitor reports that were highly critical of the Keller Administration and the Albuquerque Police Department.

16^th FEDERAL MONITOR’S REPORT COMPLIANCE LEVELS

The Federal Monitor reported that as of the end of the IMR-16 reporting period, APD’s compliance levels were as follows:

Primary Compliance: 100% (No change)
Secondary Compliance: 99% (No change)
Operational Compliance: 80%. (10% increase from 70%)

17^th FEDERAL MONITOR’S REPORT COMPLIANCE LEVELS

The Federal Monitor IMR-17 report which covers August 1, 2022, through January 31, 2023, reported APD’s compliance levels were as follows:

Primary Compliance 100%
Secondary Compliance 100%
Operational Compliance 92% (95% needed to be achieved and sustained for 2 years)

18^th FEDERAL MONITOR’S REPORT COMPLIANCE LEVELS

The Federal Monitor IMR-18 report covers February 1, 2022, through July 31, 2023, and reports APD’s compliance levels are as follows:

Primary Compliance 100%
Secondary Compliance 99% (Down 1%)
Operational Compliance 94% (95% is needed to be achieved and sustained for 2 years)

HIGHLIGHTS OF 18^TH FEDERAL MONITOR’S REPORT

Dr. James Ginger in his 18^th Federal Monitor’s Report praises APD’s significant progress over the last 2 years and applauds the work of force investigators and supervisors. Ginger notes the steady upward trend in Operational Compliance starting in IMR-14 and continuing through IMR-18.

During the 18^th reporting period, from February 1, 2023 through July 1, 2023, the monitor reported:

“… training processes remained strong, reflecting “best-standards” of training needs, curricula development, and delivery of CASA-congruent training programs. Importantly, during this reporting period, with the approval of the Parties and the concurrence of the monitor, APD is now self-monitoring 157 specific paragraphs. APD continues to develop the ability to independently self-monitor with review by the monitoring team.”

The monitor noted compliance findings began improving markedly during the 2021 IMR-14 reporting period and that APD continued to make gains for 5 consecutive monitoring periods. The monitor reported that the compliance surge was due to APD’s finally understanding the change process, and focused APD leadership vis a vis compliance issues.

During the 18^th reporting period, the monitor’s team reviewed 8 cases completed by the External Force Investigation Team and found each case to be “thorough, accurate, well-documented, and congruent with APD policy and national standards. This is a major milestone. The case reports comply with policy, training, and in-field performance. This is a central reform requirements of the Court Approved Settlement Agreement (CASA).”

The Federal Monitoring Team found APD’s disciplinary findings and practices continue to improve during this reporting period. However, the monitoring team found they are not yet at the 95% compliance level which is mandated for 2 years before the case can be dismissed. During the reporting period, the monitoring team found that all on-body recording devices (OBRD) usage standards followed CASA requirements.

DEFICIENCIES NOTED

The Federal Monitor noted some other critical compliance issues during the reporting period. These include a continuing issue of adequately staffing the Citizen’s Police Oversight Agency (CPOA) and providing adequate training for board members and reconstituting the process of strong CPOA oversight.

The 18^th report found an unacceptable delay in the process of appointing a contract compliance officer, a qualified permanent executive director of Civilian Police Oversight Agency (CPOA), and a deputy executive director of the agency. The monitor noted a continuing issue with CPOA investigators meeting articulated timelines. The Federal Monitor again recommended a formal external assessment of CPOA workload and staffing.

A major concern was identified about the trend during IMR-17 and IMR-18 with Force Review Boards mishandling of some officer-involved shootings. The report noted it is extremely difficult for an agency to function well, absent strong oversight processes related to high-risk critical tasks, particularly when these tasks are a major reason for the existence of the CASA. The monitor identified this issue as a major problem due to the fact that one of the major reasons for the existence of the CASA was questionable APD officer-involved shootings over a protracted period.

FUNDAMENTAL CONCERNS ABOUT APD OVERSIGHT

The 18^th Federal Monitors Report raised fundamental concerns about oversight from the top management levels of APD, or those who make up the Internal Affairs Force Division (IAFD) and Force Review Board (FRB). The report said for the second time, the FRB and IAFD had disagreed with investigators, deeming fatal police shooting as being in line with APD policy when it was not.

A few nonfatal police shootings have been found out of policy in recent years but yet APDs top command staff has yet to find a fatal police shooting out of policy, meaning an officer’s actions were not “objectively reasonable, proportional, nor the minimum amount of force necessary.” The Federal Monitoring team said it identified “a grave and substantial malfeasance” in the top command staff mishandling of a fatal police shooting, erroneously ruling it justified.

The monitoring team reported the concerning trend of Internal Affairs Force Division leadership and the Force Review Board “mishandling” police shootings following a year in which the department shot or shot at a record-high 18 people, with 10 of them being killed.

REVISITING THE JESUS CROSBY DEADLY USE OF FORCE CASE

The monitoring team described the Jesus Crosby deadly use of force case as one of the “more obvious mishandlings of organizational oversight that we have seen since the inception of the CASA. … The case is replete with issues, from the shooting itself through the handling of the case.”

Officers simultaneously fired Tasers and bullets at Crosby, who was suffering a mental health crisis and holding fingernail clippers outside APD headquarters. A force investigator, civilian oversight director and one Force Review Board (FRB) member found the shooting out of policy, but an Internal Affairs Force Division commander and the rest of the FRB reversed that finding. APD modified its policies following the shooting in the hopes of expanding the use of less-lethal force in such situations.

The 18^th IME Report went so far as to questioned if Internal Affairs Force Division (IAFD) leadership or Force Review Board (FRB) members “are competent to review cases of this significance.” The report said no FRB member asked questions about the policy disagreement or about the six shots fired after Crosby was on the ground, and only one member “asked insightful questions regarding the appropriateness of deadly force.” That same member, according to the report, voted the use of force was not necessary but was outvoted by the other members.

The team noted it marked the second time the FRB has ignored “a compelling justification” for an out-of-policy ruling in a fatal shooting. The monitoring team added, “In our opinion, all parties should be concerned if any IAFD personnel believe, or were led to believe, that the use of deadly force by officers, in this case, was appropriate.”

The report noted that the FRB has excelled in recent years due to 3 “specific deputy chiefs,” one of whom has retired while the other two were not at the FRB meeting. According to the report:

“We have commented in the past that reforms cannot exist as a result of specific people, and instead have to be woven into the fabric of APD’s culture.”

Referencing the November 2022 shooting of Jesus Crosby, the Federal Monitor’s report states:

“Most troubling is that in this case, the IAFD investigator and supervisor did what was required, and the deficiencies began at the Internal Affairs Force Division command level and were endorsed by the Force Review Board … We are equally concerned with the chilling effect a case like this can have on Internal Affairs Force Division investigators and supervisors who will be called to make difficult, honest, and accurate findings in the future.”

Independent Monitor James Ginger said it was the second such occurrence in a year and warned the Albuquerque Police Department of the “chilling effect” it could have on those tasked with investigating use of force incidents in the future.

Private Attorney Mark Fine, who is represents the Crosby family in a civil rights and wrongful death lawsuit, said the family thanked the monitoring team for its “good-faith assessment of the killing of Jesus and for calling out the backwardness of APD leadership’s absurd determination that the shooting was ‘within policy.’” Fine said this:

“Since 2014, the City has known and admitted that a lack of supervisory oversight allowed a culture of aggression to develop in its ranks, which resulted in a pattern of unnecessary and deadly uses of force. …The Monitor’s report reveals that this toxic dynamic continues.”

CPOA CASES REVIEWED

According to the 18^th Federal Monitor’s, the monitoring team reviewed a random sampling of 20 CPOA cases centered on civilian complaints. The auditors found deficiencies in 6 of the cases. In all of the cases there was a failure to meet deadlines, and two cases also had incomplete interviews.

The issues stemmed from low staffing, with six investigators tasked with investigating more than 600 complaints a year, according to the 18^th IME report. The end result was a backlog of dozens of complaints and only half of the investigations being completed.

The monitoring team called the workload “excessive and unsustainable,” saying it “likely leads to poor outcomes regarding timelines, quality, and effectiveness.” In the worst-case scenarios, lower-priority cases extend past due dates, and any sustained findings cannot be disciplined, according to the report.

The Federal Monitor’s team suggested fully staffing the board, filling three vacant supervisory roles and conducting a staffing study to “establish realistic expectations” on a mandatory number of investigators needed for the workload.

CIVILIAN POLICE OVERSIGHT BOARD FOUND IN CRISIS

The Federal Monitor identified in the 18^th Report the failures of civilian oversight that represent the largest remaining roadblock to the city ending its yearslong consent decree with the U.S. Department of Justice.

Twelve of the remaining 15 paragraphs of the Court Approved Settlement Agreement involve failures with the Civilian Police Oversight Agency (CPOA) which is appointed and overseen by the Albuquerque City Council. The Civilian Police Oversight Advisory Board (CPOA) was formed in January of this year after the City Council abolished the previous Civilian Police Oversight Board.

The 18th Federal Monitor’s Report found that the civilian oversight mandated by the CASA is “in crisis” with understaffing and excessive caseloads leading to inadequate investigations by the external board tasked with everything from evaluating civilian complaints to weighing in on police shootings.

The report also showed that 12 of the remaining 15 sections of the settlement that are noncompliant revolve around the operations of the Civilian Police Oversight Advisory Board. The monitor found that since the change made in January, the CPOA hasn’t been able to properly function. The five-person board currently has only two members. The 18^th Monitor Report states:

“From the monitor’s perspective, CPOA is in crisis. This crisis was birthed by understaffing, the need for the City to fill supervisory and oversight positions, and the need to improve the organizational structure of the agency.”

The CPOA’s problems led the city to fall behind on Secondary Compliance which had reached 100% compliance in the 17th report but dropped by 1% and is now at 99% in the 18^th IME Report due to a drop in CPOA training.

City Council President Pat Davis said in a letter to Mayor Tim Keller that changes to “key leadership” within the City Council and the administration “slowed things down” over the summer, but they have since interviewed more than a dozen applicants for the vacant board positions. Davis said the council expects to reach its initial goal of having those positions filled, as well as filling a crucial leadership role, by the end of the year.

Davis said the board is expected to be fully staffed and hire a contract compliance officer, who would make sure the CPOA abides by the settlement agreement and would be in charge of staffing, by the end of December. Davis said this:

“We’re on track. … This is the last big-ticket item, the administration wants it done fast, the monitor wants it done fast, we want it done well — and fast.”

Come January 1, a new city council will be sworn that will not include Pat Davis in that he did not run for a third term

During a November 8 news conference announcing the 18^th Federal Monitors Report, Mayor Keller emphasized the CPOA is the responsibility of the City Council, but said his administration is “here to help.” When asked if the city could reach full compliance without the CPOA portions of the CASA fulfilled, city and police officials replied, “Just barely.”

Keller said if the City Council doesn’t get the CPOA into compliance with the CASA, one option would be to split the CASA into two, calling the CPOA half “a little casita.”

REACTION TO 18^TH FEDERAL MONITOR’S REPORT

Standing in front of a graph charting the city’s progress and noting the 1% left in the reforms to achieve compliance, Mayor Tim Keller said this:

“The amazing thing is — this is all that’s left. … There’s like that much left in the DOJ process. That’s it and that is how far we have come [in 9 years].”

Albuquerque Police Chief Harold Medina, using a football analogy, said APD is at the 1-yard line with the Court Approved Settlement Agreement and said this:

“We don’t want to fumble the football, and we want to get into the end zone. … I think it is imperative that we recognize the hard work of the men and women of this department. We will never be perfect anytime we have a process that involves humans … but this is about ensuring that there’s accountability when we’re not perfect.”

Medina noted that APD statistics have shown a drop in crime and uses of force, outside of police shootings, since 2017, alongside a boost in officer productivity, measured by arrests and traffic stops. Medina said this:

“We wanted to beat the idea that you cannot have reform and a safe city.”

Police union president Shaun Willoughby said he was looking forward to the end of the CASA. Willoughby also called the monitoring process “a scam”. Willoughby said this:

“This report and the impact of the report changes absolutely nothing for years to come, in my opinion. … Using force as a police officer, it’s good to take it seriously … But I also think that we overdo [investigating] it.”

Willoughby added APD has learned to categorize and investigate force at “an expert level” but believes it could’ve been done for much less time and money.

The American Civil Liberties Union of New Mexico, a major critic of APD, in responding to the 18^th Federal Monitors report, recognized the work that has been done by APD. However, Daniel Williams, the ACLU Policing Policy Analyst said the shortcomings and failures identified in the 18^thFederal Monitors report speak to culture change within the department and what “brought DOJ to town in the first place.” Williams said this:

“If the chain of command has not bought into a new attitude toward policing, has not really bought into these reforms and is continuing to go with the same status quo that has failed us for years, is the CASA going to be sustainable when DOJ leaves town?”

Links to quoted news sources are here:

https://www.cabq.gov/police/documents/final-imr-18.pdf

https://www.cabq.gov/police/documents-related-to-apds-settlement-agreement

https://www.abqjournal.com/news/monitor-praises-apd-progress-but-warns-of-top-brass-mishandling-police-shootings-as-city-eyes/article_bb68cdf2-7f42-11ee-bd00-bfcb21c9f70c.html

https://www.abqjournal.com/news/report-civilian-police-oversight-in-crisis-as-city-police-near-full-compliance-on-reforms/article_a30f73ea-8038-11ee-a4ea-67a9771862fc.html#tncms-source=home-featured-7-block

COMMENTARY AND ANALYSIS

THE REAL SCAM ARTIST IDENTIFIED

Police Union President Shaun Willoughby just had to open his big mouth and make the inflammatory and false statement that the reform process has been “a scam” and that the reforms could have been completed much sooner and less costly. The real scam artists during the last 9 years of implementing the reforms has been none other than Shaun Willoughby himself and the police union members of sergeants and lieutenants he represents who did everything they could to undercut the police reforms brought on by the Department of Justice (DOJ) investigation that found a “culture of aggression” and repeated use of deadly force and excessive use of force.

Over the years, the Federal Court Appointed Monitor labeled the policde union interference with the reforms as the “County Casa Effect”. The monitor said this in one of his reports:

“Some members of APD … resist actively APD’s reform efforts, including using deliberate counter-CASA processes. For example, … Collective Bargaining Agreement (CBA) disciplinary timelines, appear at times to be manipulated by supervisory, management and command levels at the area commands, letting known violations lie dormant until timelines [mandated by the union contract] for discipline cannot be met.

Many of the instances of non-compliance seen in the field are a matter of “will not,” instead of “cannot”! The Monitor … report[s] … he sees actions that transcend innocent errors and instead speak to issues of cultural norms yet to be addressed and changed by APD leadership. … Supervision, which includes Lieutenants and Sergeants in the union, need to leave behind its dark traits of myopia, passive resistance, and outright support for, and implementation of, counter-CASA processes.”

On April 27, 2021, it was widely reported that the Albuquerque Police Officers Association (APOA) launched a $70,000 political ad campaign to discredit the Department of Justice (DOJ) mandated reforms saying the police reforms are preventing police officers from doing their jobs and combating crime. The federal monitor’s response was swift and sure and he said in open court:

“[The accusation is] a union canard. We’ve talked about the counter-CASA effect in Albuquerque for years and years, and it is still alive and well. This latest process from the union is just another piece of counter-CASA. The union would like us out of town, I’m sure, and remember this monitoring team – as much as we love Albuquerque – would be glad to be done with the job. But we’re not going to give passing scores unless passing scores are earned. … [if the city] will actually focus on compliance”

REFORMS ACHIEVED UNDER THE CASA

On November 16, 2023, it was a full 9 years that has expired since the city entered into the CASA with the DOJ. It was originally agreed that implementation of all the settlement terms would be completed within 4 years, but because of previous delay and obstruction tactics by APD management and the police officers’ union found by the Federal Monitor as well as APD backsliding in implementing the reforms, it has taken another 5 years to get the job done.

Now after 9 full years, the federal oversight and the CASA have produced results.

Reforms achieved under the CASA can be identified and are as follows:

New “use of force” and “use of deadly force” policies have been written, implemented and all APD sworn have received training on the policies.
All sworn police officers have received crisis management intervention training.
APD has created a “Use of Force Review Board” that oversees all internal affairs investigations of use of force and deadly force.
The Internal Affairs Unit has been divided into two sections, one dealing with general complaints and the other dealing with use of force incidents.
Sweeping changes ranging from APD’s SWAT team protocols, to banning choke-holds, to auditing the use of every Taser carried by officers and re-writing and implementation of new use of force and deadly force policies have been completed.
“Constitutional policing” practices and methods, and mandatory crisis intervention techniques an de-escalation tactics with the mentally ill have been implemented at the APD police academy with all sworn police also receiving the training.
APD has adopted a new system to hold officers and supervisors accountable for all use of force incidents with personnel procedures implemented detailing how use of force cases are investigated.
APD has revised and updated its policies on the mandatory use of lapel cameras by all sworn police officers.
The Repeat Offenders Project, known as ROP, has been abolished.
Civilian Police Oversight Agency has been created, funded, fully staffed and a director was hired.
The Community Policing Counsels (CPCs) have been created in all area commands.
The Mental Health Advisory Committee has been implemented.
The External Force Investigation Team (EFIT) was created and is training the Internal Affairs Force Division on how to investigate use-of-force cases, making sure they meet deadlines and follow procedures.
Millions have been spent each year on new programs and training of new cadets and police officers on constitutional policing practices.
APD officers are routinely found using less force than they were before and well documented use of force investigations are now being produced in a timely manner.
APD has assumed the self-monitoring of at least 25% of the CASA reforms and is likely capable of assuming more.
The APD Compliance Bureau has been fully operational and staffed with many positions created dealing directly with all the reform efforts and all the duties and responsibilities that come with self-assessment.
APD has attained a 100% Primary Compliance rate, a 99% Secondary Compliance rate and a 92% Operational Compliance rate.

CITY SHOULD SEEK DISMISSAL OF CASE AND NOT WAITE ANOTHER 2 YEARS

Over the last 9 years, APD has devoted thousands of manhours and the city has spent millions of dollars on the reform process, creating and staffing entire divisions and roles and rewriting policies and procedures. More recently, APD has implemented oversight outside of the CASA requirements, implementing six-month reviews of police shootings to identify shortcomings and possible solutions.

Despite the concerns raised in the 18^thFederal Monitors Report, the city’s compliance with reforms has never been higher. The monitor’s 18th report shows APD has reached 100% in Primary Compliance, 99% in Secondary Compliance and 94% in Operational Compliance the highest levels ever reached in 9 years. Once 95% compliance or better is reached in all 3 of the compliance levels, APD must sustain that compliance for two years. After a full two years of compliance in the 3 compliance levels, the case can be dismissed bringing and to end the consent decree.

Given the extent of the compliance levels, the work of the Federal Monitor can be said to be winding down. The purpose and intent of the settlement has been achieved. The city should seek to negotiate a stipulated dismissal of the case with the Department of Justice (DOJ) sooner rather than later. Should the DOJ refuse, the City Attorney should move to immediately to dismiss the case under the termination and suspension provisions of the CASA by filing a Motion to Dismiss the case and force the issue with an evidentiary hearing and let the assigned federal judge decide the issue of dismissal.

NEWS AND COMMENTARY

Monthly Archives: December 2023

Colorado Supreme Court Ruling Kicks Trump Off Ballot; Michigan Supreme Court Keeps Trump On Ballot; Main Secretary of State Kicks Trump Off Ballot; Analysis and Commentary: US Supreme Court Front And Center Of Trump’s Fate

HEALINE: Unprecedented Colorado ruling puts courts at the center of Trump’s fate next year

Public Education Department’s Mandatory 180 Day Teacher In School Rule Severely Challenged By Legislators And Public; Bad Policy For Rural New Mexico; 40% Chronic Student Absentee Rate Defeats Purpose Of Rule; Rule Deserves A Grade Of “F” And Should Be Rejected

Colorado Supreme Court Kicks Trump Off Ballot In Case Filed By Republicans; Analysis and Commentary: US Supreme Court Front And Center Of Trump’s Fate

HEALINE: Unprecedented Colorado ruling puts courts at the center of Trump’s fate next year

Gun Control Measures Proposed By NM Senator Martin Heinrich, Governor Michelle Lujan Grisham and Santa Fe Mayor Alan Webber; Efforts Will Likely Fall Short; NM Legislature Should Enact Comprehensive Gun Control Act During Special Session

New Mexico Supreme Court Affirms Democratic Congressional Redistricting; US Supreme Court Appeal Likely Futile Effort By GOP; Legal Analysis And Commentary