A state district judge on Monday shot down a challenge to the February mill levy and bond election for Albuquerque Public Schools that had threatened to postpone several large projects.
Second Judicial District Chief Judge Nan Nash ruled that although APS did not comply with the election statute in its wording on the February mill levy and bond ballot, it did not prevent citizens from casting an informed vote.
Nash said she interpreted case law as requiring her to give deference to the election results, in which 65 percent of voters approved the funding measures. She said APS was entitled to summary judgment, a dismissal based on the law that means the case need not go to trial, in the challenge filed by voter, property owner and attorney Robert Pidcock two days after the election.
Unless the state Supreme Court says otherwise, Nash’s ruling presumably means the construction on projects can go forward.
Pidcock claimed in his complaint that APS changed the language to be put to voters between the election proclamation and the ballot and the new wording was too vague.
“If these ballot measures are upheld, APS could construct a $575 million APS executive-only health clinic (perhaps a spa or restaurant) or a $575 million sports stadium … and there would be nothing that a voter/property owner in the APS district could do about it,” he said in the complaint.
Nash disagreed.
“Based on the testimony and evidence here, I do not find the language obstructed … casting of the vote,” she said.
Only 6.5 percent of eligible voters cast ballots in the Feb. 2 election, but they overwhelmingly approved the $375 million mill levy and another $200 million in general obligation bonds extending through 2021 for APS and Central New Mexico Community College.
Pidcock said he plans an immediate appeal to the Supreme Court. State law allows election challenges to go there without review by the Court of Appeals.
A violation found by Nash previously had to do with language – instead of saying “mill levy,” Pidcock claimed APS changed its election proclamation 12 days before the vote and the language did not specify that the question was whether a voter was for or against a “public school buildings tax.” He also contended APS “made a decision not to disclose” its action, and there was no way to know that beforehand – and thus no way to challenge it.
APS attorney Zachary McCormick countered, ” ‘Mill levy’ is not a term that suddenly dropped from the sky.”
The sole witness at an evidentiary hearing that bled into the summary judgment question was pollster Brian Sanderoff of Research and Polling Inc., who has consulted for multiple local governments on ballot questions as well as the Albuquerque Journal on public policy and election issues.
APS attorney Zachary McCormick of the Modrall law firm led him through questions including the voter demographic in school elections. Sanderoff said the group that consistently votes in school elections is older, whiter and better educated than voters in general elections tend to be, and also better informed. They’re also frequent voters. Some 97 percent of the school election voters had voted in either the 2012 or 2014 general elections, he said.
There was a light ripple of laughter in the packed courtroom when McCormick read some of the ballot language being contested and asked Sanderoff if he thought that represented a question, and why.
“Because it starts with ‘shall’ and ends with a question mark,” Sanderoff replied.
Sanderoff said he had researched the use of the phrase “mill levy” and “property tax” and concluded that the media reports used the terms interchangeably in reports leading up to the vote.
In cross-examination by Pidcock, Sanderoff said his firm was paid $16,800 for its work on the mill levy and bond vote, including pre-election polling, leading Pidcock to comment that APS had spent more on polling than voter education, which he said was less than $12,000.
A door hanger was the sole information sent to prospective voters before the election, Pidcock’s challenge said, and it “carefully avoided using the word ‘tax’ and substituted the phrase ‘mill levy’ in describing the APS ballot issues.” Nor did it mention specifically the $4.9 million for a health clinic or a $22.9 million athletics complex at Manzano High School, his lawsuit said.
Five projects already have begun, but the district has said it could continue work only until October without the mill levy and bond money. A Valley High School renovation started in 2015 needs the new money to complete. Albuquerque High School began a $12.5 million renovation a month ago to add a commons, updated kitchen and arts classrooms, and a new $8.2 million Northwest Family School will offer a mix of classroom and home schooling.
A block of classrooms at Oñate Elementary and the Manzano athletic complex were scheduled to begin construction this month.
