Letters to The Eye: Tales From Scam-era Hearings

We're starting a new segment called Letters to The Eye. These are unedited letters that we found to be informative and are being published with the consent of the author. The content is being presented without any editing so that the integrity of the original letter is kept in tact.

Our first letter is from James Reich, a not so proud recipient of one of the Almighty's scam-era fines. Mr. Reich decided to fight the "citation" and the following is his tale... so far.


Tales From Scam-era Hearings

I am not a lawyer, just a regular guy. Nothing in the following is intended to be nor should it be used as legal advice. I do not have the knowledge or background to argue “due process” or constitutionality with the big boys. This is just my story and opinion so far.

I had an administrative hearing at City Hall on January 30, 2007, one-hundred and five days after the effective date of the notice of violation of my vehicle. The administrative hearing process was created by the STOP Ordinance and the administrative hearing officer is employed by or works for the Mayor’s office in city government. Per language in the STOP Ordinance, notices were and are routinely dismissed (if you ask for dismissal, they may not offer) if the hearing occurs after 90 days of the “effective date.” Hearing Officer Roberto Albertorio made up a new definition of “effective date” that afternoon for all who appeared and as the owner (they couldn’t identify the driver), I was ordered to pay up. I’ve been in Albuquerque 18 years and this was my first contact with City Hall. Never been in court, closest was jury duty.

Because I believe the hearing officer ignored clear and unambiguous language in the STOP Ordinance, within 30 days I filed (with a $122 filing fee) a request for an appeal with State District Court under rule 1-075, Rules of Civil Procedure. Legally, this is called a “petition for writ of certiorari.” In effect, it’s asking the District Court Judge to grant a review of the hearing. Under the STOP Ordinance, there is no right to an appeal, one may or may not be granted.

As I researched legalese while writing the petition and in preparation for writing a follow-up brief, I learned much about red-light cameras and their use in this country. Since the beginning of this year, they’ve been ruled illegal in Iowa and Minnesota, and the Michigan Attorney General issued an opinion letter against their use in that state. A decision should come from Ohio soon. A District Court Judge in Iowa ruled against their use in Davenport, which implemented an ordinance very similar to the one here in Albuquerque. In fact, I believe the ideas and much of the language in these ordinances actually comes from the contractors that lease the cameras. (The research has been a great civics lesson.)

The Minnesota case, recently upheld by the Minnesota State Supreme Court, struck down an ordinance in Minneapolis because it conflicted with Minnesota state law. The rationale was simple, straightforward, and similar to that used by the Michigan Attorney General. It made me take a good hard look at New Mexico state law.

And there it was:

Municipalities can pass ordinances that are "not inconsistent" and "not in conflict with" state law (NMSA 3-17-1 and 3-17-6).

Here's the state law that the STOP Ordinance is in conflict with: (begin excerpt)

34-8A-3. Metropolitan court; jurisdiction.

A. In addition to the jurisdiction provided by law for magistrate courts, a metropolitan court shall have jurisdiction within the county boundaries over all:

(1) offenses and complaints pursuant to ordinances of the county and of a municipality located within the county in which the court is located except municipalities with a population of more than two thousand five hundred but less than five thousand persons in the 1980 federal decennial census; provided that the metropolitan court shall not have jurisdiction over uncontested municipal parking violations;

(2) civil actions in which the debt or sum claimed does not exceed ten thousand dollars ($10,000), exclusive of interest and costs; and... (end excerpt)

The key words are "shall" and "all,” it covers ordinances and civil actions.

So, the city's administrative hearing process set up under the STOP Ordinance appears to be in conflict with and inconsistent with New Mexico law because of jurisdiction. Therefore, the ordinance should be declared invalid. According to New Mexico law, jurisdiction belongs to Metro Court. Municipal home rule within New Mexico grants broad powers to cities, but does not allow conflict with state law. Now, my interpretation is worthless. It’s what a judge decides that counts.

So if my appeal is granted, I’ll ask the judge to declare the ordinance invalid. Failing that, we’ll cover what occurred during the actual hearing.

So, as you can tell by now, I’m against the STOP Ordinance and how it’s being practiced by the city. I must admit, I like the basic intentions espoused by the city, I just don’t believe they believe them. The “it’s all about safety” line rings hollow, “it’s all about money” is more like it. I am not against using traffic cameras in all instances, but I do believe their use to be very specific and very limited. So limited as not to be very profitable, especially not for the city or any contractor. Enforcement for profit is a dangerous road to travel and is “unsafe at any speed.” The city wants to implement more “civil penalties” for more infractions in the future, taking all of us further down this dangerous road.

Mr. Villanucci’s recent programs have provided ample evidence of questionable practices and the equally questionable rationale of our city’s leaders. I am very glad to hear of the class action suit led by attorney Richard Sandoval. I am very glad to hear of the ongoing efforts of attorney Paul Livingston. Faced with an administrative hearing officer that either was unfamiliar with, or chose to ignore language in the city’s own ordinance, I am fortunate enough to have the resources and desire to try and do something about it. Many that went before him that afternoon are not able to. Maybe I’ll win, maybe I won’t. I do believe that eventually this ordinance will be shot down or shut down. The city must win each challenge to maintain status quo, and I do not believe the odds are in their favor. I don’t believe the legislature, public opinion or the law is on their side.