Gonzales v. Watson
| Docket Number | A-1-CA-39971 |
| Decision Date | 23 January 2024 |
| Parties | MANUEL GONZALES III, a candidate for Mayor of Albuquerque, Appellant-Respondent, v. ETHAN WATSON, in his official capacity as Albuquerque City Clerk, Appellee-Petitioner. |
| Court | Court of Appeals of New Mexico |
1
MANUEL GONZALES III, a candidate for Mayor of Albuquerque, Appellant-Respondent,
v.
ETHAN WATSON, in his official capacity as Albuquerque City Clerk, Appellee-Petitioner.
No. A-1-CA-39971
Court of Appeals of New Mexico
January 23, 2024
Corrections to this opinion/decision not affecting the outcome, at the Court's discretion, can occur up to the time of publication with NM Compilation Commission. The Court will ensure that the electronic version of this opinion/decision is updated accordingly in Odyssey.
APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY Bryan Biedscheid, District Court Judge.
Harrison, Hart &Davis, LLC Carter B. Harrison IV Daniel J. Gallegos Albuquerque, NM for Respondent.
Peifer, Hanson, Mullins &Baker, P.A. Mark T. Baker Matt M. Beck Matthew E. Jackson Albuquerque, NM for Petitioner
OPINION
MICHAEL D. BUSTAMANTE, Judge, retired, Sitting by designation.
{¶1} This case presents an issue of first impression concerning the administration of the City of Albuquerque's (the City) public campaign financing ordinance. The City appeals from the district court's ruling that candidates have a due process right to a hearing before the City Clerk enters a decision denying them public financing. Concluding that a predecision hearing was not constitutionally required, and that the post-decision hearings provided here were sufficient, we reverse.
BACKGROUND
{¶2} Then Bernalillo County Sheriff Manny Gonzales III (Sheriff Gonzales) filed as a candidate in the City's 2021 mayoral election. As part of his filing, Sheriff Gonzales opted to apply for public financing[1] pursuant to City's Open and Ethical Elections Code (OEEC). Albuquerque, N.M., Charter of the City of Albuquerque, Open and Ethical Elections Code, art. XVI (2021, amended 2023).[2] On April 4, 2021, Sheriff Gonzales signed and delivered two forms required by the City as part of its public financing process. The first form was the "Candidate Acknowledgment of Familiarity with Codes and Required Disclosures" in which Sheriff Gonzales
acknowledged that he was familiar with the City's Election Code, the rules and regulations of the Board of Ethics and Campaign Practices for the Election Code, the OOEC and the Code of Ethics of the Charter of the City, and the 2021 regulations promulgated by the City Clerk. The second form was the "Designation of Representatives" in which he agreed that he was "fully responsible for the statements made and materials submitted by [three listed] representatives on behalf of [his] campaign."
{¶3} Sheriff Gonzales signed and filed his "Application for Certification as a Participating Candidate for the Office of Mayor" (the Application) on June 19, 2021. The Application required him to "swear or affirm" that he had complied with all requirements of the OEEC and had met all of the City's requirements with regard to raising qualifying contributions.
{¶4} On July 9, 2021, the City Clerk denied the Application, citing two complaints he had received from an opposing candidate asserting improprieties on the part of Sheriff Gonzales's campaign in connection with its handling of qualifying contributions.
{¶5} The first complaint-filed June 7, 2021-asserted that, at a meeting with Salvation Army Advisory Board members, Sheriff Gonzales personally solicited a five-dollar qualifying contribution from a person, asked the person to sign the qualifying contribution book, but then told the person, "we[ will] cover that," when
asked by the person if he "needed to give five dollars?" (the Salvation Army incident). Sheriff Gonzales signed the qualifying contribution book as the collecting representative. The complaint asserted that Sheriff Gonzales's actions were contrary to the OEEC Regulations that require that qualifying contributions be paid by the contributor and stipulates that if "funds are provided by any person other than the contributor who is listed on the receipt, the [q]ualifying [contribution will be deemed fraudulent." See 2021 Regulations of the Albuquerque City Clerk for the Open and Ethical Elections Code (OEEC Regulations), Part C(6.), at 7-8, https://www. cabq.gov/vote/documents/2021 -regulations-for-the-open-and-ethical-election-code.pdf. The complaint also asserted that Sheriff Gonzales's actions were contrary to other, more general provisions prohibiting campaign contributions by one person in the name of another person. NMSA 1978, § 1-19-34.3(A) (2019); OEEC Regulations, Part C(6.).
{¶6} The City Clerk forwarded the complaint to Sheriff Gonzales on June 9, 2021, and notified him that the complaint had been referred to the Board of Ethics. The Board of Ethics-created in Article XII of the City's charter-is charged with receiving and investigating complaints regarding possible violations of the OEEC and rules promulgated by the "Board and/or City Clerk." Albuquerque, N.M., Charter of the City of Albuquerque, Code of Ethics, art. XII § 3(c).
{¶7} The second complaint-filed on June 29, 2021-asserted that a number of the qualifying contribution receipts submitted by Sheriff Gonzales's campaign included forged contributor signatures. The City Clerk forwarded this complaint to Sheriff Gonzales on the same day he received the complaint, and again informed Sheriff Gonzales that this complaint had also been referred to the Board of Ethics.[3]
{¶8} On July 11, 2021, Sheriff Gonzales appealed the City Clerk's July 9, 2021 denial of certification. On July 15, 2021, in accordance with the City's Charter, a City hearing officer (the Hearing Officer) held a full day hearing (the July 15 Hearing), during which Sheriff Gonzales and the City Clerk presented documentary evidence and live testimony through direct and cross-examination. See Albuquerque, N.M., Charter of the City of Albuquerque, Open and Ethical Elections Code, art. XVI, § 18(B). Neither party makes any argument here that they were prevented from presenting any evidence or argument, or that the July 15 Hearing was otherwise inadequate. The parties submitted written closing arguments on July 16, 2021, and the Hearing Officer issued his ruling on July 18, 2021. The Hearing Officer upheld the City Clerk's decision, rejecting Sheriff Gonzales's arguments across the board. The Hearing Officer specifically noted that Sheriff Gonzales admitted that many of
the signatures on the qualifying contribution receipts were forgeries. The Hearing Officer also found that the Salvation Army incident occurred as asserted in the June 7, 2021 complaint, and evidenced "direct knowledge of fraud and falsification" on the part of Sheriff Gonzales.
{¶9} Invoking Rule 1-074 NMRA, Sheriff Gonzales filed a notice of appeal from the City Clerk's decision in the district court on July 19, 2021. Sheriff Gonzales's statement of appellate issues included a number of arguments that the district court summarized into three primary issues: "(1) whether [the City Clerk's] certification denial decision was procedurally improper; (2) whether substantial evidence existed to warrant the certification denial decision; and[] (3) whether the regulations on which the certification denial decision was made were ultra vires. "
{¶10} The district court concluded that the City Clerk "failed to provide [Sheriff] Gonzales with minimum due process protections before declining certification" and reversed the Hearing Officer's decision on that basis alone. As such, the district court did not address the other two issues. The district court concluded that the City Clerk "failed to: (a) notice [Sheriff] Gonzales that [he] intended on denying certification based upon OEEC Regulations, Part C, Section 15(a)(iii) and [](v); (b) provide [Sheriff] Gonzales with an adequate explanation of the evidence upon which [he] was considering denial; (c) provide [Sheriff] Gonzales with an adequate opportunity to be heard and present any pertinent claim or defense before [he] denied
certification." The district court remanded the case to the City Clerk to cure the due process violation it recognized. The district court gave the City Clerk three options: (1) find yet again that Sheriff Gonzales had violated the OEEC Regulations and deny certification again; (2) set forth a process by which Sheriff Gonzales would be provided "minimum procedural due process protections" within 72 hours from the date of its ruling; or (3) certify Sheriff Gonzales as a participating candidate entitled to public financing.
{¶11} The City Clerk chose the second option and sent Sheriff Gonzales a "Notice of Contemplated Action [R]egarding Certification for Public Finance" on August 30, 2021. The notice set a hearing for September 1, 2021, before the City Clerk (the September 1 Hearing). Sheriff Gonzales appeared for the September 1 Hearing with counsel, but did not participate substantively in that he did not present any testimony or submit any documentary evidence. Rather he used his time to protest the timing and structure of the September 1 Hearing asserting that it itself constituted a violation of his due process rights.
{¶12} The City Clerk entered his "Notice of Final Action [R]egarding Certification for Public Finance" on September 2, 2021, again denying certification. The notice included specific factual findings concerning forged qualifying contribution receipts. The notice also related that the Board of Ethics had found that Sheriff Gonzales "violated the OEEC and OEEC Regulations when [Sheriff Gonzales]
covered the contribution of Dean Zantow and submitted a qualifying contribution signed by him to the Clerk's Office."
{¶13} On the same day, Sheriff Gonzales filed a motion for rehearing with the district court requesting that it order the City Clerk to certify him for public financing. The motion argued that the original order entered by the court failed to adequately circumscribe the hearing on remand in that it did not address the need for an...
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