A. The petitioner shall file the completed face sheet along with a petition in the district court of the county in which the named official resides, requesting a hearing for a determination by the court of whether sufficient facts and probable cause exist to allow the petitioner to continue with the recall process. A separate face sheet and petition shall be filed for each named official.
B. Upon the filing of the application, the district court shall set a hearing date on the issue of sufficiency of the facts alleged, which hearing shall be held not more than fourteen days from the date the petitioner files the face sheet and petition. The court shall notify the county clerk of the date for the hearing. At the hearing, the petitioner and the named official shall each be given an opportunity to present evidence and cross-examine witnesses.
C. The district court's decision is appealable by the petitioner or the named official only to the supreme court, and notice of appeal shall be filed within five days after the decision of the district court. The supreme court shall hear and render a decision on the appeal forthwith.
History: 1978, Comp., § 22-7-9.1, enacted by Laws 1987, ch. 142, § 2; recompiled and amended as § 1-25-6 by Laws 2019, ch. 212, §164.
Recompilations. — Laws 2019, ch. 212, § 164 recompiled and amended former 22-7-9.1 NMSA 1978 as 1-25-6 NMSA 1978, effective April 3, 2019.
The 2019 amendment, effective April 3, 2019, revised the provisions related to the recall process; in the section heading, added "Recall"; in Subsection A, deleted "Prior to affixing the date of initiation to the completed face sheet, the county clerk shall file an application with the district court within five days from the date the completed face sheet is presented to the county clerk" and added "The petitioner shall file the completed face sheet along with a petition in the district court of the county in which the named official resides", after "sufficient facts", added "and probable cause", and after "recall process.", added "A separate face sheet and petition shall be filed for each named official."; in Subsection B, after "not more than", deleted "ten" and added "fourteen", after "from the date the", deleted "application is filed by the county clerk" and added "petitioner files the face sheet and petition", and after "notify the", deleted "petitioner at the mailing address listed on the face sheet of the time and place of the hearing." and added "county clerk of the date for the hearing. At the hearing, the petitioner and the named official shall each be given an opportunity to present evidence and cross-examine witnesses"; and deleted Subsections C and D and redesignated former Subsection E as Subsection C.
Protections when exercising the right to petition. — Where respondent, a Taos school board member, brought a malicious abuse of process claim against petitioners, eighteen members of an unincorporated citizens' association who sought to remove respondent from office, the district court properly granted petitioners' motion to dismiss, because petitioners who pursue the recall of a local school board member under the Local School Board Member Recall Act, 22-7-1 to 22-7-16 NMSA 1978, are entitled to the procedural protections of the New Mexico statute prohibiting strategic litigations against public participation (Anti-SLAPP statute, 38-2-9.1 NMSA 1978), and are entitled to immunity under the Noerr-Pennington doctrine when they exercise their first amendment right to petition. Cordova v. Cline, 2017-NMSC-020, rev'g 2013-NMCA-083, 308 P.3d 975.
Application to recall petitions. — The anti-SLAPP statute [Section 38-2-9.1 NMSA 1978] does not apply to a sufficiency hearing before a district court to determine the sufficiency of the allegations in a recall petition pursuant to Section 22-7-9.1 NMSA 1978, because a sufficiency hearing before the district court is a judicial proceeding, not a public meeting or a quasi-judicial proceeding as defined in the anti-SLAPP statute. Cordova v. Cline, 2013-NMCA-083, cert. granted, 2013-NMCERT-007.
Where defendants filed a petition with the county clerk to recall plaintiff who was a member and officer of a municipal school board; the county clerk filed an application for a district court hearing on the sufficiency of the recall allegations pursuant to Section 22-7-9.1 NMSA 1978; at the hearing, before the district court determined the sufficiency of the petition, defendants dismissed the petition; plaintiff filed suit against defendants for damages; and the district court dismissed plaintiff's complaint under the anti-SLAPP statute [Section 38-2-9.1 NMSA 1978], the district court improperly dismissed plaintiff's suit because the anti-SLAPP statute did not apply to a judicial proceeding to determine the sufficiency of the recall petition. Cordova v. Cline, 2013-NMCA-083, cert. granted, 2013-NMCERT-007.
Violation of Open Meetings Act. — Charges of multiple intentional violations of the Open Meetings Act, which permitted policy decisions concerning the respective roles of the superintendent and the school board without public participation, were a form of misconduct for which recall was provided. Do a Ana Cnty. Clerk v. Martinez, 2005-NMSC-037, 138 N.M. 575, 124 P.3d 210.
Standing. — Sections 22-7-9.1 and 22-7-12 NMSA 1978 do not authorize local school board members facing a recall petition to challenge the form of the petition. Do a Ana Cnty. Clerk v. Martinez, 2005-NMSC-037, 138 N.M. 575, 124 P.3d 210.
Structure New Mexico Statutes
Section 1-25-3 - Recall; elected officials subject to recall; limitations.
Section 1-25-4 - Recall; petition.
Section 1-25-5 - Recall; responsibilities of petitioner.
Section 1-25-6 - Recall; court hearing.
Section 1-25-7 - Recall; duties of county clerk.
Section 1-25-8 - Recall; affidavit with petition; penalty.
Section 1-25-9 - Recall; signatures.
Section 1-25-10 - Recall; limitation on appeals of validity of recall petition.
Section 1-25-11 - Recall; election.