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Appeals court denies sick leave proposal request

ALBUQUERQUE, N.M. — Advocates for Albuquerque’s proposed sick leave ordinance have suffered a setback in their quest to have a summary – and not the full seven-page measure – printed on the city’s Oct. 3 ballot.

The state Court of Appeals issued an order last week denying a request from Healthy Workforce ABQ, the OLÉ Education Fund and three other plaintiffs to take up the matter prior to the case being resolved in District Court. The appellate court also refused on Wednesday to forward the matter to the state Supreme Court for consideration.

It’s among the latest developments in the ongoing legal fight between advocates of the sick leave ordinance, which would require Albuquerque employers to provide paid sick time off to workers, and those who argue that the measure would hurt businesses because of higher costs and record-keeping requirements. If voters approve it, the ordinance will apply to full-time, part-time and temporary workers at any business with a physical presence in Albuquerque.

Stuck in the middle of the lawsuit is the city of Albuquerque, which has taken the position that the entire ordinance must appear on the ballot.

Albuquerque attorney Pat Rogers, who represents Roxanna Myers, the Association of Commerce and Industry and several other intervenors in the case, praised the Court of Appeals decision.

“Albuquerque taxpayers, employers and employees should all be relieved that the District Court, the New Mexico Supreme Court and now the New Mexico Court of Appeals have all rejected the plaintiffs’ latest effort to hide and obscure the onerous and extreme details of their sick leave ordinance,” Rogers said.

“OLÉ, formerly known as ACORN, and the other plaintiffs will now have to explain how their seven-page sick leave proposal in small print does not constitute ‘voter fraud’ by the inclusion of so many separate, expensive and extreme mandates that will drive employers and employees out of Albuquerque and New Mexico,” Rogers added.

But Tim Davis, an attorney with the New Mexico Center on Law and Poverty, the organization representing the plaintiffs, downplayed the significance of the ruling.

“A judge in this case has already ordered that this be on the ballot,” Davis said, adding that the city has also pledged to place the sick leave initiative before voters. He said the question that remains is what form that takes.

District Judge Alan Malott ruled in September that the whole ordinance must appear on the ballot and, in February, he denied a request from Healthy Workforce ABQ, the OLÉ Education Fund and three other plaintiffs to reconsider his decision. The plaintiffs fear that including the entire lengthy ordinance and its technical language on the ballot could spell doom for the sick leave proposal.

The plaintiffs argued in their appellate court filing that Malott’s interpretation of the City Charter requiring the entire ordinance to appear on the ballot is wrong. They also contend that if his ruling stands, the city will either not be able to fit the citizen-initiated legislation on the ballot or else will have to print it so small that it won’t meet the minimum required standard under the state Election Code.

Malott in his Feb. 28 order notes that the city has already committed to placing the sick leave initiative on the Oct. 3 ballot.

Rogers argued in his Court of Appeals response that Malott’s decision was correct. He also noted that the city clerk stated in a Jan. 9 affidavit that the full text of the proposed legislation would fit within a double-sided single page ballot, which can be accommodated by the city’s contracted election services vendors.

Rogers, however, has filed a separate lawsuit against the city on behalf of the New Mexico Restaurant Association, NAIOP and others, seeking to keep the sick leave ordinance off the ballot.

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