City Ordered to Make Public Mock-Up of Illegible Ballot

Employees Say Families Need Fair Election on Earned Sick Days Question

Albuquerque, NM — On Wednesday afternoon, Judge Alan Malott ordered the City of Albuquerque to hand over the mock 2017 municipal ballot to members of the Healthy Workforce ABQ campaign, which advocates for the passage of an ordinance that would allow all Albuquerque workers to earn sick leave. The judge also ordered the Albuquerque City Clerk to testify at a deposition about how the City will fit all required issues, contests, and questions on the 2017 ballot.

In its lawsuit against the City of Albuquerque, the campaign argues that because the full text of the Healthy Workforce Ordinance will only fit on the ballot in an illegible and illegally-small font size — approximately 6-point font — the City Clerk should place a legible summary on the ballot and provide a legible, large-text copy of the full ordinance in each voting booth so that voters can read both documents.The City’s uses the same practice for bond questions.

“I’m legally blind and have to cast my ballot in a special voting machine that has long lines. Small font on the ballot will mean more people will have to make use of the limited machines that help visually-impaired people read their ballots,” said Jerry C De Baca, veteran and voter.

According to federal voting systems guidelines adopted in Section 1-9-14 of the New Mexico Election Code, election ballots must be printed at a minimum of 8.5 point font or larger to ensure that voters with poor vision can read their ballots. In their demand for a copy of the City’s mock-up ballot, Healthy Workforce argued that it will show that the earned sick days ordinance can only fit on the ballot in in a font size well below 8.5, in violation of law.

“Everyone deserves a fair election. Voters will be frustrated and discouraged from voting because the election ballot will be printed too small for voters to read,” said Diane Goldfarb of the League of Women Voters.

“A lot of voters will see that small font and skip right over it,” said Becca Arana, a member of OLÉ. “A ballot printed too small to read can determine whether hard-working moms and dads get a fair election, or not, on allowing employees to earn sick days.”

Albuquerque City Clerk, Natalie Howard, was also ordered to testify in a deposition about whether she can fit the Healthy Workforce Ordinance on the ballot in legible type alongside all the other issues that voters will decide in 2017, including the mayoral race, city council races, and bond questions.

Judge Malott did not rule on the font size question or issue any final rulings today. The plaintiffs plan to seek a final ruling soon after the City produces all of the information the Court ordered it to produce today, to ensure the people of ABQ will have a chance to vote a ballot they can read in October.

 

 

Public Hearings on Human Services Department’s Medicaid Plan Ongoing  

ALBUQUERQUE, NM — Public hearings start this week on the Human Services Department’s (HSD) recently released plan for the future of Medicaid in New Mexico – Centennial Care 2.0.

More information about Centennial Care 2.0 can be found on the HSD website here.

The Center on Law and Poverty has released a packet of information detailing alarming changes from the plan that will be harmful and costly to our families and the State that can be found here. Stakeholders are expected to be present to provide public comment at the hearings.

HSD Public Hearings

  • June 14th – Albuquerque – 3:30-5pm – CNM Workforce Training Center (5600 Eagle Rock Ave. NE, Albuquerque, NM 87113)
  • June 19th – Silver City – 4:00 – 6:00 pm – WNMU – GRC Auditorium (1000 W. College Ave., Silver City, NM 88061)
  • June 21st – Farmington – 4:30 – 6:30 pm – Bonnie Dallas Senior Center (109 E. La Plata St., Farmington, NM 87401)
  • June 26th – Roswell – 4:30 – 6:30 pm – Roswell Public Library (301 N. Pennsylvania Ave., Roswell, NM 88201)

Tribal Consultation Hearing

  • June 23rd – Albuquerque – 9:00am – noon – Indian Pueblo Cultural Center (2401 12th Street NW, Albuquerque, NM 87104)

Families & School Districts Seek Court Action Against State of New Mexico

Landmark Education Suit Claims Students’ Constitutional Rights Are Being Violated

SANTA FE, NM—A state-court trial will start Monday in a landmark education lawsuit that alleges New Mexico is violating the state constitutional rights of students placed at risk.

The trial will focus on legal claims filed by the New Mexico Center on Law and Poverty (the Center) and MALDEF (Mexican American Legal Defense and Educational Fund) challenging the state’s failure to provide economically disadvantaged students, English-language learners (ELL), Native Americans, and students with disabilities with a “sufficient” education, as guaranteed by New Mexico’s constitution.

“The children of New Mexico are intelligent and capable, and have just as much potential as other students across the country. Unfortunately, the State has done little to invest in our children’s future,” said Preston Sanchez, an attorney at the New Mexico Center on Law and Poverty. “It’s time that the State be held accountable to its constitutional duty to meet the educational needs of our students so that they may achieve not only academic success but success in other areas of their lives. Our kids’ and our state’s future are at stake.”

While the state’s constitution mandates a “sufficient” and “uniform” education for all students in New Mexico, a majority of public school students are unable to read, write, or do math at grade level. The consolidated lawsuit calls for the court to order the State to provide the programming and resources necessary for all public school students to succeed, as well as ensure that funds are distributed equitably, including for economically disadvantaged and ELL students.

“For far too long, New Mexico has left its most vulnerable students behind, disregarding its constitutional duty to fully support their education for all students,” said Marisa Bono,

MALDEF Southwest regional counsel. “Every New Mexico child should have the opportunity to graduate ready to pursue their dreams and meet their full potential—this lawsuit will ensure that opportunity.”

The Center’s lawsuit, Yazzie v. State of New Mexico, was filed in March 2014 on behalf of a group of families and school districts including Gallup, Rio Rancho, Santa Fe, Cuba, Moriarty/Edgewood, and Lake Arthur. The families represented have children who are ELL, Native American or economically disadvantaged and have been negatively impacted by the lack of resources provided to New Mexico public schools.

“All I want is for my child to receive the best education possible, but my son and other Navajo students aren’t given the educational resources they need,” said Wilhelmina Yazzie, the named plaintiff in the Yazzie lawsuit whose son attends middle school in Gallup. “My son is a smart and dedicated student, but I worry that he’s not getting the academic support relevant to his native culture and language that will prepare him for college and help him succeed.”

MALDEF’s lawsuit, Martinez v. State of New Mexico, was filed in April 2014 on behalf of parents and public schools in Española, Santa Fe, Albuquerque, Zuni, Magdalena, Las Cruces and Gadsden. The suit alleges that the state’s inadequate funding for ELL and economically disadvantaged students, the lack of quality pre-K programs and other problems violate state constitution. State attorneys sought to dismiss the lawsuit, but the court denied the request and ruled for the first time in New Mexico’s history that education is a fundamental right.

“I simply want my children to have an equal opportunity to get a good education,” said

Roberto Sanchez, a plaintiff in the Martinez case whose children attend school in Santa Fe. “I see that my three children don’t have access to what they need to get ahead. Sometimes they have substitutes for a long time. We are simply asking that our children have a chance to get the education they need.”

The Center’s legal counsel on the case include Gail Evans, Preston Sanchez, Christopher Sanchez, and Lauren Winkler of the Center along with co-counsel Daniel Yohalem and Mark D. Fine. MALDEF’s lead counsel is Marisa Bono, Southwest regional counsel, and legal counsel include staff attorneys Ernest Herrera and Jack Salmon; E. Martin Estrada, Nick Sidney and Jessica Baril with Munger, Tolles & Olson; and David Garcia. The trial is expected to last nine weeks.

For more information on the Yazzie lawsuit, including plaintiff profiles, please visit: http://nmpovertylaw.org/our-work/education-2/.

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 The mission of the New Mexico Center on Law and Poverty is to advance economic and social justice through education, advocacy, and litigation. The Center works with low-income New Mexicans to improve living conditions, increase opportunities, and protect the rights of people living in poverty. Underlying its mission is a vision of New Mexico without poverty, where all peoples’ basic human rights are met. For media inquiries, please contact Maria Archuleta at (505) 255-2840 or Maria.A@nmpovertylaw.org.

 Founded in 1968, MALDEF is the nation’s leading Latino legal civil rights organization. Often described as the “Latino Legal Voice for Civil Rights in America,” MALDEF promotes social change through advocacy, communications, community education and litigation in the areas of education, employment, immigrant rights and political access. For more information on MALDEF, please visit: www.maldef.org. For media inquiries, please contact Sandra Hernandez at (213) 629-2512 ext. 129 or shernandez@maldef.org

Judge Rejects Challenge to Albuquerque Minimum Wage Ordinance

District Court Rules against Kelly’s Brewpub in Wage Theft Case

ALBUQUERQUE— On May 30, 2017, Second Judicial District Court Judge Alan Malott rejected a legal challenge to Albuquerque’s Minimum Wage Ordinance, denying a motion to dismiss a minimum wage case, Atyani et al. v. Bonfantine et al., No. D-202-CV-2016-2775, filed by employees of Kelly’s Brewpub against the former owners of the restaurant, Dennis and Janice Bonfantine.

The Bonfantines’ former employees have alleged that Kelly’s illegally required workers to kick back three dollars per hour from their tips after the tipped minimum wage officially increased in Albuquerque from $2.13 per hour to approximately $5.16 per hour. To defend against these claims, the Bonfantines argued that the Albuquerque minimum wage was invalid because it was increased through a voter initiative that put a summary of the wage increase on the 2012 ballot rather than the entire ordinance. Judge Malott rejected this argument, ruling that any challenge to how the 2012 election was conducted should have been made right after the election.

“Thousands of hard-working families can breathe easier now, knowing that the minimum wage in Albuquerque isn’t going to be slashed,” said Bianca Garcia, a plaintiff in the case. “The Bonfantines should be ashamed of themselves, not only for their violations of the minimum wage ordinance, but also for trying to eliminate the Albuquerque minimum wage altogether just to avoid paying back the money they took from us. We thank the court for seeing through this bogus defense.”

Judge Malott also rejected the Bonfantines’ argument that the Albuquerque minimum wage ordinance was invalid because it “logrolled” multiple issues into one question presented to voters. Malott ruled that “logrolling” is not an issue in municipal ballot measures.

“For years, the former owners of Kelly’s took hard-earned money out of their employees’ pockets, violating Albuquerque’s minimum wage ordinance that was overwhelmingly passed by city voters in 2012,” said Elizabeth Wagoner an attorney on the case from the New Mexico Center on Law and Poverty (the Center). “We’re looking forward to moving forward in this case. The Bonfantines’ employees deserve to collect every dollar they worked for and are owed.”

A similar case, Association of Commerce and Industry et al. v. City of Albuquerque et al., No. D-202-CV-2017-02314, filed in April by a group of business organizations, also asks the courts to invalidate the Albuquerque Minimum Wage Ordinance. That case, which is currently pending before Second Judicial District Court Judge Shannon Bacon, raises many of the same arguments that Judge Malott rejected in the May 30 Atyani v. Bonfantine decision.

Atyani v. Bonfantine is set to go to trial in summer 2018. Attorneys on the case are Wagoner and Tim Davis of the Center, and Shane Youtz and James Montalbano of Youtz & Valdez, P.C.

A copy of Judge Malott’s order can be found here.

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Kim Posich 1953-2017

A memorial will be held for Kim on Friday, August 18th at 6pm. Location and other details will be posted soon. Please check back on  for more information. 

Remembering Kim

Kim Posich, long-time Executive Director of the New Mexico Center on Law and Poverty, passed away on Sunday night at home. His family, the Center staff, and the community mourn the loss of such a tremendous social justice advocate.

Gail Evans, the Center’s Legal Director and his wife, wrote the following remembrance of Kim:

Kim was diagnosed with ALS in January of 2015. During these past few years, as his body steadily shut down, his mind, his humor, his grace, his patience, his appreciation of life did not. He continued to be a wonderful partner, parent, grandfather, friend, and colleague, contributing to the Center’s work until very recently, when he became more and more focused on the basics – breathing, eating, and drinking – all of which had become a real struggle.

Many of us loved and respected Kim. We loved his intellect; we loved his determination to build a more just world; we loved his persistent fight against poverty and injustice; we loved his appreciation for life, nature, a good joke, a good poem, and a good game, and we loved how much he loved. He truly was a beautiful man.

Please take a moment to appreciate the sky, the light, a flower growing in a crack in the sidewalk, and remember Kim. Be kind and understanding to someone you don’t know, or don’t like, and remember Kim. Say yes to someone in need who asks you for a favor, and remember Kim. Be inspired by the Freedom Riders and remember Kim. Take a bold move for justice, and remember Kim.

 

Kim at the New Mexico Center on Law and Poverty

Kim Posich served as Executive Director of the New Mexico Center on Law and Poverty for 14 years, between 2002 and 2016. He joined the Center with a clear purpose: to transform the small but effective organization into the powerhouse of legal advocacy in New Mexico that it is today. In the ensuing years, he achieved that vision beyond what anyone could have imagined. He increased the Center’s budget by more than $1 million, grew the size of the Center’s staff by 300 percent, and expanded the issue areas in which the Center was engaged, all while staying true to the Center’s history and core values. The Center’s achievements under his tenure are too numerous to list, but a few highlights include:

  • Leading stakeholders from around the state in a successful campaign to expand Medicaid eligibility. This change extended healthcare coverage to over 250,000 adults who were not previously eligible.
  • Winning a landmark lawsuit extending workers’ compensation benefits to agricultural laborers.
  • Coordinating campaigns that brought $16 million of financial support to New Mexico’s civil legal services system—the “legal emergency room” for the poor.
  • Collaborating with community groups to persuade the University of New Mexico Hospital to stop charging uninsured, indigent patients 30 percent more than insured patients and requiring them to pay 50 percent of expected charges for some services in advance.
  • Arguing for improvements to the state’s administration of public benefits that resulted in hundreds of thousands of people getting assistance more effectively when they needed it.

As New Mexico Center on Law and Poverty Board Member John W. Boyd wrote:

Kim’s tireless work has resulted in accomplishments that have changed New Mexico law and improved our state in ways that make us very proud.

Rest well, Kim. We will miss you.

Families and School Districts Ask Court to Find that State Failed Its Legal Obligation to School Age Children 

SANTA FE, NM—In a pre-trial hearing starting Monday, May 22, the New Mexico Center on Law and Poverty (the Center) will ask the First Judicial District Court to find that the State has failed to meet its constitutional obligation to provide children the supports necessary to learn and succeed. The Center will also ask the Court to rule that the State’s system of education is unconstitutional as it applies to Native American students.

“Education is a right, not a privilege. It’s time for the State of New Mexico to step up and meet its constitutional responsibility to provide public schools the resources and programming they need to promote the success of all children,” said Edward Tabet-Cubero, Executive Director of the Center. “It is unacceptable that a vast majority of our children cannot read, write, or do math at grade level. The State is failing our kids.”

The Center’s Motions for Summary Judgement in the lawsuit, Yazzie v. State of New Mexico, are on behalf of a group of New Mexico families and school districts including Gallup, Rio Rancho, Santa Fe, Cuba, Moriarty/Edgewood, and Lake Arthur. The families represented have children who are English language learners (ELL), Native American or economically disadvantaged and have been negatively impacted by the lack of resources provided to New Mexico public schools.

Marsha Leno, one of the plaintiffs in the case, lives in McCartys in western New Mexico. Five of her six children are enrolled in Cibola-Grants County Schools (GCCS). Like many families in the district, Marsha and the children speak both Keres and English at home. Her children have struggled in English Language Arts and other courses that require writing. Unfortunately, the district lacks an adequate bilingual and English as a second language program for Native American students. The GCCS superintendent told Leno that the district lacks adequate funding to address these problems.

The Center’s lawsuit seeks for the Court to order and hold the State accountable to meet its legal responsibility to provide the programming and resources necessary for all public school students to succeed. The lawsuit also seeks to ensure that funds are distributed equitably, including for economically disadvantaged, Native American, and English language learner students.

“The State of New Mexico has been starving its public schools for years and legislation continues to fail,” said Lauren Winkler, one of the Center’s attorneys working on the case. “Our kids are just as smart and motivated as other children across the country. We have loving families, committed teachers, and communities dedicated to their children’s education. But our schools have tried to do more with less, and it’s our children who are suffering from the State’s failure.”

Yazzie v. State of New Mexico was originally filed in March 2014 and consolidated with a similar case, Martinez v State of New Mexico. The Martinez parents and children hail from Española, Santa Fe, Albuquerque, Zuni, Magdalena, Las Cruces, and Gadsden.

The consolidated lawsuit goes to trial on June 12, 2017.

Legal counsel on the Yazzie lawsuit include Gail Evans, Preston Sanchez, Christopher Sanchez, and Lauren Winkler of the Center along with co-counsel Daniel Yohalem and Mark D. Fine.

Legal documents in the case can be found here.

A Toast to Kim Posich!

A large crowd toasts to Kim.

Last month, we celebrated at Hotel Albuquerque by raising a glass with Kim Posich. As the New Mexico Center on Law and Poverty’s Executive Director, Kim dedicated himself to increasing opportunities for low-income New Mexicans. It was wonderful to see so many of Kim’s friends, family, and colleagues come together to recognize the inspirational leadership of our long-time Executive Director.

NMCLP Board Member Regis Pecos gave a heartfelt toast on Kim’s impact to the community.

Thanks to everyone who attended the event!

 

Thanks again to our generous event sponsors!

Leader Circle
Paul Baca Court Reporters

Defender Circle
Ideum, Inc.
Brindle Foundation

Friend Circle
Con Alma Health Foundation
Coyte Law, P.C.
Rodey, Dickason, Sloan, Akin, & Robb, P.A.
Sheehan and Sheehan, P.A. 
Ambitions Consulting Group

Community Organizations Ask Court to Protect Minimum Wage and Paid Sick Ballot Initiative

By Elizabeth Wagoner, Supervising Attorney for Workers’ Rights

NMCLP Staff Attorney Tim Davis speaks at the May 4 press conference. Photo Credit: OLÉ

On May 4, 2017, several community organizations filed motions to intervene and motions to dismiss in a lawsuit that corporate and industry groups filed to attempt to overturn the Albuquerque Minimum Wage Ordinance (MWO) and keep the Albuquerque Healthy Workforce Ordinance off the 2017 ballot. The New Mexico Center on Law and Poverty represents the intervenors in this case.

The increases to the Albuquerque minimum wage passed in 2012 with the overwhelming support of Albuquerque voters. Now, almost five years later, corporate business interests seek to undercut the democratic process and invalidate the Albuquerque Minimum Wage, cutting the wages of hard working people across Albuquerque by $1.30 – from $8.80 per hour to $7.50 per hour. The corporate interests’ legal challenge to the Healthy Workforce Ordinance ballot initiative is a similarly undemocratic effort by corporations to keep Albuquerque voters, as is their right, from deciding whether workers should have the right to earn sick leave to recover from illness or care for ill family members. The corporate plaintiffs in the lawsuit do not stop there, however. They also ask this Court to take away the voters’ democratic right to propose and vote on ballot initiatives ever again.

The community organizations that fought successfully to put these important workplace rights on the ballot are now fighting once again to protect these laws. The first Motion to Dismiss asks the court to dismiss all of the challenges to the Albuquerque Minimum Wage Ordinance, and a second Motion to Dismiss asks the court to dismiss the Healthy Workforce Ordinance challenges. Both motions argue that the industry claims are flimsy, without merit, and are wholly without respect for the democratic process. 

Find the motions to dismiss here and here.

Find the motions to intervene here and here.

Lawsuit Alleging DWS Fails to Enforce Wage Protection Laws Goes Forward

SANTA FE – Today, New Mexico’s First Judicial Court ruled that a lawsuit charging that Department of Workforce Solutions (DWS) must enforce state laws protecting working people against wage theft from their employers can go forward. Today’s ruling denies DWS’s request to dismiss the lawsuit. The individuals and groups who filed the case will request a final ruling from the court this summer.

Wage theft is the illegal practice of not paying workers for all of their work, including violating minimum wage laws, not paying overtime, and forcing people to work off the clock.

The lawsuit, Olivas v. Bussey, was filed in January 2017 by four workers who were victims of wage theft and workers’ rights organizations El Centro de Igualdad y Derechos, New Mexico Comunidades en Accion y de Fé (CAFÉ), Organizers in the Land of Enchantment (OLÉ), and Somos Un Pueblo Unido. Elizabeth Wagoner of the New Mexico Center on Law and Poverty (the Center) is lead counsel on a legal team that includes the Center’s Gail Evans and Tim Davis, Santa Fe attorney Daniel Yohalem, and Gabriela Ibañez Guzmán of Somos Un Pueblo Unido.

“Our government should be working with us, not against us, to hold unscrupulous employers accountable when wages are stolen and our rights trampled on,” said Ibañez Guzmán. “This administration has long ignored the conditions of struggling workers in New Mexico, but our families are pushing back. It’s important that this case is moving forward so wage theft victims can be heard and the department’s disregard for the law exposed.”

“This ruling reaffirms that every hard working New Mexican – not just those with the money to hire lawyers–deserves to be paid for every hour they work,” said Wagoner. “Our state government cannot turn a blind eye when employers break laws protecting working people.”

New Mexico has some of the strongest wage enforcement laws in the country. In 2009, the legislature made them even stronger. However, DWS illegally refused to enforce these new laws and imposed onerous and arbitrary internal policies that have enabled unscrupulous employers to get away with wage theft unchecked.

“DWS’s failure to enforce New Mexico’s wage and hour laws is one more example of how hard working New Mexicans are getting the short end of the stick in our state—but they are fighting back. This case is too important to dismiss, particularly given the profound impact wage theft has on New Mexican working families. We applaud the ruling and look forward to continuing to expose systemic failures by DWS to enforce New Mexico wage and hour laws, “said Marco Nuñez, workers’ justice coordinator at El CENTRO de Igualdad y Derechos.

A copy of the ruling can be found here.

 Background on the lawsuit:

New Mexico’s state-level protections against wage theft include: (1) Mandatory statutory damages to victims of wage theft, calculated as full back wages, plus interest, plus double damages; (2) At least a three-year statute of limitations, or longer when the violation is part of a “continuing course of conduct”; (3) A minimum wage of $7.50 and overtime pay for hours over 40 at one-and-one-half times the employee’s regular hourly rate; (4) the department must investigate and take legal action on valid and enforceable claims filed by workers who cannot afford private attorneys.

The lawsuit charges that DWS has:

▪       illegally imposed a $10,000 cap on wage theft: they do not investigate or take any enforcement action on wage claims worth $10,000 or more.

▪       imposed an illegal one-year time limit on liability for wage theft: they do not investigate or take any enforcement action on claims for back pay that go back more than one year from the date an employee files a claim, despite the N.M. Legislature’s 2009 decision to lengthen the statute of limitations for wage claims to at least three years.

▪       illegally imposed a policy against holding employers liable for any statutory damages at the administrative enforcement phase of a case, thereby eliminating the financial deterrent for engaging in wage theft, despite the Legislature’s 2009 decision to double the penalty for engaging in wage theft.

▪       adopted policies and procedures that require the permanent closure of wage claims for procedural reasons, such as when a claimant misses a 10-day deadline, without regard to the strength of the claim or whether the claimant received notice of the deadline.

The lawsuit seeks an order that the Department of Workforce Solutions must stop applying these unlawful policies, as well as an order that the Department must re-open and investigate cases impacted by these policies.

The defendants in the lawsuit are the Department of Workforce Solutions, Cabinet Secretary Celina Bussey, and Labor Relations Division Director Jason Dean.

In January, 2017, the First Judicial District Court issued a temporary restraining order requiring the Department of Workforce Solutions to accept wage claims without regard to the Department’s illegal $10,000 cap or illegal one-year lookback period and to keep records of claims impacted by these policies.

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