City Desk ABQis an independent nonprofit newsroom serving and supported by readers and institutions working together to become more informed and better engaged residents of Albuquerque and Bernalillo County. City Desk ABQ is a project of Citizen Media Group which is a 501(c)3 organization. Citizen Media Group is an IRS-recognized 501(c)3 nonprofit organization (EIN 13-4302938) based in Albuquerque, New Mexico. According to its web page “City Desk ABQ  believe [s] local democracy and civic engagement require a strong local press. To support this purpose, [it] supports programs that develop and provide capacity for local journalists to report on the communities where they live.” City Desk ABQ has a policy that allows the republishing of articles by other media outlets. Links for more information on City Desk ABQ can be found in the  postscript below .

CITY DESK ABQ ARTICLE

On May 2, 2024 City Desk ABQ published an alarming report  written by  its staff reporter TIERNA UNRUH-ENOS disclosing that the Mayor Tim Keller Administration is being investigated by the City’s Inspector General for improper payouts to top city officials who have n terminated their city employment. Following is the article:

City Desk Headline: “City Investigated For Undisclosed Special Payouts To Top Officials Who  Resigned”

BY TIERNA UNRUH-ENOS, City Desk ABQ, MAY 2, 2024

Exclusive in City Desk ABQ

“High-level city officials have been awarded thousands of dollars in extra compensation after announcing their resignations thanks to a special, and mostly unknown, leave program, City Desk ABQ has learned. 

The most high-profile recipient of the “special leave” was Sarita Nair, Mayor Tim Keller’s top aide and the city’s chief administrative officer who announced her resignation from the city less than four months into Keller’s second term in March of 2022. On her final day in the office the next month, she signed a memo from other top city officials providing her with almost 40 extra days of pay worth more than $30,000 through a process outside of normal city policies.

City Desk ABQ has also identified other executives in the city who, in the years since, were awarded bonus leave that converted into extra pay after they announced resignations. 

In interviews with City Desk ABQ, individuals familiar with the practice disclosed that they had been interviewed by the city’s inspector general earlier this year. On Thursday [May 3]  Inspector General Melissa Santistevan confirmed that her office is investigating claims that a select number of high-level former employees were given special treatment when they resigned. Specifically, the office confirmed it is investigating whether Nair was given a deal upon resignation for “special leave.”

According to city spokesperson Ava Montoya, with special authorization, the city can create exceptions for leave policies. “It is not unusual to do so for higher level executives or to take into consideration their health and retirement, as the demands of their roles often restrict them from taking large chunks of leave during their service,” Montoya said.

City Desk ABQ reached out to Nair, who is now the state’s secretary of the Workforce Solutions Department in Governor Michelle Lujan Grisham’s cabinet, for comment but did not hear back as of press time. 

“PAID LEAVE – OTHER”

When Keller was elected for his first term, Nair followed him from the state auditor’s office to city hall and served as the city’s chief administrative officer, a position similar to a city manager. 

In March 2022, Nair announced that she would leave her position on April 22. But she stayed on the payroll for another 80 days until August 12, 2022. During that time she burned vacation leave and weeks of special leave awarded to her on her last day of work through a special process not available to other employees. 

In an internal city memo obtained exclusively by City Desk ABQ dated April 21, 2022, then-HR Director Anthony Romero writes to Nair, “You informed us that your last day of work with the City is Friday, April 22, 2022. You also requested to be compensated for the accrued balances in vacation and sick leave…”

Internal city personnel memo detailing terms of resignation payouts for Sarita Nair, obtained by City Desk ABQ

The memo shows that Nair had accrued 327.3 of vacation leave that could be used. It also listed 313.32 hours of accrued sick leave. 

Under city policy, employees who resign are compensated for unused vacation leave but the rules for cashing out sick leave are more restrictive.  

City Personnel Rules, Section 401.4(E), Sick Leave Conversion at Termination, state “An employee who has an accumulation of sick leave of between 500 hours and the maximum accrual will, upon termination from city employment, be allowed to convert accumulated sick leave in excess of 500 hours on the basis of three (3) hours of sick leave to one (1) hour of cash payment.”

For example, if an employee resigned with 560 hours of unused sick leave, the first 500 would be lost. The next 60 would be converted to cash payments at a three-to-one rate, netting just 20 extra hours of pay for the 560 hours of unused sick leave.

But with just 313.32 hours of sick leave on the books, Nair had not met the minimum standards to be cashed out for it by her resignation date.

In the memo, HR Director Anthony Romero wrote that instead of paying out unused sick leave, which would have violated city policy, Nair would be provided extra compensation – in exactly the same amount as her sick leave balance – in the form of a special category of leave called “Paid Leave – Other (PLO)” which would be paid out at her full hourly rate. City Desk ABQ could find no references to PLO in city personnel ordinances, regulations or labor contracts.

The special paid leave option was also not published in the employee handbook. 

At Nair’s 2021 hourly rate of $96.40 —  reported on the city’s transparency portal — the award of special leave in her final hours as a city employee provided her $30,204 in extra compensation. That is roughly 40 days of leave and benefits to be paid out after her last day of work and eligible vacation leave payout period.

Signatures on the memo show that Nair accepted the bonus leave award on her last day of employment. It was signed by HR Director Romero and initialed by Sanjay Bhakta, the city’s chief financial officer who oversaw human resources, risk management and budget. 

Both Romero and Bhakta retired in 2023. City Desk ABQ reached out to Bhakta, but he declined to comment.” 

The link to review the full City Desk ABQ article and photos is here:

https://citydesk.org/2024/city-investigated-for-undisclosed-special-payouts-to-top-officials-who-resigned/

INTEROFFICE MEMO

The City Desk ABQ article has pictured in it  an Interoffice Memorandum on City of Albuquerque letter head dated April 21, 2022. The Interoffice Memo is  addressed to Sarita Nair identified as the Chief Administrative Officer and is from Anthony R. Romero, Human Resources Department Director. The interoffice memo has  the subject line “Resignation/Leave Accrual”

According to the memo, Sarita Nair informed the City that her last day would be April 22, 2022. The memo further states that Nair requested to be compensated for the accrued balances in vacation and sick leave.  A Vacation Leave balance of 327.36 Hours representing 40.92 work days is listed.  A Sick Leave balance of 313.32 Hours representing 39.165 work days is listed.

The Interoffice Memorandum goes on to state as follow:

“The 327.36 hours of vacation will be applied to your timecard, beginning Monday April 25,  2022, until the balance is exhausted.  In lieu of your accrued sick leave hours, you will be provided with 313.32 hours of “Paid Leave Other (PLO)”.  The combined number of hours for both vacation and PLO total 640.68 [hours]. The anticipated date that these hours will be exhausted is Friday, August 12, 2022. You will not accrue paid leave while you exhaust these hours.”

The Interoffice Memo has an ACKNOWLEGEMENT OF RECIEPT signature line signed and bearing the signature of Sarita Nair and dated April 22, 2022. Chief Financial Officer Sanjay Bhakta initialed the memo and dated the memo  April 22, 2022 thereby giving his approval of the payment.

The net result of  the memo is that it  approves the payment of 327.36 hours of vacation time at the hourly rate of $96.40, or 40.92 days, for a total  of $31,557 dollars.  The memo also approves the payment of 313.32 hours of sick leave converted “one for one” per hour  to ““Paid Leave – Other (PLO)” at the hourly rate of $96.40, or 39.165 days for a total of $30,204.04.  A total cash payout of $61,761,04 was therefore approved. 

CHIEF ADMINISTRATIVE OFFICER SARITA NAIR

In 2017, then New Mexico State Auditor Tim Keller was first elected Mayor of Albuquerque riding a wave of popularity as the progressive democrat “white knight” State Auditor who stopped “waste, fraud and abuse” within state government and held government employees accountable for government corruption. As New Mexico State Auditor, he created the division of Government Accountability within the State Auditor’s Office that was responsible for ferreting out “waste, fraud and abuse” in government spending. Keller appointed Sarita Nair as the State Auditor’s Chief Government Accountability Officer and General Counsel and was considered Keller’s right-hand person. She served in that capacity until Keller was sworn into Office as Mayor on December 1, 2017.

Mayor Tim Keller quickly appointed Sarita Nair in December, 2017 as the city’s very first woman to serve as Chief Administrative Officer where she served during Keller’s  first entire 4 year term. As CAO, Ms. Nair was the City’s top senior executive manager, overseeing all 19 departments of municipal government and Department Directors and a $1.1 billion dollar budget. One of her primary responsibilities was to assist in administering the city’s Personnel Rules and Regulations by overseeing  the City’s Human Resources Department. As Chief Administrative Office, Sarita Nair was paid $196,773  and in 2021 was given a raise and paid upwards of $225,000. Her hourly pay rate at the time she left the city was  $96.40.

On March 11, 2022 Mayor Tim Keller announced that  Chief Administrative Officer (CAO) Sarita Nair resigned her position and  was leaving in April, less than 4 months into Mayor Tim Keller’s second term.  Informed City Hall sources confirmed that after 4 full years as CAO, Nair had lost the support of the majority of the City Council and her reconfirmation for another 4 years as CAO would not happen so she resigned. A full 9 months after leaving the city, Governor Michelle Lujan Grisham appointed Nair the Cabinet Secretary for the New Mexico Department of Workforce Solutions and on February 10, 2023 she was confirmed by the State Senate as Cabinet Secretary.

https://www.cabq.gov/chief-administrative-officer

COMMENTARY AND ANALYSIS

The payment of $30,204 to former Chief Administrative Officer Sarita Nair in the form of sick leave converted to “Paid Leave – Other (PLO)” is so very wrong on so many levels and reflects a level of sure hypocrisy by Mayor Tim Keller and Sarita Nair. It simply does not pass the smell test. It is difficult to see how the practice of converting sick leave to annual leave on a “one for one” hourly basis is not “waste, fraud and abuse” in government, something both Mayor Keller and his CAO Sarita Nair fought against and first made their reputations on combating when they were with the State Auditor’s Office.

The two individuals who approved the payment, Human Resources Department Director Anthony R. Romero and Chief Financial Officer Sanjay Bhakta reported directly to Chief Administrative Officer Sarita Nair and for that reason alone there is little doubt there was a level of undue influence or preferential treatment involved and they would not deny the request from their departing supervisor.  It is painfully obvious that both Human Resource Director Romero and Chief Financial Officer Bhakta simply ignored city personnel rules and regulations governing the payment of sick leave and simply broke personnel rules and regulations by creating a whole new category of “paid leave” in order to give Sarita Nair, and others, a large financial payout not entitled to.

Nair with just 313.32 hours of sick leave on the books, knew or should have known that she had not met the minimum amount of sick leave to be cashed out but she asked for it anyway and her subordinates Romero and Bhata made it happen. Sarita Nair  is now the cabinet  Secretary of  the Department of Workforce Solutions and State employment has essentially identical policy when it comes to sick leave not being compensated when any state employ terminates employment. 

Chief Administrative Officer Nair was no doubt fully aware that sick leave is lost and not paid when an employee quits and that unused sick leave is not paid out.  Accrued annual leave is totally different and becomes a vested property right upon being earned and must be paid out upon termination.  The underlying philosophy is that sick leave is to be used or its lost and is not to be accumulated as a benefit to be cashed out upon termination. Nair likely lost all sick leave when she left the State Auditors Office and she likely did not want that to happen again when she left the city.

The blunt truth as reported by CITY DESK ABQ is there is no such thing as “Paid Leave – Other (PLO)” in the city’s personnel rules and regulations and it was essentially made up  by Mayor Keller’s Human Resources Director Anthony Romero and Chief Financial Officer Sanjay Bhakta. In Nair’s case, there was no conversion of  accumulated sick leave in excess of 500 hours on the basis of three (3) hours of sick leave to one (1) hour of cash payment. Instead, there was a “one for one” hour conversion greatly inflating the cash payout. It is more likely than not that Mayor Tim Keller was aware of what was being done and  he gave his approval given it was his departing loyalist CAO Sarita Nair that was being paid.

The City’s Inspector General needs to be very aggressive with its investigation and identify all those that have been improperly cashed out for sick leave on a “one for one” hourly basis for annual leave and determine to what extent the payouts were approved by Mayor Tim Keller.  The city needs to make demand for reimbursement and the City Attorney should  initiate collection actions against those who have been improperly paid sick leave and seek reimbursement from them.

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POSCRIPT

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On May 2, it was announced by the Albuquerque Police Department (APD) that a 6^th APD Police Officer who  is under investigation for his part into the APD Bribery and Conspiracy Corruption scandal for the dismissal of DWI cases has resigned. APD Spokesperson Gilbert Gallegos announced that Daren De Aguero elected to “retire” after being told he was the target of an investigation by APD’s Internal Affairs and would be interviewed the same day.   DeAguero  joined APD in 2009 as a lateral hire and served in the DWI Unit from 2014-2018.

According to APD Spokesperson Gilbert Gallegos, although DeAguero said he was retiring in his resignation letter, he did not file the appropriate paper work required to retire.  APD Spokesperson Gilbert Gallegos said this:

“Investigators scheduled an interview …  but they were notified that DeAguero submitted his paperwork to retire.  … [DeAguero] characterized his separation from the city as a retirement [but he]  did not follow the process for retiring.”

Daren DeAguero is a former long-time Albuquerque police spokesperson. In his letter of resignation to Chief Harold Medina, DeAguero expressed his gratitude for the opportunities he received during his tenure and explained why he chose to leave the department by saying this in his letter:

“Due to the current situation of receiving a letter of investigation with very limited time to obtain adequate representation to proceed, I unfortunately will be ending my employment from the Albuquerque Police Department effective April 30, 2024.”

DeAguero is the 6^th  APD officer to resign or retire because of the investigation. The other officers to resign are Honorio Alba, Harvey Johnson, Nelson Ortiz, Lt. Justin Hunt, and Joshua Montaño. Two other APD officers, both members of the Internal Affairs Division, are under investigation but still with the department. APD Commander Mark Landavazo is on administrative leave and an APD Lieutenant who has not been publicly identified was transferred to another unit. The internal affairs investigation  is being led by Commander Kyle Hartsock.  When a final report is completed it will be submitted to the Superintendent of Police Reform Eric Garcia. None one has been charged as yet in connection with the federal investigation.

Albuquerque Mayor Tim Keller issued the following statement in reaction to APD’s update on the DWI investigation:

“The people of Albuquerque deserve to have trust that the criminal justice system is working to stop drunk driving. These allegations of corruption between officers and defense attorneys are a betrayal to the people that police officers are sworn to protect and a betrayal to their fellow officers who put their lives on the line every day for our families.   As we await the FBI’s complete investigation, we will continue to work with our law enforcement partners to ensure no stone is left unturned.”

Links to quoted and relied upon news sources are here:

https://www.krqe.com/news/crime/albuquerque-police-department-dwi-investigation/6th-officer-leaves-apd-amid-dwi-unit-investigation/

https://www.kob.com/new-mexico/apd-spokesperson-suddenly-files-for-retirement-leaves-department-amid-dwi-unit-probe/

https://www.abqjournal.com/news/former-apd-officer-spokesperson-retires-after-being-put-on-leave-in-corruption-probe/article_bdea22ec-073c-11ef-8ba3-abe65257934b.html

https://www.kunm.org/kunm-news-update/2024-05-01/wed-sixth-officer-leaves-apd-amid-corruption-probe-more

APD BRIBERY AND CORRUPTION SCANDAL IN A NUTSHELL

It was on Friday January 19  that the Federal Bureau of Investigation (FBI) executed search warrants and raided the homes of 3 Albuquerque Police officers and the home and law office of prominent DWI criminal defense attorney Thomas Clear, III.  All 6 are allegedly involved in a bribery and conspiracy scheme spanning a decade to dismiss DWI cases. Bernalillo County District Attorney Sam Bregman ordered the dismissed 196 DWI cases because of the scandal due to the main witnesses’ credibility being called into question which in all the cases are APD officers.  The Albuquerque Police Department has opened its own Internal Affairs investigation of the 6 APD officers.

6 APD Police officers implicated in the scandal have now resigned during the Internal Affairs investigation. The names and dates of the 6 resignations are:

• On February 7, 2024 Justin Hunt, who started at APD in 2000, resigned.
• On February 29, 2024, Honorio Alba, who started at APD in 2014, resigned.
• On March 13, 2024, Harvey Johnson, who started at APD in 2014, resigned
• On March 15, 2024, Nelson Ortiz, who started at APD in 2016, resigned.
• On March 20, 2024 Joshua Montaño, who started at APD January 2005, resigned.
• On May 2, 2024 Daren DeAguero, who started with APD in 2009, resigned.

The FBI searched the homes of Alba and Johnson and the law offices of Thomas Clear III and the home of Clear’s paralegal Ricardo “Rick” Mendez.    The US Department of Justice and US Attorney’s office have confirmed the APD police officers and the criminal defense attorney are at the center of the  federal investigation involving the dismissal of hundreds of pending DWI criminal cases by the APD Officers for  remuneration to have the cases dismissed by the officers failing to appear for hearings. No one has yet to be charged as the federal investigation is ongoing.

5^TH APD OFFICER RESIGNS RELEASING LETTER OF RESIGNATION

It was on March 20 that it was announced that Joshua Montaño, the most high profile of the 5 police officers implicated in the scandal resigned. Montaño is an 18-year veteran of the department having joined APD in January 2005 and served on the DWI unit since 2015. Montaño quit days after being asked to give a statement and be interviewed by APD Internal Affairs for the investigation triggered by allegations of corruption within the DWI unit in the past decade.

The letter of resignation was sent to Police Reform Superintendent Eric Garcia on March 20.  Montaño’s resignation letter was released by APD to the news media. Montaño resignation is decidedly different from the resignations of the others in that he wrote the letter of resignation giving great detail and it was then released to the press. Montaño and his defense attorney Thomas Grover in the Internal Affairs Investigation then gave interviews.

In the first segment of his resignation letter, Montaño gets very emotional and talks about how he “fell in love” with APD, risked his life “on numerous occasions” and did “great and amazing things” for his community as a police officer.  Montaño wrote he was “all but abandoned” by APD after he was seriously injured in a car crash with a drunken driver in 2022. He wrote that he then found “comfort and support” from his fellow officers in APD’s DWI Unit. Montaño wrote “They were my family because they cared for me when others didn’t and they supported me when others wouldn’t. … However, that support came with a high price and on January 18, 2024, I found out what the cost of that support really meant.” January 18, 2024 was when the FBI raided the homes of the 3 police officers.

The most damning portions of Montaño’s resignation letter are as follows:

“When I was put on administrative leave, I thought there would be an opportunity for me to talk to the department about what I knew regarding the FBI’s investigation. I thought there would be a time where I could disclose what I knew from within APD and how the issues I let myself get caught up in within the DWI Unit were generational. I thought there would be a time where I could talk about all the other people who should be on administrative leave as well, but aren’t.

That opportunity was denied to me though. As I know my lawyer has explained in all his letters to the City, in order for me to talk to the City about what I knew, I needed to not be the City’s scapegoat for its own failures. Instead, Chief Medina has made it seem like there are just a few bad officers acting on their own. This is far from the truth. None of allegations against myself or others in the DWI Unit happened without supervisory knowledge. And they didn’t just happen over a few years ago. From my time as a P2/C, officers all know that our attendance, or non-attendance, at Court is watched over and monitored.

I take responsibility for my actions. However, APD’s investigations of me have been unfair, and because of Chief Medina’s public statements, the outcome of these investigations is already set. Therefore, I have no choice but to hereby resign from my position with APD. As I mentioned at the beginning of this letter, I fell in love with this department nearly19 years ago and this is such a difficult moment for me. I do not waive any of my earned and accrued sick, vacation, or comp time and respectfully request that I be out-processed as any other employee would be upon resigning from the department.”

Private Attorney Thomas Grover, who is a retired former APD Officer, is representing Joshua Montaño in his defense in the Internal Affairs Investigation. Grover is not representing Montaño in the federal criminal investigation.  In an interview with the Albuquerque Journal done after the release of his client’s letter of resignation, Grover had this to say:

[The resignation letter shows the conduct] didn’t happen within a cell or a silo. … [My client’s decision not to give a statement to Internal Affairs when requested was]… absolutely not … [an admission of wrongdoing].  … My advice, my counsel, was, ‘You can’t give a statement. It’s patently unfair and inappropriate.’ … [APD’s Internal Affairs  inquiry was] inept because there was so much sloppiness in how they …  were issuing target letters. … Because of various defects in the city’s investigation, he was left with no choice but to resign. … Nothing that I’m saying discounts the expectations that the public has of police officers, but there’s even greater expectations of the agencies and departments that lead those officers to do proper and effective Internal Affairs investigations.”

COMMENTARY AND ANALYSIS

Mayor Keller and Chief Medina have made more than a few stunning admissions throughout this sordid APD corruption scandal and they seem joined at the hip. They admit that the APD bribery and conspiracy scheme to dismiss DWI cases went on the entire 6 years they have been in charge of APD, but they never detected what was going on.

Both admitted that only after they found out the FBI was investigating APD the decision was made to initiate a city criminal and internal affairs investigation and to proclaim cooperation with the FBI. Medina admitted that he knew about the corruption as far back as December 2022 when APD first got a complaint related to the department’s DWI unit in December 2022, yet he waited and essentially did nothing for a full year.

Keller’s admissions come from a person who was first elected as the “white knight” state auditor who stopped “waste, fraud and abuse” and held people accountable for government corruption. Medina’s admissions come from a chief who claims he has never looked the other way at police corruption. Keller and Medina  have looked the other way on documented corruption involving overtime pay abuses by police officers. There have been seven audits in eight years documenting the corruption, waste, fraud and abuse in police overtime.  One of those audits was done by none other than New Mexico State Auditor Tim Keller.

Chief Medina went so far as to blame the Bernalillo District Attorney’s Office for a failure to advise APD when officers did not appear for court. Medina also  accused the Public Defender’s Office of being aware of complaints that Public Defender Board of Director member Tom Clear, III was involved with nefarious conduct and that the Public Defender’s Office did nothing.

BASTION OF “DIRTY AND CORRUPT COPS”

There is absolutely no doubt that APD’s reputation has been trashed to a major extent because of this scandal. APD will likely be viewed by many as again having just another bastion of “dirty and corrupt cops” who have brought dishonor to their department and to the department’s professed values of “Pride, Integrity, Fairness and Respect”.  This is so even before any charges have been filed against anyone, before any one is fired from APD and before any action is brought against the police officers involved for government corruption and criminal conspiracy to dismiss cases working with a prominent criminal defense attorney. Should the criminal defense attorney be charged and convicted of the crimes, he is likely facing jail time in prison as well as disbarment from the practice of law.

There is little doubt that this whole DWI dismissal bribery scandal has shaken the public’s faith in our criminal justice system. The only way that any semblance of faith can be restored and for people to begin trusting APD again is if all the police officers involved in this scandal are held accountable, the lawyers involved are held accountable.  That will only happen when there is aggressive prosecutions and convictions, the police officers are terminated and they lose their law enforcement certification and disbarment occurs with the attorney.

Ultimately, it is Mayor Tim Keller and Chief Harold Medina who need to be held accountable with what has happened. Mayor Tim Keller and Chief Harold Medina must ultimately be held accountable and take full responsibility for failed leadership of APD and this most egregious  APD scandal.  Mayor Tim Keller and Chief Harold Medina instead have been in full fledge “politcal spin cycle” of “pivot, deflect and blame” since the news broke and since the Albuquerque City Council accused them of failed leadership in dealing with the scandal as they attempt to get ahead of this most recent scandal involving APD.  They both have attempted to take credit for the investigation and for taking action to hold bad cops accountable for the corruption when it was in fact the federal investigation that forced their hand and after they both allowed the problem to fester for 6 years.

There are 2 Democrats and 2 Republicans vying to replace Democrat Bernalillo County Clerk Linda Stover who cannot run because of term limits. The primary is June 4.  The Democratic candidates are Deputy County Clerk Michelle Kavanaugh and Karen Montoya, who previously served on the New Mexico Public Regulation Commission and before that two terms as Bernalillo County County Assessor. The Republican candidates are Robert Kwasny and Clayton Pryor.

Deputy County Clerk Michelle Kavanaugh and former Public Regulation Commissioner Karen Montoya both submitted candidate guest opinion columns to the Albuquerque Journal which were published May 1 outlining why they are running and their platforms. Below are the 2 guest opinion columns with Journal links  being published to allow voters to compare and make an informed decision who to vote for on June 4. It is anticipated guest columns by Republicans Robert Kwasny and Clayton Pryor will be published at a later date.

MICHELLE KAVANAUGH

HEADLINE: “Our Democracy Is Precious And Cannot Be Taken For Grantesd”

BY Michelle Kavanaugh, May 1, 2024

“My name is Michelle Kavanaugh and I’m running to be your next Bernalillo County clerk.

I’m running for county clerk because our community deserves someone who will do the right thing. Someone with integrity and commitment to doing the job right for all voters, regardless of party affiliation. And someone who feels like civic involvement and engagement is the most patriotic activity a citizen can do.

I’m a native New Mexican whose family goes back to northern New Mexico for generations. All my life I’ve had the privilege of witnessing the hard work and sacrifices my parents made to better their communities.

My mom was a teacher for over 20 years, and I watched my dad as a public defender represent those who deserved fair treatment in the court system.

I beamed with pride as my dad was appointed an Albuquerque Metropolitan Court judge and then a District Court judge. My mom became a teachers union representative, rising to the role of AFT-NM president, the first Latina NM Federation of Labor president, and most recently, my own state representative.

I lived the principles of collective action and community service as an organizer for the American Federation of Teachers, as a field representative for U.S. Sen. Tom Udall, and for the last four years as a Bernalillo County deputy county clerk where I’ve helped oversee all aspects of election administration under the guidance of Clerk Linda Stover.

I’ve recognized and understood that our democracy is precious and cannot be taken for granted. Our community members have a right to be heard, and voting is the easiest way to ensure that happens.

As the next Bernalillo County clerk my goals are simple. Among them:

1. Protecting our local elections and democracy,
2. Continuing and expanding the education program we’ve established in partnership with Albuquerque Public Schools, and
3. Maintain an office that values transparency, accountability, and maintains the ethical leadership our community deserves.

As your next Bernalillo County clerk, I plan to continue the tradition of public service and commitment that was instilled in me. Ensuring that everyone has the opportunity to have their voices heard. Ensuring that our community is educated on the importance of participation, and to continue Bernalillo County’s ongoing efforts to conduct transparent, free and accessible elections.

I’m Michelle Kavanaugh and I’m proud to have the support of our current county clerk, Linda Stover, and I humbly ask for your vote for Bernalillo County clerk on June 4, 2024.”

The link to the Albuquerque Journal guest column with candidate photo is here:

https://www.abqjournal.com/opinion/opinion-our-democracy-is-precious-and-cannot-be-taken-for-granted/article_96f197b2-0686-11ef-8893-cf3dff9916cd.html

KAREN MONTOYA

HEADLINE:  Sensory Friendly Voting Booths Would Enhance Access To The Polls

BY: KAREN MONTOYA, May 1, 2024

“I am Karen Montoya, a proud Democrat, and I am delighted to introduce myself as a candidate for Bernalillo County clerk.

With over 25 years of dedicated public service, I am deeply committed to foster transparency, fairness and inclusivity in our community. Today, I present to you a vision for the future, a future where the voice of every resident resonates, where every vote carries weight, and where every member of our community is honored with dignity and respect.

My journey in public service began at the Bernalillo County Assessor’s Office as a commercial and residential appraiser. I dedicated myself to fair and equitable assessments.

Over the years, I worked tirelessly to ensure that every individual received equitable treatment and fair resolution of valuation disputes. I then went on to work at the State Property Tax Division as a senior appraiser. I did review appraisals for the State Board of Finance, and was the chair of the County Valuation Protest Board. I stood firm in my commitment to fairness and integrity.

From 2007 to 2013, I had the privilege of serving as your Bernalillo County assessor, where I focused on modernizing operations and implementing fair property assessments for all residents. I also fought against tax lightning.

I served as the chair of the New Mexico Association of Counties property tax task force. The subject was tax lightning. I also served as vice chair of the assessor’s affiliate. My goal was to create an environment where every taxpayer felt confident in the integrity of our tax system.

Following my tenure as assessor, I served as a commissioner at the New Mexico Public Regulation Commission, advocating for consumer rights and sustainable energy solutions. I fought to protect the interests of consumers and promote policies that would lead to a more sustainable future for our state.

Now, as a candidate for Bernalillo County clerk, I bring with me a wealth of experience and a clear vision for our county’s governance. While fair and transparent elections remain a cornerstone of our democracy, I recognize the multifaceted responsibilities of the Clerk’s Office. Beyond elections, I am committed to fostering efficiency and accessibility in managing property deeds and other vital records essential for our community’s functioning.

In addition to ensuring fair and inclusive elections, I am dedicated to bringing a fair and equal working environment to the County Clerk’s Office. I believe that every team member deserves to be treated with dignity and respect, and I am committed to fostering a workplace culture that values diversity, equity and inclusion.

One of the key initiatives of my campaign is implementing a “quiet hour” during early voting, providing individuals with autism and sensory issues a calm, sensory-friendly environment in which to cast their ballots. This dedicated time will feature dimmed lighting, minimal noise, and trained staff members available to assist voters with special needs.

Additionally, sensory-friendly voting booths with adjustable seating and other accommodations will be provided to ensure a comfortable and accessible voting experience for all. By prioritizing inclusivity in our electoral process, we can ensure that every member of our community has the opportunity to participate in our democracy with ease and dignity.

I am not just asking for your vote — I am asking for your trust. Together, we can build a future where fairness and inclusivity are the hallmarks of our electoral system and our workplace culture. I invite you to learn more about my campaign and join me in this important journey toward a more equitable and democratic Bernalillo County.

For more information, please visit my website at www.montoyaforcountyclerk.com.

Thank you for your support and consideration.

The link to the Albuquerque Journal guest column with candidate photo is here:

https://www.abqjournal.com/opinion/opinion-sensory-friendly-voting-booths-would-enhance-access-to-the-polls/article_2be816d0-072b-11ef-a69a-8f503c267ace.html

COMMENTARY AND ANALYSIS

This election year, there are 7 Bernalillo County elected positions on the ballot.  18 candidates have filed declarations of candidacies and have qualified by submitting the required number of qualifying nominating signatures from registered voters.   In addition to the race for Bernalillo County District Attorney between Democrats District Attorney Sam Bregman and former United States Attorney for New Mexico Damon Martinez, following is the breakdown of the other Bernalillo County races:

Treasurer Nancy Bearce cannot run for reelection after serving two consecutive terms.  Former New Mexico State Treasurer Tim Eichenberg has filed as a Democrat to run for the seat. Eichenberg served as Bernalillo County Treasurer in the 1970s and was the youngest County Treasurer to have ever been elected and also served as a State Senator before running for State Treasurer. Eichenberg will face Democrat Kenneth Scott, who previously served as Deputy Treasurer and Deputy Assessor for Bernalillo County, in the primary. Lelan Morrison will run for the seat as a Republican.

Two Democrats and two Republicans are vying to replace County Clerk Linda Stover. The Democratic candidates are Deputy County Clerk Michelle Kavanaugh and Karen Montoya, who previously served on the New Mexico Public Regulation Commission and before that two terms as Bernalillo County County Assessor. The Republican candidates are Robert Kwasny and Clayton Pryor.

District 2 Commissioner and Democrat Steven Michael Quezada cannot run for reelection because he will have served two consecutive four-year terms. Two Democrats, Frank Baca and William Walker, and one Republican, Mary Ingham are now running to fill the seat.

District 3 Commissioner, Democrat Adriann Barboa, is running for reelection. She will have two Democratic primary challengers, Robert Padilla and Laura Nasaria-Chavez, and one Republican opponent, Rene Coronado.

District 4 Commissioner, Republican Walt Benson, is running for reelection with no opposing candidates.

Division 11 Metro Court Judge Shonnetta Estrada will also reclaim her position with no opposition.

The case of Grants Pass v. Johnson is a US Supreme Court  case that challenges a municipality’s ability to bar people from sleeping or camping in public areas, such as sidewalks and parks. The Supreme Court is considering whether cities can enforce laws and take action against or punish the unhoused for sleeping outside in public spaces when shelter space is lacking. On April 22, the United States Supreme Court heard oral arguments in the case that in all likelihood will be a landmark decision on how communities across the United States will be able to deal with the homeless and if communities are obligated to provide shelter or housing.  The case will have a major impact on a case pending against the City of Albuquerque.

CITY OF ALBUQUERQUE PENDING LITIGATION ON THE HOMELESS

On Monday, December 19, 2022 the American Civil Liberties Union of New Mexico, the NM Center on Law & Poverty, and the law firms of Ives & Flores, PA and  Davis Law New Mexico filed a “Class Action Complaint For Violations of Civil Rights and for Declaratory and Injunctive Relief” against the City of Albuquerque on behalf  4 men and 4 women identified Plaintiffs alleged to be homeless. According to the complaint filed, not one of the 8 plaintiff’s allege they were charged or arrested for refusing to leave Coronado Park on the day it was closed nor were they jailed.

The Plaintiffs allege they were displaced from Coronado Park when the city closed it and that the city did not provide satisfactory shelter options to them although the city said it did give notice and offered shelter and services, including vouchers.  According to an ACLU the lawsuit was filed to stop the City of Albuquerque from destroying encampments of the unhoused, seizing and destroying personal property and jailing and fining people.

The lawsuit alleges the city unlawfully seized personal property, denied due process of law, and violated  constitutional rights by destroying property and forced all the unhoused at Coronado Park out with nowhere for them to go and with the city not providing shelter for them. The lawsuit is seeking court orders that will require the city to cease and desist enforcement actions to stop the unhoused from camping in public spaces which includes public streets, public rights of ways, alleyways, under bridges and city parks unless the city has  shelter or housing for them.

The link to review the full unedited complaint is here:

https://www.aclu-mm.org/sites/default/files/field_documents/final_complaint_class_action.pdf

PRELIMINARY INJUCTION ISSUED

On September 21, State District Court Judge Josh Allison entered a Preliminary Injunction against the City of Albuquerque from “enforcing or threatening to enforce” statutes and city ordinance to displace the homeless from public spaces. The Court also enjoined the city from seizing and destroying homeless belongings and mandates a warrant and post deprivation hearings regarding personal belongings seized. Judge Allison issued a preliminary ruling that said, given a shortage of shelter beds, the city of Albuquerque cannot punish homeless people for their “mere presence” on public properties. The injunction, which has since been modified, was put in place November 1 and restricted how the city can ask people camping on public property to move. A trial date was scheduled for August of this year, but it has been vacated as a result of the  pending case Grants Pass v. Johnson before the United States Supreme Court.

UNITED STATES SUPREME COURT CASE

On April 22, the United States Supreme Court heard oral arguments in the case of Grants Pass v. Johnson. The case involves the city of Grants Pass, Oregon that enacted a city ordinance that bars camping on public property and prohibits homeless people from using blankets, pillows and cardboard boxes while sleeping within city limits. The ordinance allows the issuance of $295 fines to people sleeping outdoors in violation of the ordinance.  At first, violators can face fines, but subsequent offenses can result in  jail time. The ordinance was enacted as the cost of housing escalated and tents sprung up in the city’s public parks, open space and recreational areas.

Supporters of the city ordinance said it helps the area deal with a growing number of encampments that can be unsafe. Opponents argue it amounts to cruel and unusual punishment.

The 9th Circuit Court of Appeals decided that the ordinance punishes people for sleeping outside without enough available indoor shelter and it was a violation of the Eighth Amendment, amounting to a cruel and unusual punishment. The question of where the unhoused can camp to sleep is an urgent one in the West, where a cross-section of Democratic and Republican officials contend that the 9th Circuit’s rulings on camping bans make it difficult for them to manage homeless encampments.

The case is the most significant case before the Supreme Court in decades on the issue.  It comes as a record number of people are without a permanent place to live in the United States. The U.S. 9th Circuit Court of Appeals based in San Francisco largely struck down the ordinance holding that banning camping in places without enough shelter beds amounts to cruel and unusual punishment. The same court found in 2018 that such bans violated the 8th Amendment by punishing people for something they don’t have control over. The U.S. 9th Circuit Court of Appeals has jurisdiction over the states of Alaska, Arizona, California, Nevada, Idaho, Montana, Washington, Hawaii and the U.S. Territory of Guam.

ARGUMENTS MADE BEFORE THE SUPREME COURT

In a pleading file with the Supreme Court, lawyers for the city of Grants Pass rejected the idea that the penalties amount to cruel and unusual punishment. They wrote:

“Neither the civil fines imposed by petitioner Grants Pass for violating ordinances regulating camping on public property, nor short jail terms for serial violators, are cruel and unusual.”

Lawyers for the Plaintiffs who challenged the ordinance argued in briefs that a lack of resources leaves homeless people without other options. They wrote:

“Because there are no homeless shelters in Grants Pass and the two privately operated housing programs in town serve only a small fraction of the city’s homeless population, most of the city’s involuntarily homeless residents have nowhere to sleep but outside.”

During the April 22 hearing, the Supreme Court Justices appeared to be leaning toward a narrow ruling in the case after hearing arguments that showed the stark terms of the debate over homelessness in Western states like California, which is home to one-third of the country’s homeless population.

Progressive Justice Sonia Sotomayor argued that sleeping is a biological necessity, and people may be forced to do it outside if they can’t get housing or there’s no space in shelters. She asked the questions:

“Where do we put them if every city, every village, every town lacks compassion and passes a law identical to this? Where are they supposed to sleep? Are they supposed to kill themselves, not sleeping?”

Conservative Justice Brett Kavanaugh said solving homelessness is a complicated issue. He questioned whether ticketing people for camping helps if there aren’t enough shelter beds to hold everyone, but also raised concerns about federal courts “micromanaging” policy.

Other conservative justices asked how far Eighth Amendment legal protections should extend as cities struggle with managing homeless encampments that can be dangerous and unsanitary. Conservative Justice Neil Gorsuch asked this:

“How about if there are no public bathroom facilities, do people have an Eighth Amendment right to defecate and urinate outdoors?”

Justice Department Attorney Edwin Kneedler said other public-health laws cover that situation and argued people shouldn’t be punished just for sleeping outside, but said the ruling striking down the Grants Pass law should be tossed out because the court didn’t do enough to determine if people are “involuntarily homeless.”

Justice Gorsuch and other justices also raised the possibility that other aspects of state or federal law could help sort through the issue, potentially without setting sweeping new legal precedent.

Advocacy groups, on the other hand, argued that allowing cities to punish people who need a place to sleep will criminalize homelessness and ultimately make the crisis worse as the cost of housing increases. Hundreds of demonstrators gathered outside the Supreme Court on April 22 during the court hearing to advocate for more affordable housing, holding silver thermal blankets and signs like “housing not handcuffs.”

The Supreme Court is expected to decide the case by the end of June when it goes on break.

NATURE OF THE CRISIS

Homelessness in the United States grew a dramatic 12% last year to its highest reported level, as soaring rents and a decline in coronavirus pandemic assistance combined to put housing out of reach for more Americans.

Data from the U.S. Housing and Urban Development Department  (HUD) yearly “Point In Time Survey” show on a single average night last year, over 650,000 people experienced homelessness. That marked the highest number of homeless people reported since HUD began reporting the data in 2007. Four out of 10 people without a home experienced unsheltered homelessness. Nearly half of them sleep outside. Older adults, LGBTQ+ people and people of color are disproportionately affected, advocates said.

In Oregon, a lack of mental health and addiction resources has also helped fuel the crisis. The state has some of the highest rates of homelessness and drug addiction in the nation, and ranks near the bottom in access to treatment, federal data shows.

The link to quoted news sources are here:

https://apnews.com/article/homelessness-supreme-court-oregon-fines-camping-ban-334d90536535ebb07ccb6d2dc76009c9

NEW MEXICO’S AND ALBUQUERQUE’S UNHOUSED NUMBERS

On May 22, 2023  the NM Legislative Finance Committee (LFC) released a report on the state’s homeless and the affordable housing shortage which included the preliminary estimates of the 2023 Point In Time (PIT) annual homeless count. The “Point in Time” (PIT) survey is conducted once a year to determine how many people experience homelessness on a given night in communities across New Mexico. The PIT count is the official number of homeless reported by communities to the federal Department of Housing and Urban Development (HUD).

According to the LFC Report on Homelessness and Affordable Housing, New Mexico’s homeless numbers increased 48% in 2023 going from upwards of 2,600 people to 3,842. The increase was driven by an increase in the unsheltered count with 780 more people in Albuquerque and 232 more in the rest of the state.  About half the emergency shelter beds available were used indicating overall adequate bed numbers statewide. However, shelter accessibility was reported as significantly lowering utilization rates because some individual emergency shelters are full while others are extremely hard to reach.

According to the LFC report, people experiencing unsheltered homelessness are more likely to exhibit multiple risk factors. These individuals tend to have higher service needs, tend to be more frequent users of community services, such as emergency room visits and inpatient and outpatient treatments, and require more acute care.

The Point In Time data breakdown for the unsheltered for the years 2009 to 2022 reports 46% of the unsheltered suffer from serious mental illness and that 44% of the unsheltered suffer from substance abuse for a staggering 89% combined total.  When it comes to the  homeless in Albuquerque, 30.19% of the homeless  self-reported as having a serious mental illness and  25.5% self-reported as substance abusers.

There is an overlap with homeless suffering both mental illness and substance abuse.  In other words, a whopping 55.69% combined total of those surveyed self-reported as having a serious mental illness or were substance abusers. When it comes to the balance of the state homeless numbers, 43% were identified as adults with serious mental illness and 40% were identified as adults with substance use disorders or a staggering 83% combined figure.

The link to the entire  2023  PIT survey is here:

https://www.nmceh.org/_files/ugd/6737c5_4ecb9ab7114a45dcb25f648c6e0b0a30.pdf

CITY OF ALBUQUERQUE PENDING CASE

The Supreme Court ruling in the Grants Pass City ordinance case will likely  have a major impact on the lawsuit filed against the City of Albuquerque. The City of Albuquerque filed an amicus brief in the case before the Supreme Court. Originally, the City of Albuquerque case trial was scheduled for August, but because of the Supreme Court case, the trial has been vacated until the Supreme Court case is decided.

Laura Schauer Ives, one of the attorneys representing the plaintiffs in the city’s case said there was “pressure” for the nation’s highest court to take up the case.   Schauer Ives said this:

“It’s something that communities are struggling with. … We continue to contend the struggle is not improved, nor answered, by criminalizing the most vulnerable people. … We want to know what the new federal standard is going to be and what exactly our trial will need to look like.”

City spokesperson Staci Drangmeister said the Grants Pass camping ban is “very different” from existing Albuquerque city ordinances. The City of Albuquerque published a “Policy for Responding to Encampments on Public Property” in 2021, which was revised in 2022. Drangmeister said this:

“The City remains focused on both connecting people experiencing homelessness to services and shelter and enforcing our laws to keep our city safe and clean for everyone.  … We are awaiting the SCOTUS decision on Johnson vs Grants Pass to determine if it will have any direct impact on Albuquerque.”

Schauer Ives said that  even if the high court decides in favor of Grants Pass, the lawsuit against the City of Albuquerque can continue, relying on a state constitution argument. She added that arguments against the seizure and destruction of property should be unaffected. Schauer Ives said this:

“The federal law can inform the New Mexico Supreme Court’s inquiry, [but] it’s not determinative of it.”

The link to the quoted news source is here:

https://www.abqjournal.com/trial-date-for-albuquerque-lawsuit-up-in-the-air-until-us-supreme-court-makes-decision/article_d0ada908-00fc-11ef-9f62-2fe352e0aea7.html

COMMENTARY AND ANALYSIS

The United Supreme Court is grappling with to very divergent and very complicated questions:

1.  To what extent can government enforce laws and ordinances designed to protect the general public’s health, safety and welfare against the unhoused? The unhoused are not above the law. They cannot be allowed to just ignore the law, illegally camp wherever they want for as long as they want and as they choose, especially when they totally reject any and all government housing or shelter assistance.

2.  To what extent must government pay for and provide shelter and services to all homeless before taking enforcement action against the homeless? Being unhoused is not a crime. Government, be it federal or local, has to some extent a moral obligation to help and assist the unhoused, especially those that are mentally ill or who are drug addicted. But the big question is to what extent does government have an obligation to provide housing or shelter to the unhoused and must it be housing the homeless approve of?

GRANTS PASS V, JOHNSON MIRRORS LAWSUITE AGAINST ALBQUERUE

The Supreme Court  case essentially asks whether a city may enact so many restrictions on sleeping in public and similar behavior that it amounts to an effective ban on being unhoused and criminalizing the unhoused.

There are identical arguments being made in the lawsuit filed against the City of Albuquerque that are being made in the Grants Pass v. Johnson Supreme Court case. The city’s lawsuit specifically enumerates New Mexico Statutes and City Ordinances that have been enacted to protect the general public health, safety, and welfare and to protect the public’s peaceful use and enjoyment of property rights. All the laws cited have been on the books for decades and are applicable and are enforced against all citizens and not just the unhoused.

The specific statutes cited in the lawsuit filed against the City of Albuquerque are:

1. NMSA 1978, Section 30-14-1 (1995), defining criminal trespass on public and private property.
2. NMSA 1978, Section 30-14-4 (1969), defining wrongful use of property used for a public purpose and owned by the state, its subdivisions, and any religious, charitable, educational, or recreational association.
3. Albuquerque City Ordinance 12-2-3, defining criminal trespass on public and private property.
4. Albuquerque City Ordinance 8-2-7-13, prohibiting the placement of items on a sidewalk so as to restrict its free use by pedestrians.
5. Albuquerque City Ordinance 10-1-1-10, prohibiting being in a park at nighttime when it is closed to public use.
6. Albuquerque City Ordinance 12-2-7, prohibiting hindering persons passing along any street, sidewalk, or public way.
7. Albuquerque City Ordinance 5-8-6, prohibiting camping on open space lands and regional preserves.
8. Albuquerque City Ordinance 10-1-1-3, prohibiting the erection of structures in city parks.

The lawsuit filed against the City of Albuquerque does not challenge the constitutionality of any of the state statutes nor city ordinances but makes the following  very broad allegation:

“[T]he  City regularly enforces City ordinances and state laws against unhoused people in a manner that criminalizes their status as homeless … [and] …  Unhoused people who erect tents or makeshift shelters around the City are routinely cited and/or arrested for violations of [the state laws and city ordinances].   Violations of these statutes and ordinances are punished as misdemeanors.

The lawsuit condemns the city alleging it is criminalizing the status of being unhoused with the following specific allegations:

As an illustration of the City’s ongoing practice of criminalizing the status of being unhoused, in the brief period between August 15, 2022, just before Coronado Park was closed, and October 2, 2022, two-and-a-half months later, the City enforced these provisions over 220 times— either by citation, summons, or arrest. On information and belief, most of these instances involved people who were unhoused. …  

Even when the City does not actually cite or arrest unhoused people for violations of these provisions, it enforces them by telling unhoused people that they must move or they will be cited or arrested for their violation. …  Because unhoused people have no lawful place to relocate to, they are continually pushed from place to place, and their presence anywhere in Albuquerque with the belongings they need in order to be sheltered—such as tents and tarpaulins—and to survive—such as sleeping bags, clothing, toiletries, medicine, food, and water—is criminalized by the City. …  

When private property owners have permitted unhoused people to set up their tents or place their belongings on the owners’ property, the City has cited or threatened to cite such private property owners pursuant to Albuquerque City Ordinance …  which prohibits camping in particular zoning districts, and …  which imposes a civil fine of up to $500 per day for violations. As a result of these threats and citations, the owners are forced to direct the unhoused people to pick up and leave.

Even when the owners themselves do not ask unhoused people to leave their property, City employees have a practice of ordering unhoused people off of private property where they have the owners’ permission to be.”

See Paragraphs 83 to 90, “Class Action Complaint For Violations of Civil Rights and for Declaratory and Injunctive Relief”:

Click to access final_complaint_class_action.pdf

ALBUQUERQUE’S NO ARREST POLICY                                                                       

The civil complaint file against the City of Albuquerque by the ACLU alleges that the city is “jailing and fining” the unhouse because of their status of being homeless. This allegation is simply not true.  According to the complaint, not one of the 8 plaintiff’s allege they were charged or arrested for refusing to leave Coronado  park on the day it was closed nor were they jailed. The complaint does not allege any one was arrested or taken to jail on the day Coronado Park was closed.

When the City and APD arrest or detain the unhoused, what is involved are illicit drugs, stolen property, stolen or unlicensed hand guns or weaponry, individuals with outstanding arrest warrants or individuals who pose an immediate threat to the public or themselves.

The Plaintiff’s allege conduct by the city is totally contrary to city policy and procedures and financial commitment the city has made to assist the unhoused. The city has a “no arrest” policy for non violent homeless crimes such as trespass on public and private property, illegal camping on all city parks and streets, rights of way, alleyways and open space.

When the unhoused are cited for such crimes, they are given a 3-day notice to vacate their encampment along with their belongings. No belongings are seized.  Arrests are for felonies such as illicit drugs, stolen property, or unlicensed guns, outstanding arrest warrants or individuals who pose an immediate threat to the public or themselves because of their actions.  When an APD officer arrests or detains the unhoused, the officer can only do so if the circumstances warrant it and makes it necessary and it must be legally justified in writing.  

For the last 5 years, the city and APD have had a “no arrest” policy when it comes to nonviolent misdemeanor charges.  The “no arrest” policy is the result of a settlement reached in the 1995 federal case of McClendon v. City of Albuquerque that involved overcrowding and racial discrimination at the jail and was filed to reduce overcrowding at the jail.

It was on May 10, 2018 that APD Department Special Order 17-53 was issued as part of the settlement of the 20-plus year McClendon Lawsuit.

Special Order 17-53 states:

“[A]ll officers shall issue citations when appropriate in lieu of arrests on non-violent misdemeanor offenses. … officers shall issue citations when appropriate in lieu of arrest on non-violent misdemeanor offenses when there are no circumstances necessitating an arrest.”

All the criminal trespass and loitering state statutes and city ordinances cited in the Plaintiff’s civil complaint are affected by Special Order 17-53.  The APD memo makes it clear that officers may make an arrest only if it is necessary and if they do, an incident report must be prepared, and the incident report must include the reasons why an arrest was made.

Channel 4 reported that during the June 22 meeting of the Albuquerque City Council’s meeting a city attorney explained the federal pressures the city is operating under. The city attorney cited federal cases arguing that they place limitations on the city. The main case cited by the city attorney when it comes to enforcing the law and the homeless was McClendon v. City of Albuquerque. The city attorney said this

“[When it comes to] “quote, unquote” homeless crimes, those offenders are not allowed to be arrested as a primary intervention”.

The city attorney explained that when it comes to “homeless crimes”, meaning illegal camping, criminal trespassing and loitering, those offenders are not to be arrested as the primary intervention. Under the settlement terms, police still have the option to issue citations and still have the discretionary authority to make felony arrests as they deemed appropriate and where the circumstances warrant it.

The city attorney said this:

“We are trying to advise the best we can [of] the least expensive means to be the most productive and respect people’s civil rights. ”

KOB 4 interviewed UNM law professor Joshua Katzenberg and asked how much power does the city and APD really have when it comes to enforcing the law against the homeless. Professor Kastenberg had this to say:

“The City’s hands and the Police hands are tied to a certain extent, that’s true. … Coronado Park you could put in any major city and we would be having this discussion right now. … I have talked to police officers and there is a fear of lawsuits, there is a sort of sense of hopelessness. That’s the sad state of affairs. …”

KOB 4 contacted APD and asked them to quantify how they are enforcing the law when it comes to the low-level, nonviolent offenses committed by the homeless. An APD spokesman told KOB that since the beginning of 2022 there have been issued 2,308 citations to the homeless and issued 614 trespassing notices with 3 trespassing stops revealing outstanding warrants.

The link to the KOB story is here:

https://www.kob.com/new-mexico/unm-law-professor-weighs-in-on-mayors-claims-about-homelessness/

ALBUQUERQUE’S FINANCIAL COMMITMENT TO UNHOUSES

Plaintiff’s complaint against the City of Albuquerque concentrates on the lack of shelter offered by the city.  It ignores all the financial assistance the city offers the unhoused and fails to disclose what the unhoused reject.

Since being elected in 2017 to his first term, Mayor Tim Keller has made dealing with homeless a major priority. The city has increased funding to the Family Community Services Department for assistance to the homeless with $35,145,851 million spent in fiscal year 2021 and $59,498,915 million being spent in fiscal 2022  with the city adopting a “housing first” policy.  On June 23, 2022 Mayor Tim Keller announced that the City of Albuquerque was adding $48 million to the FY23 budget to address housing and homelessness issues in Albuquerque.

Over the last 3 years, the Keller Administration has spend upwards of  $50  Million a year to deal with the homeless including expanding services and  establishing the 24/7 Gateway Center. The Health, Housing and Homelessness (HHH) Department was created and it provides a range of services to the unhoused. The proposed FY/25 General Fund budget for the HHH Department is $52.2 million, which includes $48 million for strategic support, health and human services, affordable housing, mental health services, emergency shelter, homeless support services, Gibson Health HUB operating and substance use services from Family and Community Services Department, and $4.2 million for a move of Gibson Health HUB maintenance division form General Service Department.

SUPREME COURT DECISION WILL LIKELY NOT END WELL FOR UNHOUSED

The right wing  U. S. Supreme Court’s final decision in Grants Pass v. Johnson more likely than not is not going to end well for the unhoused. The line of questioning from the justices reflected a degree of skepticism that the federal judiciary should play much, if any, role at all in addressing homelessness in the United States.

“The bulk of the Court’s questions …  and especially the questions from the Court’s Republican appointees, focused on the difficult “line-drawing” questions that arise once the Supreme Court says that there are constitutional limits on what the government can do to criminalize behaviors that are associated with homelessness.

If a city cannot criminalize sleeping in a public park with a blanket, for example, can it criminalize public urination or defecation by someone who does not have access to a toilet? Can it criminalize lighting a fire in public to stay warm? And does the answer change if the person who lights the fire needs to do so in order to cook?

Given these difficult questions, many of the justices, and especially Chief Justice John Roberts, Justice Samuel Alito, and Justice Neil Gorsuch suggested that maybe the courts should stay away from homelessness policy altogether and let local governments sort out how they want to deal with this issue.”

“Justices Clarence Thomas, Sonia Sotomayor, and Ketanji Brown Jackson floated the possibility that the federal judiciary may lack jurisdiction to hear the case to begin with. Such a decision would allow the Court to punt on the broader question of whether the Constitution permits the government to effectively criminalize homelessness.

Given the morass of competing concerns raised by different justices, it is difficult to predict what the Court’s opinion will ultimately say. However, it is unlikely that Grants Pass will end in a significant victory for people who lack shelter.”

The link to quoted news source is here:

https://www.vox.com/scotus/24137225/supreme-court-homelessness-grants-pass-johnson

RIGHT WING ACTIVIST COURT MARGINALIZES PROGRESSIVES’ JUSTICES

Supreme Court Justices Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett have joined Conservative Republican Chief Justice John G. Roberts, Jr. and Associate Justices Clarence Thomas and  Samuel A. Alito, Jr. to marginalize Progressive Democratic Progressive Associate Justices Sonia Sotomayor, Elena Kagan, Ketanji Brown Jackson.  Housing the unhoused is part of a progressive agenda.

The 6 appointed Republican Justices have already made a profound difference with their judicial activism over the last 2 years. At the end of June, 2023, the United State Supreme Court issued 4 major decisions that were highly anticipated and with great concern confirming it has become a far-right wing activist court.   The first was the court’s rejecting an attempt to empower legislatures with exclusive authority to redraw congressional districts without court intervention. The second struct down decades of affirmative action in college admissions.  The third ruled that a Christian business owners can discriminate and withhold services to the LGBTQ+ community based on religious grounds.  The fourth invalidated President Joe Biden’s student loan debt relief plan. Then there is the matter of the Supreme Court reversing Roe v. Wade and 50 years of precedent and denying a woman’s right to choose an abortion and leaving it up to the state’s.

It is very difficult to imagine the current conservative United States Supreme Court will have much sympathy for the plight of the homeless let alone mandate government to provide housing. It’s likely the Supreme Court will be reluctant to curtail government enforcement of laws and ordinances that have the purpose of preserving and protecting the general public health, safety and welfare and the rights of all its citizens.

The link to a related blog article is here:

https://www.petedinelli.com/2023/01/09/unhoused-sue-city-over-coronado-park-closure-city-should-seek-immediate-dismissal-unhoused-cannot-be-allowed-to-violate-the-law-as-they-refuse-city-shelter-and-services/

The link to a relied upon news article is here:

Supreme Court weighs bans on sleeping outside amid rise in homelessness

Gov. Michelle Lujan Grisham signed the  final $10.21 billion state budget on March 6.  The massive budget includes $1.8 billion in capital outlay requests and general obligation bond appropriations for a variety of projects in communities across the state. Each legislative session, lawmakers pass a capital outlay bill  to pay for all or part of new infrastructure or construction.

From highway improvements to school buses, following is a listing of 17 capital outlay projects with each having a $15 million or more in state funding:

• $107 million in Bernalillo County for Rio Bravo Boulevard improvements
• $75 million in Lea County to improve Highway 128 from milepost 28.8 to 50.5 near Jal
• $70 million in Eddy County to improve Highway 180 from milepost 128.27 to 142.5
• $62.8 million in McKinley County to improve the Interstate 40 bridge east of Gallup
• $45 million in Doña Ana County to improve the intersection of state highways 213 and 404
• $45 million in multiple counties to improve Highway 380 from Roswell to the state line
• $40 million in Santa Fe County to improve Interstate 25 from milepost 276 to 291
• $34 million in Union County for the Northeast New Mexico Correctional Facility
• $30 million for tribal community projects in several counties
• $30 million in San Miguel County for New Mexico Behavioral Health Institute forensics facility construction in Las Vegas
• $29 million for the Public Education Department to replace school buses statewide
• $25 million in Colfax County to improve the I-25 and U.S. 64 intersection in Raton
• $18 million for Water Trust Board projects statewide
• $16 million for the Energy, Minerals and Natural Resources Department to do facility and infrastructure improvements at state parks
• $15.6 million in Bernalillo County for Albuquerque Balloon Fiesta Park improvements
• $15 million in Bernalillo County for renovations at the University of New Mexico Health Sciences Cancer Center
• $15 million in Sandoval County for Sandoval County Magistrate Court construction

https://www.abqjournal.com/news/17-capital-outlay-projects-in-new-mexico-with-a-price-tag-of-15m-or-more/article_f3381bb2-e0bc-11ee-95e7-5b5a32d1e10b.html

BERNALILLO COUNTY GETS MORE MONEY IN CAPITAL OUTLAY PROJECTS THAN ANY OTHER COUNTY IN STATE

The 2024 New Mexico State legislature committed $289 million to 468 new capital outlay projects in Bernalillo County.  Forty-two capital outlay projects in the county also got reauthorized.

Most of the new projects are in Albuquerque, but there are also projects in Los Ranchos, Tijeras, To’hajiilee and the Chilili Land Grant. More new projects and more money are being committed to Bernalillo County than any other county in the state.

The three getting the most capital money are:

• Rio Bravo Boulevard improvements, coming in at $107 million and funded through severance tax bonds. The state Department of Transportation project will widen Rio Bravo from four lanes to six lanes from Isleta to Second, according to Bernalillo County Deputy Manager Elias Archuleta. The project will also reconstruct the bridges over the Rio Grande.
• Improvements for Balloon Fiesta Park in Albuquerque, costing $15.6 million from the state general fund. The funding could be used for upgrades to water, sewer and electrical and restrooms. There is also $100,000 for Balloon Fiesta Park baseball field improvements and $50,000 for baseball cages.
• $15 million from the general fund to renovate the University of New Mexico Health Sciences Cancer Center.

There are 33 new projects with more than $1 million in capital outlay funds located in Bernalillo County.

The governor vetoed one $200,000 capital outlay project in Bernalillo County,  improvements for Netherwood Park, also known as the  Lt. Governor Diane Denish memorial playground park,  and central Albuquerque parks,  before signing the capital outlay bill.

https://www.abqjournal.com/news/where-is-the-money-going-see-the-3-projects-in-bernalillo-county-getting-the-most/article_6f41f002-dffa-11ee-9639-27919c9c914e.html

ABQ GETS $15 MILLION IN APPROVED CAPITAL OUTLAY SPENDING

Housing, parks and police helicopters are just a few of the big-ticket items in Albuquerque getting state funding. The Legislature approved millions in capital outlay dollars for Albuquerque projects this session.

Balloon Fiesta Park will get $15.7 million for infrastructure improvements. The city’s wish list for Balloon Fiesta Park upgrades includes restrooms, water, sewer and electrical upgrades, road, parking lot and walkway improvements and more parking and protection for balloon landing sites, but exactly which upgrades will be done with the state funding is undecided.

David Flores, Deputy Director of Parks and Recreation, said  the $15.7  million will not cover all of the projects on the City’s wish list. Designs for the park improvements will have to consider the planned United soccer stadium on the land, Flores said. “But these would be independent and would have benefit long term for the park. We’ve had various plans for electrical upgrades for many years and sewer needs are there now, and of course, restrooms are needed now,” Flores said.

“I personally have been here for 28 years, and I don’t think I would have ever seen the day when they come in with this sort of money for infrastructure. … Usually you’re trying to build the bigger, flashier things, but to have something invested in for years to come with infrastructure is just very prudent and responsible,” Flores said.

More parking and buying more land to ensure balloons have space for landing are high on the wish list, said Emily Moore, Parks and Recreation marketing and communications coordinator.

Aside from the hot air balloons, food is one of the biggest components of Balloon Fiesta, and upgrading electrical capabilities at the park would make it easier for food vendors to operate, according to Flores.

While Balloon Fiesta Park has received substantial amounts in capital outlay funding in years past, this year’s capital outlay funding is more sizable than Flores has seen.

PARKS AND RECREATION:

The city will also get money to put toward rail yards renovations ($10.1 million) for the film academy, funding for Albuquerque Museum Education Center construction ($1.6 million), Cibola Loop Multigenerational Center ($1.2 million), North Domingo Baca Aquatic Center construction ($1 million), Rio Grande State Park improvements ($1.6 million), $11.4 million for park improvements and construction throughout the city, and $2.1 million for library renovations.

HOUSING:

The city will also get $1.6 million for Housing Navigation Center construction and $2.2 million for affordable housing construction.

“We appreciate the important progress that was made, but it’s clear that there is still a lot of work to be done,” Mayor Tim Keller said in a statement. “As the largest city in the state, we serve and care for people from all around New Mexico, which is why we need the state to step up and take care of the critical parts of the criminal justice and behavioral health systems for which they are responsible.”

PUBLIC SAFETY:

The Albuquerque Police Department will get a new helicopter for $3 million. Other public safety-focused dollars include money for Southwest Public Safety Center construction ($1.7 million), fire station renovation and construction ($3.9 million), road projects and infrastructure in the city ($3.8 million), and the Paseo del Norte and Unser expansion ($2.8 million).

Bernalillo County Commissioner Walt Benson shared his support for the Paseo/Unser project, which will expand Paseo del Norte to four lanes for a section of the road, before Gov. Michelle Lujan Grisham signed the capital outlay bill into law.

Benson said in a statement:

“We will make sure the city has any support it might need from the county as this project gets underway.”

https://www.abqjournal.com/news/albuquerque-capital-outlay-2024/article_b56150da-e15f-11ee-a51b-4fe4f04ccbfd.html

NEARLY $5 BILLION REPORTED UNSPENT ON LARGE PUBLIC PROJECTS

On November 15, 2023, the on-line news agency Source New Mexico reported that billions in public funds meant to pay for new buildings, vehicles and equipment for local communities throughout New Mexico have not been spent. Legislative staff are recommending state officials create a new government office to help complete projects.

“State analyst Cally Carswell told the Legislative Finance Committee that at the end of September, 2023 there was nearly $5 billion in unspent funds set aside for 4,900 projects funded by the state’s “capital outlay” program. There are 766 active projects, which lawmakers have given at least $1 million for fiscal year 2024, accounting for $3.6 billion in total, according to data produced by legislative staff.

Of those, 415 are on schedule, 170 are behind schedule, and 181 have had no activity, or the local governments responsible have not sold the bonds needed to raise the money, or are facing “significant obstacles to completion,” according to the report. These include, for example, the relocation of the Guadalupe County Magistrate Court, a few senior center projects, numerous projects with the city of Santa Fe, money set aside for road construction and money for a therapeutic group home run by the New Mexico Children, Youth and Families Department.

Only 11 projects funded with more than $1 million have been completed or have been granted an extension, according to the LFC data. This includes the Vladem Contemporary Museum of Art in Santa Fe, upgrades to the Albuquerque Police Department evidence lab, a vehicle for the Albuquerque Fire Department, and upgrades to a building at Eastern New Mexico University.

Earlier in the year Carswell told lawmakers that construction costs are increasing, and contractors are having difficulty attracting and retaining qualified workers to meet demand for construction in the state.  In a November  update, she said the situation remained the same.

Carswell said almost all of the 1,400 projects lawmakers approved in the 2023 legislative session were funded with money out of the state’s General Fund, its biggest single pot of public money. The source of the money matters because the law that authorizes spending requires each capital outlay project to spend at least 5% of the money within a year. When that doesn’t happen, the money gets pulled back into the General Fund.”

Three key state agencies that manage most capital outlay money: the Department of Finance and Administration, the Indian Affairs Department, and the New Mexico Environment Department.

[There were billions more in capital outlay requests made during the 2024 session.] Those approved projects are likely to face a “construction market saturated if not oversaturated, where it’s difficult to start new things and complete those already in the pipeline” Carswell said.

In 2025 and beyond, Carswell said she recommends lawmakers consider setting an earlier deadline for local capital outlay requests, and creating a basic method of vetting and tracking projects that get state money.

That could allow lawmakers to fund planning and design separately from construction, so that the larger amounts of money would be reserved for major construction projects with proper plans and that are ready to go, she said.”

 https://sourcenm.com/2023/11/15/with-nearly-5b-unspent-legislative-staff-recommend-tighter-controls-on-large-public-projects/

LEGISLATORS BEGIN PUSBACK

During the 2024 legislative session that ended on February 16, lawmakers said they’re frustrated at the process of capital outlay  projects continually getting funding from the state but not getting done. While considering reauthorization of around a billion dollars in funding earmarked for capital projects statewide this year, one lead lawmaker said it’s time to spend the money or use it for something else.

It’s become an annual effort during the legislative session to push back the deadline on when billions in capital funds must be spent.  Senator Nancy Rodriguez (D-Santa Fe), who sponsored Senate Bill 246  for reauthorization of capital projects during the 2024 legislative session said this:

“The substitute includes 253 capital projects that have been requested for reauthorization–for an extension of time or purpose or administrative agency. The usual annual bill that we have to reauthorize projects so that we don’t lose the funding. … A lot of these projects got delayed due to the pandemic so we’re having to re-do these.”  

However, some senators are running out of patience after this year’s effort. Legislative analysts told legislators there’s around five billion dollars in unspent capital outlay funds, but lawmakers were missing a lot of details on those projects including when were the projects originally approved. One legislative analyst said the furthest back that project went  back in the reauthorization bill was 2016.  There’s also frustration with why it’s taking so long to spend the money.

Senator Diamond Brantley said this:

“When I look on here and see some of these are vehicle purchases, I don’t know how anyone can’t get a vehicle purchased in five years. …  At some point, we have to say enough is enough because we’re sitting on this money.”

Senator George Muñoz (D-Gallup)  went so far as to say that next year, he won’t entertain any reauthorization requests. Muñoz said  this:

“We’re going to draw the line in the sand and say, ‘we can’t get it done.’ And we’ll take that money as cash and we’ll backfill projects that need to be completed so we can get stuff done.”

https://www.krqe.com/news/state-lawmakers-express-frustration-over-capital-outlay-project-delays/

COMMENTARY AND ANALYSIS

The approval of $1.5 billion for hundreds of capital outlay projects during the 2023 legislative session is indeed as impressive as it gets. You would think that the hardest part of getting any truly needed capital-outlay-project would be making sure there is enough funding to get it done. But that’s not the case in the State of New Mexico. It turns out actually spending it has become the problem.

$5 billion in unspent funds set aside for 4,900 projects funded by the state’s “capital outlay” program is an embarrassment. The legislature needs to implement an aggressive review of all projects and defund and reappropriate funding  and ensure the money is in fact spent.

On August 1, 2023 former President Donald Trump was charged by federal Special Counsel Jack Smith with the following 4 crimes:

• Conspiracy to Defraud the U.S.
• Conspiracy to Obstruct an Official Proceeding
• Obstruction of and Attempt to Obstruct an Official Proceeding
• Conspiracy Against Rights

All 4 federal charges relate to Trumps efforts to obstruct or stop the January 6, 2021 congressional certification of President Joe Biden’s election victory.  The indictment describes how Trump repeatedly told supporters and others that he had won the election, despite knowing that it was false, and how he tried to persuade state officials, then-Vice President Mike Pence and finally Congress to overturn the legitimate results.

After a weekslong campaign of lies about the election results, prosecutors allege that Trump sought to exploit the violent rampage at the Capitol by pointing to it as a reason to further delay the counting of votes that sealed his defeat.  In their charging documents, prosecutors referenced a half-dozen unindicted co-conspirators, including lawyers inside and outside of government who they said had worked with Trump to undo the election results and advanced legally dubious schemes to enlist slates of fake electors in battleground states won by Biden.

Trump has pleaded not guilty to the 4 charges and has defended against them by saying he has Presidential Immunity for his action of January 6, 2021 and his efforts to stop the certification of election results were within his powers and authority as president. The Trump campaign has called the charges “fake” and asked why it took 2 1/2 years to bring them.

CHRONOLOGY OF APPEAL

On December 12, 2023 Special Counsel Jack Smith asked the US Supreme Court to immediately step in to decide whether former President Donald Trump has immunity from prosecution for his actions seeking to overturn the 2020 election.  Smith wrote in his petition to the US Supreme Court:

“This case presents a fundamental question at the heart of our democracy: whether a former President is absolutely immune from federal prosecution for crimes committed while in office. … [it is] of imperative public importance … that the high court decide the question … [so that the  trial, currently scheduled for March, can move forward as quickly as possible.]”

Earlier, U.S. District Court Judge Tanya Chutkan, who is presiding over the election interference case, denied Trump’s motion to dismiss his indictment on presidential immunity and constitutional grounds, prompting Trump to appeal and ask for the case to be put on hold.  In order to prevent a delay, Smith sought to circumvent the appeals process by asking the Supreme Court to take up the case and decide the issue on an expedited basis.

On December 22, the Supreme Court  denied special counsel Jack Smith’s bid to fast-track a dispute about whether former President Donald Trump should enjoy absolute immunity from prosecution for misconduct during his time in the White House. The court did not offer a reason for its decision. The action reverted to the federal appeals court in Washington on the question of immunity.

On February 6, 2023, the  federal appeals court ruled  that Donald Trump is not immune from prosecution for alleged crimes he committed during his presidency, flatly rejecting Trump’s arguments that he shouldn’t have to go on trial on federal election subversion charges.  The judges made it clear that Trump’s actions could be prosecuted in a court of law.

The judges cited the public interest in accountability for potential crimes committed by a former president, and how that overcame Trump’s argument that immunity was necessary to protect the institution of the presidency. They flatly rejected Trump’s claim that his criminal indictment would have a “chilling effect” on future administrations.

https://www.npr.org/2023/12/22/1221334637/supreme-court-trump-immunity

https://www.cnn.com/2023/12/11/politics/special-counsel-trump-jack-smith/index.html

https://www.cnn.com/politics/live-news/trump-court-ruling-immunity-election-subversion-prosecution/index.html#:~:text=A%20federal%20appeals%20court%20on,on%20federal%20election%20subversion%20charges.

US SUPREME COURT AGREES TO HEAR IMMUNITY CLAIM

Trump appealed the to the United States Supreme Court the Court of Appeals decision that he is not immune from prosecution and seeking a “stay of the criminal case” by the Supreme Court until they render a decision.  A key part of Trump’s legal strategy has been to delay his criminal cases until after the 2024 election.  In response to the Trump appeal and the request to place a hold on the proceedings, Special Council Jack Smith filed a request to treat the Trump stay application as a petition for a writ of certiorari and to treat the case in an expedited manner.

On Wednesday, February 28, the US Supreme Court granted CERTIORARI and agreed to hear the case and issued an expedited scheduling order for briefing.  Following is the order in part:

“The application for a stay presented to The Chief Justice is referred by him to the Court. The Special Counsel’s request to treat the stay application as a petition for a writ of certiorari is granted, and that petition is granted limited to the following question:

Whether and if so to what extent does a former President enjoy presidential immunity from criminal prosecution for conduct alleged to involve official acts during his tenure in office.

… .

https://www.supremecourt.gov/orders/courtorders/022824zr3_febh.pdf

The parties were given deadlines to file briefs and  oral arguments were set for April 25, 2024. On April25, the United States Supreme Court hears oral arguments from both sides and the hearing last upwards of 2 hours and 45 minutes.

US SUPREME COURT HEARS ORAL ARGUMENTS

On April 25, the United States Supreme Court heard oral arguments on Trumps absolute immunity from prosecution claim.  The Supreme Court appeared likely to reject former President Donald Trump’s claim of absolute immunity from prosecution over election interference, but several justices signaled reservations about the charges that could cause a lengthy delay, possibly beyond November’s election.

“A majority of the justices did not appear to embrace the claim of absolute immunity that would stop special counsel Jack Smith’s prosecution of Trump on charges he conspired to overturn his 2020 election loss to Democrat Joe Biden. But in arguments lasting more than 2 1/2 hours in the court’s first consideration of criminal charges against a former president, several conservative justices indicated they could limit when former presidents might be prosecuted, suggesting that the case might have to be sent back to lower courts before any trial could begin. Justice Samuel Alito said that ‘whatever we decide is going to apply to all future presidents.’ ”

The active questioning of all nine justices left the strong impression that the court was not headed for the sort of speedy, consensus decision that would allow a trial to begin quickly. Justices Neil Gorsuch and Brett Kavanaugh, two of Trump’s three high court appointees, and Alito said their concern was not the case against Trump, but rather the effect of their ruling on future presidencies.

Each time Justice Department lawyer Michael Dreeben sought to focus on Trump’s actions, these justices jumped in. “This case has huge implications for the presidency, for the future of the presidency, for the future of the country,” Kavanaugh said. The court is writing a decision “for the ages,” Gorsuch said.

Several justices drilled down on trying to come up with a definition of what constituted an official act versus a private act for personal gain, and whether charges based on official acts  should be thrown out. For example, Trump’s conversations with then-Vice President Mike Pence, urging him to reject some electoral votes on Jan. 6, 2021, might  fall under official acts.

Justice Barrett asked US Attorney Dreeben whether Smith’s team could “just proceed based on the private conduct and drop the official conduct.” Dreeben said that might be possible, especially if prosecutors could, for example, use the conversations with Justice Department officials and Pence to make their case.

The link to the quoated news source is here:

https://apnews.com/article/supreme-court-trump-capitol-riot-prosecution-immunity-72c885c07c77970d4380206f87b2d8ca

CNN NEWS ARTICLE

CNN News Agency published online a very succinct report on the April 25 Supreme Court hearing. Following is the report:

CNN HEADLINE: Takeaways from the Supreme Court Arguments On Trump’s Absolute Immunity Claims

By John Fritze, Tierney Sneed and Marshall Cohen.  CNN’s Katelyn Polantz, Hannah Rabinowitz and Holmes Lybrand contributed to this report.

“The Supreme Court appeared ready to reject former President Donald Trump’s claims of sweeping immunity and the broad protections he has sought to shut down his federal election subversion case, but also reluctant to give special counsel Jack Smith carte blanche to pursue those charges.

After nearly three hours of oral arguments, several of the justices seemed willing to embrace a result that could jeopardize the ability to hold a trial before the November election.

The court’s conservatives aggressively questioned the lawyer representing the special counsel, seemingly embracing a central theme that had been raised by Trump that without at least some form of immunity future presidents would over time be subjected to politically motivated prosecutions.

Much of the hearing focused on whether there should be a distinction between official acts by Trump pursuant to his presidential duties and his private conduct.

How the court decides the dispute could determine Trump’s legal fate and will likely set the rules of criminal exposure for future presidents.”

Here are the key takeaways:

SUPREME COURT SEEMS UNLIKELY TO FULLY RESOLVE THE IMMUNITY QUESTION

 As the justices wrestled with the nuances of the case and a series of complicated hypotheticals, it seemed increasingly unlikely the court would offer a clear answer on whether Trump may be prosecuted for his effort to overturn the 2020 election.

The upshot is that the Supreme Court appeared likely to leave much of that work to lower courts, proceedings that could take months and further delay a trial that had originally been set for March 4.

That outcome would play into Trump’s strategy of delay and jeopardize a trial before the election.

Chief Justice John Roberts at one point criticized the unanimous and scathing ruling against Trump from the US Court of Appeals for the DC Circuit that would have allowed his case to quickly move to a trial. Roberts suggested the appeals court didn’t lay out an adequate reason for why virtually all of Trump’s actions were subject to prosecution.

“As I read it, it says simply a former president can be prosecuted because he’s being prosecuted,” Roberts said skeptically. ‘Why shouldn’t we either send it back to the court of appeals or issue an opinion making clear that that’s not the law?’ ”

TRUMP ATTORNEY CONCEDES SOME ACTS MAY BE ‘PRIVATE’ AND NOT OFFICIAL

 “In a notable series of concessions, Trump’s attorney John Sauer acknowledged that some of the alleged conduct supporting the criminal charges against the former president were private.

The admission shows how much ground Sauer gave up during the hearing, after Trump had made more sweeping claims in his legal briefs earlier this year, asserting that the entire prosecution should be thrown out.

Trump himself has continued to lobby for absolute immunity, including before his appearance at a New York court where he’s on trial for business fraud.

Justice Amy Coney Barrett was the first to pin Sauer down on the distinction between official and personal acts alleged in the charges. He tentatively agreed with how, in court filings, the special counsel had labeled particular acts as private – acts that alleged that Trump plotted with his private attorneys and campaign advisers to spread bogus election fraud claims, to file false court filings and to put forward fraudulent sets of electors. As part of the exchange, he conceded those private acts would not be covered by presidential immunity.

In a later back and forth with Justice Elena Kagan, Sauer muddied the waters.

He said that Trump’s phone call with Georgia Secretary of State Brad Raffensperger , in which he requested Raffensperger “find” enough votes to flip the results, was not an official act. But Sauer claimed Trump was acting in an official capacity in his conversation with the Republican National Committee about assembling slates of so-called “fake electors” and his call for the Arizona lawmakers to hold a hearing on election fraud.

Sauer’s willingness to commit to the idea that some allegations in the indictment weren’t protected by immunity was an extraordinary walk back of what had been the former president’s position up to that point.

But the Trump lawyer may be hoping that the move will encourage the justices to order more proceedings on deciding what’s private and what’s public in the indictment, a move that could seriously delay the case’s march to trial.”

JUSTICE BARRETT BRINGS UP ISSUE OF RULING SCOPE AND TIMING

“Several members of the court’s conservative majority – including Barrett – appeared concerned about the scope of Trump’s claim that he is entitled to “absolute” immunity.

Trump’s attorney, Sauer, faced a series of hostile questions in the early moments of the hearing about that position.

What will likely prove critical – and what was not clear from the arguments – is how the Supreme Court sends the case back to lower courts for more review.

Barrett at one point sketched out how the case could move to trial quickly: Smith could simply focus on Trump’s actions that were private and not official.

“The special counsel has expressed some concern for speed,” Barrett said. She asked DOJ attorney Michael Dreeben if the trial court can sort out what’s official or private acts of the presidency or whether there “another option for the special counsel just to proceed on the private conduct?”

Prosecutors could, hypothetically, draft a slimmed-down superseding indictment that strips out the potentially official acts.

Dreeben told Barrett that the indictment against Trump is substantially about private conduct, meaning that a trial could proceed even if the Supreme Court finds some immunity for Trump’s official actions.”

LIBERAL JUSTICES WEREN’T IMPRESSED WITH TRUMP’S ABSOLUTE IMMUNITY CLAIMS

It was pretty clear where the court’s three liberals will be when the opinion lands.

Justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson spent much of the argument quizzing the attorneys on the potential implications of Trump’s absolute immunity position.

In one of the many hypotheticals the liberals tossed at Trump’s attorney, Kagan asked what would happen if a president ordered the military to stage a coup. Could that be prosecuted under Trump’s theory?

Sauer responded that a president would first have to be impeached and convicted before he could be charged criminally. Kagan fired back by asking what would happen if the order came on the final days of a presidency and there was not time to impeach or convict.

“You’re saying that’s an official act? That’s immune?” Kagan asked.

Sauer had to acknowledge that, under Trump’s theory, “it could well be.”

“That sure sounds bad, doesn’t it?” Kagan responded.

Echoing a more fundamental argument the special counsel raised earlier in the case, Jackson said she was concerned Trump’s argument would put presidents above the law.

‘If there’s no threat of criminal prosecution, what prevents the president from just doing whatever he wants?” Jackson said. “I’m trying to understand what the disincentive is from turning the Oval Office into the seat of criminal activity in this country.’ ”

CONSERVATIVES WORRY ABOUT SUBJECTING EX-PRESIDENTS TO ILLEGITIMATE CRIMINAL PROCEEDINGS

 There was some handwringing by conservatives about the possibility that an ex-president would be subjected to criminal proceedings for conduct that might ultimately be covered by immunity or some form of presidential protection.

Alito went as far as to suggest that denying ex-presidents immunity would discourage peaceful transfers of power, because outgoing presidents who lost hotly contested elections would not want to depart peacefully if they were concerned they’d be prosecuted by their political rival.

Multiple Republican appointees on the court pushed back at the special counsel’s claim that there are ample protections in the criminal justice system to prevent abusive prosecutions.

“You know how easy it is in many cases for a prosecutor to get a grand jury to bring an indictment and reliance on the good faith of the prosecutor may not be enough in some cases,” Roberts said at one point.

Alito, a former federal prosecutor himself, invoked the famous saying that grand jury would indict a ham sandwich if a prosecutor asked them to, while pointing to historic examples of Justice Department officials acting criminally in their roles.

Alito also seized on the acknowledgement by Dreeben that some criminal statutes might need to be interpreted differently when applied to former presidents. Alito suggested that going through a trial to settle those questions would be an unfair burden to a former president.

“That may involve great expense, and it may take up a lot of time,” Alito said, “And during the trial, the former president may be unable to engage in other activities that the former president would want to engage in.”

TRUMP ‘ABSOLUTELY’ HAD A RIGHT TO PUT FORWARD FAKE ELECTORS, HIS LAWYER SAYS

 Underscoring the sweep of Trump’s claims, Sauer said that his client “absolutely” had a right to put forward Republican electors in states that he lost in 2020, commonly called “fake electors.”

He made these comments under questioning from liberal Justice Sonia Sotomayor, who asked if “it’s plausible” that a president might have the right to help create a “fraudulent slate” of electors, which would mean that it would be an official government act that might be covered by immunity.

In response, Sauer said there was historical precedent for presidents to get involved with these matters, pointing to the contested presidential election of 1876, where there were well-founded claims of fraud, and multiple slates of electors in several key states. (Sauer used the term “so-called fraudulent electors.”)

These comments were a remarkable embrace of a plot that many see as a corrupt scheme to overturn the will of the voters. And it’s clear that federal and state prosecutors clearly disagree with Sauer – they consider the Trump campaign’s seven-state ploy to be a criminal scheme.

The Justice Department charged Trump with federal crimes in connection with the fake electors scheme. (He pleaded not guilty.)  Smith’s indictment says Trump “organized fraudulent slates of electors” to “obstruct the certification of the presidential election.”

And state prosecutors in Michigan, Georgia, Nevada and Arizona have also charged many of the illegitimate GOP electors and some Trump campaign officials who were involved in the plot.

Arizona prosecutors announced their sweeping indictment Wednesday night, which targeted the electors themselves and members of Trump’s inner circle, including Mark Meadows and Rudy Giuliani. Michigan investigators also revealed Wednesday that Trump is an unindicted co-conspirator in their case.

WITH ARGUMENTS OVER, FOCUS SHIFTS TO TIMING FOR DECISION

The arguments about Trump’s immunity claim are over. Now the clock starts ticking.

Even before the justices took their seats Thursday, the high court was facing enormous pressure – particularly from the left – over its slow pace getting to this point. Every day the court doesn’t issue a decision will play into Trump’s strategy of delay, jeopardizing the likelihood that Smith can bring his case to trial before the November election.

The Supreme Court has moved quite quickly in similar high-profile matters in the past. In 1974, for instance, when a unanimous court ordered President Richard Nixon to turn over the tapes of surreptitious recordings he made in the White House, it did so after roughly two weeks after arguments. In another often-cited example, the court decided the Bush v. Gore election dispute in 2000 a day after it heard arguments.

Earlier this year, the justices heard arguments February 8 about whether Trump had disqualified himself from Colorado’s presidential ballot under the 14th Amendment “insurrectionist ban.” It took the justices just under a month to hand down a decision March 4 that concluded he had not.

In the immunity case, the court already helped Trump by denying the special counsel request last December to leapfrog the appeals court and resolve the question quickly. The court’s decision ensured that the original March 4 date for Trump’s Washington, DC, trial would never become a reality.

And yet the court has been particularly slow releasing far more mundane opinions this year. And, critics note, it took more than two weeks for the court to agree to hear the Trump dispute in the first place. While that is remarkably speedy by Supreme Court standards, it is slower than many of the court’s detractors would like.”

ANALYSIS AND COMMENTARY

Much discussion has occurred by legal analysts on the sure lapse of time  the Supreme Court’s intervention and whether its involvement means that a trial might not be able to take place before the election.  The lapse of time has prompted criticism that the court was playing into Trump’s desire to drag out the process until after the election. Trump’s legal tactics in all his criminal cases has been to try and delay, delay and delay all the trials until after the November election. That would mean in the Federal cases if he were to go to trial and if Trump is convicted after being elected president, he could simply pardon himself.

Simply put, the United States Supreme Court gave Trump the “gift of delay” when they agreed to hear Trump’s claim of immunity in the first place.  The net effect was that the US Supreme Court suspended the proceedings in Judge Tanya Chutkan’s U.S. District Court from February 25, when the appeal was filed, until May 25 when oral arguments were heard.

Now that oral argument has been heard, it is unknown when the Supreme Court will issue its ruling with some hoping that the Supreme Court will issue an opinion in late June before it goes into recess. The Court is typically in recess from late June to early July.  If the Supreme Court waits to issue its ruling until the end of its term in September, then there is no way a trial can occur before the November 5 Presidential election.

If the polls are to be believed, a criminal conviction will persuade a significant number of voters to abandon Trump.  The Supreme Court could have let stand the D.C. Circuit’s thorough, bipartisan opinion stand.  Instead, the Supreme Court agreed to hear the case delaying the proceedings almost a full 2 months and who knows how long it will take the court to issue a final opinion on the absolute immunity claim or if it will signal exactly what charges should be dismissed.

There’s plenty of room for debate as to why the court acted as it did by first refusing to expedite the case when Smith originally pushed to have it heard before the Court of Appeals ruled and now after the appellate court ruled. But there’s no doubt about the impact of another delay: No trial until after the election.

LEGITMACY OF UNITED STATES SUPREME COURT QUESTIONED

No President is above the law, and when they break it, they should be prosecuted. There should be no Trump exception. It’s downright disgusting that the United State Supreme Court has even agreed to hear Trump’s Immunity claim in his federal criminal prosecution. It was a no brainer for the Judge Tanya Chutkan as well as the Court of Appeals. Not so much for a court packed with 4 Trump disciples.

Conservative Republican Associate Supreme Court Justices Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett were all appointed to the United States Supreme Court by former President Donald Trump and for that reason they have a conflict of interest, they cannot be fair and impartial and should have disqualified themselves from hearing and ruling on the case. Republican Conservative Justice Clarence Thomas as well should disqualify himself from deciding the case given that his wife Ginni Thomas supported Trump’s effort to overturn the 2020 election results and attended a rally that preceded the storming of the Capitol by Trump supporters.

Justices Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett have joined Conservative Republican Chief Justice John G. Roberts, Jr. and Associate Justices Clarence Thomas and  Samuel A. Alito, Jr. to marginalize Progressive Democratic Progressive Associate Justices Sonia Sotomayor, Elena Kagan,  Ketanji Brown Jackson.

The 6 appointed Republican Justices have already made a profound difference with their judicial activism over the last 2 years.  At the end of June, 2023, the United State Supreme Court issued 4 major decisions that were highly anticipated and with great concern confirming it has become a far right wing activist court.   The first was the court’s rejecting an attempt to empower legislatures with exclusive authority to redraw congressional districts without court intervention. The second struct down decades of affirmative action in college admissions.  The third ruled that a Christian business owners can discriminate and withhold services to the LGBTQ+ community based on religious grounds.  The fourth invalidated President Joe Biden’s student loan debt relief plan. Then there is the matter of the Supreme Court reversing Roe v. Wade and 50 years of precedent and denying a woman’s right to choose an abortion and leaving it up to the state’s.

Conservative Republican Associate Supreme Court Justices Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett are clearly indebted to Trump for their lifetime appointments. Watch as the 3  justices  do whatever they can to delay any ruling until after the presidential  election . Should the country awaken on November  6 to a second Trump presidency, history will reflect  that the Supreme Court has once again played a critical role on deciding who is elected president.