IN THE SUPREME COURT OF THE STATE OF NEW MEXICO ANTHONY J. TRUJILLO, JENNIFER K. TRUJILLO, and RICK LOPEZ, Petitioners, vs. BOARD OF COMMISSIONERS FOR THE COUNTY OF BERNALILLO, BOARD OF COMMISSIONERS FOR THE COUNTY OF SAN MIGUEL, BOARD OF COMMISSIONERS FOR THE COUNTY OF SANTA FE, BOARD OF COMMISSIONERS FOR THE COUNTY OF VALENCIA, and THE HONORABLE SUSANA MARTINEZ, in her official capacity as Governor of the State of New Mexico, Respondent. EMERGENCY VERIFIED PETITION FOR A WRIT OF MANDAMUS Petitioners Anthony J. Trujillo, Jennifer K. Trujillo, and Rick Lopez respectfully request that this Court issue an emergency writ of mandamus to the Boards of Commissioners for the County of Bernalillo, County of San Miguel, County of Santa Fe, and County of Valencia to compel them to exercise their nondiscretionary statutory duty of convening emergency meetings of their boards of county commissioners to fill the vacancy for Senate District 39. In thealternative, Petitioners respectfully request that the Court compel Respondent Governor Martinez to appoint the senator for Senate District 39 from the list of names submitted by boards of county commissioners from the County of Lincoln and County of Torrance, as these counties have swiftly and appropriately acted to fill the vacancy in accordance with NMSA 1978, § 2-8D-4(B)(2)(a). PARTIES AND JURISDICTION 1. Petitioners Anthony J. Trujillo and Jennifer K. Trujillo are married and residents of the County of Santa Fe. Petitioner Anthony J. Trujillo is a registered Democrat in Senate District 39, and Petitioner Jennifer K, Trujillo is a registered Republican in Senate District 39. Petitioners have three children that attend school in Senate District 39, 2. Petitioner Rick Lopez resides in Torrance County at 8643 Highway 55, Tajique, New Mexico 87106, and he is a registered vote as a Republican in Senate District 39. 3. Pursuant to NMSA 1978, § 2-8D-4(B)(2)(a) (2015), Respondents Board of Commissioners for the County of Bernalillo, Board of Commissioners for County of San Miguel, Board of Commissioners for County of Santa Fe, and Board of Commissioners for County of Valencia (collectively hereinafter, “Respondents Boards of Commissioners”) are required submit one name to the governor if'a vacancy occurs in the office of senator for any reason.4, Respondent, the Honorable Susana Martinez, in her capacity as Governor of the State of New Mexico, is required to appoint a senator to fill a vacancy from the list of names submitted to her by Respondents Boards of Commissioners in accordance with NMSA 1978, § 2-8D-4(B)(2)(b) (2015). 5. This Court has original jurisdiction over petitions for writ of mandamus pursuant to the N.M. Const, Art. VI, § 3 and NMSA 1978, § 44-2-1, et seq. Mandamus is the proper remedy to compel an official act by a state officer, as, to which the officer has no discretion. See City of Santa Rosa v. Jaramillo, 1973- NMSC-119, 7, 85 NM. 747, 517 P.2d 69; see also, e.g,, New Energy Econ, Inc. y. Martinez, 2011-NMSC-006, $f 21-23, 149 N.M. 207. 6. Petitioners have standing to seek relief from this Court because they will be harmed by Respondents’ failure to immediately appoint a senator to fill a vacancy for Senate District 39. 7. Mandamus is appropriate because there is no plain, speedy or adequate remedy at law available to Petitioners. See, e.g,, State ex. rel, King v. Lyons, 2011-NMSC-0004, § 26, 149 N.M. 330; see also State ex rel. Pilot Dev. Northwest v. State Health Planning & Dev. Bureau, 1985-NMCA-050, § 32, 102 N.M. 791, 701 P.2d 390.RELEVANT FACTS AND BACKGRO! 8 On March 14, 2015, Senator Phil Griego resigned from his position as, Senator for Senate District 39 in the New Mexico Legislature. 9. The First Session of the 52 Legislature of the State of New Mexico is currently in session and will adjoum at noon on March 21, 2015. Critical legislation remains pending before the New Mexico Legislature, including financial legislation dealing with the state budget and capital outlay that will directly impacts the residents of Senate District 39. 10. The voters in Senate District 39 are currently unrepresented during the First Session of the 52™ Legislature of the State of New Mexico. 11. Petitioners are registered voters in Senate District 39. 12. Without representation for Senate District 39, Petitioners are unrepresented in the New Mexico Senate. 13, _ Petitioners have three children that attend school in Senate District 39, and without representation in the New Mexico Senate, Petitioners have no voice in how their children’s school is funded. 14, Upon information and belief, Senator Phil Griego had capital outlay money included in legislation designated for the school that Petitioners” children attend, and without representation for Senate District 39, such funding is in jeopardy.15. Upon information and belief, Respondent Governor Martinez has formally requested that Respondents Boards of Commissioners hold emergency meetings to submit one name to Governor Martinez in order to fill the vacancy for Senate District 39 by 5:00 p.m. on Sunday, March 15, 2015, in order to ensure representation during this critical final week of the legislative session. See Exhibit A. Respondents Boards of Commissioners failed to meet this request by Respondent Governor Martinez. 16. Upon information and belief, the vast majority of legislation that will reach the desk of Respondent Governor Martinez. for consideration will be discussed and decided upon by the New Mexico Legislature during this final week of the First Session of the 52 Legislature of the State of New Mexico. Thus, the residents of Senate District 39 will be unrepresented during this critical time frame. 17. Respondent Governor Martinez. intended on appointment a replacement for Senate District 39 by Monday, March 16, 2015, in order to have representation for the residents of Senate District 39 when the Senate resumed business on that day. See Exhibit A. Thus, a swift appointment to Senate District 39 would have afforded residents of Senate District 39 full representation during the final week of the First Session of the 52™ Legislature of the State of New Mexico.18. Upon information and belief, each day counts during a legislative session, and this is especially true during the final week of a session. 19. Upon information and belief, two Boards of Commissioners within Senate District 39, namely, the Board of Commissioners for the County of Torrance and the Board of Commissioners for the County of Lincoln, have held emergency meetings and submitted one name to Governor Martinez in order to fill the vacancy for Senate District 39. 20. Upon information and belief, Respondents Boards of Commissioners have delayed appointing a replacement for Senate District 39, thereby resulting in Petitioners and other residents of Senate District 39 lacking representation during a time when their critical issues are being considered. ARGUMENT Petitioners have the right to be represented by a senator during the First Session of the 52” Legislature of the State of New Mexico. The New Mexico Constitution at Article 2, Section 2 states: “All political power is vested in and derived from the people: all government of right originates with the people, is founded upon their will and is instituted solely for their good.” In order to exercise this political power in the legislative branch of government, the people of the State of New Mexico elect senators and representatives. See, e.g., N.M. Const. Art. VII,§ 1. Currently, Petitioners are unrepresented in the New Mexico Senate due to a vacancy in Senate District 39. Senate District 39 is situated in six counties consisting of the County of Bernalillo, the County of Lincoln, County of San Miguel, County of Santa Fe, County of Torrance, and County of Valencia. See NMSA 1978, § 2-8E-1 (2015) (“Senate district thirty-nine is composed of Bernalillo county precinct 551; Lincoln county precinets 1, 3 through 6, 14, 16, 19 and 21; San Miguel county precincts 13, 16 and 18 through 24; Santa Fe county precincts 12, 14, 17, 62, 70, 72, 80 and 88; Torrance county precincts I through 4, 7 through 12, 14 and 16; and Valencia county precincts 30 and 38.”). Since Senate District 39 is situated in two or more counties, the two-step process for filling a vacancy consists of: (1) “...the board of county commissioners of each county in the senate district shall submit one name to the governor...”, and (2) “the governor shall appoint the senator to fill the vacancy from the list of names so submitted...”. NMSA 1978, § 2-8D-4(B)(2). Upon information and belief, the boards of county commissioners for the County of Lincoln and County of Torrance have convened emergency meetings pursuant to NMSA 1978, Section 10-15-1(F) and submitted one name to Respondent Governor Martinez in accordance with NMSA 1978, § 2-8D- 4(B)(2)(a). Meanwhile, four other Respondents Boards of Commissioners havefailed to convene emergency meetings at this point in time in order to fill the vacaney for Senate District 39. Petitioners maintain that Respondents Boards of Commissioners should be compelled to exercise their nondiscretionary statutory duty of convening emergency meetings to fill the vacancy for Senate District 39 under NMSA 1978, § 2-8D-4(B)(2). The failure to immediately do so will result in Petitioners being unrepresented during the most critical week of the First Session of the 52! Legislature of the State of New Mexico. In this case, to fulfill that most important duty under NMSA 1978, § 2-8D- 4(B)(2), Petitioners maintain that an emergency meeting of the boards of county commissioners is required under NMSA 1978, § 10-15-1(F). Emergency meetings of the boards of county commissioners are appropriate if...unforeseen circumstances that, ifnot addressed immediately by the public body, will likely result in injury or damage to persons or property or substantial financial loss to the public body.” id. Petitioners will likely be injured because they have no representation in the New Mexico Senate, and the failure to timely act will likely result in the people of Senate District 39 incurring financial losses. In particular, the First Session of the 52" Legislature of the State of New Mexico is currently in session and will adjourn at noon on March 21, 2015. Critical legislation remains pending before the New Mexico Legislature, includingfinancial legislation dealing with the state budget and capital outlay. For example, when dealing with capital outlay, each Senator will need to prioritize and advocate for projects within their districts based on the total money assigned to each Senator, and the residents of Senate District 39 will miss out on this opportunity. Arguably, capital outlay has the most direct impact on local communities within a particular Senate district. Unless Respondents swiftly act to fill the vacancy in Senate District 39, Petitioners will not have a voice to represent them when the final decisions are made on such critical legislation. Furthermore, Petitioners Anthony and Jennifer Trujillo have three children that attend school in Senate District 39, and without representation in the New Mexico Senate, Petitioners Anthony and Jennifer Trujillo have no advocate in the New Mexico Senate to assist them with how their children’s school is funded. Likewise, upon information and belief, Senator Phil Griego had capital outlay money included in legislation designated for the school that children of Petitioners Anthony and Jennifer Trajillo attend, and without representation for Senate District 39, such funding is in jeopardy. Accordingly, Petitioners respectfully request that the Court compel Respondents Boards of Commissioners to convene emergency meetings to fill the vacancy for Senate District 39 prior to the adjoumment of the First Session of the 52 Legislature of the State of New Mexico. The primary obligation of alegislator in a representative democracy is to serve and respond to his or her constituency. See, ¢.g., Williams v. U.S., 71 F.3d 502, 507 (5"* Cir. 1995). In fact, legislators in a representative democracy are expected to vigorously represent the concerns of their constituents. See, e.g., Sokaogon Chippewa Community (Mole Lake Band of Lake Superior Chippewa) v. Babbit, 929 F. Supp. 1165, 1173 (W.D. Wis. 1996). Petitioners and the residents of Senate District 39 will be deprived of their right to vigorous representation if'a timely appointment to Senate District 39 is not made. In the alternative, Petitioners respectfully request that the Court compel Respondent Governor Martinez to appoint the senator for Senate District 39 from the list of names submitted by boards of county commissioners for the County of Lincoln and County of Torrance, as these counties of swiftly and appropriately acted to fill the vacancy in accordance with NMSA 1978, § 2-8D-4(B)(2)(a). Respondents Boards of Commissioners should not be allowed to unduly delay the process for filling the vacancy in Senate District 39, especially since the New Mexico Legislature is currently in session. Although NMSA 1978, § 2-8D- 4(B)(2)(a) does not contain a time frame for a board of county commissioners of each county in the senate district to submit one name to Respondent Governor Martinez, Petitioners maintain boards of county commissioners are required to immediately act in order to ensure that the people of Senate District 39, including 10Petitioners, have representation during the First Session of the 52™ Legislature of the State of New Mexico. Accordingly, Respondent Governor Martinez. should be allowed to appoint a person for Senate District 39 from the list of names currently submitted. Under the circumstances, NMSA 1978, § 2-8D-4(B)(2) trumps any Open Meetings Act concerns because there is ample time now for the Respondent Commissions to act on an emergency basis. CONCLUSION For the reasons set forth herein, Petitioners respectfully request that this, Court issue an emergency writ of mandamus to the Boards of Commissioners for the County of Bernalillo, County of San Miguel, County of Santa Fe, and County of Valencia to compel them to exercise their nondiscretionary statutory duty of convening emergency meetings of their boards of county commissioners to fill the vacancy for Senate District 39 prior to the adjournment of the First Session of the 52™ Legislature of the State of New Mexico under NMSA 1978, § 2-8D-4(B)(2). In the alternative, Petitioners respectfully request that the Court compel Respondent Governor Martinez to appoint the senator for Senate District 39 from the list of names submitted by Boards of County Commissioners from the County of Lincoln and County of Torrance, as these counties of swifily and appropriately acted to fill the vacancy.Respectfully submitted, SCOTT & KIENZLE PA saul M. Rienzle Ti P.O. Box 587 Albuquerque, NM_ 87103-0587 Phone: (505) 246-8600 Fax: (505) 246-8682 E-Mail: paul@kienzlelaw.com Attorney for PetitionersThereby certify that a copy of the foregoing was served electronically and by first class, U.S. mail on this 16" day of March, 2015: Honorable Peggy Carabajal Valencia County Clerk P.O. Box 969/444 Luna Avenue Los Lunas, NM 87031 Honorable Geraldine Salazar Santa Fe County Clerk 102 Grant Avenue Santa Fe, NM 87501 Honorable Maggie Toulouse Oliver Bernalillo County Clerk One Civic Plaza NW 6" floor P.O. Box 542 Albuquerque, NM 87103-0541 Honorable Geraldine Gutierrez San Miguel County Clerk San Miguel County Administrative Building 2" Floor, 500 West Avenue Las Vegas, NM 87701Randy M. Autio Bernalillo County Attorney's Office 520 Lomas Blvd., NW Floor 4 Albuquerque, NM 87102-2118 Phone: (505) 314-0180 Fax: (505) 242-0828 E-Mail: rmautio@bemco.gov Attorney for Respondent Board of Commissioners For the County of Bernalillo Jesus L. Lopez Jesus L. Lopez Attorney at Law P.O. Box 2115 Las Vegas, NM 87701-2115 Phone: (505) 425-3730 Fax: (505) 425-0805 E-Mail: fil49@qwestoffice.net Attomey for Respondent Board of Commissioners For the County of San Miguel Gregory S. Shaffer Santa Fe County Attorney's Office P.O. Box 276 Santa Fe, NM 87504-0276 Phone: (505) 986-6279 Fax: (505) 986-6362 E gshaffer@)santafecountynm.gov Attorney for Respondent Board of Commissioners For the County of Santa FeDavid Matthew Pato Nance Pato & Stout LLC P.O. Box 772 Socorro, NM 87801-0772 Phone: (575) 838-0911 Fax: (866) 808-1165 Mail: dave@npslawfirm.com Attorney for Respondent Board of Commissioners For the County of Valencia Jessica Hernandez Office of the Governor 490 Old Santa Fe Trail Room 400 Santa Fe, NM 87501 Telephone: (505) 476-2200 E-Mail: jessica.hernandez@state.nm.us Attorney for Respondent Governor Susana Martinez Hector H. Balderas New Mexico Attoiney General 408 Galisteo Street Villagra Building Santa Fe, NM 87501 Phone: (505) 827-6000; Fax: (505) 827-5826 Paul M. Kienzle II],STATEMENT OF COMPLIANCE Pursuant to Rule 12-213(A), (F) & (G), Petitioners counsel states that the total word count contained in the body of the brief is 2772, with 359 lines, using Microsoft Office Word, Version 2013. Paul M. Kienzle II], Dated: March 16, 2015VERIFICATION Anthony J. Trujillo, being under oath, states that he is a named Petitioner herein, that he has read the foregoing Emergency Verified Petition for a Writ of Mandamus, and that the contents are true and correct to the best of his knowledge and belief. Anthonf J. illoVERIFICATION Jennifer K. Trujillo, being under oath, states that she is a named Petitioner herein, that she has read the foregoing Emergency Verified Petition for a Writ of Mandamus, and that the contents are true and correct to the best of her knowledge ~A._)/ 7 ( CVs yO and belief.VERIFICATION Rick Lopez, being under oath, states that he is a named Petitioner herein, that he has read the foregoing Emergency Verified Petition for a Writ of Mandamus, and that the contents are true and correct to the best of his knowledge and belief, Rick LopezState of New Mexico ‘Susana Martinez Governor March 14, 2015 Bernalillo County Commission Chairwoman Maggie Hart ‘One Civic Plaza, NW Albuquerque, NM 87102 Dear Chairwoman Hart, Due to the resignation of Senator Phil Griego, a vacancy now exists in the Senate for District 39, a district that includes portions of your county. There are only seven days remaining in the 2015 legislative session. It is imperative that the citizens of District 39 maintain representation through the rest of the legislative session. am requesting that the County Commission invoke its emergency meeting provi for the purpose of submitting a nomination to fil the vacancy. If an appointment is not made before the Senate reconvenes on Monday moming, all residents of Senate District 39 will be unrepresented and your voters will be disenfranchised. This is a serious issue affecting core constitutional rights of New Mexico residents. Please send the County's nomination to my office by 5:00 PM tomorrow, Sunday, March 15, 2015. It is my intention to make an appointment by Monday, March 16, 2015. Please direct any questions to Nick Piatek, Director of Boards & Commissions, at Nicholas. Piatek@state.nm.us or at 505-476-2235. Thank you for your prompt attention to this critical issue. Sincerely yours, Susana Martinez EXHIBIT Governor SMinjp i A State Capitol + Room 4oo * Santa Fe,New Mexico 87sor + 505-476-2200 + fax: 505-476-2226