February 12, 2019- Northern New Mexicans v. Pojoaque Valley Irrigation District, No. A-1-CA-37391

1 	IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 	NORTHERN NEW MEXICANS
3 	PROTECTING LAND, WATER
4 	AND RIGHTS,
5 	Plaintiff-Appellant,
6 V . 	NO. A-1-CA-37391
7 POJOAQUE VALLEY IRRIGATION
8 DISTRICT,
9 	Defendant-Appellee.
10 	APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY
11 	David K. Thomson, District Judge
12 	Western Agriculture, Resource and Business Advocates, LLP
13 	A. Blair Dunn
14 Albuquerque, NM
15 	for Appellant
16 Egolf Ferlic & Harwood, LLC
17 Katherine M . Ferlic
18 	Santa Fe , NM
19 for Appellee
20 	MEMORANDUM OPINION
21 	VANZI, Judge.
22 	{t} 	Plaintiff has appealed from an order granting Defendant's motion for judgment
23 	on the pleadings, together with a related order denying Plaintiffs motion 	for
Court of Appeals of New Mexico
Filed 2/12/2019 8:42 AM
Mark Reynolds

1 summary judgment and for declaratory judgment. We previously issued a notice of
2 proposed summary disposition in which we proposed to affirm. Plaintiff has filed a
3 memorandum in opposition. After due consideration, we remain unpersuaded. We
4 therefore affirm.
5 	{2} 	To very briefly summarize, this is fundamentally an IPRA case, in which
6 Defendant declined to produce 	unredacted 	ballots. 	[DS 	3] 	The 	district court
7 concluded that these materials were exempt from IPRA disclosure requirements,
8 based on concerns about maintaining the secrecy of those ballots. [RP 451-53]
9 	{3} 	In our notice of proposed summary disposition we observed that the district
10 	court's determination is well supported. The IPRA "catch-a ll " provision, NMSA
11 	1978, § 14-2-l(A)(8) (2011), exempts materials that are subject to statutory and
12 	regulatory bars to disclosure, as well as materials subject to constitutionally mandated
13 	privileges and privileges established by our rules of evidence. Republican Party of
14 N.M v. N.M Taxation & Revenue Dep 't, 2012-NMSC-026, ,-r 13 , 283 P.3d 853. As
15 	the district court observed at greater length in its order granting Defendant's motion
16 	for judgment on the pleadings, [RP 434-38] the materials in question could not have
17 	been produced without violating the right to the secrecy of the ballot, as enshrined by
18 	constitution, statute, and rule. See, e.g., N.M. Const. art. VII, § 1(B) (recognizing the
19 	importance of "the secrecy of the ballot"); NMSA 1978, § 1-1-1.1 (1979) ("It is the
2

1 purpose of the Election Code ... to secure the secrecy of the ballot[.]"); Rule 11-507
2 	NMRA (recognizing the privilege of a legal voter to refuse to disclose his or her
3 vote). The sanctity of this right is well established. See Kiehne v. Atwood, 1979-
4 	NMSC-098, 1 7, 93 N.M. 657, 604 P.2d 123 ("The sanctity of a New Mexican's
5 ballot is undoubtedly one of his most cherished and jealously-guarded rights. It is one
6 	of the fundamental civil liberties that form the bulwark against the erosion of a
7 democratic government. Compromising the secrecy of the ballot is not to be tolerated
8 except in cases of paramount public importance."). In light of these principles and
9 	authorities, the IPRA request was properly denied.
10 	{4} 	In its memorandum in opposition, Plaintiff takes the position that the ballots
11 	in question should not be regarded as subject to secrecy because the Legislature has
12 	specified that the ballots must contain information that effectively renders the identity
13 	of each voter apparent. [MIO 4-5] However, the suggested conclusion does not follow
14 	from the premise. To the contrary, the fact that the ballots contain such identifying
15 	information underscores the propriety of the district court's determination that the
16 unredacted ballots were subject not subject to disclosure. See NMSA 1978, § 1-12-
17 	69(G) (2015) (providing that inspection of ballots may be conducted only in such a
18 	manner as to secure the secrecy of the ballot). To the extent that Plaintiff invites us
19 to imply legislative intent to abrogate voters' constitutionally and statutorily protected
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1 right to secrecy of the ballot in this specific context, the invitation must be declined.
2 See generally El Castillo Ret. Residences v. Martinez, 2017-NMSC-026, 125, 401
3 P .3d 7 51 ("A statute must be interpreted and applied in harmony with constitutionally
4 	imposed limitations."); Phelps Dodge Tyrone, Inc. v. N.M 	Water Quality Control
5 	Comm 'n, 2006-NMCA-l 15, 1 15 , 140 N.M. 464, 143 P.3d 502 ("We attempt to
6 	harmonize statutes in a way that facilitates their operation and the achievement of
7 their goals." (internal quotation marks and citation omitted)).
8 {S} 	Plaintiff further argues that the result reached in this case reflects "a lack of
9 	discernment," "avoid[ s] doing substantial justice," and is ultimately "absurd" insofar
10 	as it "deprive[ s] 	citizens of the necessary information to verify the results" of
11 	elections. [MIO 3-4, 7] Of course, this is inaccurate. Election results, including the
12 	election at issue here, are subject to challenge and verification as provided in the
13 	Election Code. See Gunajiv. Macias, 2001-NMSC-028, 136, 130 N.M. 734, 31 P.3d
14 	1008 (holding that "the Election Code sets out the exclusive procedure for contesting
15 	the results of an election"); see also NMSA 1978, § 73-9-5 (1973) (providing that the
16 general election laws of the state govern special irrigation district elections); Glaser
17 	v. LeBus, 2012-NMSC-012, 1 9, 276 P.3d 959 (indicating that where a statutory
18 	provision calls for compliance with the general election laws of this state, compliance
19 	with the procedures set forth in the Election Code is required). We will not comment
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1 upon Plaintiffs failure to properly pursue this avenue, apart from observing that
2 IPRA is not a surrogate. See Gunaji, 2001-NMSC-028, ~ 36.
3 	{6} 	Accordingly, for the foregoing reasons, as well as the reasons set forth in the
4 notice of proposed summary disposition, we affirm.
5 	{7} 	IT IS SO ORDERED.
6
7
8 WE CONCUR:
11 	!ft,- ~12 	KRISINABOGAUS,Jud
5