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Reply to Motion to Dismiss-unsigned

Reply to Motion to Dismiss-unsigned

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Published by Deborah Toomey
Audette/Toomey response to City's Motion to Dismiss
Audette/Toomey response to City's Motion to Dismiss

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Published by: Deborah Toomey on Jan 28, 2010
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09/08/2010

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RESPONSE
TO DEFENDANTS‟ MOTION TO DISMISS
 Audette and Toomey v. City of Truth or Consequences PAGE 1
STATE OF NEW MEXICOCOUNTY OF SIERRASEVENTH JUDICIAL DISTRICTSTATE OF NEW MEXICO, ex rel.KIM AUDETTE and DEBORAHTOOMEY, individuals,Plaintiffs,vs.CITY OF TRUTH OR CONSEQUENCES,et al.,Defendants.No. D-0721-CV-2009-159Judge: Matthew Reynolds
PLAINTIFFS‟ RE
SPONSE TO MOTION TO DISMISS ANDMEMORANDUM IN SUPPORT THEREOFCOMES NOW pro se petitioners, Kim Audette and Deborah Toomey, tosubmit this Response on the
Defendants‟
Motion to Dismiss. The Motion toDismiss should be denied and a writ of mandamus or injunction and declaratoryrelief to enforce the Inspection of Public Records Act, damages and costs, andother relief as the Court deems just should be granted based upon the pleadings onthe following grounds:
 
RESPONSE
TO DEFENDANTS‟ MOTION TO DISMISS
 Audette and Toomey v. City of Truth or Consequences PAGE 2
1.
 
SCC is a public entity subject to IPRA.2.
 
The requested video recordings do exist.3.
 
The requested video recordings are public records subject to IPRA.4.
 
Control of content is immaterial to IPRA.Additionally,
Defendants‟
Motion
to Dismiss should be stricken as “sham
and false,
and default judgment entered in favor of Plaintiffs. Willful violationsof NMRA 1-011 occurred in the Motion to Dismiss through dishonesty, bad faith,lack of good grounds and interposed for delay. Appropriate sanctions, disciplinaryor other actions against Defendants and its attorney are respectfully requested of this Court.
BACKGROUND
1.
 
Defendants‟
Motion to Dismiss is dilatory, spurious, dishonest, lacksgood ground and is interposed for delay. The number of purposeful misquotationof statutes and exhibits by Defendants is troublesome. Plaintiffs construe thismotion as an attempt by Defendants to mislead the Court with dishonesty and badfaith.
 Rivera v. Brazos Lodge Corp.,
111 N.M. 670, 808 P.2d 955 (1991).2.
 
Defendants neglect to follow Rule of Civil Procedure 1-010(B)numbering each paragraph. It is difficult for the Court and other parties to easily
reference back to Defendants‟ pleadings
. Plaintiffs take the liberty of sequentially
 
RESPONSE
TO DEFENDANTS‟ MOTION TO DISMISS
 Audette and Toomey v. City of Truth or Consequences PAGE 3
numbering each paragraph in the Motion to Dismiss starting
from “Background”
on page 2.3.
 
Defendants also
question the denomination of “State of New Mexicoex rel.” while claiming awareness of the term “private attorney general”
in ¶2 of Defendants
Motion to Dismiss. It is unfortunate that awareness does not equalunderstanding:In giving citizens the right to sue if they are denied access to records
, the legislature wisely created a large number of 
“private attorneysgeneral”
to help enforce the Act. This concept of private attorneysgeneral is a tried-and true American legal mechanism by whichlegislators ensure enforcement of important public policies when
 public funds and public officials‟ resources are limited.
 
 Inspection of Public Records Act Compliance Guide,
Attorney General Gary K.King, 5
th
Ed. 2008, open letter.
“State ex rel.”
does not refer to
claim of agency,department, political b
ody or subdivision of the State” as Defendants argue.
 
“Stateex rel.” is the denomination for “private attorney general
.
Individuals, who fileenforcement actions under legislative acts such as IPRA or mandamus, utilize
“State ex rel.”
One example includes the most famous New Mexico pro se IPRAenforcement action:
State ex rel. Newsome v. Alarid 
, 90 N.M. 790, 568 P.2d 1236(1977).4.
 
Defendants also erroneously state in ¶2 the Complaint
fails to allegehow the public would benefit
from this lawsuit.” Such benefit is clearly alleged in

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