STATE OF NEW MEXICO

COUNTY OF SIERRA

SEVENTH JUDICIAL DISTRICT

STATE OF NEW MEXICO, ex rel.

KIM AUDETTE and DEBORAH
TOOMEY, individuals,

Plaintiffs,
No. D-0721-CV-2009-159
vs.
Judge: Matthew Reynolds
CITY OF TRUTH OR CONSEQUENCES,
et al.,

Defendants.

PLAINTIFFS‟ RESPONSE TO MOTION TO DISMISS AND

MEMORANDUM IN SUPPORT THEREOF

COMES NOW pro se petitioners, Kim Audette and Deborah Toomey, to

submit this Response on the Defendants‟ Motion to Dismiss. The Motion to

Dismiss should be denied and a writ of mandamus or injunction and declaratory

relief to enforce the Inspection of Public Records Act, damages and costs, and

other relief as the Court deems just should be granted based upon the pleadings on

the following grounds:

RESPONSE TO DEFENDANTS‟ MOTION TO DISMISS

Audette and Toomey v. City of Truth or Consequences PAGE 1
 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 violations

of NMRA 1-011 occurred in the Motion to Dismiss through dishonesty, bad faith,

lack of good grounds and interposed for delay. Appropriate sanctions, disciplinary

or other actions against Defendants and its attorney are respectfully requested of

this Court.

BACKGROUND

1. Defendants‟ Motion to Dismiss is dilatory, spurious, dishonest, lacks

good ground and is interposed for delay. The number of purposeful misquotation

of statutes and exhibits by Defendants is troublesome. Plaintiffs construe this

motion as an attempt by Defendants to mislead the Court with dishonesty and bad

faith. 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 2
numbering each paragraph in the Motion to Dismiss starting from “Background”

on page 2.

3. Defendants also question the denomination of “State of New Mexico

ex rel.” while claiming awareness of the term “private attorney general” in ¶2 of

Defendants‟ Motion to Dismiss. It is unfortunate that awareness does not equal

understanding:

In giving citizens the right to sue if they are denied access to records
…, the legislature wisely created a large number of “private attorneys
general” to help enforce the Act. This concept of private attorneys
general is a tried-and true American legal mechanism by which
legislators 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, 5th Ed. 2008, open letter. “State ex rel.” does not refer to “claim of agency,

department, political body or subdivision of the State” as Defendants argue. “State

ex rel.” is the denomination for “private attorney general.” Individuals, who file

enforcement actions under legislative acts such as IPRA or mandamus, utilize

“State ex rel.” One example includes the most famous New Mexico pro se IPRA

enforcement 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 allege

how the public would benefit from this lawsuit.” Such benefit is clearly alleged in

RESPONSE TO DEFENDANTS‟ MOTION TO DISMISS

Audette and Toomey v. City of Truth or Consequences PAGE 3
¶1 of Complaint in “this action is brought pursuant to the New Mexico Inspection

of Public Records Act” and in ¶35 that IPRA is the “stated public policy” of New

Mexico. NMSA 1978 14-2-5 (1993). Enforcement of “public policy” is by

definition a benefit to the public, as is a “functioning democracy,” one of the

statutorily defined reasons for IPRA. Compliance Guide, supra.

DISCUSSION

5. Defendants‟ Motion to Dismiss consists of three arguments: (1) SCC

is not a public entity under IPRA; (2) the video recordings do not exist; and (2)

there is no legal requirement to make the video recordings and, therefore, the

recordings are not public records. There is no basis in law, fact or reality to these

arguments.

SCC is a Public Entity

6. Defendants‟ Motion to Dismiss ¶12 argues the Complaint fails to

allege, and the Plaintiffs cannot prove, that Hopkins or the SCC are public

entities.” Complaint specifically alleges in ¶16 that SCC is “defined as a public

body and is required to comply with IPRA per 1978 NMSA 14-2-6.”

7. No one claims nor needs to claim that Jay Hopkins is a public entity.

Mandamus requires every person who has an act to perform in connection with

granting of the requested relief be named in the proceeding. Chavez v. Baca, 47

RESPONSE TO DEFENDANTS‟ MOTION TO DISMISS

Audette and Toomey v. City of Truth or Consequences PAGE 4
N.M. 471, 144 P.2d 175 (1943). Mr. Hopkins retains physical possession of the

requested public records and has an act to perform on the requested relief.

Complaint ¶9.

8. SCC does not “fail the test” of requirements for public bodies as

Defendants erroneously state in ¶12 of the Motion to Dismiss. In fact, Defendants

admit in ¶11 of the Motion to Dismiss that SCC is a public entity when they state

the “funds provided by the City to SCC” are to operate the PEG.

9. Defendants erroneously argue in ¶11 of the Motion to Dismiss that

public funding requires funds to be derived from “general tax revenues.” This

assumption is simply untrue and has no basis in law.

10. Both Plaintiffs and Defendants agree that SCC is an independent

contractor to City. Motion to Dismiss ¶11; Complaint ¶18. Agency is not required

under the public body test. NMSA 14-2-6.

The Requested Records Exist

11. Defendants argue in ¶4 of the Motion to Dismiss that “Defendants

contend that they have never had any such recordings.” This is blatantly untrue.

12. Defendants claim in ¶7 of the Motion to Dismiss that Exhibit G

“plainly stated that „there are no recordings of City Commission Meetings by the

Sierra Community Council or the City Clerk‟s office.‟” Exhibit G does not

RESPONSE TO DEFENDANTS‟ MOTION TO DISMISS

Audette and Toomey v. City of Truth or Consequences PAGE 5
“plainly state” that there are no recordings as Defendants falsely claim. Exhibit G

“plainly state[s]” the recordings are not being “KEPT.” To use a favored phrase of

Defendants, “common sense dictates” for the video recordings to not be “KEPT,”

they must have existed. Defendants‟ misquotation and omission of “KEPT” in the

Motion to Dismiss of Exhibit G is an obvious attempt to mislead the Court and

demonstrates Defendants‟ lack of honesty and good faith.

13. Original recordings are required by the Federal Communications

Commission (FCC) Media Bureau to be retained by the original broadcaster for a

period of time. This allows the FCC to obtain a broadcast for investigation upon a

complaint. Since Plaintiffs have no reason to believe that PEG is not in

compliance with the FCC, it follows the recordings made and used by SCC for

PEG are being kept, contrary to City‟s misrepresentation in Exhibit G.

14. When several of the IPRA requests were independently made by

Plaintiffs, the requested recordings were currently broadcasting on PEG. Exhibits

C, E and G and ¶¶ 22-31 of Complaint.

15. Defendants Hopkins and SCC have admitted the existence of the

video recordings on several occasions and simply refuse to comply with IPRA

because of “lack of time.” Exhibits C, E and G and ¶¶ 22-31 of Complaint.

16. The argument that there are no recordings of the governmental

RESPONSE TO DEFENDANTS‟ MOTION TO DISMISS

Audette and Toomey v. City of Truth or Consequences PAGE 6
meetings being broadcast on City‟s PEG—TV for TorC—is beyond ludicrous. To

utilize Defendants‟ phrase, “common sense dictates” that TV for TorC viewers are

not watching miniature people inside their TV rather than a broadcast of the

recording. Such argument demonstrates a lack of honesty and good faith in

pleading. Rivera, supra.

17. If Defendants‟ argument that the video recordings do not exist is

based upon the recording format, this arumegnt has no basis in law. Plaintiffs‟

IPRA requests identified the “records sought with reasonable particularity”

(emphasis added). 1978 NMSA 14-2-8(C). Additionally, IPRA does not require

the requestor to identify the “physical form or characteristic” of the public record.

1978 NMSA 14-2-6(E). Whether the video recordings are in DVD or other form

of video recording, the video recordings exist and are subject to IPRA.

18. Defendants claim in ¶6 of the Motion to Dismiss that since the

recordings do not exist, the retention and archival requirements of NMAC

1.15.3.122 is “misplaced.” Since the video recordings do exist, the retention and

archival requirements of NMAC 1.15.3.122 is properly placed.

The Video Recordings are Subject to IPRA

19. Defendants misstate in ¶5 of the Motion to Dismiss the definition of

“public records” in an alarming fashion, indicating a direct quotation that is far

RESPONSE TO DEFENDANTS‟ MOTION TO DISMISS

Audette and Toomey v. City of Truth or Consequences PAGE 7
from accurate. Defendants‟ misquotation conveniently neglects the true statutory

definition of public records under 14-2-6(E) in emphasizing public records must be

“MADE OR RECEIVED” to be enforceable under the IPRA. Plaintiffs‟ ¶34 of the

Complaint accurately quotes the statute and clearly indicates that the records must

be “used, created, received, maintained or held by or on behalf of any public body

and relate to public business.” The requested recordings are CREATED,

MAINTAINED and HELD by Jay Hopkins of SCC on BEHALF OF and to be

USED on City‟s PEG, and relate to PUBLIC BUSINESS. Defendants‟ argument

and misquotation is a lack of honesty and good faith in pleading. Rivera, supra.

20. Defendants‟ Motion to Dismiss ¶8 argues that since “no legal

requirement” exists to create the recordings, the video recordings are not

enforceable under IPRA. It is troubling that Defendants misquote the statute,

leaving out the last dozen words of the quoted sentence to mislead the Court. The

last dozen words are clear that records are public “whether or NOT the records are

required by law to be created or maintained” (emphasis added). NMSA 14-2-6(E).

Defendants‟ argument and misquotation is a lack of honesty and good faith in

pleading.

21. Defendants also claim that there is no contractual requirement for

SCC to record City Commissioner meeting minutes as a basis for denial. Besides

RESPONSE TO DEFENDANTS‟ MOTION TO DISMISS

Audette and Toomey v. City of Truth or Consequences PAGE 8
irrelevant to IPRA, this is simply not true. City agreed to provide “physical space”

and public funds to SCC to operate PEG for City (Exhibit B, page 1). Lease for

said physical space was signed by City and SCC in March 2009, and negotiated by

Defendant City‟s attorney, Mr. Rubin.

22. Additionally, the discussion held at the March 10, 2009, City

Commission meeting made it clear that SCC is to perform services for City in

exchange for public funds to operate PEG and for use of a City building in lieu of

rent and utility payment. The in-kind payment required from SCC so as to not

violate the anti-donation clause is specifically stated as “filming the commission

meetings.” (March 10, 2009 City Commission meeting, Exhibit A.) As such, the

recordings of commission meetings are the “property” of City as in-kind payment,

leaving City fully liable for the fines imposed by IPRA regardless of possession of

said public records. Defendant City‟s attorney, Mr. Rubin, was present at the

March 10, 2009, meeting.

23. In addition, City does control filming of Commission meetings as

recently experienced and witnessed by Plaintiffs. On November 10, 2009, SCC

was inappropriately instructed by the City Commission to “turn off the camera and

stop filming” the meeting. Mr. Hopkins complied, violating the nature and

prohibition to censorship on PEGs.

RESPONSE TO DEFENDANTS‟ MOTION TO DISMISS

Audette and Toomey v. City of Truth or Consequences PAGE 9
 24. Defendants also erroneously assume that since City has no “control

over content,” as alleged in ¶11 of Motion to Dismiss, it somehow negates SCC

recordings of governmental meetings as public records. Editorial control has no

bearing on IPRA.

25. Defendants also erroneously state SCC has “control of all content it or

its volunteers create.” This is untrue, as federal law and Ord. 577 forbids any

editorial control on content (Exhibit A to Complaint). Regardless, editorial control

has no bearing on IPRA.

Additional Considerations

26. The Motion to Dismiss is verified by Lorraine Doughtery, wife of Jay

Hopkins, as “Board member” of SCC. Upon information and belief, the Secretary

of State has no record of Lorraine Doughtery as a Board member of SCC, and Ms.

Doughtery‟s verification is perjury. There is no indication that the Board of

Directors of SCC verified the Motion to Dismiss. The Motion to Dismiss should

be stricken and judgment made on the pleading. Hyde v. Bryan, 24 N.M. 457, 174

P.419 (1918).

27. Defendants‟ attorney, Jaime Rubin, is aware that Lorraine Doughtery,

wife of Jay Hopkins, is not the authorized signatory for SCC. Mr. Rubin

negotiated the contracts between City and SCC, as recently as March 2009, and is

RESPONSE TO DEFENDANTS‟ MOTION TO DISMISS

Audette and Toomey v. City of Truth or Consequences PAGE 10
aware the authorized signatory is President/Director of SCC and not simply a

“board member.” Mr. Rubin is a willing participant in the perjury of Lorraine

Doughtery and SCC‟s failure to file a response. Appropriate disciplinary action is

warranted under NMRA 1-011. Rivera, supra.

28. Defendants‟ attorney, Jaime Rubin, misleads the Court on numerous

occasions by knowingly and willfully misquoting exhibits and statutes in

Defendants‟ Motion to Dismiss. NMRA 1-011 places a moral obligation upon

attorneys to act honestly. Mr. Rubin is dishonest throughout Defendants‟ Motion

to Dismiss. Rivera, supra.

29. Defendants‟ Motion to Dismiss is also a violation of “good grounds”

under NMRA 1-011 and is wholly unsupported by existing law. The Motion to

Dismiss should not have been brought under 1-012(b)(6) as it has no basis in law

and is brought simply to interpose delay. Defendants‟ misquotation of statutes and

exhibits clearly demonstrate such acts were willful and knowing. Rivera, supra.

30. Plaintiffs question representation by City Attorney Rubin of SCC.

There is a serious conflict of interest unless all parties have signed waivers. The

City Attorney often declares loyalty only to the City Commissioners.

31. Defendants‟ attorney, Jaime Rubin, demonstrates egregious violations

of ethics. Sanctions should be imposed and disciplinary actions initiated for Mr.

RESPONSE TO DEFENDANTS‟ MOTION TO DISMISS

Audette and Toomey v. City of Truth or Consequences PAGE 11
Rubin‟s violations of NMRA 1-011 and behavior unbecoming the legal profession.

CONCLUSION

32. Defendants‟ Motion to Dismiss depends upon nonexistence of the

recordings requested by Plaintiffs. Defendants never claimed—and cannot

truthfully claim—the recordings do not exist. The requested recordings do exist.

33. Defendants‟ Motion to Dismiss depends upon a legal requirement to

record the governmental meetings. IPRA clearly states that a record is public

whether or NOT there is a legal requirement to create the record.

34. SCC receives public funding to operate City‟s PEG and is legally

defined under IPRA as a public entity.

35. Additionally, SCC is required to “record the City Commission

meetings” as in-kind payment to City. The City Commission video recordings are

specifically, therefore, property of City, no matter who has physical custody.

36. SCC‟s verification is required and has been perjured; as such,

Defendants‟ Motion to Dismiss should be stricken and judgment entered on the

pleadings.

37. Defendants‟ attorney has shown egregious violations of ethics and

betrays the legal profession. Sanctions and disciplinary action is warranted upon

Defendants and Mr. Rubin for willful and egregious misconduct.

RESPONSE TO DEFENDANTS‟ MOTION TO DISMISS

Audette and Toomey v. City of Truth or Consequences PAGE 12
 THEREFORE, the Motion to Dismiss should be stricken as sham and false

and default judgment entered and a Writ of Mandamus and/or Declaratory and

Injunctive Relief should be issued and damages paid of $100 per day for each

unlawfully denied IPRA request for each Plaintiff, sanctions imposed on

Defendants‟ attorney, and disciplinary actions against Defendants and Defendants‟

attorney, along with any other relief that the Court deems just and necessary.

DATED: January 4, 2010.

KIM AUDETTE, Pro se DEBORAH L. TOOMEY, Pro se

618 Van Patten 415 W. Riverside
Truth or Consequences NM 87901 Truth or Consequences NM 87901
Phone: (575) 740-1988 Phone: (575) 740-1091

CERTIFICATE OF HAND DELIVERY

The undersigned hereby certifies that a copy of the PETITIONERS‟

RESPONSE TO RESPONDENTS MOTION TO DISMISS was hand delivered to
the Attorney for Respondents, Law Office of Jaime F. Rubin, 314 Main Street,
Truth or Consequences, NM, 87901, on the 4th day of January, 2010.

______________________________
Kim Audette
618 Van Patten
Truth or Consequences NM 87901
Phone: (575) 740-1988

RESPONSE TO DEFENDANTS‟ MOTION TO DISMISS

Audette and Toomey v. City of Truth or Consequences PAGE 13