The Albuquerque Public Schools Board appealed its own victory in district court earlier this month over the challenge to the joint APS-Central New Mexico Community College bond and APS mill levy election last February in a thus-far unsuccessful attempt to get a final court ruling by Sept. 1.
That didn’t work. The Supreme Court, without comment, denied the emergency appeal on Tuesday.
The next move will be up to challenger Robert Pidcock to state the reasons he believes 2nd Judicial District Chief Judge Nan Nash was mistaken in her Aug. 8 ruling from the bench and Aug. 11 written opinion dismissing his complaint.
The Supreme Court could then rule on the record it has, ask for more briefing or set a hearing.
Typically, it’s the losing side that appeals, and Pidcock said after the Aug. 8 hearing he planned an immediate appeal. But APS seized the moment and filed a 150-page brief with the Supreme Court on Monday.
APS lawyers recognized the novelty of their action, but said that if the taxes are collected from property owners and then the district loses on appeal, there’s no provision for refunds.
“APS acknowledges that it is unusual for a prevailing party to seek review,” says the filing, which seeks a writ from the New Mexico Supreme Court. “The circumstances of this case, however, are such that … any meaningful review … must occur before Sept. 1.”
That is the date by which the state Department of Finance and Administration must order the mill levy in the property tax schedules for Bernalillo and Sandoval counties, according to the filing. APS lawyers Art Melendres and Zachary McCormick argue that the DFA and the school district are in a “legal dilemma” should the mill levy ultimately be reversed – though they don’t think it will be – because the Property Tax Code contains no provisions for giving the money back.
The district contends that if the revenue isn’t collected, it can never recoup the lost property tax, authorized through 2021, even if it wins the legal case, because tax bills go out only once a year.
Absent a ruling by Aug. 31 upholding Nash, “APS stands to lose over $60 million in property taxes which will never be collected,” the school district argues.
Pidcock says he hopes to file his appeal under state election law within the next 10 days, raising all of the issues and explaining them to the Supreme Court. Election law challenges are expedited, skipping the intermediate step of review by the Court of Appeals.
Pidcock raised several distinct legal issues regarding the bond election, and he says Nash never addressed the matter of whether property tax funds intended for school buildings can be used for a proposed school clinic. He filed a motion for summary judgment after Nash’s written opinion was docketed in which he contends that issue remains unresolved.
Pidcock also says APS drew certain conclusions about what the DFA can or cannot do in its filing without presenting evidence in support of that claim.