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Judge Delays Ruling on Restraining Order Against Trustees

From the 2019 Jemez Mountains Electric Cooperative Elections series
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First Judicial District Court Judge Bryan Biedscheid delayed a decision on whether to grant a temporary restraining order or preliminary injunction Tuesday against the Jemez Mountains Electric Cooperative Board of Trustees, regarding issues related to the June elections and the validity of the membership of some trustees.

Biedscheid said he plans to schedule a longer hearing some time in September to make a final decision.

Attorney A. Blair Dunn filed the application for a temporary restraining order and preliminary injunction July 17 on behalf of his clients former District 6 trustee Bruce Duran, District 4 Trustee David Salazar, and Member-Owners Charles Wright and Robert Garcia.

Dunn filed the application 14 days after a majority of the Board trustees voted to not certify Duran’s June 26 election results, a race in which he ran unopposed.

Dunn’s application states the Board incorrectly determined at the July 3 special Board meeting that Duran did not meet the qualifications to be a trustee because his wife, from whom he is separated, sometimes pays his electric bill from her own separate account.

The application also alleges District 4 Trustee Lucas Cordova does not live in the Ward he claims to represent on the Board and that his challenger Patrick Herrera is the rightful winner of the June 21 District 4 election.

A second special Board meeting was held July 15 regarding Cordova’s residence, when the Board decided he met the Co-op’s qualifications to be a trustee. This is despite state voting records showing Cordova voted in more than 15 elections registered at a different address than the one attached to his Co-op membership.

Dunn submitted an amended application about a month later, Aug. 16, which also alleged Board President and District 6 Trustee Leo Marquez is not a bona fide member in good standing and is not eligible to serve on the Board in any capacity.

Dunn said when the Board and organization do not abide by its own bylaws, it becomes a due process issue for each member-owner.

“They have a right to due process,” Dunn said during his opening statements. “The elections say they are going to be conducted in a certain manner and their candidates or their trustees are going to be certain people, they have a due process right to see that those bylaws are followed and that essentially is the gist of this case.”

Co-op Contract Attorney Charles Garcia, of Cuddy & McCarthy, LLP, said during the Tuesday hearing there is no basis in law for the plaintiffs to challenge anything to do with Co-op election. He referred to the New Mexico Rural Electric Cooperative Act and said there is nothing in it to void a chosen candidate in an election and the Co-op is not subject to the state’s Election Code.

The Co-op is a nonprofit organization and is not a government entity.

The Board followed the bylaws in these scenarios, Garcia said.

The plaintiffs did not present any evidence to prove they will suffer irreparable injury, which is required to grant a temporary restraining order or injunction, he said. They also failed to bring up any issues regarding Marquez’s membership in the two years he has served on the Board until now, he said.

Garcia also said that during the July 3 special Board meeting Duran and Dunn had the opportunity to address the Board, but neither of them did so.

The Board and the Co-op could be irreparably harmed if the restraining order and injunction are granted because it could put into jeopardy any contracts, Garcia said. If this does happen, he asked the judge make the plaintiffs take out a $20 million bond to cover any damage that may occur due to the decision.

Dunn replied that the day-to-day of the operations will continue if the restraining order or injunction is granted and that any irreparable harm suffered by the Co-op if the injunction or restraining order were to be granted would, in reality, be at the fault of the Board.

Dunn also said Garcia misrepresented the July 3 special meeting because Duran did address the Board and said he paid the bills.

Dunn said it was Garcia who advised the Board they could remove Duran and that it is a quandary when a person is both an attorney and a witness.

One matter Biedscheid ruled on Tuesday is the presence of law enforcement at the Board’s monthly public meeting. He said he would not stop law enforcement from attending.

New Mexico State Police or Rio Arriba Sheriff’s Office deputies have attended all meetings after the election, as well as the annual meeting and the June, July and August monthly Board meetings.

Garcia said the presence of law enforcement has helped by stopping interruptions and allowing trustees to do their business.

Dunn said the law enforcement officers could have a chilling effect.

“Considering that everybody here today walked past law enforcement to come in here, I hope it’s not having a chilling effect on anybody’s ability to share their candid views or anything else but making sure the peace is kept,” Biedscheid said. “That’s what this court wants.”

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