Pena v. Rio Arriba Cnty. Comm'r

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IN THE SUPREME COURT OF THE STATE OF NEW MEXICO 1

Opinion Number: 2

Filing Date: July 9, 2025 3

NO. S-1-SC-40411 4

LUIS PENA JR., 5

Petitioner-Appellee, 6

v. 7

RIO ARRIBA COUNTY COMMISSIONER 8

ALEX NARANJO, 9

Respondent-Appellant. 10

APPEAL FROM THE DISTRICT COURT OF RIO ARRIBA COUNTY 11

Marie Ward, District Judge 12 Serpe Andrews, PLLC 13 Cody R. Rogers 14

Blade M. Allen 15

Las Cruces, NM 16

for Appellant 17

Richard H. Rosenstock 18 Santa Fe, NM 19

for Appellee20

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OPINION 1

THOMSON, Chief Justice. 2

{1} On direct appeal, this case presents the question of whether the district court 3 erred in finding there was probable cause to circulate a recall petition for Rio Arriba 4 County Commissioner Alex Naranjo (Commissioner Naranjo) based on an alleged 5 violation of the Open Meetings Act (OMA). See NMSA 1978, §§ 10-15-1 to -4 6 (1974, amended 2013); see also NMSA 1978, § 1-25-6(C) (2019) ("The district 7 court's decision is appealable by the petitioner or the named official only to the 8 supreme court."). Petitioner¹filed a petition to hold a recall election for 9 Commissioner Naranjo, alleging the Commissioner committed malfeasance in office 10 by violating the OMA. See NMSA 1978, § 1-25-4 (2019); § 1-25-6(A) (detailing the 11 petition and filing requirements); Amended Complaint, In re Naranjo, D-117-CV-12 2023-00373 (1st Jud. Dist. Ct. Feb. 5, 2024). Specifically, Petitioner alleged that 13 Commissioner Naranjo made a public policy decision outside of a public meeting of 14

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the Rio Arriba County Commission to install a statue depicting Don Juan de Oñate 1 at the Rio Arriba County Office Complex in Española. 2

{2} As we explain below, the district court erred when, after a hearing, it found 3 probable cause that Commissioner Naranjo committed malfeasance or misfeasance 4 without also finding that the decision to install the statue was made by a quorum of 5 the County Commission—a requirement to prove a violation of the OMA. See 6 Paragon Foundation, Inc. v. N.M. Livestock Bd., 2006-NMCA-004, ¶ 13, 138 N.M. 7 761, 126 P.3d 577. Thus, Petitioner has not established probable cause that 8 Commissioner Naranjo committed malfeasance or misfeasance sufficient for a recall 9 petition to proceed. We reverse and remand to the district court with instructions to 10 dismiss Petitioner's recall petition against Commissioner Naranjo. 11

I. BACKGROUND 12

{3} The controversy surrounding the location and reinstallation of the statue 13 depicting Don Juan de Oñate, a Spanish conquistador and former colonial governor 14 of what is now New Mexico, has been a divisive topic for years. Supporters view 15 Oñate as an important figure in New Mexico history, while others contend Oñate's 16 treatment of the Pueblo people was so horrendous that a public statue 17 commemorating him on public land is highly offensive and insulting. These 18 opposing views were apparent at the probable cause hearing, where several Rio 19

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Arriba County residents testified to the statue's public interest. Antonio DeVargas 1 spoke about Oñate's treatment of indigenous people leading to the Pueblo Revolt 2 and the protest leading up to the removal of the statue in 2020. He described the Rio 3 Arriba County Office Complex, the site of the proposed installation, as a place where 4 all county residents must go at some point and cannot avoid. Nathana Bird, a member 5 of Ohkay Owingeh Pueblo, testified to the "historical trauma" Oñate caused in her 6 community and stated that placing the statue at the Rio Arriba County Office 7 Complex would be like "ripping the band aid off of a wound." In contrast, County 8 Manager Jeremy Maestas testified that some Rio Arriba County residents supported 9 the reinstallation of the statue because it represented Northern New Mexican culture. 10

{4} After Rio Arriba County removed the statue from its previous location in 11 Alcalde, disagreement emerged again whether it should be reinstalled. When Luis 12 Pena learned the statue was scheduled to be installed in Española on September 27, 13 2023, he called County Manager Maestas to try to be added to the County 14 Commission's meeting agenda, but County Manager Maestas directed Pena to 15 Commissioner Naranjo. Pena testified that he spoke with Commissioner Naranjo on 16 September 21, 2023, but Commissioner Naranjo rebuked his efforts. 17

{5} Pena introduced meeting minutes from August 29, 2023, which suggested that 18 the decision to reinstall the statue had been made in advance of that date. 19

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{6} County Manager Maestas testified that he, not the County Commission nor 1 Commissioner Naranjo, made the decision to reinstall the statue. However, that 2 testimony was contradicted by County Manager Maestas's emails at the time to a 3 community member, Rio Arriba County Sheriff Billy Merrifield, and two news 4 outlets. When confronted with these emails at the probable cause hearing, County 5 Manager Maestas testified that he thought he had the County Commission's full 6 support and felt intimidated by the controversy as a new county manager. 7

{7} Ultimately, the reinstallation of the statue was cancelled. Merrifield testified, 8 per his email, that Commissioner Naranjo was the only commissioner to oppose the 9 cancellation. 10

{8} The district court found County Manager Maestas's testimony that he made 11 the decision to reinstall the statue was inconsistent with his emails directing public 12 inquiries to Commissioner Naranjo²and ultimately "lacking credibility." The district 13 court also found that Commissioner Naranjo was in favor of the statue's 14 reinstallation and was opposed to cancelling it. The district court concluded that 15

"probable cause supports the allegation that Commissioner Naranjo committed 16 malfeasance or misfeasance by making the decision, or allowing the decision to be 17

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made outside a public meeting."³However, as to all other allegations in the amended 1 complaint, Petitioner's request was denied. 2

{9} The district court's probable cause order was appealable only to this Court. 3 Section 1-25-6(C). The briefing had large analytical gaps, most notably regarding 4 whether a finding that a quorum of the County Commission, not just Commissioner 5 Naranjo, made the decision to reinstall the statue was required to find probable cause 6 of an OMA violation, and in turn, serve as grounds to support the recall petition 7 moving forward. In advance of oral argument, the parties were instructed to be 8 prepared to address Paragon Foundation and its requirement that a quorum must act 9 for the OMA to apply. 2006-NMCA-004, ¶¶ 12-13. 10

{10} Because we find Paragon Foundation dispositive, we reverse the district 11 court's order on this issue alone and decline to address Commissioner Naranjo's 12 arguments.⁴13

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II. DISCUSSION 1

{11} We review questions of statutory and constitutional interpretation de novo. 2 State v. Boyse, 2013-NMSC-024, ¶ 8, 303 P.3d 830. We review errors of law in a 3 trial court's conclusions de novo. See Robey v. Parnell, 2017-NMCA-038, ¶ 52, 392 4 P.3d 642. 5

{12} The New Mexico Constitution provides "[a]n elected official of a county is 6 subject to recall by the voters of the county," and "a petition for a recall election 7 shall cite grounds of malfeasance or misfeasance in office." N.M. Const. art. X, § 8 9(A). However, as a preliminary matter, "[t]he petition shall not be circulated unless, 9 after a hearing . . . the district court determines that probable cause exists for the 10 grounds for recall." N.M. Const. art. X, § 9(B). A violation of the OMA may 11 constitute malfeasance or misfeasance. See Doña Ana Cnty. Clerk v. Martinez, 2005-12 NMSC-037, ¶ 6, 138 N.M. 575, 124 P.3d 210. 13

{13} The OMA provides that "[t]he formation of public policy or the conduct of 14 business by vote shall not be conducted in closed meeting." Section 10-15-1(A). 15 And, "[a]ll meetings of a quorum of members of any . . . policymaking body . . . held 16 for the purpose of formulating public policy . . . are declared to be public meetings 17 open to the public at all times." Section 10-15-1(B). Indeed, "[n]o . . . action of any 18

. . . policymaking body shall be valid unless taken or made at a meeting held in 19

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accordance with the requirements of Section 10-15-1" of the OMA. Section 10-15-1 3(A). Applying these principles, what becomes clear is that "if a quorum of the 2 [policymaking body] did not act . . . the OMA [i]s inapplicable [and] there [i]s no 3 OMA violation." Paragon Foundation, 2006-NMCA-004, ¶ 13. 4

{14} In Paragon Foundation, a state board's appointed executive director entered 5 into a Memorandum of Understanding (MOU) with a third party without first 6 presenting it to the board. 2006-NMCA-004, ¶¶ 2, 3. The plaintiffs alleged that the 7 MOU violated the OMA. Id. ¶ 4. The Court of Appeals interpreted the plain language 8 of Section 10-15-1(B) to require action by a quorum of the board for the OMA to 9 apply. Id. ¶¶ 12-13. The Court of Appeals then reasoned that, while the executive 10 director's action may not have been authorized by law, it was not an OMA violation 11 because the decision was not made by a quorum of board members. Id. ¶¶ 14-26 12 (citing Trujillo v. Gonzales, 1987-NMSC-119, ¶ 8, 106 N.M. 620, 747 P.2d 915 13 (holding that an action taken by less than a quorum of a county commission was "not 14 a valid act" under Section 10-15-3, which "provides that no action of any . . . policy-15 making body shall be valid unless it is taken . . . at a meeting held in accordance with 16 the [OMA]")). 17

{15} The Rio Arriba County Commission has three members. Rio Arriba County 18 Commissioners, Rio Arriba County, https://www.rio-arriba.org/county_commiss 19

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ion/ (last visited June 27, 2025); see also State v. Wilson, 2021-NMSC-022, ¶ 2, 489 1 P.3d 925 ("[T]his Court may take judicial notice of a fact that is not subject to 2 reasonable dispute because it (1) is generally known within the Court's territorial 3 jurisdiction, or (2) can be accurately and readily determined from sources whose 4 accuracy cannot reasonably be questioned." (brackets, internal quotation marks, and 5 citation omitted)). For a three-member county commission, two members constitute 6 a quorum. NMSA 1978, § 4-38-2(A) (2002). Thus, for the OMA to apply, at least 7 two members of the County Commission needed to make the decision to reinstall 8 the statue at the Rio Arriba County Office Complex. 9

{16} The district court held a probable cause hearing and decided that the recall 10 petition could proceed, writing "probable cause supports the allegation that 11 Commissioner Naranjo committed malfeasance or misfeasance by making the 12 [public policy] decision, or allowing the decision to be made outside a public 13 meeting." Order, In re Naranjo, D-117-CV-2023-00373 (1st Jud. Dist. Ct. May 2, 14 2024) (emphasis added); see § 1-25-6(B) (detailing the probable cause hearing 15 requirements). The district court's finding that Commissioner Naranjo made the 16 decision to move the statue and thus created grounds for recall, however, is not the 17 legally relevant inquiry. Instead, a determination that a quorum of the County 18

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Commission (with Commissioner Naranjo making up part of the quorum) made the 1 decision was required to find probable cause of an OMA violation. 2

{17} The plain language of the district court's findings is clear. The district court 3 did not decide that the County Commission made the decision or that Commissioner 4 Naranjo along with a second commissioner (establishing a quorum) made the 5 decision. Instead, the district court's inquiry was limited to whether Commissioner 6 Naranjo or County Manager Maestas made the decision. That legal conclusion was 7 in error, as Commissioner Naranjo could not violate the OMA as a single member 8 of the County Commission acting alone. 9

{18} We see no reason to depart from the statutory analysis in Paragon Foundation 10 that, "[u]nder the law, if a quorum of the [b]oard members did not act [on reinstalling 11 the statue], the OMA was inapplicable, there was no OMA violation." See 2006-12 NMCA-004, ¶ 13. Thus, based on a plain reading of its findings of fact, the district 13 court's conclusion that probable cause supports Petitioner's claim that 14 Commissioner Naranjo committed malfeasance or misfeasance by violating the 15 OMA is error. 16

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