Copyright © 2017 Albuquerque Journal
State District Judge Shannon Bacon has rejected a challenge to the Albuquerque Minimum Wage Ordinance, approved by voters in 2012, but she did not immediately rule on a motion to throw out the legal challenge to the proposed Healthy Workforce Ordinance, which is slated to appear on the Oct. 3 ballot.
Ruling from the bench Thursday morning, Bacon said she did not have jurisdiction to move forward with the portions of the lawsuit seeking to declare that the minimum wage ordinance is unenforceable. She indicated that she would issue a ruling on the proposed sick leave ordinance soon to give the parties an opportunity to appeal her decision.
Assistant Albuquerque City Attorney Christopher Tebo noted that ballots have to be mailed to overseas voters on Aug. 19.
The challenge to the minimum wage ordinance and the proposed sick leave ordinance was filed by attorney Pat Rogers on behalf of the Association of Commerce and Industry, the New Mexico Restaurant Association, NAIOP – which represents commercial real estate developers – and Kaufman Fire Protection Services.
The suit alleges that the proposed Healthy Workforce Ordinance is “a form of voter fraud” known as logrolling, because it lumps 14 different issues as one. It also alleges that home rule municipalities do not have the power to enact voter-initiated legislation.
If approved by voters, the Healthy Workforce Ordinance would require employers to allow workers to earn paid sick time off. It would apply to full-time, part-time and temporary workers at any business with a physical presence in Albuquerque.
Supporters say the ordinance would ensure that workers don’t have to choose between their paycheck and caring for themselves or a loved one.
Opponents argue that the ordinance would hurt businesses, because of higher costs and onerous record-keeping requirements.
While the lawsuit names the city of Albuquerque and City Clerk Natalie Howard as defendants, it was Tim Davis, an attorney with the New Mexico Center on Law and Poverty, who faced off against Rogers in court on Thursday. Davis represented the intervenors in the lawsuit – Organizers in the Land of Enchantment, El Centro de Igualdad Y Derechos, OLÉ Education Fund and Rebecca Glenn.
Bacon’s ruling followed a hearing, during which Davis argued that the challenge to the minimum wage ordinance could not move forward because it constitutes an election challenge. That election challenge, he said, needed to have been filed within 30 days of the election results being certified.
Rogers argued that it was not an election contest, but Bacon disagreed.
“It’s astonishing and disheartening that business groups were trying to cut hard working New Mexicans’ wages by nearly $3,000 a year,” OLÉ member Trae Buffin said in a news release. “I’m overjoyed that the court agreed with the people and that the minimum wage is safe in Albuquerque.”
As for the challenge to the proposed sick leave ordinance, Davis argued that Albuquerque is a home-rule municipality, and, as such, it has the power to exercise all powers not expressly denied. Voter initiatives are not expressly denied, he said. He also argued that the logrolling prohibition doesn’t apply to municipalities, but, even if it does, he said, the proposed Healthy Workforce Ordinance wouldn’t constitute logrolling because all of the provisions contained in it relate to sick leave and to how that measure should be enacted.
Rogers argued that the state’s founders deemed initiatives to be objectionable, and, unlike in many other states, did not include that right in the state constitution.
“Initiatives are inconsistent with the constitution of New Mexico,” he said.
Rogers also argued that the prohibition against logrolling does, indeed, apply to municipalities. And he said the coupling of many different and substantial provisions to the proposed ordinance – including a prohibition on the City Council altering it in any substantive way and the granting of class action status – constitutes logrolling.
“This ordinance … was drafted in the dark, in secret without any public meetings without any opportunity for anyone who disagrees with it to point out betters ways to do this or how unworkable various sections are,” Rogers said.
Davis countered that thousands of Albuquerque voters signed the petition to get the sick leave ordinance on the ballot.
“The idea that this was drafted in the dark and that nobody knows what’s going on here completely ignores the fact that there were over 20,000 individual interactions with voters who signed the petition and had the opportunity to read the entire ordinance when they did so,” he said.