Glaser v. LeBus

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integrity of this document
New Mexico Compilation
Commission, Santa Fe, NM
'00'04- 15:44:18 2012.03.28
IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number: 2012-NMCA-028Filing Date: June 16, 2011
Docket No. 29,733
MR. and MRS. RON GLASER,
THERESA CULL, CHERYL HOST,
EDMUND AUERBACH, DR. and
MRS. DAVIS SPENCE, DONALD R. ASHER,
HEIDI LARSEN, BRAD LEONARD, TED THRASHER,
ANNE DANIELS, BRYAN and LISALEE GOSS,
WILLIAM W. MERSHON, KEITH and
DEBORAH HILLEGOND, and
MR. and MRS. BRUCE CHARNLEY,
Plaintiffs-Appellants,
v.
JAMES L. LEBUS, DANIEL E. RAKES,
CHARLES VERRY, ALAN G. YOUNG,
STEVEN R. OLIVER, THE NEW MEXICO
FINANCE AUTHORITY, AUI, Inc.,
ANGEL FIRE RESORT OPERATIONS, LLC,
and THE VILLAGE OF ANGEL FIRE,
Defendants-Appellees.
APPEAL FROM THE DISTRICT COURT OF COLFAX COUNTY
John M. Paternoster, District Judge
Armstrong & Armstrong, P.C.
Julia Lacy Armstrong
Roy L. Armstrong
Taos, NM
for Appellants
Stelzner, Winter, Warburton, Flores, Sanchez & Dawes, P.A.
Nann M. Winter
Albuquerque, NM
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for Appellees LeBus, Rakes, Verry, Young, Oliver
and Angel Fire Public Improvement District Board Members
Sutin, Thayer & Browne, P.C.
Mark Chaiken
Albuquerque, NM
for Appellee New Mexico Finance Authority
Rodey, Dickason, Sloan, Akin & Robb, P.A.
Alan Hall
Albuquerque, NM
for Appellee Angel Fire Resort Operations, LLC
Canepa & Vidal, P.A.
Joseph Canepa
Santa Fe, NM
Modrall, Sperling, Roehl, Harris & Sisk, P.A.
Peter Franklin
Santa Fe, NM
for Appellee Village of Angel Fire
OPINION
WECHSLER, Judge.
{1} In this appeal, we consider whether (1) a formation election under the Public
Improvement District Act (PID Act), NMSA 1978, §§ 5-11-1 to -27 (2001, as amended
through 2009), incorporates the election contest and recount procedures found in the
Election Code, NMSA 1978, §§ 1-1-1 to 1-24-4 (1969, as amended through 2010), and (2)
Plaintiffs’ amended complaint constituted an election contest subject to the Election Code’s
election contest procedures. We hold that the PID Act’s formation election provisions
incorporated the Election Code’s election contest procedures and that the entirety of
Plaintiffs’ amended complaint constituted an election contest. Because an election contest
requires direct appeal to our Supreme Court, this Court lacks jurisdiction, and we therefore
transfer this case to our Supreme Court.
BACKGROUND
{2} This case arises out of the efforts of Defendants to create a public improvement
district within the Village of Angel Fire under the PID Act. Plaintiffs appeal the district
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court’s order of dismissal, pursuant to Rule 1-012(B)(1) NMRA, concluding that it lacked
subject matter jurisdiction, because the entirety of the amended complaint was subject to and
barred by the thirty-day statute of limitations found in the Election Code’s election contest
provisions, Section 1-14-3, or the thirty-day statute of limitations found in the Municipal
Election Code, NMSA 1978, § 3-8-63(C) (1999).
{3} We summarize the facts in the amended complaint as follows. In April 2007,
Defendant Angel Fire Resort Operations, LLC (the Resort) submitted a petition to Defendant
Village of Angel Fire (the Village) for approval of a public improvement district to construct
roads, water, a force main sewer system, and telephone and electrical utilities to serve 847
lots. The infrastructure improvements were to be funded by a special levy assessed against
the property owners of the lots. The Resort resubmitted the petition on October 12, 2007,
and included a general plan, a feasibility study, an estimate of construction costs, a rate and
method of apportionment of a special levy, and other documents in support of the plan. The
Village subsequently mailed a notice of intent to form a public improvement district to lot
owners affected by the plan. Following a public hearing, the Village council voted to
approve the formation of the Angel Fire Public Improvement District (the AFPID) on
February 14, 2008. The Village, the Resort, Defendant Association of Angel Fire Property
Owners, and the AFPID executed a contingency agreement that allocated responsibility for
construction, financing, ownership, maintenance, and operation of the AFPID plan. The
agreement was contingent upon the formation of the AFPID through a formation election as
required by Section 5-11-8(A) of the PID Act.
{4} On April 1, 2008, the Village mailed ballots to the property owners affected by the
proposed AFPID. The ballots were to be returned by April 21, 2008, the returned ballots
were counted, and the requisite majority approved the AFPID. Upon approval of the
formation of the AFPID, the board of directors of the AFPID (the Board) passed a resolution
authorizing a special levy upon the properties located within the AFPID. On November 1,
2008, the Village mailed property tax assessments, including the special levy, to property
owners within the AFPID. The Board subsequently entered into various contracts to finance
and construct the infrastructure improvements, including two loans from Defendant New
Mexico Finance Authority.
{5} Plaintiffs filed a complaint for declaratory relief on June 1, 2009, more than twelve
months after the formation election. Plaintiffs filed an amended complaint on June 19, 2009.
Plaintiffs’ amended complaint sought declarations that (1) the AFPID has no valid legal
existence and all contracts and agreements made by the Board are void and unenforceable;
(2) if the AFPID was formed in accordance with the law, it is illegal pursuant to Section 5-
11-8(B), because the improvements for which the levy is assessed will not confer a benefit
upon the property contained within the AFPID and because it will not confer a benefit upon
the properties assessed the levy; (3) the properties included in the 1995 reorganization plan
are entitled to form a special assessment district; and (4) the AFPID has no authority to
collect any tax or assessment or to expend such sums already collected. The district court
characterized the entirety of the amended complaint as an election contest and dismissed the
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action as untimely under the thirty-day statute of limitations for election contests in the
Election Code. This appeal followed.
ARGUMENTS ON APPEAL
{6} On appeal, Plaintiffs contend that (1) the PID Act’s formation election provisions did
not incorporate the Election Code’s election contest procedures and therefore the thirty-day
statute of limitations for election contests does not apply; and (2) even assuming that the
Election Code’s election contest procedures apply to formation elections, the amended
complaint does not present an election contest. In particular, Plaintiffs maintain that the
amended complaint does not present an election contest because it does not challenge the
results of the election and instead (1) challenges the underlying validity of the petition under
the PID Act and the New Mexico Constitution’s elections clause, (2) claims that no election
occurred for the imposition of the special levy, (3) claims that the special levies are
excessive under the PID Act, Section 5-11-8(B), and (4) claims that certain property owners
within the AFPID have a right under the Resort’s 1995 bankruptcy reorganization plan to
form a special assessment district. Defendants, on the other hand, argue that the Election
Code requires direct appeal of election contests to our Supreme Court, and therefore this
Court does not have jurisdiction.
STANDARD OF REVIEW
{7} On appeal from a dismissal based on a Rule 1-012 (B)(1) motion, we accept all facts
alleged in the complaint as true and resolve all doubt about the sufficiency of the complaint
in favor of the plaintiffs’ right to proceed. See Martinez v. Cornejo, 2009-NMCA-011, ¶ 6,
146 N.M. 223, 208 P.3d 443. The issues of whether the election contest provisions of the
Election Code or the Municipal Election Code apply to formation elections under the PID
Act and whether Plaintiffs’ claims constitute an election contest are legal questions that we
review de novo. See id. (holding that determining whether the plaintiffs had an actionable
claim required statutory construction, which is a question of law reviewed de novo).
ELECTION CODE’S ELECTION CONTEST PROCEDURES
{8} The district court dismissed the amended complaint as time barred by the thirty-day
statute of limitations provided by Section 1-14-3 of the Election Code. This statute of
limitations and other provisions found in the Election Code’s election contest procedures
provide for the “speedy resolution” of election contests. See Gunaji v. Macias, 2001-
NMSC-028, ¶ 26, 130 N.M. 734, 31 P.3d 1008 (noting that the purpose of the procedures
relating to election contests is the speedy resolution of election contests in which the normal
rules of civil procedure take too much time).
{9} Plaintiffs argue that the district court erred when it determined that the Election
Code’s election contest procedures, including the thirty-day statute of limitations found in
Section 1-14-3, applied to formation elections under the PID Act. The question of whether
the PID Act incorporates the Election Code’s election contest procedures for formation
elections is primarily a question of legislative intent.
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{10} The Election Code provides that in “[a]ny action to contest an election[, the]
complaint shall be filed no later than thirty days from issuance of the certificate of
nomination or issuance of the certificate of election to the successful candidate.” Section 1-
14-3. Although this provision principally addresses elections with “candidates,” the Election
Code’s election contest procedures also apply to “special district elections,” such as a PID
Act formation election, “[t]o the extent procedures are incorporated or adopted by reference
by separate laws governing such elections or to the extent procedures are not specified by
such laws[.]” Section 1-1-19(B)(2). Thus, the Election Code’s election contest procedures
apply to a special district election when the laws governing the special district election
incorporate the procedures. In addition, when the laws governing a special district election
are silent as to the procedures, the Election Code applies as the default procedures for such
an election.
{11} In determining whether the PID Act incorporated the Election Code’s election contest
procedures by reference, we look to the plain meaning of the election provisions of the PID
Act. See State v. Hubble, 2009-NMSC-014, ¶ 13, 146 N.M. 70, 206 P.3d 579 (“We first look
to the plain meaning of the words chosen by the Legislature[.]”). Section 5-11-7(E) of the
PID Act provides that “[e]xcept as otherwise provided by this section, [PID formation
elections] shall comply with the general election laws of this state.” The plain meaning
therefore indicates that the Legislature intended PID Act formation elections to incorporate
the same procedural protections and requirements as general elections, unless the PID Act
expressly excludes or contradicts a particular procedure.
{12} Additionally, the PID Act formation election procedures do not contain independent
election contest or recount procedures. See § 5-11-7 (general formation election provisions).
Since, by virtue of Section 1-1-19(B)(2), the Election Code provides the default procedures
for a formation election under the PID Act, the absence of separate election contest or
recount procedures supports the conclusion that the Legislature’s language and actions
indicate that the Legislature intended the Election Code to apply to formation elections under
the PID Act. The Election Code’s provisions, including the election contest and recount
procedures, therefore apply to formation elections under the plain meaning of the PID Act.
{13} Plaintiffs argue that the general language contained in Section 5-11-7(E) is
insufficient to incorporate the election recount and contest procedures of the Election Code.
Plaintiffs rely on State ex rel. Denton v. Vinyard, 55 N.M. 205, 207-09, 230 P.2d 238, 239-
40 (1951), which held that a statute stating that “[s]uch election shall be conducted in a
manner provided by law for general elections within said county or city, except as herein
provided” was too general to incorporate the Election Code’s contest and recount
procedures. (internal quotation marks and citation omitted). While the language of Section
5-11-7(E) and the statute at issue in Vinyard are similar, Vinyard is distinguishable. At the
time Vinyard was decided, the Election Code was silent as to its scope and did not contain
a provision that stated that it applied to special district elections under any circumstance.
See generally NMSA 1941, §§ 56-101 to -1017 (1951) (election code under previous
compilation). It was not until 1969 that the Legislature added a provision to the Election
Code that addressed the elections covered by the Election Code. See 1969 N.M. Laws, ch.
240, §§ 19-20. In addition, “special district elections” were originally excluded from the
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Election Code “[u]nless otherwise provided in the Election Code or by separate laws
governing such elections[.]” Id. § 20. In 1975, the Legislature changed this provision to
read in the affirmative and state that “special district elections” are governed by the Election
Code “[t]o the extent procedures are incorporated or adopted by reference by separate laws
governing such elections.” 1975 N.M. Laws, ch. 255, § 6. The Legislature again changed
and expanded this provision in 1977. 1977 N.M. Laws, ch. 222, § 4. The language adopted
in 1977, which is the current language in the Election Code, provides that “to the extent
procedures are not specified by such laws, certain provisions of the Elections Code shall also
apply to . . . special district elections.” Id. By providing that the Election Code’s election
contest procedures apply when procedures are not specified, the 1977 amendment enhanced
the scope of the Election Code such that the Election Code now provides the default election
procedures for all special district elections, which was not the situation when Vinyard was
decided.
{14} Further, Vinyard addressed the issue of whether the plaintiffs had a right to file an
election contest under a local option statute. Vinyard, 55 N.M. at 209, 230 P.2d at 240.
Vinyard recognized that the “right of recount and contest are purely statutory” and that a
general statement is insufficient to incorporate the right to recount and contest. Id. at 207,
209, 230 P.2d at 239, 240. In this case, Plaintiffs’ amended complaint does not allege a
statutory right to contest, but instead raises a claim under Article 2, Section 8 of the New
Mexico Constitution. We must determine whether the Election Code procedures for an
election contest apply to a formation election, not whether there is a substantive right to
contest the election as in Vinyard.
{15} Moreover, if Plaintiffs are correct, the statute of limitations for an election contest
under the PID Act would be the general four-year statute of limitations under NMSA 1978,
Section 37-1-4 (1880) (four-year catch-all statute of limitations). The practical effect would
be to allow a plaintiff to challenge a formation election well after construction of a public
improvement district has begun or possibly even completed. An election contest arising
under the PID Act is precisely the type of case that requires the “need for speedy resolution”
that the Election Code’s election contest procedures provide. Gunaji, 2001-NMSC-028, ¶
26.
SCOPE OF AN ELECTION CONTEST
{16} Having determined that the Election Code’s election contest procedures apply to
election contests of formation elections under the PID Act, we must determine whether
Plaintiffs’ amended complaint presents an election contest. If Plaintiffs are correct and the
amended complaint does not present an election contest, the Election Code’s election contest
procedures, such as the thirty-day statute of limitations, do not apply. We begin by
examining New Mexico case law on the question of what constitutes an election contest.
{17} In arguing that the amended complaint was not an election contest, Plaintiffs rely on
several out-of-state cases and Heth v. Armijo, 83 N.M. 498, 500, 494 P.2d 160, 162 (1972),
for the propositions that the defining features of an election contest are that an election was
held in which one side won and that allegations “that conditions precedent to an election did
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not occur, . . . such as a valid petition for the election, complete and truthful notice to the
electorate, and the preparation and dissemination of proper ballots” are not election contests.
Plaintiffs note that our Supreme Court stated in Heth that
[s]ince the objective of the contestant in an election contest is to be declared
the winner, his notice of contest should allege that he has received more legal
votes than the contestee, and a failure to so allege is not a claim showing that
the contestant is entitled to relief.
Id. at 500, 494 P.2d at 162. However, we do not read Heth in the limited manner Plaintiffs
propose. Heth involved a claim by unsuccessful candidates who alleged various statutory
violations of the Election Code. Id. at 498-99, 494 P.2d at 160-61. The candidates’ notice
of contest failed to state that any of the alleged illegal ballots cast were cast for contestants,
that the results would have been changed, or that the contestants were entitled to the offices
for which they were candidates. Id. at 499, 494 P.2d at 161. Our Supreme Court held that
the failure to assert that the results of the election would have been different in the notice of
contest is “analogous to a complaint in tort alleging that the defendant negligently struck the
plaintiff, but failing to allege that the plaintiff was injured thereby.” Id. at 500, 494 P.2d at
162. Heth only stands for the proposition that an election contest must contain an assertion
that the underlying claim in the complaint would have changed the result of the contested
election.
{18} More recent cases clearly show that New Mexico courts have not recognized a
distinction between allegations of failed conditions precedent to an election and allegations
that the contestant should be declared the winner of a valid election in determining whether
a complaint presents an election contest. In Dinwiddie v. Board of County Commissioners
of Lea County, 103 N.M. 442, 443, 708 P.2d 1043, 1044 (1985), our Supreme Court
addressed whether the statutory provisions concerning election contests and recounts applied
to the plaintiffs’ complaint. The plaintiffs made two allegations: (1) the bond election at
issue was held in violation of statutory provisions for the consolidation of precincts, and (2)
certain ballots were cast by persons invalidly registered. Id. The plaintiffs argued that even
if the second claim, challenging the results of the election, was held to be an election contest
subject to the Election Code’s election contest procedures, the first claim, addressing the
conditions precedent or validity of the election under the statute governing the election, was
still outside the purview of an election contest. Id. at 444, 708 P.2d at 1045. Our Supreme
Court did not agree with the distinction. Id. It stated that a “challenge to the validity of an
election is also a challenge to its result, for if it is successful, the result is changed[, and
s]imilarly, a challenge to the result contests the inherent validity of the election.” Id.
Therefore, under Dinwiddie, any challenge as to the underlying validity of an election that
would necessarily require overturning the results or effects of an election is an election
contest subject to the Election Code’s election contest procedures.
{19} Plaintiffs argue that Dinwiddie has effectively been overruled by Gunaji. In Gunaji,
our Supreme Court held that the Election Code did not provide a remedy due to a “gap in the
statutory scheme” in an election contest arising from ballots containing the incorrect
candidates. Gunaji, 2001-NMSC-028, ¶¶ 2, 13-15. The plaintiffs sued the county clerk,
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who was in charge of preparing the ballot, but our Supreme Court noted that the Election
Code only provides for an election contest for error by the precinct board. Id. ¶¶ 14-15. The
Court held that “[a]ssuming the Election Code does not provide a remedy when candidates’
names are omitted from the ballot,” there was “no barrier to our fashioning a remedy outside
the Code” under Article II, Section 8 of the New Mexico Constitution. Gunaji, 2001-
NMSC-028, ¶¶ 21, 26. The Court stated that “it is the procedure in an election contest which
is exclusive, not the grounds and the remedy.” Id. ¶ 26. Thus, even while an election
contest may not arise under a specific section of the Election Code and instead alleges some
other problem “compromising the validity of the election,” the Election Code’s election
contest must be followed to “accord[] with the need for speedy resolution of election
contests[.]” Id. Gunaji therefore does not support Plaintiffs’ contention that there is a
distinction between challenges to election results and the underlying validity of the election
in defining an election contest. Instead, Gunaji supports applying the Election Code’s
election contest procedures even when the remedy and grounds forming the basis of the
election contest are found outside the Election Code, such as noncompliance with the PID
Act or the New Mexico Constitution.
{20} We thus view New Mexico case law as defining an election contest as a challenge
to the result of an election, as well as a challenge to the inherent validity of an election when
the challenge would necessarily require overturning the results or effects of the election. An
election contest can derive from a violation of a provision of the Election Code, from a
violation of another statute governing the particular election at issue, or from the New
Mexico Constitution. See Heth, 83 N.M. at 499-500, 494 P.2d at 161-62 (election contest
derived from Election Code); Dinwiddie, 103 N.M. at 443-44, 708 P.2d at 1044-45 (election
contest challenging the underlying validity of the election based on statute governing
election for issuing general obligation bonds); Gunaji, 2001-NMSC-028, ¶¶ 2, 26 (noting
that Election Code contest procedures apply to election contests alleging a violation of
Article II, Section 8 of the New Mexico Constitution). Applying the Election Code’s
election contest procedures to all election contests, including election contests of formation
elections under the PID Act, “accords with the need for speedy resolution of election
contests[.]” Gunaji, 2001-NMSC-028, ¶ 26.
AMENDED COMPLAINT AS AN ELECTION CONTEST
{21} We next turn to Plaintiffs’ amended complaint to determine whether it presents an
election contest and therefore must follow the Election Code’s election contest procedures.
Plaintiffs’ amended complaint sought declarations that (1) the AFPID has no valid legal
existence and all contracts and agreements made by the Board are void and unenforceable;
(2) if the AFPID was formed in accordance with the law, it is illegal pursuant to Section 5-
11-8(B), because the improvements for which the levy is assessed will not confer a benefit
upon the property contained within the AFPID and because the levy will not confer a benefit
upon the properties assessed; (3) the properties included in the 1995 reorganization plan are
entitled to form a special assessment district; and (4) the AFPID has no authority to collect
any tax or assessment or to expend such sums already collected.
{22} Plaintiffs argue that they base the first prayer for relief on a claim that no legal
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election has occurred, and therefore it is not an election contest. In particular, the amended
complaint alleges that the petition to form the AFPID was invalid because only the Resort
signed the petition to form the AFPID, and Section 5-11-3(A) requires that the “owners of
at least twenty-five percent of the real property” sign the petition. (Emphasis added.)
Additionally, the amended complaint states that the formation election failed to comply with
the requirements of the PID Act as stated in Section 5-11-7(E)(1)-(3) (requiring that the
“ballot material” for a formation election include specified, detailed information). These
claims relate to whether the petition and the ballot met statutory requirements required of a
formation election by the PID Act, and the claims therefore challenge the underlying validity
of the election. As we have discussed, these issues present an election contest. See
Dinwiddie, 103 N.M. at 443-44, 708 P.2d at 1044-45 (holding that a claim that an election
was held in violation of statutory requirements for consolidation of precincts was a challenge
to the underlying validity of the election and therefore was an election contest subject to the
Election Code’s election contest procedures).
{23} With regard to the second and third prayers for relief, Plaintiffs argue that they do
not challenge the underlying validity of the formation election and that the amended
complaint concedes that a valid election occurred. However, these prayers for relief also rest
on challenges to the underlying validity of the formation election. The gist of Plaintiffs’
claim of illegality of the AFPID under Section 5-11-8(B) is that the feasibility study
provided in the petition inflated the projected market value of the lots within the AFPID after
construction of the infrastructure improvements. Plaintiffs allege that the inflated
projections in the feasibility study were “incorrect, misleading, or fraudulent” and were
designed to keep the projected amount of bond indebtedness of the AFPID within the sixty
percent limit of bond indebtedness to market value ratio mandated by Section 5-11-8(B).
Similarly, Plaintiffs base their claim that certain properties are entitled to form a special
assessment district on an assertion that the information in the petition is “incorrect,
misleading, or fraudulent.” Specifically, the amended complaint alleges that the petition
misrepresented the AFPID as necessary to comply with the Resort’s obligations under a final
plan of reorganization from a 1995 bankruptcy. Both prayers for relief two and three address
the accuracy of information provided to the Village and voters prior to the formation election
to approve the AFPID. The claims challenge the underlying validity of the election by
asserting that (1) the Village authorized the formation election and (2) voters approved the
AFPID based on false, fraudulent, or misleading information designed to circumvent the
requirements of the PID Act prior to the election. Further, the relief that Plaintiffs seek,
allowing certain lots to form a special assessment district, as opposed to being included in
the AFPID, and declaring the special levy illegal, would necessarily require overturning the
election results. The second and third prayers for relief therefore state an election contest
concerning the formation election. See Dinwiddie, 103 N.M. at 444, 708 P.2d at 1045
(holding that a “challenge to the validity of an election is also a challenge to [the] result, for
if it is successful, the result is changed”).
{24} Finally, the fourth prayer for relief, that the AFPID has no authority to tax, also
derives from an assertion that the formation election was not conducted in accordance with
the PID Act. Specifically, Plaintiffs claim that in order to have the authority to tax, the PID
Act required that the ballot have a separate ballot question specifically addressing the
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authority to tax, aside from the question as to whether to form the PID. Further, the amended
complaint alleges that the ballot failed to provide required details of the special levies
assessed on the lot owners, as required by Section 5-11-7(E)(2) (requiring the ballot in a
formation election to contain a description of district improvements and arguments for and
against the imposition of the taxes and a statement that the taxes are for public infrastructure
improvements and services within the district). Again, this claim challenges the underlying
validity of the election based on failure to comply with statutory requirements and is
therefore an election contest governed by the Election Code’s election contest procedures.
TRANSFER TO SUPREME COURT
{25} Having concluded that the Election Code’s election contest procedures apply to
formation elections under the PID Act and that the amended complaint presented an election
contest, we further conclude that this Court does not have jurisdiction over this appeal.
“[L]ack of jurisdiction at any stage of the proceedings is a controlling consideration which
must be resolved before going further.” In re Doe, III, 87 N.M. 170, 171, 531 P.2d 218, 219
(Ct. App. 1975). “[W]e have a duty to determine whether [we have] jurisdiction of an
appeal.” State ex rel. Dep’t of Human Servs. v. Manfre, 102 N.M. 241, 242, 693 P.2d 1273,
1274 (Ct. App. 1984). This Court is a court of limited jurisdiction and only has appellate
jurisdiction as provided by law. Id. at 243, 693 P.2d at 1275. NMSA 1978, Section 34-5-
8(A)(1) (1983) provides that this Court has appellate jurisdiction for “any civil action not
specifically reserved to the jurisdiction of the supreme court by the constitution or by law.”
{26} The Election Code, Section 1-14-5, states that “[a]n appeal shall lie from any
judgment or decree entered in the contest proceeding to the supreme court of New Mexico
within the time and in the manner provided by law for civil appeals from the district court.”
Thus, the Election Code provides that our Supreme Court has jurisdiction of direct appeals
of election contests from a district court. We therefore transfer this appeal to our Supreme
Court, pursuant to NMSA 1978, Section 34-5-10 (1966) (“No matter on appeal in the
supreme court or the court of appeals shall be dismissed for the reason that it should have
been docketed in the other court, but it shall be transferred by the court in which it is filed
to the proper court.”).
CONCLUSION
{27} We hold that the PID Act’s formation election provisions incorporate the Election
Code’s election contest procedures, which require a direct appeal to our Supreme Court, and
that Plaintiffs’ amended complaint presented an election contest. We therefore hold that this
Court lacks jurisdiction and transfer this case to our Supreme Court.
{28} IT IS SO ORDERED.
______________________________________
JAMES J. WECHSLER, Judge
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WE CONCUR:
______________________________________
MICHAEL E. VIGIL, Judge
______________________________________
LINDA M. VANZI, Judge
Topic Index for Glaser v. Lebus, No. 29,733
AE APPEAL AND ERROR
AE-SR Standard of Review
AE-AJ Appellate Jurisdiction
CP CIVIL PROCEDURE
CP-DS Dismissal
CP-SL Statute of Limitations
GV GOVERNMENT
GV-EL Elections
GV-LU Land Use
GV-SD Special Districts
JD JURISDICTION
JD-AJ Appellate Jurisdiction
JD-CA Court of Appeals
JD-SC Supreme Court
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