UNITED STATED DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO

Mark G. Bralley, )
)
Plaintiff, )
)
v. )
)
The ALBUQUERQUE PUBLIC )
SCHOOLS BOARD OF EDUCATION, )
Former Member ROBERT LUCERO, in his )
individual capacity, Former Member )
DAVID ROBBINS, in his individual )
capacity, Former Member PAULA MAES, )
in her individual capacity, MARTIN )
ESQUIVEL, in his individual capacity, )
KATHERINE KORTE, in her individual )
capacity, The ALBUQUERQUE PUBLIC )
SCHOOLS, WINSTON BROOKS, in his )
individual capacity, BRADLEY WINTER, )
in his individual capacity, MONICA )
ARMENTA, in her individual capacity, )
RIGO CHAVEZ, in his individual capacity, )
JOHN MILLER, in his individual capacity, )
STEVE TELLEZ, in his individual )
capacity, STEVE GALLEGOS, in his )
individual capacity, ALBUQUERQUE )
PUBLIC SCHOOLS POLICE )
DEPARTMENT, )
)
Defendants. )
____________________________________)


COMPLAINT FOR VIOLATIONS OF THE FIRST, FOURTH, FIFTH, SIXTH,
AND FOURTEENTH AMENDMENTS TO THE UNITED STATES
CONSTITUTION; VIOLATION OF ARTICLE II BILL OF RIGHTS SEC. 17.
[FREEDOM OF SPEECH AND PRESS; LIBEL] AND SEC. 18. [DUE PROCESS;
EQUAL PROTECTION] OF THE NEW MEXICO CONSTITUTION; AND TO
ENFORCE THE NEW MEXICO OPEN MEETINGS ACT, AND TO ENFORCE
THE NEW MEXICO INSPECTION OF PUBLIC RECORDS ACT
WRIT OF MANDAMUS TO ENFORCE THE NEW MEXICO OPEN MEETINGS
ACT, AND TO ENFORCE THE NEW MEXICO INSPECTION OF PUBLIC
RECORDS ACT.
Mandamus Act, 28 U.S. C. 1361, and against the agency defendants under the
Administrative Procedure Act, 5 U.S.C. 706.

Plaintiff Mark G. Bralley, acting Pro Se, brings this complaint for
violation of his civil rights under the First, Fourth, Fifth, Sixth, and Fourteenth
Amendments to the United States Constitution and 42 U.S.C. 1983, and violations of
Article II Bill of Rights Sec. 17. [Freedom of Speech and Press; Libel], and Sec. 18. [Due
Process; Equal Protection] of the State of New Mexico Constitution and to enforce
certain provisions of the New Mexico Open Meetings Act, NMSA 1978, , 10-15-1 et
seq, and to enforce the New Mexico Inspection of Public Records Act, NMSA 1978,
14-2-1 et seq.
Plaintiff makes a demand a jury trial.

I. GENERAL NATURE OF THE ALLEGATIONS
This case arises from Defendants willful, intentional, malicious, arbitrary
and capricious attempts to exclude plaintiff from attending open meetings and making
reasonable accommodations to video and audio record, report, and photograph for
publication members of the public interested in following the activities of the
Albuquerque Public School system, by forceful removal, physically barring, and by
serving a banning letter signed by defendants from any meetings on all Albuquerque
Public School property, without due process in violation of plaintiffs First, Fourth, Fifth,
Sixth, and Fourteenth Amendment rights.

Background related to the First Amendment Claims
Defendants severely limited access for all persons desiring shall be
permitted to attend and listen to the deliberations and proceedings, of an open meeting
of the APS District Relations Committee hosting the APS 2010 Gubernatorial Education
Debate on August 19, 2010, which was subject to the New Mexico Open Meetings Act
requirements by selecting a small venue; the 400 seat performing arts center at Eldorado
High School.
Defendants Executive Director of Communications Monica Armenta and
Communications Specialist John Miller joined in cahoots with the political campaigns of:
Democratic Party candidate Lt. Governor Diane Denish and Republican Party candidate
Susana Martinez to limit the size of the venue for the gubernatorial debate.
Defendants Armenta and Miller ignored the mandatory language of the
Open Meetings Act:
NMSA 1978, 10-15-1. Formation of Public Policy.
Defendants created arbitrary and capricious rules, in addition to excluding
all persons desiring to attend and took unreasonable efforts prohibiting the use of audio
and video recording devices of non-media credentialed members of the public.
Defendants arbitrarily and capriciously defined members of the press and
assumed the duty to, credential media for debate attendance, and further responded to
requests for access to attend and listen to the proceedings and to have reasonable
accommodations for audio and video recording devices, by taking a position of plausible
deniability for their deliberate violation of the Open Meetings Act, defendants notes
included:
If we receive criticism for limited seating, simply say its due to
the venue.
__________
Defendants Armenta and Miller systematically chose which media outlets
would be granted APS credentials based on the method of publication. Defendants
granted credentials to broadcast stations licensed by the federal communications
commission and newspapers of general circulation, misapplying an example of press,
as found in the Open Meetings Act of a partial list of media entitled to notice of agendas,
if requested.
NMSA 1978, 10-15-1. Formation of Public Policy
Defendants Armenta and Miller specifically denied requests from Web-
log, on-line publications including: any representative of the web-log Heath Haussamen
on N.M. Politics, Barbara Wold and Ellen Brodrick of Democracy for New Mexico, Rob
Nikolewski from Capitol Reports, former APS teacher, Charles Edward Ched
MacQuigg, who is an ethics activist and has a web-log DIOGENES'SIX, and plaintiffs
efforts through several media outlets, and possibly others.
That [the First] Amendment rests on the assumption that the widest
possible dissemination of information from diverse and
antagonistic sources is essential to the welfare of the public, that a
free press is a condition of a free society. Surely a command that
the government itself shall not impede the free flow of ideas does
not afford nongovernmental combinations a refuge if they impose
restraints upon that constitutionally guaranteed freedom. Freedom
to publish means freedom for all, and not for some. Freedom to
publish is guaranteed by the Constitution, but freedom to combine
to keep others from publishing is not. Freedom of the press from
governmental interference under the First Amendment does not
sanction repression of that freedom by private interests.
U.S. Supreme Court
Associated Press v. United States,
326 U.S. 1 (1945)
Emphasis added.
A journalistic colleague of plaintiff, who was working indirectly with
APS with whom plaintiff attempted unsuccessfully to partner with, wrote:
If it makes you feel any better APS rejected a lot of requests from a
lot of other organizations. One of the TV stations told me today
they had two of their guys rejectedthey have no talent going,
only a camera.
__________
The court in Sheehan v. Gregoire, ruled that websites are analytically
indistinguishable from newspaper[s]. 272 F.Supp.2d 1135, 1139, n. 2, 1145 (W.D.
Wash. 2003)
United States Department of Justice, Civil Rights Division, Special
Litigation unit wrote a letter on May 14, 2012, to the lawyers in the case of Christopher
Sharp v. Baltimore City Police Department, et. al., to guide them during an upcoming
settlement conference before U.S. District Court Judge Paul W. Grimm.
In this letter, the Department of Justice took an unprecedented position of
outlining their belief of what a government policy they would consider to meet the civil
rights of citizen photographers:
F. Police departments should not place a higher burden on
individuals to exercise their right to record police activity
than they place on members of the press.
The Supreme Court has established that the press does not have a
monopoly on either the First Amendment or the ability to
enlighten. First Nat. Bank of Boston v. Bellotti, 435 U.S. 765, 782
(1978). Indeed, numerous courts have held that a private
individuals right to record is coextensive with that of the press. A
private individual does not need press credentials to record
police officers engaged in the public discharge of their duties. See
e.g., Glik, 655 F.3d at 83 (The First Amendment right to gather
news is, as the Court has often noted, not one that inures solely to
the benefit of the news media; rather, the publics right of access to
information is coextensive with that of the press.); Lambert v.
Polk County, Iowa, 723 F.Supp. 128, 133 (S.D. Iowa 1989) (It is
not just news organizations . . . who have First Amendment rights
to make and display videotapes of eventsall of us . . . have that
right.). The First Amendment attempt[s] to secure the widest
possible dissemination of information from diverse and
antagonistic sources, including the promulgation of information
and ideas by persons who do not themselves have access to
publishing facilities-who wish to exercise their freedom of speech
even though they are not members of the press. New York Times
Co. v. Sullivan, 376 U.S. 254, 266 (1964).
__________
Defendants published, that based on their selection of the size of the
venue, they responded to requests from uninvited guests that it, would exclude
accommodating all persons who wish to attend and to limit or exclude any person, media
or otherwise for being allowed to cover the event as they see fit.
Defendants further established arbitrary rules to be enforced by security,
including:
No photography, cell phones.
Give still photographers access at the beginning of debate (intros?),
then they have to return to media section in back.
In a letter from defendant, APS Communications Specialist John Miller,
Final Guide to the 2010 Gubernatorial Education Debate,
Please note:
Please also note that photographers have been informed
about when and where video and still photos may be shot.
Remember, media must have an APS-issued credential
to enter the school.
Such restrictive considerations are in violation of several specific points of
the First, (Fifth, and Fourteenth to be discussed later) Amendments to the United States
Constitution against government specifically:
...abridging the freedom or of the press; or the right of the
people peaceably to assemble.
Article II Bill of Rights Sec. 17.
[Freedom Of Speech And Press; Libel],
of the State of New Mexico Constitution.
Every person may freely speak, write and publish his sentiments
on all subjects, being responsible for the abuse of that right; and no
law shall be passed to restrain or abridge the liberty of speech or of
the press.
Defendants devised restrictions, which further constitute prior restraint
where there is no overriding compelling governmental interest needing such actions in an
open society.
Plaintiff suffered direct harm by not being able to engage in the activities
as a citizen and a photojournalist provided by law and protected by the First Amendment.
__________
Prior to the August 25, 2010, Audit Committee meeting coming to order,
defendant Superintendent Winston Brooks complained about where plaintiff started to set
up his video equipment. Plaintiff chose a location behind where defendant Brooks was
seated, which is a large empty area where plaintiff had previously used to work on
several occasions, and from which it drew no adverse attention. The location provided
plaintiff with a good vantage point to see all the APS Board members and any witnesses
without being in the way of any audience or staff members. Defendant Brooks objected
to having anyone behind him, because he felt uncomfortable, and he did not want his e-
mail read on the electronic device he had in front of him.
Defendant Committee Chairman David Robbins ordered plaintiff to move
to a specific location, which plaintiff did after a short discussion about what constituted
reasonable accommodations for video recording under the Open Meetings Act.
Near the end of the meeting, defendant, APS Board member Robert
Lucero, demanded plaintiff move again to a location behind the board, where the, media
traditionally set up.
A reporter-photographer from KRQE, reporting on a story of the loss of a
large number of laptop computers had worked from the corner so he could record the
witnesses telling the committee about the situation. The reporter, having gotten the video
he needed, abandoned the corner. Defendant Lucero, through his demand, was classifying
plaintiff as the media.
From the corner location, Luceros face could not be documented.
Defendant Robbins, ordered a second moving, but did not order another person video
recording next to plaintiff to also move. This occurred just as Robbins recessed the
meeting to go into a closed session.
The Open Meetings Act does not distinguish between, persons desiring to
attend, and the press, nor does the requirement that reasonable efforts shall be made to
accommodate the use of audio and video recording devices, apply differently from all
persons, the press included. Consistent with the Open Meetings Acts all persons
desiring shall be permitted to attend and listen to the deliberations and proceedings, and
accommodating the use of audio and video recording devices, should not be
relegated to an unreasonable location.
Defendant Robbins suspended the open meeting by instructing the
recorder be turned off to go into the closed session. Plaintiff continued to record with his
hand-held video camera approaching defendant Lucero near the exit.
Maybe we should just throw them out, ... and lets eject them, Lucero
told Robbins.
Upon reconvening from the closed portion of the meeting, defendant
Robbins, ejected plaintiff and Mr. MacQuigg.
Transcript of meeting as it reconvened from the closed session.
Robbins: Now, before we take a vote Im going to ask
those individuals that were in here with the
recording devices in here earlier to leave
cause you violated my instructions to turn
off your recording devices at the time I told
you to so Im asking you to take all of your
equipment out of this room at this point in
time. You are being expelled.
Mr. MacQuigg would take exception, as he had done nothing to
record earlier, saying:
I didnt have any recording devices, what
part of that do you not get?
Bralley: Im going to speak to the matter of that --
the Open Meetings Act allows you to go into
executive session (inaudible language) you
were not in an executive session of the kind
that I have (inaudible) the meeting. The
reason I left the recorder on is Mr. Lucero
was making commentary about throwing
Mr. MacQuigg and myself out of this
session and made the suggestion that we not
be allowed to return. Now, I would ask you
to consult with Mr. Melendres here about
the requirements of the Open Meetings Act,
specifically that an Open Meeting requires
the reasonable accommodation of audio and
video equipment and that you are attempting
to make the ability (inaudible) to observe a
public meeting less than reasonable by
trying to move us out of a place that, I mean
I have not previously
Robbins: Weve discussed this, you, you violated the
instructions that I gave, I dont really care if
you believe we werent in closed session at
the time I told the recorder to be turned off.
We went into closed session at that point in
time.
Bralley: Well, not everyone who was required to be
out of the room had left the room at that
moment (still talking but not audible).
Robbins: I instructed that all recording devices were
to be shut off so please leave right now.
Bralley: I am going to suggest that you also, under
the state law, do not have the authority to
remove somebody from a public meeting,
that, that power belongs to somebody else
and its not the police officers.
Esquivel: Both of you get out of here now! Out!
Plaintiffs suggested reference that Robbins did not have the authority to
remove somebody from a public meeting is to state law:
Statutory Chapters in New Mexico Statutes Annotated
1978,Chapter 30 Criminal Offenses, Article 20 Crimes Against
Public Peace, 30-20-13 Interference with members of staff,
public officials or the general public; trespass; damage to property;
misdemeanors; penalties.
This statute requires the "lawful custodian of the building, facility or
property." to give the removal order, not a board chair.
Defendants APS Superintendent Winston Brooks, and APS Chief
Operations Officer Brad Winter, were the two people at the meeting fitting the definition
of "lawful custodian of the building, facility or property," empowered to take such action.
Defendant Winter instructed APS Police Officers, Sgt. Kim Murray and
Officer Paul Cadena to escort us from the building, plaintiff acquiesced by leaving and
Mr. MacQuigg followed.
Defendant Robbins made a personal comment after the plaintiff left the
room, directed more towards Mr. MacQuigg.
Before I adjourn the meeting. This can go on the record. I was
informed right after the last, well after the Governors debate, that
Mr. MacQuigg has been making statements derogatory and has
implied that he has never done anything wrong and I also have
information that he has made implied threats and for that reason
alone I feel justified in removing these individuals because I
consider them to be hostile and although that in and of itself does
not allow us to remove someone who may have made threats
against personnel of APS, I consider that against all our public staff
and people who work with us and against this Board. So, that can
be on the record. Ill adjourn the meeting.
Mr. MacQuigg had done nothing, nor had he said anything before or
during the meeting, which under any analysis might give rise for defendant Robbins to
eject him.
Plaintiff made no recording in the meeting room after the room was
cleared; the doors were shut and guarded by two APS police officers as the closed portion
of the meeting continued.
Defendant Robbins personal comment is convoluted:
and for that reason alone I feel justified in removing these
individuals because I consider them to be hostile and although that
in and of itself does not allow us to remove someone who may
have made threats against personnel of APS, I consider that against
all our public staff and people who work with us and against this
Board. So, that can be on the record.
Defendant Robbins did not suggest plaintiff had in any way engaged in
making threats.
Defendant Robbins determined plaintiff to have been hostile because
plaintiff asserted his First Amendment rights and questioned what was and was not a
reasonable accommodation for allowing audio and video recording as a requirement of
the Open Meeting Act:
and all persons desiring shall be permitted to attend and listen to
the deliberations and proceedings. Reasonable efforts shall be
made to accommodate the use of audio and video recording
devices.
NMSA 1978, 10-15-1. Formation of Public Policy.
Defendant Robbins ejection of plaintiff, backed by defendant Esquivel,
was not based on any actual action by the plaintiff, except it provided a pretext for
defendant Robbins to eject Mr. MacQuigg based on a hearsay complaint from an
unnamed staff member for making an implied threat.
Plaintiff and Mr. MacQuigg were well aware that defendant Monica
Armenta had complained to former State Representative Janice Arnold-Jones, who had
given her ticket to Mr. MacQuigg. Defendant Armenta had told Arnold-Jones, Mr.
MacQuigg had threatened her, and her family, while at the Gubernatorial Education
Debate.
Armenta would publish her accusation in an August 20, 2010, e-mail
string with Arnold-Jones and James Hallinan, Press Secretary for the Democratic Party of
New Mexico working with the Diane Denish campaign.
Defendant Armenta wrote Hallinan:
Re: Re: FYI: MacQuigg Blog Today
Thanks James this is mild compared to the ramblings usually
entered in this blog. I let Janice Arnold-Jones know last night that I
am personally fearful of Mr. MacQuigg as I believe him to be
obsessed and extremely irrational. Members of my staff and
several people in this building are also afraid that Mr. MacQuigg
may someday act on his anger and frustration.
Hallinan wrote Armenta in response,
Thank you for everything and for being so accommodating. You
and your team did an amazing job! I know Diane will be getting in
touch with you all as well to express her gratitude. Ched is
something else. He has blogged about me several times too and
even called me Diane's evil henchman! I agree with everything you
said about him, he is certainly irrational and dangerous. Sorry he
caused problems, but last night was a huge success! Thanks, James
Armenta wrote Arnold-Jones
Hello Ms. Arnold-Jones,
Thank you again for listening to my concerns last night. Almost all
of my professional life has been public so Ive had to learn when to
be truly concerned with safety threats and when to let some things
go. Ive also learned to trust my gut.
I thought Id share this e-mail with you since you suggested I start
documenting my concerns.
The arrest and ejection denied plaintiff from attending, observing,
recording, documenting, photographing, reporting and publishing the activities of the end
of the open meeting.
__________
On September 1, 2010, defendant APS Police Chief Steve Tellez, handed
Mr. MacQuigg a sealed envelope containing a letter, banning him from APS Board
meetings; he was not allowed in the building.
Defendant Tellez told plaintiff, Youre allowed in.
Plaintiff entered the building with his cameras and presented himself at the
door to the John Milne Community Board Room. Two APS uniformed police officers:
Sgt. Mora, Officer Green, and a plainclothes Detective Gary Georgia, confronted
plaintiff, refusing to recognize him as media, denying, and physically barring his entry.
Defendant Deputy Chief of Police Steve Gallegos told plaintiff, You,
specifically, are not allowed in.
Defendant Tellez refused to respond to plaintiffs effort for him to confirm
to defendant Deputy Chief Gallegos, his statement, Youre allowed in. By not
responding, Tellez let stand Gallegos barring, further violating plaintiffs rights.
__________
On October 8, 2012, defendant APS Board member Katherine Korte,
physically applied force to plaintiffs camera lens and through it, to his body, in an
attempt to prevent her picture being taken. Plaintiff had questioned Korte about
exceeding her authority as an individual board member, which resulted in an APS
security aide barring another citizen, Mr. MacQuigg, from lawfully attending a forum,
APS Taking Input on Family, Community Engagement Policy, Procedures. Mr.
MacQuigg was specifically invited, by School Board Services and Government Affairs
Executive Director Brenda B Yager, through an October 2, 2012, email entitled, You
Are Invited.
Defendant Korte caused plaintiffs arrest and ejection from the building.
When plaintiff asked, to speak with the senior most APS official on-duty, acting
Lieutenant, Police Sergeant Paul V. Brady responded:
Bralley: Why am I being expelled?
Brady: For taking her (Kortes) picture.
Bralley: And what law prohibits taking pictures?
Brady: None, but its a matter of courtesy, that when she
asked that you not take her picture, you dont.
Bralley: So, youre going to violate the First Amendment?
Brady: Im not violating youre First Amendment rights.
Bralley: My editorial right to cover a publicly elected
official, in a public place, doing her public duty?
Brady: Im through talking to you; youre just pushing my
buttons.
In this case, Kortes attempt to keep Mr. MacQuigg from attending the
public discourse. Her physical attack on plaintiff, placing her hand on the camera lens
blocking and preventing plaintiff photographing her is nothing short of an act of physical
censorship.
__________
On October 10, 2012, two uniformed APS police offices came to
plaintiffs home to serve a letter from defendants: Board President Paula Maes,
Superintendent Winston Brooks, and Chief Operations Officer Brad Winter, banning
plaintiff from attending any meeting on APS property.
Defendants allege no less than 10 acts of criminal conduct.
__________
On October 11, 2012, plaintiff received by certified mail, return receipt
requested, the same October 10, 2012, letter delivered by hand the day before.
__________
On November 7, 2012, plaintiff responded to the banning letter refuting
the allegations, as stated, and asserted that no crime(s) had been committed.
Plaintiff challenged the defendant signers, and defendant Chief Tellez,
because they included him in their October 10, 2012, letter, when plaintiff wrote to
defendant signers and Tellez, delivered by certified mail:
I am in receipt of your collective letter of October 10, 2012, in
which you allege no less than 10 acts of criminal conduct. I have
committed no crime.
The events surrounding your allegations were not only lawful, but
were protected rights under both the United States and New
Mexico Constitutions, specifically, the First Amendment of the
U.S. Constitution and Section 17, [Freedom of speech and press;
libel], of the New Mexico Constitution.
Each of you, individually, as elected or appointed officers of
Albuquerque Public Schools, along with your client, APS, lack
jurisdiction to ban or condition my presence at any public
gathering on APS property, or any public meeting(s), especially
those set forth in the New Mexico Open Meeting Act, NMSA
1978, Sections 10-15-1 to 10-15-4, without first establishing
probable cause for an: indictment, charge, or information, followed
by a successful prosecution.
I will continue to act in accordance with the universally accepted,
well-honed, thorough training and experience, sense of journalistic
and photographic professionalism demanded of my craft. I do not
seek nor do I ask anyones permission to exercise my
Constitutional rights, and you are Constitutionally prohibited from
attempting to prevent me from doing so.
Therefore, I insist you either: 1) charge me with all allegations
youve made and make your case, for conditioning my presence or
banning me, to our judicial system (courts), Or 2), withdraw this
notice and inform, by internal memorandum, all APS employees
who may have been: told, informed, or have learned through
gossip, or rumor of the substance of your letter that my rights to be
present are guaranteed by law.
__________
Defendants did not respond.
Defendants banning letter has a profound affect on plaintiffs right to
observe and photograph, government, record its proceedings and report on their activities,
making commentary, which may even be critical in nature.
The lack of any procedure to challenge the banning letter through an
impartial due process mechanism results in an on-going abridgement by government of
the freedom of the press, the right of the people to peaceably assemble, and to petition for
redress of grievances.
__________
On January 28, 2013, plaintiff attended an APS Press Conference at West
Mesa High School arranged by defendant Robbins who made a public promise to do so,
while campaigning for reelection to the board.
At the end of the press conference, plaintiff spoke with defendant Chief
Tellez. Tellez said the banning only applied to APS headquarters, contrary to what the
letter said. Plaintiff told Tellez that he was not going to allow any government official
define how he practiced his craft as a precondition to attending a public meeting, or to
lecture him on protocol at such meetings.
Plaintiff had an on-the-record conversation with defendant Tellez who
indicated that the banning letter sent to me only applied to me at city center (APS
headquarters, 6400 Uptown, N.E.).
Plaintiff told Tellez he doesn't ask permission to exercise his constitutional
rights nor will he sit for a lecture about how he does his work; plaintiff said he had not
done anything photographically at APS that he had not done in front of the President of
the United States, Congressional members, Legislatures, Governors, or other elected
people.
Defendant Tellez, a photographer himself, indicated he was trying to do
neither.
Defendant Tellez said defendants only complaint was the board objected
to plaintiff, was:
You put a camera in their face and take hundreds of pictures, and
that intimidates them.
Plaintiff told Tellez that any sense of intimidation belongs to defendants.
Plaintiff explained that similar to assault, it belongs to the person who believes they are
about to receive an immediate battery. However, having a camera put in their face, the
only reasonable fear they should have is of having their picture taken.
Plaintiff further responded with a standard line he uses with public
officials who ask why so many pictures, or complain about having their pictures taken:
Public person public place.
Plaintiff has used the line on Tellez before, because he doesnt particularly
like having his picture taken and has turned his back, stood behind pillar and post,
attempting to avoid being photographed.
Plaintiff told Tellez that as far as he was concerned, they had the
mandatory talk required by the banning letter.
Defendant Tellez didn't dispute plaintiffs statement.
Plaintiff asked if Tellez had gotten his message from Sgt. Brady after the
incident with Korte, wanting to speak to him about policy issues.
Defendant Tellez said he had received the message, but was not going to
respond because he had not been there. (Neither had Brady, but he spoke.)
Plaintiff asked Tellez if APS PD had a written policy on recording audio
and or video of incidents, which might become issues of concern in the press?
Defendant Tellez said there was a policy, but it was only suggestive, not
mandatory.
Plaintiff asked Tellez how plaintiff could not have been on video the entire
time he was in the building; in the lobby and in the boardroom?
Defendant Tellez said the boardroom only had camera coverage at the
front of the room.
Defendant Tellez said, they came and looked at the video.
Plaintiff told Tellez he had not gotten a final response to his request for
inspection of public records.
Plaintiff told defendant Tellez, that this discussion fulfilled the
requirement of the October 10, 2012, banning letters requirement:
In the future, before you attend any meeting on APS property it
will be necessary for you to make an appointment with APS Police
Chief Steve Tellez to discuss these past problems and work out an
agreement with respect to your behavior at the meeting. (It will be
permissible for you to be on APS property for that mandatory
meeting with Chief Tellez.) If you wish to meet with Chief Tellez,
please call him at 243-7712 to arrange a mutually convenient time.
The defendants, by not rescinding their banning letter, continue to violate
plaintiffs First Amendment rights.
__________
On November 2, 2012, Mr. Charles "Ched" Macquigg filed in the United
States District Court for the District of New Mexico a verified complaint for violations of
the First and Fourteenth Amendments to the United States Constitution and to enforce the
New Mexico Inspection of Public Records Act. The case is, No. CIV 12-01137
MCAlKBM, captioned:
Charles "Ched" Macquigg,
Plaintiff,
v.
The Albuquerque Public Schools Board Of Education, et al.
Defendants.
__________
Background related to the Fourth Amendment Claims
The right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures,
shall not be violated, and no Warrants shall issue, but upon
probable cause, supported by Oath or affirmation, and particularly
describing the place to be searched, and the persons or things to be
seized.
Fourth Amendment
The people shall be secure in their persons, papers, homes and
effects, from unreasonable searches and seizures, and no warrant to
search any place, or seize any person or thing, shall issue without
describing the place to be searched, or the persons or things to be
seized, nor without a written showing of probable cause, supported
by oath or affirmation.
Article II Bill of Rights Sec. 10.
[Searches and seizures.]
of the State of New Mexico Constitution.
At the August 25, 2010, Audit Committee meeting, defendants APS Board
members: Robert Lucero, Audit Committee Chairman David Robbins, President of the
APS Board Martin Esquivel, along with Chief Operations Officer Bradley Winter,
ejected plaintiff and Mr. MacQuigg, removing them under force of arms by APS police
officers for allegedly video recording during a closed portion of the meeting.
Plaintiff objected to being ejected and asked Robbins to consult his legal
counselor, Art Malendres, sitting next to plaintiff, to explain the meaning of the
reasonable accommodation for audio and video recording of public meetings, found in
the Open Meetings Act. Being moved to a location behind the board was not reasonable.
A video should show what the public sees.
Defendant Robbins made a personal comment after the plaintiff left the
room, directed more towards Mr. MacQuigg than towards plaintiff.
Before I adjourn the meeting. This can go on the record. I was
informed right after the last, well after the Governors debate, that
Mr. MacQuigg has been making statements derogatory and has
implied that he has never done anything wrong and I also have
information that he has made implied threats and for that reason
alone I feel justified in removing these individuals because I
consider them to be hostile and although that in and of itself does
not allow us to remove someone who may have made threats
against personnel of APS, I consider that against all our public staff
and people who work with us and against this Board. So, that can
be on the record. Ill adjourn the meeting.
The minutes of the Audit Committee meeting would reflect the official
version, not the factual version of events:
XI. Statement of Closure
Mr. Robbins stated that the Audit Committee met in executive
session on August 25, 2010, for the purpose of discussing limited
personnel matters in connection with Internal Audit as authorized
by the limited personnel matters exception -NMSA 1978,10-15-
1(H) (2). The matters discussed in the executive session were
limited only to those specified.
At this point, David Robbins asked two members of the public to
leave the meeting for not turning off their recording devices in a
timely manner and for disrupting the meeting.
__________
On September 1, 2010, when Deputy Chief of Police Steve Gallegos
refused plaintiff entry to the School Board meeting, he was uninformed whether plaintiff
was similarly banned, as was Mr. MacQuigg.
After plaintiff was denied entry to the board meeting, APS Police Lt. Alan
Rider approached Plaintiff, starting a conversation about the Board ejecting and banning
of Mr. MacQuigg and plaintiff.
Rider: The thing is, you know, as well as I do, what
kind of problems were having.
Bralley: Yeah, the cause is at the front of the room, not the
back of the room.
Rider: Why are you banned?
Bralley: Im not banned.
Rider: Well, why is Chad (sic) banned?
Bralley: They say because of a letter written in 09.
Rider: And what does that letter say?
(I explained that MacQuigg was being
banned for the content of his speech, that the
board didnt like what he was saying, and
that was censorship.)
Rider: And how do you define censorship?
Bralley: Not allowing someone to speak freely. How do you
define censorship?
Rider: When you are disruptive and causing trouble.
Bralley: Wouldnt that be disorderly conduct?
Rider: Probably, yeah, so thats why people get banned.
Bralley: So, why havent you ever charged anybody? Person
is innocent till proven guilty.
Rider: So, you say you want to be charged?
Bralley: What Im saying is
Rider: Were you disruptive?
Bralley: Im not disruptive, but if you say Im disruptive,
then you have to prove that in a court of law.
Rider: Now you were a police officer, right?
Bralley: I was.
Rider: So you know what its all about?.
Bralley: I absolutely know what its all about.
Rider: Then I dont need to explain it to you.
Bralley: What youre doing is not what its all about.
Rider: Well, thats what makes this country great, right?
Bralley: Those opinions get exercised through Constitutional
process.
Rider: Well.
Bralley: What part of the Sixth Amendment dont you
understand?
(In all criminal prosecutions, the accused
shall enjoy the right to a speedy and public
trial, by an impartial jury of the State and
district where in the crime shall have been
committed, which district shall have been
previously ascertained by law, and to be
informed of the nature and cause of the
accusation; to be confronted with the
witnesses against him; to have compulsory
process for obtaining witnesses in his favor,
and to have the Assistance of Counsel for
his defence.)
Rider: I shouldnt have to explain it to you.
Bralley: You dont have to explain it to me; I know you
dont understand it.
Rider turned and walked away.
__________
On September 23, 2010, plaintiff and Mr. MacQuigg went to the Alice and
Bruce King Educational Complex, to inspect the public records we had individually
requested.
Within moments of arriving at the communications office, Mr. MacQuigg
was accosted by three APS police officers: defendant, Deputy Chief Steve Gallegos, Lt.
Allan Rider and Officer Paul Cadena, who came into the office and confronted him.
When defendant Gallegos and the other officers opened the door, it
blocked their view of plaintiff.
Are you banned from APS property, officers asked?
Mr. MacQuigg responded, no, that he was only banned from school board
meetings.
The officers continued to challenge him until plaintiff stepped out from
behind the door and said he had read the letter and the ban only applied to the boards
meetings.
Defendant Gallegos seemed to take plaintiffs word and left.
__________
On October 8, 2012, defendant APS Board member Katherine Korte,
physically applied force to plaintiffs camera lens and through it, to his body, in an
attempt to prevent her picture being taken. Plaintiff had questioned Korte about
exceeding her authority as an individual board member, resulting in APS security barring
another citizen, Mr. MacQuigg, from lawfully attending a forum, APS Taking Input on
Family, Community Engagement Policy, Procedures. School Board Services and
Government Affairs Executive Director Brenda B Yager, specifically invited Mr.
MacQuigg through an October 2, 2012, email entitled You Are Invited.
Defendant Korte wrote in a statement to APS police, for inclusion in a
information report, after the incident:
I was asked by Officer Tony (Sanchez) whether McQuigg was
allowed in. Tony told me that McQuigg was out front, telling him
he had been invited to the community meeting and since it was a
community meeting, he should be allowed in allowed in. Tony
asked if this was true.
I told Tony that to the best of my knowledge, McQuigg was not
allowed in any meetings at City Center and that I had not heard
anything on the contrary.
__________
Defendants: Board members: Robert Lucero, David Robbins, Martin
Esquivel, Katherine Korte, and Deputy Chief Steve Gallegos, operated under mistaken
hearsay, rumor, gossip, and speculation, rather than having any facts, or direct knowledge
when it came to making decisions leading to arrests, ejections, banning and barring of
plaintiff.
Defendants actions caused arrests and ejections of the plaintiff, without criminal
charges being filed, and where there was no probable cause to believe a crime had been
committed for which defendants could lawfully seize the plaintiff, but unreasonably did
so at the whim of defendant board members for being questioned about their: arbitrarily,
capriciously, and maliciously exceeding their presumed authority, and violating their own
established board rules and APS policies; by enforcing some sort of orders, that
defendant think might be proper, enforceable, or even legal. The APS police officers,
present during some of the events, did not establish probable cause for any violation of
the law occurring in their presence, on their own, to the extent they may have affected an
arrest, under their own power and legal authority.
The actions of these defendants compounded the violations depriving
plaintiff of his rights and liberty to go about his business of reporting and photographing
government in operation under the protection of the First Amendment.
During the March 27, 2012, meeting of the District and Community
Relations Committee, the entire board participated as a committee of the whole,
addressing an agenda item; a petition submitted by the Citizens Advisory Council on
Communications, seeking recognition in establishing two-way communication with the
APS administration and the board.
Defendant Korte made a statement about why she would oppose the
request:
I'm sorry to say, I know that one of your leaders is Ched
MacQuigg. I read his blog every now and then. It is the most
negative thing I have ever read. So I don't read it, actually. To be
honest with you, I don't read it. So I'm suspect of your intentions
because I know Ched MacQuigg plays a big Role in this, and he's
the most negative person I've ever met in my life.
Defendant Kortes statement tends to show a bias against Mr. MacQuigg
and his associates and would have brought into question the credibility of her statement
under oath or affirmation before an independent magistrate.
However, at no time have the actions of the plaintiff, that were deemed
inappropriate by the defendants, to the point of arresting, expelling, and giving plaintiff
notice of his banning from APS property, been offered for consideration to an
independent magistrate establishing probable cause, supported by oath or affirmation that
would support issuing a warrant to seize the plaintiff.
__________
Background related to the Fifth Amendment Claims
Plaintiff has a right to freely engage in the activities protected by the First
Amendment and especially that: Congress shall make no law ... or abridging the freedom
of speech, or of the press; or the right of the people peaceably to assemble, and to petition
the Government for a redress of grievances.
Plaintiff has a right to engage in commerce, in business pursuits, and has a
liberty and Property interest in doing so.
Being present at an open meeting, observing, listening, photographing,
video and audio recording, and plaintiff going about the normal activities of the press in
such public situations is not only constitutionally protected, but if the government
attempts to deprive plaintiff of any rights, they must do so by due process of law.
No person shall be held to answer for a capital, or otherwise
infamous crime, unless on a presentment or indictment of a Grand
Jury, except in cases arising in the land or naval forces, or in the
Militia, when in actual service in time of War or public danger; nor
shall any person be subject for the same offense to be twice put in
jeopardy of life or limb; nor shall be compelled in any criminal
case to be a witness against himself, nor be deprived of life, liberty,
or property, without due process of law; nor shall private property
be taken for public use, without just compensation.
Fifth Amendment
Emphasis added.
Defendants actions in excluding plaintiff, as a person desiring to observe,
record, video, photograph, report, and publish under the Open Meetings Act and for the
defendants to create their own definition of who is a journalist or what is the media,
ignoring the First Amendments to the United States Constitution against government
specifically:
...abridging the freedom or of the press; or the right of the
people peaceably to assemble.
Or the State of New Mexico Constitutions Article II Bill of Rights Sec.
17. [Freedom Of Speech And Press; Libel], of.
Every person may freely speak, write and publish his sentiments
on all subjects, being responsible for the abuse of that right; and no
law shall be passed to restrain or abridge the liberty of speech or of
the press.
Defendants mistakenly favor the language found in the Open Meetings
Act:
D. That notice shall include broadcast stations licensed by the
federal communications commission and newspapers of
general circulation that have provided a written request for
such notice.
NMSA 1978, 10-15-1. Formation of Public
Policy.
Here is an example of such selective reading of the law, notice shall
include, then by example listing broadcast stations and newspapers.
However, by the use of the word include the law does not specifically
preclude anyone else, nor does it suggest that the list is in anyway exclusive, limiting, or
exhaustive.
Defendants denied plaintiffs multiple requests for press credentials, as an
individual, as a member of a free press, as a freelance photojournalist for NMPolitics.net,
from highly respected on-line journalist, publisher and editor, Heath Haussamen on N.M.
Politics, with whom plaintiff has worked with in the past.
Defendants, further have no standards, or policies, written and published
for appealing a denial of requested press credentials.
Defendants offer no notice or opportunity for plaintiff to be heard in
appealing the willful, intentional, malicious, arbitrary and capricious decision of the
defendants against plaintiff rights and liberty.
In finding First and Fifth Amendment violations in Sherrill v.
Knight:
the Court remanded the case to the Secret Service,
which was instructed to "devise and publicize narrow and
specific standards" for press pass denials, and to institute
procedures whereby an applicant is given notice of the
evidence upon which the Secret Service proposes to base
its denial, the journalist is afforded an opportunity to rebut
or explain this evidence, and the Secret Service issues a
final written decision specifying the reasons for its refusal
to grant a press pass. The Service was instructed to
reconsider appellee's application under these newly
instituted standards and procedures.
With respect to its requirement of notice and
opportunity to rebut, the Court relied on its determination
that denial of a White House press pass constitutes a
deprivation of "liberty" without due process of law within
the meaning of the fifth amendment because it interferes
with the free exercise of the profession of journalism.
We further conclude that notice, opportunity to rebut,
and a written decision are required because the denial of a
pass potentially infringes upon first amendment guarantees.
Such impairment of this interest cannot be permitted to
occur in the absence of adequate procedural due process.
Robert Sherrill v. H. Stuart Knight, Director United
States Secret Service, et al. United States Court of
Appeals for the District of Columbia Circuit, 186
U.S. App. D.C. 293; 569 F.2d 124; 1977 U.S. App.
__________
Unlike Sherrill, plaintiff has not been convicted, or charged, or has any
outstanding warrant alleging any crime.
In the course of discovery below, it was learned that, in
addition to the conviction for assault (upon the Press
Secretary to the Governor of Florida) referred to in the
Rossides letter, the Secret Service decision to deny a pass
to Mr. Sherrill was based on a 1962 assault charge in Texas
(on which Mr. Sherrill may be subject to prosecution if he
ever returns to that state) and on an allegation made by the
Press Secretary to the Governor of Florida that Mr. Sherrill
was "mentally unbalanced." 416 F. Supp. at 1028-29.
Also unlike Sherrill, plaintiff has been approved for White House
credentials for coverage as local, national, and once, international media, after being
vetted by the United States Secret Service, for presidents, vice presidents and candidates
for presidents, vice presidents, before and after they were nominated by the national
parties, and others under USSS protection, not less than 25 times since the Secret Service
began protecting candidates and their families after Sen. Robert F. Kennedy was
assassinated in 1968.
Notwithstanding plaintiffs history as a photojournalist who also acts in a
business model as a news agency, much like the non-profit internationally recognized
Associated Press, except as an individual provider, not a large corporate one, defendants
selectively excluded plaintiff and others based on the medium in which their work is
published. At the same time, defendants selectively included on-line journalists and
media outlets, which maintain a large on-line presence.
Defendants damage plaintiffs business opportunities by not having a due
process review mechanism.
On October 16, 2012, plaintiff received information from a source with
access to defendant Kortes restricted facebook page. On her facebook page, Korte posted
the Code of Ethics of the National Press Photographers Association and she said that she
highlighted the violations she claimed occurred against her on Monday. A commenter to
her site, (not my source), John Fremont noted that nothing was highlighted and she
replied ...
Katherine Shelley Korte Hi John: he's a stalker, period. He's not a
photojournalist. I had to file a police report on his threatening
behavior toward me when no one was in the board room but a few
parents. He calls himself a "photojournalist" but my professional
photojournalist friends -- including a former photographer for
George Bush II -- would wholeheartedly disagree with this
person's tactics. Because of his history and his unprofessional and
threatening behavior, I filed a police report to protect myself if he
attempts a similar behavior in the future.
The acts of the defendants damage plaintiffs liberty interest to attend
government activities required to be open to all desiring to attend, and to deprive plaintiff
of Property, the fruits of his labor in collecting material in the form of photography, audio
and video recordings, and notes from such open meetings to publish his thoughts and
observations to the public, which follows his on-line publication in open commerce
through the world-wide-web.
__________
Background related to the Sixth Amendment Claims
In all criminal prosecutions, the accused shall enjoy the right to a
speedy and public trial, by an impartial jury of the State and
district wherein the crime shall have been committed, which
district shall have been previously ascertained by law, and to be
informed of the nature and cause of the accusation; to be
confronted with the witnesses against him; to have compulsory
process for obtaining witnesses in his favor, and to have the
Assistance of Counsel for his defence.
Sixth Amendment
The right of trial by jury as it has heretofore existed shall be
secured to all and remain inviolate. In all cases triable in courts
inferior to the district court the jury may consist of six. The
legislature may provide that verdicts in civil cases may be rendered
by less than a unanimous vote of the jury.
Article II Bill of Rights 12.
[Trial by jury; less than unanimous verdicts in civil cases.]
of the State of New Mexico Constitution.
Defendants having caused arrests, without filing charges, ejections,
barring and banning of plaintiff, from open meetings, have denied him of the right to
clear his name in court, against the actions defendants have taken and alleged criminal
acts by the plaintiff without an opportunity to, specifically:
In all criminal prosecutions, the accused shall enjoy the right to a
speedy and public trial, by an impartial jury
be informed of the nature and cause of the accusation; to be
confronted with the witnesses against him; to have compulsory
process for obtaining witnesses in his favor, and to have the
Assistance of Counsel for his defence
In the November 7, 2012, letter to the defendants, plaintiff responded to
the banning letter, refuting the allegations, as stated, and asserted that no crime(s) had
been committed.
Defendant Korte, using her contacts, as a contract employee as, Regional
Elections Coordinator at the Associate Press for Albuquerque, New Mexico Area
Newspapers, and her former employment at the Albuquerque Tribune, along with her
day-to-day contacts with journalists, and beat reporters from: print, radio, and television
news stations, advanced the events of October 8, 2012, to become a front page story in
the Albuquerque Journal, a major story on KOAT Action 7 News, and repeated coverage
through numerous other media outlets.
Defendant Kortes efforts in contacting the press, included attempting to
question plaintiffs reputation, credibility, and accused him of being a stalker.
Defendant Korte communicated false information in the community in
furtherance to gain sympathy for herself, and attempt to damage plaintiffs credibility and
reputation among those in the APS system, in the community, and with his colleagues,
and peers; without having to prove any of her allegations, beyond a reasonable doubt, in a
court of law.
Defendants, at no time made any presentation to the District Attorneys
office for the consideration of bringing a criminal prosecution for any act of the plaintiff
in which defendants, using the power of their elected office, caused arrests, ejections,
barring and banning of plaintiff, from open meetings and events on APS property.
Plaintiff has a right, not only to due process under the Fifth Amendment,
but to the protection of a trial by a jury of his peers to determine whether a crime(s)
was/were committed, and to enjoy all the other protections contained in the Sixth
Amendment.
__________
Background related to the Fourteenth Amendment Claims
Section 1. All persons born or naturalized in the United States, and
subject to the jurisdiction thereof, are citizens of the United States
and of the State wherein they reside. No State shall make or
enforce any law which shall abridge the privileges or immunities
of citizens of the United States; nor shall any State deprive any
person of life, liberty, or property, without due process of law; nor
deny to any person within its jurisdiction the equal protection of
the laws.
Fourteenth Amendment
The requirements of the U.S. Bill of Rights, specifically in this cause of
action the: First, Fourth, Fifth and Sixth Amendments, are made binding upon the States
and their political subdivisions, including all the defendants listed in this case. By the
Fourteenth Amendments clauses, nor shall any State deprive any person of life, liberty,
or property, without due process of law; nor deny to any person within its jurisdiction the
equal protection of the laws.
The State of New Mexico, through its Constitutions Bill of Rights,
established a Due Process and Equal Protection clause consistent with the Fourteenth
Amendment.
No person shall be deprived of life, liberty or property without due
process of law; nor shall any person be denied equal protection of
the laws. Equality of rights under law shall not be denied on
account of the sex of any person.
Bill of Rights Article II,
Sec. 18. [Due Process; Equal Protection]
State of New Mexico Constitution
Defendants, through their acts described above, ignore and refuse to
provide Due Process and Equal Protection rights, though they are required to do so by
both Federal and State Constitutions.
Plaintiff has suffered due to defendants illegal actions.
nor shall any State deprive any person of life, liberty, or
property, without due process of law; nor deny to any person
within its jurisdiction the equal protection of the laws.
__________
Background related to the Open Meetings Act Claims
Plaintiff also brings this action to enforce the provisions of the New
Mexico Open Meetings Act, NMSA 1978 10-15-1, et seq. (OMA).
The Open Meetings Act reflects the New Mexico Legislatures
recognition of the fact that a representative government is dependent upon an informed
electorate, it is declared to be public policy of this state that all persons are entitled to the
greatest possible information regarding the affairs of government and the official acts of
those officers and employees who represent them
NMSA 1978 10-15-1, et seq. (OMA).
Defendants caused four violations of the Open Meetings Acts
requirement to allow all people desiring to attend by barring or ejecting
plaintiff on the following dates at the listed meeting:
August 19, 2010 APS District Relations Committee hosting the
APS 2010 Gubernatorial Education Debate
August 25, 2010 Audit Committee meeting
September 1, 2010 APS Board meeting
October 8, 2012 APS Taking Input on Family, Community
Engagement Policy, Procedures forum.
__________
Taking together defendant Luceros, Maybe we should just throw them
out, ... and lets eject them, statement, during the time defendant Robbins called a
recess to clear the room for the closed meeting, and Robbins Weve discussed this,
statements, after coming back into session at the August 25, 2010, it appears that both
statements were not on the agenda and an improper discussion occurred during the closed
portion of the Audit Committee meeting, which violated several sections of the Open
Meetings Act:
I. If any meeting is closed pursuant to the exclusions
contained in Subsection H of this section, the closure:
(1) If made in an open meeting, shall be approved by a
majority vote of a quorum of the policymaking
body; the authority for the closure and the subject to
be discussed shall be stated with reasonable
specificity in the motion calling for the vote on a
closed meeting; the vote shall be taken in an open
meeting; and the vote of each individual member
shall be recorded in the minutes. Only those
subjects announced or voted upon prior to closure
by the policymaking body may be discussed in a
closed meeting; and
(2) if called for when the policymaking body is not in
an open meeting, shall not be held until public
notice, appropriate under the circumstances, stating
the specific provision of the law authorizing the
closed meeting and stating with reasonable
specificity the subject to be discussed, is given to
the members and to the general public.
J. Following completion of any closed meeting, the minutes
of the open meeting that was closed, or the minutes of the
next open meeting if the closed meeting was separately
scheduled, shall state that the matters discussed in the
closed meeting were limited only to those specified in the
motion for closure or in the notice of the separate closed
meeting. This statement shall be approved by the public
body under Subsection G of this section as part of the
minutes.
Emphasis added.
10-15-3. Invalid Actions; Standing.
A. No resolution, rule, regulation, ordinance or action of any
board, commission, committee or other policymaking body
shall be valid unless taken or made at a meeting held in
accordance with the requirements of NMSA 1978, Section
10-15-1. Every resolution, rule, regulation, ordinance or
action of any board, commission, committee or other
policy-making body shall be presumed to have been taken
or made at a meeting held in accordance with the
requirements of NMSA 1978, Section 10-15-1.
NMSA 1978 10-15-1, et seq. (OMA).
Emphasis added.
__________
Background related to the Inspection of Public Records Act Claims
Plaintiff brings this action to enforce the provisions of the New Mexico
Inspection of Public Records Act, NMSA 1978 14-2-1, et seq. (IPRA).
The IPRA pioviues that, with only ceitain, specifieu limitations,
"|ejveiy peison has a iight to inspect public iecoius of the state." !". at 14-2-1A.
The IPRA ieflects the New Nexico Legislatuie's iecognition "that a
iepiesentative goveinment is uepenuent upon an infoimeu electoiate" anu
embouies the Legislatuie's intention that "that all peisons aie entitleu to the
gieatest possible infoimation iegaiuing the affaiis of the goveinment anu the
official acts of public officeis anu employees." !". at 14-2-S.
Befenuant Biiectoi of the Communications Bepaitment Rigo Chavez
is also the Recoius Custouian. Chavez ioutinely engages in iequiiing plaintiff anu
some otheis, incluuing Ni. NacQuigg to follow "iules" that aie placeu by APS as
impeuiments to an oiueily piocess in complying with the State's Inspection of
Public Recoius Act.
14-2-9. Procedure for Inspection.
D. A custodian receiving a written request shall permit
the inspection immediately or as soon as is
practicable under the circumstances, but not later
than fifteen days after receiving a written request. If
the inspection is not permitted within three business
days, the custodian shall explain in writing when
the records will be available for inspection or when
the public body will respond to the request. The
three-day period shall not begin until the written
request is delivered to the office of the custodian.
NMSA 1978 14-2-9-D, et seq. (IPRA).
Emphasis added.
Befenuant Chavez, as APS' custouian of public iecoius, ignoies the
iequiiements of IPRA's in that, "(a) custouian ieceiving a wiitten iequest shall
peimit the inspection immeuiately oi as soon as is piacticable unuei the
ciicumstances.
Chavez has seluom, if evei, maue available iecoius foi inspection
immeuiately. Be moie often than not avoius making iecoius available, ". as soon as
is piacticable unuei the ciicumstances."
Insteau, Chavez will wiite that he will not peimit the inspection of
iecoius within thiee business uays.
Be will wiite that the iecoius will be available foi inspection in fifteen
uays, oi possibly soonei.
Chavez will use the postal seivice, which uelays iesponse anu then
iequiies the iequestei to make an appointment to come to his office to inspect the
iecoiu(s).
Chavez has a histoiy of pioviuing only poitions of the iequesteu
mateiial without complying with:
14-2-11. Procedure for Denied Requests.
B. If a written request has been denied, the custodian
shall provide the requester with a written
explanation of the denial. The written denial shall:
(1) describe the records sought;
(2) set forth the names and titles or positions of
each person responsible for the denial; and
(3) be delivered or mailed to the person
requesting the records within fifteen days
after the request for inspection was received.
NMSA 1978 14-2-11-B, et seq. (IPRA).
The communications uepaitment tieats plaintiff, Ni. NacQuigg, anu
maybe othei people who make iequests, uiffeiently than they uo membeis of local
meuia with whom they have establisheu symbiotic ielationships anu noimally
pioviue infoimation anu access to APS infoimation, facilities, anu peisonnel foi
inteiviews, both on-cameia oi face to face.
Defendant Executive Director of Communications Monica Armenta, has
on occasion refused to have open communications with some media outlets, or specific
reporters, from time to time over her, or APS administrations, or Board members
objections to how the media reports a story about APS. The Communications Department
has been known to express its displeasure when the media will not report (spin) the story
as APS thinks it should be told. The Communications Departments expression of
displeasure may take a number of different forms from: providing no comment,
ignoring the particular reporter by not returning phone calls, e-mails, or text messages; or
by providing written statements, which are often not responsive to the question at hand.
__________
On September 29, 2011, defendant Executive Director of
Communications Monica Armenta speaking at a Goals forum at Jefferson Middle School,
on the departments interaction with the media said:
We, of course, the office that continues to work diligently
to work with the media; It is never going to be a wonderful
relationship, because thats the nature of the business, but
we feel there has been, at least some, some good progress
thats been made.
Were not ever going to love each other, but we do respect
each other, and I dont think youll ever hear a complaint
that Albuquerque Public Schools is dishonest or
unresponsive.
Those are very very big changes over the last three years.
On October 18, 2011, defendant Armenta speaking at a Goals
forum at Sandia High School on the topic of the Communications Departments
responsibility for two goals said:
The two goals we are responsible for:
Changing the perception of the district, and
Better outreach with our stakeholders.
Each and everyone of you is one of our stakeholders. If
there is ever anything we can do better, or we can answer
your questions, wed be delighted to do so.
__________
Plaintiffs experience with making requests for inspection of public
records has been in complete contradiction to Armentas public pronouncements.
On March 01, 2013, David Walker made a request of Executive Director,
Board of Education Services Office Brenda Yager for a copy of Superintendent Winston
Brooks contract.
On Mar 1, 2013, at 5:28 PM, "Yager, Brenda B" <yager@aps.edu>
wrote:
David Walker (I think he was part of the MacQuigg group) has
asked for a copy of your contract. Do you want me to send it or do
you want him to make an Inspection of Public Record request
through Rigo?
Brenda Yager
Executive Director
Board of Education Services Office
6400 Uptown Blvd. NE, Suite 1 DOE
P.O. Box 25704
Albuquerque, New Mexico 87125-0504
(505) 880-3731
yager@aps.edu
Defendants Brooks responded:
From: Brooks, Winston
Sent: Friday, March 01, 2013 5:56 PM
To: Yager, Brenda B
Subject: Re: contract
IPRA
Defendants Brooks, and Chavez used the Communications Departments
default practice and delayed delivery for the maximum fifteen-days, as allowed by the
Inspection of Public Records Act, rather than, permit the inspection immediately or
as soon as is practicable under the circumstances, as required by the Act. Yager had a
copy and should have allowed for the inspection, immediately. If Yager forwarded a copy
to Chavez, he was required to permit the inspection immediately, but did not.
Walker told plaintiff he received a three-day notice and received the
contract after a fifteen-day wait.
__________
On August 23, 2010, plaintiff submitted several written requests to APS,
through its records custodian, Defendant Rigo Chavez, requesting the inspection of
certain public documents related to preparations for the APS District Relations
Committee hosting the APS 2010 Gubernatorial Education Debate on August 19, 2010.
APS Records Custodian Rigo Chavez made available some 400+
documents in response to the IPRAs.
Plaintiff knows the iesponses weie incomplete because theie weie
some e-mails tiansmitteu to anuoi fiom Executive Biiectoi of Communications
Nonica Aimenta, which weie not incluueu in the mateiial iequesteu in plaintiff's
August 2S, 2u1u, IPRA iequests.
Armenta used an email address: armenta_m@aps.edu.
There was an e-mail string containing a message generated by Armenta on
Aug 20, 2010, at 9:51 AM, but the IPRA response did the not include one she forwarded
to Janice Arnold-Jones, two-hours later, which was originated by James Hallinan, Press
Secretary for the Democratic Party of New Mexico working with the Diane Denish
campaign.
From: Monica Armenta <armenta_m@aps.edu>
To: Jearnoldjones@aol.com
Cc: Winston Brooks <brooks_w@aps.edu>; Joe Escobedo
<escobedo_j@aps.edu>; Steve Tellez <tellez_s@aps.edu>; Art
Melendres <amelendres@modrall.com>; Marty Esquivel
<mesquivel@narvaezlawfirm.com>
Sent: Fri, Aug 20, 2010 11:53 am
Subject: FW: FYI: MacQuigg Blog Today
To uate, thiee yeais aftei ieceiving Plaintiff's IPRA iequest,
Befenuants have not pioviueu all of the public uocuments in its possession that aie
iesponsive to Plaintiff's iequest.
Plaintiff iequests this Couit oiuei Befenuants to piouuce all of the
uocuments iesponsive to Plaintiff's iequest, in unieuacteu foim, anu awaiu Plaintiff
statutoiy uamages anu costs ieasonably incuiieu in biinging this action to enfoice
the IPRA.
__________
On August 30, 2010, plaintiff submitted a written request to APS, through
its records custodian, defendant Rigo Chavez, requesting the inspection of several certain
public documents related to the August 25, 2010, APS Audit Committee meeting.
All public records, emails, text messages between and amongst any
and all persons and entities including Superintendent Winston
Brooks, members of the Board of Educations Audit Committee,
Chairman David Robbins, President Martin Esquivel, David
Peercy, Robert Lucero, Dolores Griego, and Lorenzo Garcia; all
administrators, staff, and contractors present at the August 25,
2010 APS Audit Committee meeting.
All public records, emails, text messages from and to
Superintendent Winston Brooks beginning 1200 AM August 25,
2010, until you compile and are prepared to deliver the records for
inspection.
All recordings of the August 25, 2010 APS Audit Committee,
including, but not limited to, the official recording of the meeting
created by the staff, the belt recording of APS Police Officers,
specifically, Officer and the video captured by President Martin
Esquivel on his hand held electronic device.
All police reports made by APS Police for the last five years
naming Mark G. Bralley and or Charles Edward (Ched)
MacQuigg.
All public records, from, amongst, and to APS police
communications; for August 25, 2010, and since until you compile
and are prepared to deliver the records for inspection, included but
not limited to: telephonic, radio, e-mail, and text messages
All public records, emails, text messages, or telephone messages,
made received by APS Superintendent Winston Brooks, with or
amongst members of the Board of Education, administrators, staff,
and in particular all emails, text messages, or telephone messages,
made or received by APS Executive Director of Communications
Monica Armenta and or her staff of Rigo Chavez and John Miller
naming Mark G. Bralley and or Charles Edward (Ched) MacQuigg
since January 1, 2010.
All public records, in the form of video or visual recordings from
security cameras that show Mark G. Bralley and or Charles
Edward (Ched) MacQuigg in at or near the APS Buildings located
at 6400 Uptown Blvd., NE Albuquerque, NM 87110, on August
25, 2010.
APS Recoius Custouian Rigo nevei iesponueu to this IPRA iequests.
Plaintiff iequests this Couit oiuei Befenuants to piouuce all of the
uocuments iesponsive to plaintiff's iequest, in unieuacteu foim, anu awaiu Plaintiff
statutoiy uamages anu costs ieasonably incuiieu in biinging this action to enfoice
the IPRA.
__________
On October 11, 2012, plaintiff wrote an e-mail to defendant Chief Steve
Tellez seeking information, identification of APS Police employee, the Information
Technician, and seeking comment.
__________
On October 12, 2012, plaintiff received an e-mail from defendant APS
Records Custodian Rigo Chavez, indicating Tellez had forwarded plaintiffs request to
make an identification of two APS employees. Chavez made the identification of the
employees.
On October 12, 2012, plaintiff submitted in writing a further request to
inspect:
All document, records, emails, from devices owned by APS or not,
using APS email or similar accounts or not, to or from any APS
employee regarding "the incident" of Monday October 8 at 6400
Uptown Blvd. NE. This requests includes audio records,
surveillance video files. Any audio and/or video files recorded as
or for external, internal or archives by the unit or units who cover
similar forums and meetings.
I request the records pertaining to the incident beginning at
Monday October 8 at 4:30, through the last work day that you are
still researching but no earlier than October 14.
On October 15, 2012, defendant Rigo Chavez responded by U.S. Mail,
indicating he had requested the audio records and surveillance video files from APS
Police and would let plaintiff, know within 15 days, allowed by the Inspection of Public
Records Act of any records located. Chavez enclosed the APS Police Information
Report.
Chavez maue no fuithei iesponse to the IPRA.
On January 28, 2013, plaintiff attended an APS Press Conference at West
Mesa High School and spoke with defendant Chief Tellez.
Plaintiff asked Tellez how he could not have been captured on video the
entire time he was in the building; in the lobby and in the boardroom?
Defendant Tellez said the boardroom only had camera coverage at the
front of the room.
Chief Tellez said, they (employees from the Communications
Department?) came and looked at the video.
Plaintiff told Tellez he had not gotten a final response to my request for
inspection of public records.
To uate, 1u months aftei ieceiving Plaintiff's IPRA iequest,
Befenuants have not pioviueu all of the public uocuments in its possession that aie
iesponsive to plaintiff's iequest.
Plaintiff iequests this Couit oiuei uefenuants to piouuce any of the
uocuments iesponsive to Plaintiff's iequest, in unieuacteu foim, anu awaiu plaintiff
statutoiy uamages costs ieasonably incuiieu in biinging this action to enfoice the
IPRA.
__________
II. JURISDICTION AND VENUE
This Court has jurisdiction over this action pursuant to 42 U.S.C. 1983
and 1988 and 28 U.S.C. 1343, with pendent jurisdiction over the state law claims.
Venue is proper in this district pursuant to 28 U.S.C. 1391, as
Defendants are all residents of New Mexico and all the acts complained of occurred in
New Mexico.
This action is brought in a timely fashion consistent with the State of New
Mexico Statute of Limitations for Civil Cases. 37-1-8 Injury to person.
__________
III. PARTIES
Plaintiff Mark G. Bralley is a resident of Albuquerque, Bernalillo County,
New Mexico.
By statute, NMSA 22-5-4, the Defendant Albuquerque Public Schools
Board of Education is the public body responsible for the supervision and control of the
APS school district. As such, it is the proper institutional Defendant in this case.
Defendant Robert Lucero is former member of the APS Board, and is sued
in his individual capacity.
Defendant David Robbins is former member of the APS Board, and
Chairman of the Audit Committee, and is sued in his individual capacity.
Defendant Paula Maes is a former member of the APS Board, and
President of the Board, and is sued in her individual capacity.
Defendant Martin Esquivel is the President of the APS Board, and is sued
in his individual capacity.
Defendant Katherine Korte is Vice President of the Board, and is sued in
her individual capacity.
Defendant Winston Brooks is the Superintendent of the APS District, and
is sued in his individual capacity.
Defendant Bradley Winter, is Chief Operations Officer and oversees
Public Safety (School Police) and is sued in his individual capacity.
Defendant Monica Armenta is the Executive Director of Communications
of the APS District, and is sued in her individual capacity.
Defendant Rigo Chavez is the Records Custodian of the APS District, and
is sued in his individual capacity.
Defendant John Miller is a Communications Specialist of the APS
District, and is sued in his individual capacity.
Defendant Steve Tellez was the former acting chief and current Chief of
Police of the APS Police Department, and is sued in his individual capacity.
Defendant Steve Gallegos was the former acting deputy chief and current
Deputy Chief of Police of the APS Police Department, and is sued in his individual
capacity.
The Albuquerque Public Schools Police Department is not authorized by
State statute and has no basis in law for its existence. Officers of APS police are certified
by the States Department of Public Safety and are commissioned by Bernalillo County
Sheriff Dan Houston, who has no operational control over the department or its
administration.
The State Legislature has attempted to grant authority to Albuquerque
Public Schools as a political subdivision to maintain a police department, but all
legislative efforts have failed.
__________
IV. FACTUAL STATEMENT
APS is the largest public school system in New Mexico, educating almost
90,000 students in Albuquerque, Rio Rancho, Corrales, Los Ranchos de Albuquerque,
Tijeras, San Antonio, Edgewood, Laguna and Isleta Pueblos, Chilili, Tohajiilee, and the
Atrisco Land Grant. About 15,000 employees work for APS as well, making it the
second largest employer in the Albuquerque metro area.
The APS Board consists of seven separately elected members. The
members of the Board are responsible for the management and oversight of APS.
By law, the APS Board holds regular, special and committee meetings that
are open to the public. This requirement is set out in the New Mexico Open Meetings
Act, NMSA 1978, 10-15-1 et seq. (declaring that [a]ll meetings of any public body
except the legislature and the courts shall be public meetings, and all persons so desiring
shall be permitted to attend and listen to the deliberations and proceedings.), and in
Board Policy, BE Board of Education Meetings (declaring that [a]ll meetings of the
[APS] Board of Education shall comply with the Open Meetings Act.). The APS Board
also permits members of the public to comment regarding their concerns, complaints, or
commendations at regular meetings of the APS Board and, under certain circumstances,
at special or committee meetings of the APS Board.
At all relevant times mentioned in this complaint, the defendants were
acting under the color of law.
Plaintiff is a retired Albuquerque police officer who has also had a life-
long interest in photography and journalism. Before, during, and after his law
enforcement career, plaintiff has actively, if not sometimes sporadically, engaged in
journalism, mostly as a freelance photojournalist. Plaintiff is an award-winning still and
video photographer. With nearly 50-years of journalistic experience, plaintiffs work has
been published and broadcast: internationally, nationally, regionally, and locally, in
nearly every imaginable form of media, including: radio, television, pamphlets,
newspapers, magazines, books, and various other printed communications.
Plaintiff has photojournalistically covered many topics, including a
particular interest in various governmental events and political activities since the late
1960s, of international, national, state, city, and political subdivisions.
Except for a period of less than two years in the early 1970s, when
plaintiff was a full-time photographer employed by Newspaper Printing Corporation;
doing business as the Albuquerque News, plaintiff has been a freelance photojournalist,
meaning he takes assignments from media organizations or, more often, he independently
covers events that are likely to be newsworthy, or potentially of historic value. Plaintiff
has provided his work to outlets, which did not cover an event, or now provides archived
photographs for retrospectives, books, documentaries, and historical publications.
Since retirement in 2000, plaintiff has completed the Journalism track of
courses offered by the University of New Mexico Department of Communications and
Journalism. Journalism schools have made the paradigm shift from the traditional
newsprint model expanding into on-line methods of providing news and information,
using the world-wide-web.
Plaintiff maintains an on-line presence with a website, the blue
flyer.com, and by producing a Web-Log (Blog) called, Whats Wrong With This
Picture?, using his photographs to drive reporting, analysis, and commentary of mostly
local newsworthy events and politics. The site often attracts other media outlets to seek
work from plaintiffs extensive archives for use in other publications. Plaintiffs work has
been specifically used in on-line promotional material and on-air local programming, by
Albuquerque Public Schools two broadcast ventures: KANW 89.1 FM radio, and
KNME TV 5, a PBS joint-venture between APS and UNM.
Plaintiff, writes of the purpose of his Web-Log, Whats Wrong With This
Picture? in a posted profile:
M.G. Bralley
I am a retired law enforcement officer who has a life long interest
in photography and journalism. I focus mainly on issues of local
politics, though I will step off into state, national and international
issues. I have a history of watching government closely with a
particular eye on process. I look carefully for the unusual, quirky
and any exceptions that are granted which cause unfair treatment
amongst citizens or businesses. I view governmental activity first
through a constitutional lens. Then I assess adherence to process,
the rule of law and the rules that govern them. I look for and
attempt to expose hypocrisies and inconsistencies. I also look for
laws that do not forward the ideals of human rights. I will rail at
bad, unenforceable, unconstitutional laws and those who create and
attempt to enforce them. Original photographs, photographic and
video services are available upon request. All work is subject to
Copyright, all rights reserved.
Plaintiff began specifically observing Albuquerque Public Schools Board
of Education as a part of a Journalism school Intermediate Reporting class assignment, in
the fall of 2006, to cover a meeting and published. No Child Left Behind at Highland?,
on his blog.
Plaintiff would take a greater interest in APS upon covering other
meetings where the Board attempted to eliminate public comments from their televised
portion of their meeting, illegally discussing the matter, which was not on the agenda,
and watching a retired teacher, Charles Edward Ched MacQuigg, who is an ethics
activist, arrested and ejected from two meetings, in the same evening (a committee
meeting followed by a special Board meeting) for the content of his public comments.
Plaintiff looked into procurement procedures and open government issues
at APS and sensed a fair amount of animosity from APS Board members when publicly
claiming the APS Administration had investigated and assured the Board, plaintiffs
reporting was inaccurate. Plaintiff stands by his reporting, as the evidence of violations of
the procurement process and failing to abide by policy and procedures was indisputable.
Mr. MacQuigg is also an on-line pamphleteer posting a weblog,
DIOGENES' SIX, in which he takes a very critical look, specifically at APS, its
School Board of Education, the Superintendent, APS Administration and many other
aspects of the school system, from commentary on policies, practices, problems, and
newsworthy events.
Mr. MacQuigg through publishing DIOGENES' SIX also looks at other
governments and public officials at all levels from federal to state, to municipalities and
towns, commenting just as critically there as he does with APS.
Plaintiff eventually provided Mr. MacQuigg with access to his archives
for pictures of APS personnel and other governmental employees and elected officials to
illustrate his efforts.
Most of plaintiffs pictures Mr. MacQuigg publishes on DIOGENES' SIX
are working portraits. Such photographs show the subjects in public forums, often
talking, or contemplating, or listening, and watching the activities as they happen. Some
subjects do not appreciate their inability to control how their image is used.
Mr. MacQuiggs use of plaintiffs pictures of APS personnel and other
subjects to illustrate postings on DIOGENES' SIX, of particular subject(s), is sometimes
unwelcome.
Plaintiff started a long-term personal photojournalistic essay on Mr.
MacQuiggs interaction with APS and other governmental bodies where he has promoted
legislation and advocated for ethics and transparency in government.
Plaintiff and Mr. MacQuigg have worked together on numerous occasions
since 2008 and have been challenged by several governmental employees who refuse to
recognize or acknowledge on-line pamphleteers, commentators, observers, and
journalists, as being protected by the First Amendment to the Constitution of the United
States, and the New Mexico Constitution Amendment, Article II Bill of Rights, Sec. 4.
[Inherent rights.] and barred or ejected from newsworthy events where large commercial
newspapers and broadcasters are invited.
__________
The First Amendment Violations
The APS Board is the governing body of APS. By law and policy, the
public meetings of the APS Board are open.
Being subject to the States Open meeting Act, all board and committee
meetings must provide for:
A. and all persons desiring shall be permitted to attend and
listen to the deliberations and proceedings. Reasonable efforts shall
be made to accommodate the use of audio and video recording
devices.
NMSA 1978, 10-15-1. Formation of Public Policy.
On August 9, 2010, plaintiff became aware APS was talking about
requirements for issuing press credentials, with a select group of media members, of their
choosing.
__________
On August 11, 2010, plaintiff and Mr. MacQuigg went to the Alice and
Bruce King Educational Complex, (APS Headquarters) to ascertain what was necessary
for us to cover the debate as members of the press. We asked defendant APS
Communications Specialist John Miller, whose name was associated with a media
advisory as the contact person for the APS 2010 Gubernatorial Education Debate on Aug.
19, about how to obtain credentials.
Plaintiff presented Miller with his business card and asked that plaintiff be
placed on APS media advisory list; Miller said he would. To date, plaintiff has received
no media advisory from Miller or the APS Communications Department.
D. That notice shall include broadcast stations licensed by the
federal communications commission and newspapers of general
circulation that have provided a written request for such notice.
NMSA 1978, 10-15-1. Formation of Public Policy.
The list of those seeking notice of public meeting includes broadcast
stations and newspapers, but is not an exhaustive list.
__________
Defendants entered into an illegal agreement with the political campaigns
of the Republican and Democratic New Mexico Gubernatorial candidates to limit the size
of the venue to deny all persons desiring shall be permitted to attend and listen to the
deliberations and proceedings, though the forum was presented as a District Relations
Committee Meeting, subject to the Open Meeting Act.
By limiting the size of the venue, the defendants and the political
campaigns also limited the ability for, all persons desiring, to have reasonable
accommodations for, the use of audio and video recording devices.
Defendants set unreasonable rules for the media that did attend.
APS agrees to:
Credential media for debate attendance.
Armenta wrote in an e-mail:
Notes from the walk-through
,,, If we receive criticism for limited seating, simply say its
due to the venue.
Security has permission to toss out hecklers.
No photography, cell phones.
Give still photographers access at the beginning of debate
(intros?), then they have to return to media section in back.
Defendants gave further notice of restricted coverage in two letters from
APS Communications Specialist John Miller, August 17 Photo Shooting Instructions for
APS Gubernatorial Debate and August 18 Final Guide to the 2010 Gubernatorial
Education Debate.
__________
August 16, 2010, Heath Haussamen Editor and publisher, NMPolitics.net,
wrote Miller:
M.G. Bralley plans to cover the Aug. 19 gubernatorial debate for,
NMPolitics.net, Please credential him to cover the event.
__________
August 17, 2010, Miller wrote Haussamen:
Im writing to inform you that we will be unable to accommodate
your request for a media credential for the APS 2010 Gubernatorial
Education Debate on Aug. 19. Unfortunately, space is very limited
at Eldorado High School and we not going to be able to fit
everyone who wanted to attend the debate.
APS offered a larger space, such as a gym, for the debate, but the
two candidates preferred a smaller venue, like a performing arts
center. Eldorados seats 400. We expect to be at full capacity.
__________
The August 19, 2010, Gubernatorial Debate at Eldorado High School
Plaintiff was ultimately denied his First Amendment protections against
government, Congress shall make no law abridging the freedom of speech, or of the
press; or the right of the people peaceably to assemble by the defendants, Brooks,
Armenta, and Miller not permitting entry to the debate, or recognizing, and credentialing
plaintiff as a member of the press.
__________
The September 1, 2010, APS School Board meeting barring
Defendant Deputy Chief of Police Steve Gallegos specifically barred
plaintiffs entry to the School board meeting in violation of the Open
Meetings Act.
__________
The October 8, 2012, APS School Board forum of APS Taking Input on Family,
Community Engagement Policy, Procedures
Defendant APS Board member Katherine Korte, physically applied force
to plaintiffs camera lens by putting her left hand on it and through it, pushed it to his
body, in an attempt to prevent her picture from being taken. Defendant caused plaintiff to
be arrested, ejected, and to have APS officials ban him from APS property.
Defendants, President of the Board Paula Maes, Superintendent Winston
Brooks, and Chief Operations Officer Bradley Winter signed a banning letter prohibiting
plaintiffs entry to any meeting on any APS property.
The defendants repeated and now continuous actions have culminated in
multiple violations of plaintiffs First Amendment rights.
__________
The Fourth Amendment Violations
The right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures,
shall not be violated, and no Warrants shall issue, but upon
probable cause, supported by Oath or affirmation, and particularly
describing the place to be searched, and the persons or things to be
seized.
Fourth Amendment
The people shall be secure in their persons, papers, homes and
effects, from unreasonable searches and seizures, and no warrant to
search any place, or seize any person or thing, shall issue without
describing the place to be searched, or the persons or things to be
seized, nor without a written showing of probable cause, supported
by oath or affirmation.
Article II Bill of Rights Sec. 10. [Searches and seizures.]
of the State of New Mexico Constitution.
__________
Defendants violated plaintiffs rights guaranteed by the Fourth
Amendment against his person being seized without a warrant and unreasonably acted
where no probable cause existed that a crime occurred or had been committed by
plaintiff.
The violations occurred:
1. At the August 25, 2010, Audit Committee meeting when
defendants Committee Chair David Robbins, APS Board
President Martin Esquivel, and APS Chief Operations
Officer Brad Winter ordered and caused plaintiff to be
removed from the meeting.
2. On October 8, 2012, when defendant APS Board member
Katherine Korte, caused plaintiff to be removed from
attending a forum, APS Taking Input on Family,
Community Engagement Policy, Procedures.
__________
The Fifth Amendment Violations
No person shall be held to answer for a capital, or otherwise
infamous crime, unless on a presentment or indictment of a Grand
Jury, except in cases arising in the land or naval forces, or in the
Militia, when in actual service in time of War or public danger; nor
shall any person be subject for the same offense to be twice put in
jeopardy of life or limb; nor shall be compelled in any criminal
case to be a witness against himself, nor be deprived of life, liberty,
or property, without due process of law; nor shall private property
be taken for public use, without just compensation.
Fifth Amendment
Emphasis added.
No person shall be deprived of life, liberty or property without due
process of law; nor shall any person be denied equal protection of
the laws. Equality of rights under law shall not be denied on
account of the sex of any person.
Bill of Rights Article II,
Sec. 18. [Due Process; Equal Protection]
State of New Mexico Constitution
Plaintiff has a liberty interest as a freelance photojournalist to engage in
his craft without the government willfully, intentionally, maliciously, arbitrarily, and
capriciously denying plaintiff of his rights without due process of law.
With respect to its requirement of notice and opportunity to
rebut, the Court relied on its determination that denial of a White
House press pass constitutes a deprivation of "liberty" without due
process of law within the meaning of the fifth amendment because
it interferes with the free exercise of the profession of journalism.
We further conclude that notice, opportunity to rebut, and a
written decision are required because the denial of a pass
potentially infringes upon first amendment guarantees. Such
impairment of this interest cannot be permitted to occur in the
absence of adequate procedural due process.
Robert Sherrill v. H. Stuart Knight,
186 U.S. App. D.C. 293; 569
F.2d 124; 1977 U.S. App.
The violations occurred:
1. When the APS District Relations Committee announced
they were hosting the APS 2010 (New Mexico)
Gubernatorial Education Debate on August 19, 2010,
plaintiff sought media credentials from the APS
Communications Department.
2. Defendants Executive Director of Communications Monica
Armenta and Communications Specialist John Miller
joined the political campaigns to limit the size of the venue
for the gubernatorial debate.
3. Plaintiff made a number of attempts to gain recognition as
the press.
4. August 17, 2010, defendant Miller wrote Haussamen:
Im writing to inform you that we will be unable to
accommodate your request for a media credential
for the APS 2010 Gubernatorial Education Debate
on Aug. 19. Unfortunately, space is very limited at
Eldorado High School and we not going to be able
to fit everyone who wanted to attend the debate.
5. At the August 25, 2010, Audit Committee meeting when
defendants Committee Chair David Robbins, APS Board
President Martin Esquivel, and APS Chief Operations
Officer Brad Winter ordered and caused plaintiff to be
removed from the meeting.
6. On September 1, 2010, when defendant Deputy Chief of
Police Steve Gallegos refused plaintiff entry to the School
Board meeting.
7. On October 8, 2012, when defendant APS Board member
Katherine Korte, caused plaintiff to be removed from
attending a forum, APS Taking Input on Family,
Community Engagement Policy, Procedures.
__________
The Sixth Amendment Violations
In all criminal prosecutions, the accused shall enjoy the right to a
speedy and public trial, by an impartial jury of the State and
district wherein the crime shall have been committed, which
district shall have been previously ascertained by law, and to be
informed of the nature and cause of the accusation; to be
confronted with the witnesses against him; to have compulsory
process for obtaining witnesses in his favor, and to have the
Assistance of Counsel for his defence.
Sixth Amendment
In all criminal prosecutions, the accused shall have the right to
appear and defend himself in person, and by counsel; to demand
the nature and cause of the accusation; to be confronted with the
witnesses against him; to have the charge and testimony
interpreted to him in a language that he understands; to have
compulsory process to compel the attendance of necessary
witnesses in his behalf, and a speedy public trial by an impartial
jury of the county or district in which the offense is alleged to have
been committed.
Article II Bill of Rights Sec. 14.
[Indictment and information; grand juries; rights of accused.]
of the State of New Mexico Constitution.
__________
Defendants, having violated plaintiffs First, Fourth, and Fifth
Amendment rights causes him to lose the protection of the Sixth Amendment to have the
allegations made against him reviewed by an appropriate magistrate and the District
Attorney to weigh the complaints made against him for the sufficiency of the facts, any
investigation, and compliance with law.
Plaintiff is deprived of the Sixth Amendments protections to fend off the
acts and reasoning of the defendants claims in an appropriate tribunal a criminal court.
Theyre being no other manner or means of relief under the law; plaintiffs
rights to be protected by the Sixth Amendments are likewise violated.
__________
The Fourteenth Amendment Violations
Section 1. All persons born or naturalized in the United States, and
subject to the jurisdiction thereof, are citizens of the United States
and of the State wherein they reside. No State shall make or
enforce any law which shall abridge the privileges or immunities
of citizens of the United States; nor shall any State deprive any
person of life, liberty, or property, without due process of law; nor
deny to any person within its jurisdiction the equal protection of
the laws.
Fourteenth Amendment
No person shall be deprived of life, liberty or property without due
process of law; nor shall any person be denied equal protection of
the laws. Equality of rights under law shall not be denied on
account of the sex of any person.
Bill of Rights Article II,
Sec. 18. [Due Process; Equal Protection]
State of New Mexico Constitution
Defendants, acting under color of law, have deprived plaintiff of liberty,
and/or property, without due process of law; and denied to plaintiff within its jurisdiction
the equal protection of the laws.
The State of New Mexico Constitution does not contradict or violate the
Fourteenth Amendment, but specifically acknowledges the same rights.
The defendants acted on their own in violation of Federal and State
Constitutions.
__________
As to the request for a Writ of Mandamus to enforce the New Mexico
Open Meetings Act, and to enforce the New Mexico Inspection of Public Records Act.
Mandamus Act, 28 U.S. C. 1361, and against the agency defendants
under the Administrative Procedure Act, 5 U.S.C. 706.
A writ of mandamus is an order from a court to an inferior government
official ordering the government official to properly fulfill their official duties or correct
an abuse of discretion.
Defendants have a mandatory, nondiscretionary duty to follow the New
Mexico Open Meetings Act, NMSA 1978, , 10-15-1 et seq,
Specifically, Defendants have engaged in illegal actions in:
1. Limiting the size of a venue(s) in order to prevent all
persons desiring shall be permitted to attend and listen to
the deliberations and proceedings.
2. Creating there own definitions of the Press which, denied
plaintiff and others from being issued credentials on the
whim of the APS Communications Department based on
their preference for commercial outlets with Federal
Communications Commissions Broadcast License or a
newspaper of general circulation, while expressing a bias
against other press outlets, including and specifically world
wide web based outlets, which use web log technology, as
does plaintiff as one of several means he uses, along with
traditional technologies.
3. By ejecting plaintiff and others without justification from
open meetings.
4. By not making reasonable efforts to accommodate the use
of audio and video recording devices.
5. By willfully, intentionally, maliciously, arbitrarily and
capriciously requiring plaintiff to relocate after initially
moving him to a place within the room of their choice and
placing him behind the Board where members could not be
seen and recorded.
6. For arresting, ejecting, banning, and barring plaintiff and
others from attending, and participating in the public
meetings of the APS Board, its committees, forums, and
other events, such as press conferences, for having raised
questions about the proper implementation of the Open
Meetings Act.
NMSA 1978, 10-15-1. Formation of Public Policy.
__________
The Request for Records under the New Mexico Inspection of Public Records Act,
NMSA 1978, 14-2-1 et seq.
Defendants have a mandatory, nondiscretionary duty to follow the New
Mexico Inspection of Public Records Act, NMSA 1978, 14-2-1 et seq.
Befenuant Biiectoi of the Communications Bepaitment Rigo Chavez
is APS' Recoius Custouian. Chavez ioutinely engages in iequiiing plaintiff anu some
otheis, incluuing Ni. NacQuigg to follow "iules" that aie placeu by APS as
impeuiments to an oiueily piocess in complying with the State's Inspection of
Public Recoius Act.
On August 23, 2010, plaintiff submitted several written requests to APS,
through its records custodian, Defendant Rigo Chavez, requesting the inspection of
certain public documents related to preparations for the APS District Relations
Committee hosting the APS 2010 Gubernatorial Education Debate on August 19, 2010.
On August 30, 2010, plaintiff submitted a written request to APS, through
its records custodian, defendant Rigo Chavez, requesting the inspection of certain public
documents related to the August 25, 2010 APS Audit Committee meeting.
On October 15, 2012, in response to plaintiffs October 12, 2012, request,
defendant Rigo Chavez responded by U.S. Mail, indicating he had requested the audio
records and surveillance video files from APS Police and would let plaintiff, know
within 15 days, allowed by the Inspection of Public Records Act of any records located.
Chavez enclosed the APS Police Information Report which had been sought directly from
the APS Police Department which has its own method of releasing police reports.
Chavez maue no fuithei iesponse to the IPRA.
__________
Plaintiff is aware through association of other members of the press that
APS Communications Department routinely handles requests for information from
members of the press they wish to recognize and respond immediately, or as quickly as
possible.
Plaintiff is further aware that the APS Communications Department and
specifically, defendant Director of the Communications Department Rigo Chavez, as the
Records Custodian, does not respond to requests in the same way, from those he does not
wish to recognize as members of the press. In handling such requests, Chavez does not
follow the Inspection of Public Records Act, which requires:
14-2-9. Procedure for Inspection.
D. A custodian receiving a written request shall permit
the inspection immediately or as soon as is
practicable under the circumstances,
Chavez takes a uefault position to uelay anu obfuscate the iequests of
non-iecognizeu membeis of the piess, oi peisons with whom they uo not wish to
ueal.
D. but not later than fifteen days after receiving a
written request. If the inspection is not permitted
within three business days, the custodian shall
explain in writing when the records will be
available for inspection or when the public body
will respond to the request. The three-day period
shall not begin until the written request is delivered
to the office of the custodian.
NMSA 1978 14-2-9-D, et seq. (IPRA).
Emphasis added.
__________
V. CLAIMS
FEDERAL LAW CLAIMS
__________
COUNT 1 CLAIM UNDER 42 U.S.C. 1983 FOR VIOLATION OF
PLAINTIFFS FIRST AMENDMENT RIGHT TO FREEDOM OF THE PRESS
PRIOR RESTRAINT

Plaintiff incorporates by reference all preceding allegations.
At all material times, the Defendants conduct was under color of federal
law, statute or authority.
The First Amendment protects plaintiffs right to attend, listen to the
deliberations, proceedings, and to participate as a member of the public and/or of the
press in: observing, recording, documenting, photographing, reporting and publishing the
activities of public meetings of the APS Board, its committees, forums, and other events,
such as press conferences.
Defendants deprived plaintiff of his First Amendment rights by refusing to
provide a venue large enough to accommodate all persons desiring to attend, and not
permitting plaintiff the free exercise of the public and/or of the press.
Defendants barring plaintiff from attending the APS District Relations
Committee meeting of the APS 2010 (New Mexico) Gubernatorial Education Debate on
August 19, 2010, is an impermissible prior restraint on plaintiffs protected activities.
__________
COUNT 2 CLAIM UNDER 42 U.S.C. 1983 FOR VIOLATION OF
PLAINTIFFS FIRST AMENDMENT RIGHT TO FREEDOM OF PRESS

Plaintiff incorporates by reference all preceding allegations.
At all material times, the Defendants conduct was under color of federal
law, statute or authority.
The First Amendment protects plaintiffs right to attend, listen to the
deliberations, proceedings, and to participate as a member of the press in: observing,
recording, documenting, photographing, reporting and publishing the activities of open
meetings of the APS Board.
Defendants deprived plaintiff of his First Amendment rights by arresting
and ejecting him, not permitting plaintiff the free exercise as a person, and/or of the press,
during the August 25, 2010, Audit Committee meeting.
Defendants barring plaintiff from attending the end of the August 25,
2010, Audit Committee meeting, is an impermissible action of plaintiffs protected
exercise of his free press activities, and his right to peaceably to assemble under the First
Amendment.
Defendants deprived plaintiff of his First Amendment rights by ejecting or
prohibiting him from exercising his right to attend, listen to the deliberations,
proceedings, and to participate as a member of the press in: observing, recording,
documenting, photographing, reporting and publishing the activities of open meetings of
the APS Boards Audit Committee.
Defendants took these actions because plaintiff asserted his protected
rights and questioned repeated unreasonable placement of plaintiffs video and audio
recording devices, under state law.
Defendants actions were not narrowly drawn to effectuate a substantial or
compelling governmental interest.
__________
COUNT 3 CLAIM UNDER 42 U.S.C. 1983 FOR VIOLATION OF
PLAINTIFFS FIRST AMENDMENT RIGHT TO FREEDOM OF PRESS

Plaintiff incorporates by reference all preceding allegations.
At all material times, the Defendants conduct was under color of federal
law, statute or authority.
The First Amendment protects plaintiffs right to attend, listen to the
deliberations, proceedings, and to participate as a member of the press in: observing,
recording, documenting, photographing, reporting and publishing the activities of open
meetings of the APS Board.
Defendants deprived plaintiff of his First Amendment rights by barring his
entry and not permitting plaintiff the free exercise of the press, during the September 1,
2010, APS Board meeting.
Defendants deprived plaintiff of his First Amendment rights by barring his
entry to the September 1, 2010, APS Board meeting and not permitting plaintiff the free
exercise of the press.
The First Amendment Congress shall make no law abridging the
freedom or of the press; or the right of the people peaceably to assemble protects
plaintiff in exercising his right to attend, listen to the deliberations, proceedings, and to
participate as a member of the public, and the press in: observing, recording,
documenting, photographing, reporting and publishing the activities of open meetings of
the APS Board.
Defendants deprived plaintiff of his First Amendment rights by barring
and prohibiting him from exercising his protected rights during the public meeting of the
APS Board.
Defendant Deputy Chief of Police Steve Gallegos took this action, barring
plaintiffs entry to the Board meeting, by saying, You, specifically, are not allowed in,
which was in direct contradiction of defendant APS Police Chief Steve Tellezs statement
to plaintiff, Youre allowed in. Tellez refused to talk with plaintiff to override
Gallegos barring decree against plaintiffs protected rights.
Defendants actions were not narrowly drawn to effectuate a substantial or
compelling governmental interest.
__________
COUNT 4 CLAIM UNDER 42 U.S.C. 1983 FOR VIOLATION OF
PLAINTIFFS FIRST AMENDMENT RIGHT TO FREEDOM OF PRESS

Plaintiff incorporates by reference all preceding allegations.
At all material times, the defendants conduct was under color of federal
law, statute or authority.
The First Amendment protects plaintiffs right to attend, listen to the
deliberations, proceedings, and to participate as a person and/or as member of the press
in: observing, recording, documenting, photographing, reporting and publishing the
activities of public meetings of the APS Board, its committees, forums, and other events,
such as press conferences.
Defendant APS Board member Katherine Korte, deprived plaintiff of his
First Amendment rights: by applying force with her hand to plaintiffs camera lens,
creating a physical censorship, and preventing plaintiff from the free exercise of his
protected rights, and causing plaintiff to be arrested and ejected from APS property.
Defendants barring plaintiff from attending the October 8, 2012, forum,
APS Taking Input on Family, Community Engagement Policy, Procedures, is an
impermissible prior restraint on plaintiffs protected activities.
__________
COUNT 5 CLAIM UNDER 42 U.S.C. 1983 FOR VIOLATION OF
PLAINTIFFS FIRST AMENDMENT RIGHT TO FREEDOM OF PRESS

Plaintiff incorporates by reference all preceding allegations.
At all material times, the Defendants conduct was under color of federal
law, statute or authority.
The First Amendment protects plaintiffs right to attend, listen to the
deliberations, proceedings, and to participate as a person desiring to attend and/or a
member of the press in: observing, recording, documenting, photographing, reporting and
publishing the activities of public meetings of the APS Board, its committees, forums,
and other events, such as press conferences.
Defendants deprived plaintiff of his First Amendment rights by banning
plaintiff from attending all meetings on APS property.
Defendants banning plaintiff from attending all meetings on APS
property is an impermissible prior restraint on plaintiffs protected activities.
__________
COUNT 6 CLAIM UNDER 42 U.S.C. 1983 FOR VIOLATION OF
PLAINTIFFS FIRST AMENDMENT RIGHT TO FREEDOM OF PRESS
RETALIATION

Plaintiff incorporates by reference all preceding allegations.
At all material times, the Defendants conduct was under color of federal
law, statute or authority.
The First Amendment protects plaintiffs right to attend, listen to the
deliberations, proceedings, and to participate as a person desiring to attend and/or a
member of the press in: observing, recording, documenting, photographing, reporting and
publishing the activities of public meetings of the APS Board, its committees, forums,
and other events, such as press conferences.
Defendants deprived plaintiff of his First Amendment rights by banning
plaintiff from attending all meetings on APS property.
Defendants actions caused plaintiff to suffer injuries that would chill a
person of ordinary firmness from continuing to engage in the protected activities.
Defendants actions were substantially motivated as a response to
plaintiffs exercise of constitutionally protected activities.
__________
COUNT 7 -- CLAIM UNDER 42 U.S.C. 1983 FOR VIOLATION OF
PLAINTIFFS FOURTH AMENDMENT RIGHT AGAINST UNREASONABLE
SEIZURE

Plaintiff incorporates by reference all preceding allegations.
At all material times, the defendants conduct was under color of federal
law, statute or authority.
The Fourth Amendment protects plaintiffs right to attend and to
participate in the public meetings of the APS Board without being seized, arrested, and
ejected, without criminal charges being filed, and where there was no probable cause to
believe a crime had been committed for which defendants could lawfully seize the
plaintiff.
Plaintiffs Fourth Amendment rights to be secure from unreasonable
seizure of the body of his person without a warrant was violated when the defendants
acted unreasonably where no probable cause existed to believe a crime occurred, or that
plaintiff had committed any crime.
Defendants actions against plaintiffs Fourth Amendment rights were
taken: willfully, intentionally, maliciously, arbitrarily and capriciously.
__________
COUNT 8 -- CLAIM UNDER 42 U.S.C. 1983 FOR VIOLATION OF
PLAINTIFFS FIFTH AMENDMENT RIGHT TO DUE PROCESS

Plaintiff incorporates by reference all preceding allegations.
At all material times, the defendants conduct was under color of federal
law, statute or authority.
The Fifth Amendment protects plaintiffs right to engage in commerce
through his press activities and to participate in the public meetings of the APS Board,
without defendants abridging his freedom of the press, or his right to peaceably assemble
and to prohibit him from practicing his craft as a freelance photojournalist.
The Fifth Amendment protects plaintiffs rights in a liberty interest.
Defendants failed to provide plaintiff with an opportunity to be heard at a
meaningful time and in a meaningful manner, or to provide any other method to appeal
the intentionally, malicious, arbitrary and capricious actions of the defendants in
disrupting plaintiffs business.
Defendants actions against plaintiffs Fifth Amendment rights deprived
him of his liberty interest, without due process of law.
__________
COUNT 9 -- CLAIM UNDER 42 U.S.C. 1983 FOR VIOLATION OF
PLAINTIFFS SIXTH AMENDMENT RIGHT TO A FAIR TRIAL

Plaintiff incorporates by reference all preceding allegations.
At all material times, the defendants conduct was under color of federal
law, statute or authority.
The Sixth Amendment protects plaintiffs right to have allegations made
by defendants subject to review by the District Attorney for prosecutorial consideration
and if found to have any lawful validity, plaintiff is entitled to a fair and impartial jury
with all attendant rights including: a speedy and public trial, by an impartial jury, for him
to be informed of the nature and cause of the accusation; to be confronted with the
witnesses against him; to have compulsory process for obtaining witnesses in his favor,
and to have the assistance of counsel for his defense.
Defendants actions against plaintiff expose him to the slander and libel
caused by the publicity sought by the defendants in an effort to damage plaintiffs: honor,
name, reputation and credibility and to deprive him of any lawful recourse or protection,
except through this cause of action.
Defendants actions against plaintiffs Sixth Amendment protections were:
willful, intentional, malicious, arbitrary and capricious depravation of his rights.
__________
COUNT 10 -- CLAIM UNDER 42 U.S.C. 1983 FOR VIOLATION OF
PLAINTIFFS FOURTEENTH AMENDMENT RIGHT TO DUE PROCESS

Plaintiff incorporates by reference all preceding allegations.
At all material times, the defendants conduct was under color of federal
law, statute or authority.
The First Amendment protects plaintiffs right to attend, listen to the
deliberations, proceedings, and to participate in: observing, recording, documenting,
photographing, reporting and publishing the activities of public meetings of the APS
Board, its committees, forums, and other events, such as press conferences, without being
deprived unlawfully by defendants actions in refusing to provide a venue large enough
to accommodate all persons desiring to attend, and not permitting plaintiff the free
exercise as a member of the public and/or of the press.
The First Amendment protects plaintiffs right to attend meetings without
being; arrested, ejected, bared, and banned, for asserting his right, and questioning the
legality of arbitrary and capricious actions and rulings of the defendants contrary to state
law, and APS policies.
The Fourth Amendment protects plaintiffs right to attend, and participate
in the public meetings of the APS Board, its committees, forums, and other events, such
as press conferences, without being seized, arrested, and ejected, without criminal
charges being filed, and where there was no probable cause to believe a crime had been
committed for which defendants could lawfully seize the plaintiff.
The Fifth Amendment protects plaintiffs right to engage in commerce
through his press activities and to participate in the public meetings of the APS Board, its
committees, forums, and other events, such as press conferences, without defendants
abridging his freedom of the press, or his right to peaceably assemble and to prohibit him
from practicing his craft as a freelance photojournalist, depriving him of his liberty
interest, without due process of law.
The Sixth Amendment protects plaintiffs right to have allegations made
by defendants subject to review by the District Attorney for prosecutorial consideration
and if found to have any lawful validity, plaintiff is entitled to a fair trial.
Plaintiffs: First, Fourth, Fifth, and Sixth Amendment rights constitute a
liberty interest protected by the Fourteenth Amendment.
Defendants failed to provide plaintiff with an opportunity to be heard at a
meaningful time and in a meaningful manner.
Defendants actions against plaintiffs: First, Fourth, Fifth, and Sixth
Amendment protections were: willful, intentional, malicious, arbitrary and capricious
depravation of his rights.
__________
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3+,/$%/2245 2/-5% ,$) 2"#-%**$%6 ,7*$)7*$% -/86%5

Plaintiff incoipoiates by iefeience the claims, facts, anu allegations set
foith in the above paiagiaphs.
As uemonstiateu above in the pieceuing paiagiaphs, uefenuants have
violateu plaintiff's Fiist, Fouith, Fifth, anu Sixth, anu Fouiteenth Amenument iights
by iestiaining his iight to attenu anu speak at the public meetings of the APS Boaiu,
its committees meetings, foiums, anu othei events, such as piess confeiences. As
such, Plaintiff is entitleu to ueclaiatoiy ielief that uefenuants have violateu his
constitutional iights.
Because uefenuants have violateu plaintiff's Fiist, Fouith, Fifth, anu
Sixth, anu Fouiteenth Amenument iights by iestiaining his iight to attenu, listen to
the uelibeiations, pioceeuings, anu to paiticipate in: obseiving, iecoiuing,
uocumenting, photogiaphing, iepoiting anu publishing the activities at the public
meetings of the APS Boaiu, its committees, foiums, anu othei events, such as piess
confeiences, plaintiff is entitleu to an injunction oiueiing the uefenuants to ievoke
the oiuei banning him fiom any meetings on APS piopeity.
__________
STATE LAW CLAIMS

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Plaintiff incoipoiates by iefeience the claims, facts, anu allegations set
foith in the above paiagiaphs.
Befenuants, Executive Biiectoi of Communications Nonica Aimenta,
Communications Specialist }ohn Nillei, Supeiintenuent Winston Biooks, APS Chief
0peiations 0fficei Biau Wintei, APS Police Chief Steve Tellez, Beputy Chief of Police
Steve uallegos, Boaiu's Auuit Committee Chaii Baviu Robbins, Boaiu membei
Robeit Luceio, Boaiu Piesiuent Naitin Esquivel, Boaiu Piesiuent Paula Naes, anu
Boaiu membei Katheiine Koite, engageu singulaily, oi in vaiying combinations in
one oi moie actions, anu on one oi moie occasions, which uepiiveu plaintiff of his
iight as a peison uesiiing to attenu, listen to the uelibeiations pioceeuings, anu to
have ieasonable accommouations maue foi the use of auuio anu viueo iecoiuing
uevices, in violation of the New Nexico 0pen Neetings Act.
NNSA 1978 1u-1S-1
Puisuant to:
NNSA 1978 1u-1S-4. Penalty; Any peison violating any of the
piovisions of NNSA 1978, Section 1u-1S-1 oi 1u-1S-2 is guilty
of a misuemeanoi anu upon conviction shall be punisheu by a
fine of not moie than five hunuieu uollais ($Suu) foi each
offense.
__________
!"#$% '< ( 1/"+,%/"$ "2 %6* $*: 7*;/!" /$53*!%/"$ "2 3#=+/!
-*!"-)5 ,!%

Plaintiff incoipoiates by iefeience the claims, facts, anu allegations set
foith in the above paiagiaphs.
Befenuant APS Biiectoi of the Communications Bepaitment, anu
Recoius Custouian Rigo Chavez has violateu the New Nexico Inspection of Public
Recoius Act by failing to piouuce the public iecoius piopeily iequesteu in wiiting
by the plaintiff in a timely anu complete mannei, as iequiieu by the IPRA.
Befenuants have unlawfully uenieu the iequest maue by plaintiff by
failing to iesponu to plaintiff's iequest within a ieasonable time peiiou, as iequiieu
by NNSA 1978 14-2-1u.
Befenuants, if ielying on any exception unuei the IPRA as a basis foi
withholuing iecoius, faileu to issue a piopei uenial of the iecoius iequests using the
uenial pioceuuie set foith in NNSA 1978 14-2-11(B).
__________
!"#$% '> ( )*!+,-,%"-. ,$) /$0#$!%/1* -*+/*2 2"- 1/"+,%/"$ "2 %6*
$*: 7*;/!" /$53*!%/"$ "2 3#=+/! -*!"-)5 ,!%

Plaintiff incoipoiates by iefeience the claims, facts, anu allegations set
foith in the above paiagiaphs.
As uemonstiateu above in the pieceuing paiagiaphs, uefenuants have
violateu the piovisions of the New Nexico Inspection of Public Recoius Act by
withholuing fiom inspection the public iecoius plaintiff iequesteu. As such, plaintiff
is entitleu to ueclaiatoiy ielief that uefenuants have violateu the IPRA.
The New Nexico IPRA pioviues thatL
(a)n action to enfoice the IPRA may be biought by ... a peison
whose wiitten iequest has been uenieu" anu that, "a uistiict
couit may issue a wiit of manuamus oi oiuei an injunction oi
othei appiopiiate iemeuy to enfoice the piovisions of the
IPRA.
NNSA 1978 14-2-12.
Because uefenuants have violateu the IPRA by uenying plaintiff all of
the public iecoius he iequesteu, plaintiff is entitleu to an injunction oiueiing the
uefenuants to piouuce all ielevant uocuments in the Befenuants possession in
unieuacteu foim.
Puisuant to NNSA 1978 14-2-11C anu NNSA 1978 14-2-12B,
plaintiff is entitleu to statutoiy uamages, costs anu ieasonable attoineys' fees.
Plaintiff acting Pio Se is not eligible foi an awaiu of attoineys' fees, but is entitleu to
statutoiy uamages anu costs.
__________
VI. PREVIOUS LAWSUITS AND ADMINISTRATIVE RELIEF
Plaintiff hau not biought any lawsuit uealing with the same facts anu
issues in eithei state oi feueial couits.
Theie is no auministiative piocess available at law to the plaintiff to
heai anu iesolves the issues aiising in this cause of action.
__________
VII. REQUESTED RELIEF
WHEREFORE, Plaintiff respectfully requests the following relief:
A. That this Court enter a Declaratory Judgment adjudicating that the order
banning plaintiff from attending the public meetings of the APS Board violates the First,
Fourth, Fifth, and Sixth, and Fourteenth Amendments;
B. That this Court issue an Injunction prohibiting defendants from excluding
plaintiff from the public meetings of the APS Board, its committees, forums, and other
events, such as press conferences, or otherwise censoring his journalistic efforts at APS
meetings and events;
C. That this Court award nominal and compensatory damages against
Defendants for their violation of plaintiffs clearly established constitutional rights;
D. That this Court award plaintiff his costs and expenses of this action, in
accordance with 42. U.S.C. 1988 (a);
E. That this Court enter a Declaratory Judgment adjudicating that defendants
violations of the New Mexico Open Meetings Act occurred, and issue a writ of
mandamus requiring defendants to fulfill their mandatory, nondiscretionary duty to
follow the New Mexico Open Meetings Act.
F. That this Couit entei }uugment in favoi of plaintiff on uefenuant's
violation(s) of the New Nexico 0pen Neetings Act.
u. That this Couit entei an Injunction to enfoice the piovisions of the
New Nexico 0pen Neetings Act.
H. That this Court enter a Declaratory Judgment adjudicating that the denial
of the public records requested by plaintiff is in violation of the New Mexico Inspection
of Public Records Act, and issue a writ of mandamus requiring defendants to produce the
requested records;
I That this Couit entei }uugment in favoi of plaintiff on uefenuant's
violation(s) of the Inspection of Public Recoius Act;
} That this Couit entei an Injunction to enfoice the piovisions of the
New Nexico Inspection of Public Recoius Act;
K. That this Couit awaiu plaintiff actual anu statutoiy uamages foi
violations of the Inspection of Public Recoius Act;
L. That this Couit entei an oiuei awaiuing plaintiff his costs as pioviueu
by the Inspection of Public Recoius Act; anu
N. That this Couit awaiu plaintiff actual anu statutoiy uamages foi
violations of the Inspection of Public Recoius Act;
N. That this Couit entei an oiuei awaiuing plaintiff his costs as pioviueu
by the Inspection of Public Recoius Act; anu
0. Such othei anu fuithei ielief as the Couit ueems just.
__________
Respectfully submitted,

__________________________
Mark G. Bralley
(Pro Se)
2626 Morrow Rd. N.E.
Albuquerque, NM 87106
(505) 232-8056
__________
Declaration Under Penalty Of Perjury
The unueisigneu ueclaies unuei penalty of peijuiy that he is the plaintiff in the
above action, has piepaieu the above complaint anu the infoimation containeu
heiein is tiue anu coiiect.
28 0.S.C Sec. 1746. 18 0.S.C Sec. 1621.

Executeu at ___________________________________________________ on August 19, 2u1S.

____________________________________
Naik u. Bialley



1

UNITED STATES DISRICT COURT
FOR THE DISTRICT OF NEW MEXICO

MARK G. BRALLEY,

Plaintiff,
v.
Cause No. 1:13-cv-00768 ACT/RHS
THE ALBUQUERQUE PUBLIC
SCHOOLS BOARD OF EDUCATION, et al.,

Defendants.

LIMITED ENTRY OF APPEARANCE
Yenson, Allen & Wosick, P.C. hereby enters its limited appearance on behalf of
Defendants Albuquerque Public Schools Board of Education, Robert Lucero, David Robbins,
Paula Maes, Katherine Korte, Albuquerque Public Schools, Winston Brooks, Bradley Winter,
Monica Armenta, Rigo Chavez, John Miller, Steve Tellez, Steve Gallegos, and Albuquerque
Public Schools Police Department in the above-entitled cause of action, for the sole purpose of
contesting service of process. Copies of all pleadings, orders and any other documents filed or
transmitted in this case should be served on counsel for these Defendants.
Respectfully submitted,
YENSON, ALLEN & WOSICK, P.C.

Electronically signed by:
Patrick D. Allen
4908 Alameda Blvd NE
Albuquerque, NM 87113-1736
(505) 266-3995
pallen@ylawfirm.com
Attorneys for Defendants Albuquerque Public
Schools Board of Education, Robert Lucero, David
Robbins, Paula Maes, Katherine Korte,
Albuquerque Public Schools, Winston Brooks,
Bradley Winter, Monica Armenta, Rigo Chavez,
John Miller, Steve Tellez, Steve Gallegos
Case l:l3-cv-00768-ACT-RHS Document 8 Filed 0l/03/l4 Page l of 2


CERTIFICATE OF SERVICE
I hereby certify that on this 3d day of January 2013, the
foregoing pleading was served via CM/ECF upon the following:
Luis E. Robles Robles, Rael &
Anaya, P.C. 500 Marquette Ave
NW, # 700 Albuquerque, NM
87102-5346 505-242-2228
luis@roblesrael.com
Counsel for Defendant Esquivel
Mark G. Bralley 2626 Morrow
Rd., NE Albuquerque, NM 87106
(505) 232-8056 Plaintiff Pro Se
Electronically signed by:

Patrick D. Allen








2


Case 1:13-cv-00768-JB-RHS Document 13 Filed 01/10/14 Page 1 of 9
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
Mark G. Bralley, Plaintiff,
v. No. CIV 13-768 WJ/RHS
The ALBUQUERQUE PUBLIC SCHOOLS
BOARD OF EDUCATION, Former Member
ROBERT LUCERO, in his individual capacity,
Former Member DAVID ROBBINS, in his
individual capacity, Former Member PAULA
MAES, in her individual capacity, MARTIN
ESQUIVEL, in his individual capacity,
KATHERINE KORTE, in her individual
capacity, The ALBUQUERQUE PUBLIC
SCHOOLS, WINSTON BROOKS, in his
individual capacity, BRADLEY WINTER, in
his individual capacity, MONICA ARMENTA,
in her individual capacity, RIGO CHAVEZ, in
his individual capacity, JOHN MILLER, in his
individual capacity, STEVE TELLEZ, in his
individual capacity, STEVE GALLEGOS, in his
individual capacity, ALBUQUERQUE PUBLIC
SCHOOLS POLICE DEPARTMENT,
Defendants.
MOTION TO DISMISS PLAINTIFFS COMPLAINT FOR FAILURE TO
PROPERLY SERVE DEFENDANTS
UNDER RULE 4(M) OF THE FEDERAL RULES OF CIVIL PROCEDURE
Defendant, Martin Esquivel (hereinafter referred to as Defendant Esquivel), through his
attorneys Robles, Rael & Anaya, P.C. (Luis Robles, Esq.), and pursuant to Fed. R. Civ. P.
4(m),

Case 1:13-cv-00768-JB-RHS Document 13 Filed 01/10/14 Page 2 of 9
moves to dismiss Plaintiffs Complaint for Violations of the First, Fourth Fifth, Sixth and
Fourteenth Amendments to the United States Constitution; Violation of Article II Bill of
Rights Sec. 17 [Freedom of Speech and Press; Libel] and Sec. 18 [Due Process; Equal
Protection] of the New Mexico Constitution; and to Enforce the New Mexico Open
Meetings Act, and to Enforce the New Mexico Inspection of Public Records Act, and in
support thereof, states as follows:
INTRODUCTION
Under Rule 4(m) of the Federal Rules of Civil Procedure, [i]f a defendant is not served
within 120 days after the complaint is filed, the court--on motion or on its own after
notice to the plaintiff--must dismiss the action without prejudice against that defendant or
order that service be made within a specified time. Fed. R. Civ. P. 4(m). Plaintiffs
Complaint was filed with this Court on August 19, 2013, giving him until December 17,
2013 to serve Defendant Esquivel and the other named defendants. Plaintiff has not
properly served any defendant in this case, and has misrepresented the completion of
service to the Court. Accordingly, Defendant Esquivel seeks dismissal of Plaintiffs
Complaint under Rule 4 of the Federal Civil Rules of Procedure.
BACKGROUND
On August 19, 2013, Plaintiff filed his Complaint with the Court, alleging various
constitutional violations. [Doc. 1]. In his Complaint, Plaintiff named some fifteen
defendants, all of whom are affiliated with the Albuquerque Public School (APS) district
in some regard. Since August 19, 2013, Plaintiff has failed to properly perfect service on
any of the Defendants, though he did improperly attempt to serve the various Defendants
through material misrepresentation.
On December 16, 2013, one day before the 120 day period had lapsed, Plaintiff attempted
service through an individual, presumably a process server, who lied about his identity
and left
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Case 1:13-cv-00768-JB-RHS Document 13 Filed 01/10/14 Page 3 of 9
copies of Plaintiffs lawsuit with a person not authorized to accept service. On his way
into his office on December 16, 2013, Mike Wilson, the Director of Risk Management
for APS, encountered a man claiming to be from the office of Art Melendres, an attorney
with the Modrall firm. See Affidavit of Mike Wilson, attached as Exhibit A at 2. The
Modrall firm serves as outside counsel for APS and it is not unusual for someone to
deliver papers from the firm. Id. The man stated that he had papers for APS from Art
Melendres, and never informed Mr. Wilson that he was a process server. Id. at 2-3.
Mr. Wilson accepted the papers, but is not authorized to accept service for APS, the APS
Board of Education, or any current or former APS Board member or employee. Id. at
4-5. After speaking with Mr. Melendres, Mr. Wilson learned that the man had not come
from Mr. Melendres office. Id. at 4, Letter from Art Melendres to Mark Bralley dated
December 27, 2013, attached as Exhibit B. Before attempting this method of service,
Plaintiff had called Mr. Melendres office and was informed that Mr. Melendres would
not agree to accept service and that Mr. Wilsons office might have more information
about how service could be perfected. Plaintiff was not directed to serve the Complaint
on Mr. Wilson.
After attempting this improper service, Plaintiff filed three returns of service with the
Court. See [Doc. Nos. 5-7]. Document No. 5 is a Summons Return naming only
Defendant David Robbins. Document No. 6 is a Summons Return naming only
Defendant Steve Tellez. Document No. 7 is a Summons Return naming only Bradley
Winter. Despite attaching only these three returns, Plaintiff has represented to the Court
that he has perfected service on all fifteen Defendants. See Docket Sheet, printed
December 30, 2013. Moreover, the Summons Returns indicate that service was effected
on Mike Wilson, who is not authorized to accept service for any Defendant and was not
told that the man he spoke with was a process server. See Exhibit A.
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On December 27, 2013, Mr. Melendres sent correspondence to Mr. Bralley, informing
him that the service was not proper and that it was a material misrepresentation to invoke
his name in an effort to perfect service. See Exhibit B. Despite this correspondence,
Plaintiff has done nothing to correct service or, to Defendant Esquivels knowledge, to
inform the Court of his failure to serve Defendants properly.
LEGAL ARGUMENT
Under Rule 4(m) of the Federal Rules of Civil Procedure, [i]f a defendant is not served
within 120 days after the complaint is filed, the court--on motion or on its own after
notice to the plaintiff--must dismiss the action without prejudice against that defendant or
order that service be made within a specified time. Fed. R. Civ. P. 4(m).
The rules also describe the appropriate method to serve a defendant within the 120 day
period. For example, Rule 4(e) describes the process for serving individuals, and states
that service can be accomplished by following state law for serving a summons, or:
(A) delivering a copy of the summons and of the complaint to the individual
personally; (B) leaving a copy of each at the individuals dwelling or usual place of
abode with someone of suitable age and discretion who resides there; or
(C) delivering a copy of each to an agent authorized by appointment or by law to receive
service of process.
Fed. R. Civ. P. 4(e). Plaintiff has failed to accomplish service under the rules with regard
to either
the individual defendants or the government entities.
I. PLAINTIFF HAS NOT SERVED DEFENDANT ESQUIVEL WITHIN THE 120
DAY PERIOD AND HIS COMPLAINT SHOULD BE DISMISSED WITHOUT
PREJUDICE.
The Tenth Circuit has dictated that the first inquiry that the Court should undertake when
considering dismissal under Rule 4(m) is whether the plaintiff has shown good cause for
the
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failure to timely effect service. Espinoza v. United States, 52 F.3d 838, 841 (10th Cir.
1995). The good cause provision of Rule 4[(m)] should be read narrowly to protect only
those plaintiffs who have been meticulous in their efforts to comply with the Rule.
Martinez-Jones, 2008 WL 2229457 *3 (quoting Despain v. Salt Lake Area Metro Gang
Unit, 13 F.3d 1436, 1438 (10th Cir.1994)). It is irrelevant to good cause whether
defendants have actual notice or whether defendants are prejudiced by the delay, [t]he
standard is whether plaintiffs have shown good cause for their failure. Despain, 13
F.3d at 1439 (citations omitted).
In determining whether a plaintiff has shown good cause for failure to effect service,
courts within the Tenth Circuit have specifically considered whether the plaintiff was
informed of the problem with his attempted service and whether he failed to correct the
error. Jones v. Frank, 973 F.2d 872, 873-74 (10th Cir. 1992). For example, in Jones a pro
se plaintiff sued the Postmaster General, requiring him to serve the Postmaster General,
the U.S. Attorney General, and the U.S. Attorney for the District of Colorado. Id.; see
also Fed. R. Civ. P. 4(i) (previously Fed. R. Civ. P. (d)(4) and (5)). Jones was informed
by the U.S. Attorney on at least two occasions that service was deficient, but failed to
correct the problem and make proper service. Id. at 873. In affirming the dismissal of
=Jones complaint, the court explained, we cannot sanction Plaintiffs complete failure
to correct his service defects after being told what was wrong. Id. at 874. It should be
noted that, where Jones failed to correct his mistake, the Tenth Circuit upheld the
dismissal, even though the Rules of Procedure allow extra time to accommodate the
requirements of multiple service under [Rule 4(i), governing service on an officer of the
United States] and the rule clearly evinces a solicitous attitude toward plaintiffs faced
with the complex requirements of multiple service under Rule 4(i). Espinoza, 52 F.3d
at 842 (10th Cir. 1995) (referencing Fed. R. Civ. P.
5

Case 1:13-cv-00768-JB-RHS Document 13 Filed 01/10/14 Page 6 of 9
4(i) advisory committees notes). Essentially, where Jones completely failed to make an
effort to follow the rules, the Tenth Circuit upheld the dismissal of his complaint even
where service was notably more complex than service in this instance.
Though the rule grants the Court discretion to grant Plaintiff additional time to perfect
service rather than dismissing the Complaint without prejudice, the Tenth Circuit has
outlined several factors that should guide the use of that discretion. Espinoza, 52 F.3d at
842. Among those factors are whether the statute of limitations would bar the plaintiff
from refiling his complaint, whether the plaintiff is proceeding pro se, and whether the
defendants are evading service. See id. and Martinez-Jones v. Dulce Indep. Sch., CIV 07-
0703 JB/WDS, 2008 WL 2229457 *4 (D.N.M. Mar. 14, 2008). However, in considering
a motion under Rule 4(m), it is important to note that [a] pro se litigant is still obligated
to follow the requirements of Fed.R.Civ.P. 4. DiCesare v. Stuart, 12 F.3d 973, 980 (10th
Cir. 1993).
In the instant case, there is clearly no good cause for Plaintiffs failure to timely effect
service of his suit on the various Defendants. The rules of civil procedure describe the
correct methods for serving the various government and individual defendants. Even
assuming that Plaintiff was unsure how to find these rules or follow them, Defendant
Esquivel is aware of only one attempt to obtain any information regarding proper service:
Plaintiffs phone call to Art Melendres office shortly before the 120 day period had
lapsed. Then, after being told to speak with Mike Wilson, who would have presumably
informed Plaintiff that Defendants were represented and that counsel would accept
service, Plaintiff instead attempted to surreptitiously serve Mike Wilson on behalf of
Defendants. It appears that Plaintiff realized he had waited too long to properly serve
Defendants and attempted to circumvent the correct process to save time.
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Likewise, the balance of factors that may justify an extension despite a lack of good
cause weigh against giving Plaintiff an extension of time to serve Defendants. Though
Plaintiff is proceeding pro se, he is obligated to abide by the rules and made no attempt to
do so. See DiCesare, 12 F.3d at 980. Defendant Esquivel is not evading service; Plaintiff
simply made no attempt to serve Defendants until the last minute. Then, Plaintiff
improperly tried to effect service through a process server who materially misrepresented
his purpose, and represented to the Court that service was completed on all Defendants
while only providing three returns of service that Defendant Esquivel can see.
Moreover, since that time, Mr. Melendres sent correspondence to Plaintiff informing him
of his mistake and putting Plaintiff on notice that service was improper and had not been
completed. Plaintiff has taken no action to correct the deficient service, and is now well
outside the 120 day period allowed by Rule 4(m). Plaintiff clearly does not meet the
requirement of being meticulous in [his] efforts to comply with the Rule, Martinez-
Jones, 2008 WL 2229457 *3, and where a pro se Plaintiff has failed to correct his
mistake despite notice, the Tenth Circuit has upheld dismissal under Rule 4(m). See
Jones, 973 F.2d at 874.
The Federal Rules of Civil Procedure clearly give 120 days to perfect service and explain
the proper method for serving both a government entity and an individual. The timing of
Plaintiffs back door attempt to serve Defendants implies he was aware that the 120 days
were about to run and that this is not a case where Plaintiff was simply unaware of the
limitations imposed by the rules. Plaintiff has no good cause for his failure to serve
Defendant Esquivel, and Plaintiff is aware that his attempts at service were deficient and
has taken no actions to correct the error. Given the lack of good cause for complying with
the rules, the material misrepresentation of Plaintiff or his
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Case 1:13-cv-00768-JB-RHS Document 13 Filed 01/10/14 Page 8 of 9
representative in delivering copies of the suit to Mike Wilson, and the lack of factors in
favor of granting Plaintiff additional time, Plaintiffs Complaint should be dismissed in
accordance with Rule 4(m).
WHEREFORE, Defendant Esquivel respectfully requests that this Court grant his
Motion to Dismiss Plaintiffs Complaint without prejudice, dismiss Plaintiffs Complaint
against Defendant Esquivel in full, and for any other relief this Court deems proper.
I hereby certify that on this 10
th
day of January 2014, the
foregoing was electronically served through the CM/ECF system to the following:
Mark G. Bralley 2626 Morrow Rd., NE Albuquerque, NM 87106 (505) 232-8056
mgbralley@earthlink.net
Respectfully submitted, ROBLES, RAEL & ANAYA, P.C.
By: /s/ Luis Robles Luis Robles
Attorneys for Defendant Esquivel 500
Marquette Ave., NW, Suite 700
Albuquerque, New Mexico 87102 (505)
242-2228 (505) 242-1106 (facsimile)

8

Case 1:13-cv-00768-JB-RHS Document 13 Filed 01/10/14 Page 9 of 9
Patrick D. Allen Yenson, Lynn, Allen
& Wosick, PC 4908 Alameda Blvd. NE
Albuquerque, NM 87113-1736 (505)
266-3995 (505) 268-6694 facsimile
pallen@ylawfirm.com
/s/ Luis Robles Luis Robles


9


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Case 1:13-cv-00768-JB-RHS Document 13-1 Filed 01/10/14 Page 2 of 2


Case 1:13-cv-00768-JB-RHS Document 13-2 Filed 01/10/14 Page 1 of 1


IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
Mark G. Bralley, Plaintiff,
No. CIV 13-768 WJ/RHS
v.
The Albuquerque Public Schools
Board of Education, et al, Defendants
Opposition to Defendant Martin Esquivels Motion to Dismiss
Plaintiffs Complaint for Failure to Properly Serve Defendants
Under Rule 4(M) of the Federal Rules of Civil Procedure
INTRODUCTION
Plaintiff Mark G. Bralley, acting Pro Se, has properly completed service of summons and
complaint on the named defendants in this case within the within 120 days after the
complaint was filed by a person qualified and experienced in process serving by
delivering them upon a person designated by the Albuquerque Public Schools General
Counsel who would accept.
Named Defendant Martin Esquivel, through his attorney, Luis Robles brings a motion to
dismiss the complaint claiming failure to properly serve defendants under Rule 4(M) of
the Federal Rules of Civil Procedure.
BACKGROUND
Plaintiff brought a complaint for violation of his civil rights under the First, Fourth, Fifth,
Sixth, and Fourteenth Amendments to the United States Constitution and 42 U.S.C.
1983, and violations of Article II Bill of Rights Sec. 17. [Freedom of Speech and Press;
Libel], and Sec. 18. [Due Process; Equal Protection] of the State of New Mexico
Constitution and to enforce certain provisions of the New Mexico Open Meetings Act,
NMSA 1978, 10-15-1 et seq, and to enforce the New Mexico Inspection of Public
Records Act, NMSA 1978, 14-2-1 et seq.
Plaintiff properly filed the complaint on August 19, 2013 with the Federal District of
New Mexicos Court Clerks office in accordance with Rule 3. Commencing an Action,
under the Federal Rules of Civil Procedure.
Shortly after filing the complaint on August 19, 2013, in Mark G. Bralley v. the
Albuquerque Public Schools Board of Education, et al. 13CV 768 ACT/RHS, on August
23, 2013, plaintiff was deposed in the case of Charles "Ched" MacQuigg, vs. The
Albuquerque Public Schools Board of Education, et al, NO: 12-CV-01137-MCA/KBM.
MacQuigg v Albuquerque Public Schools, et al and Bralley v. Albuquerque Public
Schools Board of Education, et al, arise out of some of the same factual background and
several defendants are common to both cases. MacQuigg, as a retired school APS
teacher, is a regular critic of the school system and a prolific writer on a weblog (blog),
Biogenes' Six, http:cheu-macquigg.blogspot.com, where he publishes his
observations and critique of APS and other governmental entities. Plaintiff observed
MacQuigg for the first time at an APS Board meeting that plaintiff was assigned to cover
as a journalism school reporting class project. Plaintiff covered a number of other APS
board and its committees meetings, especially because the board was trying to limit
citizens ability to speak to the board during their regular agenda item of their meetings
public comments. MacQuigg was especially irksome because he challenged administrator
and board members to uphold the tenants of an adopted system wide policy called
Character Counts. Though the program is established as a board policy, MacQuigg
continuously calls them out, especially for not being role models of good character for
students to emulate. Plaintiff determined that MacQuigg represented an interesting
personality with a compelling story and began documenting him for an ongoing photo-
essay and possible video documentary.
MacQuiggs issues are most related to the first amendment: freedom of speech, right to
peaceably assemble, and the right to petition government for redress of grievances
clauses. Along with other constitutional claims, MacQuigg seeks relief for a failure of
being provided due process after having been banned and bared from APS events where
the board takes public comments.
While similar, plaintiffs issues are more closely related to the first amendment: freedom
of the press clause.
During the deposition, plaintiff provided copies of the complaint in this matter to
attorneys under contract to APS to defend the MacQuigg case, Patrick Allen, of Yenson,
Allen & Wosick, P.C., and Louis Robles, of Robles, Rael & Anaya P.C.
Q. So when you say there's been no response, are you still, in your view, banned
from APS property?
A. First of all, I don't recognize, though I acknowledge the letter, receipt of letter.
Q. Let me rephrase it. Does APS -- is APS still imposing its ban on you?
A. As far as I know, yes.
Q. You've met with Mr. Tellez. What other steps, if any, have you taken to end
APS's ban?
A. I filed a Federal lawsuit.
Q. When did you file a Federal lawsuit?
A. Monday.
Q. Who, if anyone, is your attorney?
A. It's pro se.
Q. Who are the named defendants in that lawsuit?
A. I think maybe the best way to handle that at this moment is to give you a copy.
Q. Fair enough.
MR. ALLEN: Can we take a quick break?
(Recess was taken from 11:25 a.m. until ll:34 a.m.)
During this break, Robles indicated to plaintiff that he would accept service.
Plaintiff stated the copies were given to them for consideration, and that plaintiff had 120
days to serve the defendants.
Allen prepared a subpoena for all the photographs plaintiff had taken of APS personnel,
all the photographs plaintiff had taken of Ched MacQuigg, all videos, all audio
recordings, and all email exchanges between MacQuigg and plaintiff, Allen was very
interested in making sure that the video of the events during the November 17. 2011
community goal settings meeting at Manzano High were captured. See attached
subpoena.
Plaintiff delivered the bulk of the subpoenaed material in MacQuiggs Federal Civil
Rights case to Allen on October 9, 2013, consisting of more than 32,000 individual files.
Several days prior to December 12, 2013, plaintiff made telephonic contact with Louis
Robles, plaintiff asked him if he was still willing to accept service of my complaint.
Robles stated he needed to clarify what was said during the deposition, in case I didnt
understand that he was not able to accept service for all the defendants, because Allen
was representing APS and individuals except Robles was representing the individual APS
board member and president, Martin Esquivel. Robles went on to say, if need be, he
would accept service for Esquivel.
Robles suggested plaintiff call Allen about his accepting service.
Plaintiff told Robles of his difficulty in contacting Allen since October 9, 2013, when he
delivered the evidence responsive to the subpoena, in particular the inability to coordinate
a time to deliver the video that was recovered from a damaged disc.
Robles stated he was having no problem reaching Allen.
Plaintiff told Robles that was because he was a known name or had Allens desk number
and asked that the next time he talked with Allen that he tell him of my efforts to contact
him in reference to the additional evidence and plaintiffs need to speak with him.
Plaintiff attempted to call Pat Allen several times over several days, leaving messages on
his voice mail and with his assistant to ascertain if he would accept service as Robles had
offered.
Plaintiff never received a return call from Allen personally or his office.
Because Allen did not return the calls, plaintiff began to have doubts about whether Allen
was involved representing APS in plaintiffs case.
Plaintiff attempted to communicate with Arthur D. Melendres, of Modrall, Sperling,
Roehl, Harris & Sisk, P.A., also known as Modrall Sperling Lawyers, several times by
telephone, on December 12 and 13, 2013. Melendres neither took plaintiffs call nor
answer his request to return the calls, left on Melendres voice mail both days. Plaintiff
also left voice mail messages with Melendres assistant and spoke with her in person.
On December 16, in the morning, when plaintiff called Melendres, he was again away
from his phone and plaintiff left another voice mail message.
Plaintiff redialed and spoke with Melendres assistant and put a direct question to her,
would Mr. Melendres, (as general counsel for APS) accept service for the APS clients?
She said she would check with Melendres.
Mid afternoon, plaintiff again called and when he could not connect with Melendres,
asked for and spoke with his assistant to check if she had an answer. Plaintiff was not at
his home number and was barrowing a friends cellular phone. The assistant stated she
had not gotten an answer, but would. Plaintiff asked her how long she thought it would
take? She said, by the end of the day. Plaintiff expressed some degree of urgency.
Plaintiff gave her a friends cellular phone number if she was going to communicate
shortly, and that plaintiff would be available at his home number later.
Melendres assistant communicated back to plaintiffs friends cellular phone number
stating that, Mike Wilson (APS Risk Management) can accept service at the tower. See
attached email, and affidavit of Peter St. Cyr.
St. Cyr forwarded the message by e-mail to plaintiff, he wrote down the wrong first
name:
Lawfirm called back ...

Said Mark Wilson (APS Risk Management) can accept service at the tower.

Call Wilson 830-8460
The tower(s) being APS Headquarters.
See attached e-mail from St.Cyr to plaintiff.
When plaintiff arrived home he retrieved the e-mail and called St. Cyr, who immediately
corrected the first name to be Mike.
See attached St. Cyr affidavit.
In his motion Defendant Esquivels lawyer Robles is, guilty of factual inexactitudes, as
former Governor David F. Cargo, would say, when he wrote:
Before attempting this method of service, Plaintiff had called Mr. Melendres
office and was informed that Mr. Melendres would not agree to accept service and
that Mr. Wilsons office might have more information about how service could be
perfected. Plaintiff was not directed to serve the Complaint on Mr. Wilson.
Neither Melendres, nor his assistant spoke directly to plaintiff about the purported
contents of the above message, though he had left his home number no less than four
times within three days.
Contrary to Defendant Esquivels lawyer Robles assertion, plaintiff was not directed to
serve the Complaint(s) on Mr. Wilson, that is exactly what Melendres office did by
relaying the limited message through St. Cyr.
Neither Melendres, nor his assistant had answered the direct question head on, but
plaintiff took the failure to answer and the fact that plaintiff was told that Mike Wilson
can accept service at the tower Melendres was not going to accept service for APS
defendants.
Plaintiff was a bit surprised that there was only a single name to accept service.
Having been in government with 27 plus years in law enforcement, previous experience
with serving process on governmental entities, specifically the City of Albuquerque, and
based upon plaintiff s education with a masters of public administration, plaintiff had
never been personally served in his professional capacity, yet received numerous
summons and subpoenas because the government entity, or the department would accept
service and all other employees, then by administrative rule and procedure forward the
documents to plaintiff.
Plaintiffs surprise was that plaintiff thought there might be up to three different offices
that might accept service at APS.
However, the director of risk management seems like a perfectly reasonable office to
accept service because it is the central location where questions of funding of and
assigning counsel to represent defendants of the entities. The other logical places to
accept service for administrator and employees might be the Superintendents office for
Albuquerque Public Schools Winston Brooks, administrator and employees. The office of
Board Services and Government Affairs for members of the Board of Education, and
possibly the office of the Albuquerque Public Schools Police for the entity and officer
defendants.
So, based on Melendres assistants comment, purportedly made on Melendres behalf,
the process server engaged by plaintiff, Galen Smith, approached Wilson who accepted
service.
See attached affidavit of Galen J. Smith who made the service.
Plaintiff asserts the process service for all defendants was perfected under Rule 4 (e)
SERVING AN INDIVIDUAL WITHIN A JUDICIAL DISTRICT OF THE
UNITED STATES. Unless federal law provides otherwise, an individualother
than a minor, an incompetent person, or a person whose waiver has been filed
may be served in a judicial district of the United States by:
(2) doing any of the following:
(C) delivering a copy of each to an agent authorized by
appointment or by law to receive service of process.
Melendres has not spoken with plaintiff at any time since this cause of action
commenced.
Robles, in his motion wrote:
Defendant Esquivel is aware of only one attempt to obtain any information
regarding proper service: Plaintiffs phone call to Art Melendres office shortly
before the 120 day period had lapsed. Then, after being told to speak with Mike
Wilson, who would have presumably informed Plaintiff that Defendants were
represented and that counsel would accept service, Plaintiff instead attempted to
surreptitiously serve Mike Wilson on behalf of Defendants.
Robles seems to forget plaintiffs conversation a week to a week and a half earlier in
which he restated he would accept service for defendant Esquivel.
Plaintiff disputes Robles characterization:
It appears that Plaintiff realized he had waited too long to properly serve
Defendants and attempted to circumvent the correct process to save time.
By plaintiffs calculations service was made on the 118th day of 120, not the one day
before, Robles states.
Plaintiff asserts there was nothing surreptitious about the service and was prepared to
have the individual defendants served, but once plaintiff received the forwarded message
from Melendres assistant, plaintiff had Smith serve the documents.
Plaintiff had access to several retired associates experienced in serving process who could
be pressed into action to complete the individual service, even on short notice.
However, Wilson accepted the service and did not indicate he was not authorized to
accept service or to indicate who was.
Smith left the documents with Hope Kaehler, the secretary for Risk Management
Department.
The Risk Management Department reports to Chief Operating Officer Bradley Winter, a
defendant in this case.
Melendres has not entered his appearance on behalf of any defendants in this case.
Melendres wrote and sent a certified letter to plaintiff.
December 27, 2013

Re: Service of process
Dear Mr. Bralley,
I have been informed by Mr. Mike Wilson, Director of Risk
Management at the Albuquerque Public Schools, that on December 17, 2013 you
or your agent attempted to accomplish service of process on multiple defendants
in the matter of Bralley v. multiple defendants associated with APS by delivering
copies of the above mentioned lawsuit to Mr. Mike Wilsons office. This is not
the proper way to serve process on the defendants in this lawsuit. Your attempted
service is invalid and is not recognized or accepted as proper service of process.
By improperly invoking my name as being the person who gave you direction to
deliver papers to Mr. Wilson, you or your agent made a material
misrepresentation and further compounded the defective attempt to accomplish
service. Only proper service of process will be recognized.
Very truly your,
Arthur D. Melendres
ADM/lm
Cc: Mike Wilson

When plaintiff received an activity report from the Court Clerks office Case 1:13-cv-
00768-ACT-RHS Document 8 Filed 01/03/14 Page 1 of 2, by attorney Patrick Allen he
certified that on January 3, 2013, the pleading was served via CM/ECF upon plaintiff.
Allen made a limited entry of appearance representing 14 of the 15 defendants, for the
sole purpose of contesting service of process and wrote:
Copies of all pleadings, orders and any other documents filed or transmitted in
this case should be served on counsel for these Defendants.
This was the first actual acknowledgement by Pat Allen that he was the attorney for all
the APS defendants except Esquivel.
Plaintiff learned since service was made, and the motion was filed, that Pat Allen was
already the attorney for the defendants and by refusing to take plaintiffs call he was
engaging in deceit by not admitting his pre-existing representative role, makes a material
misrepresentation in order to avoid service.
Plaintiff might not be receiving activity reports from the Court Clerks office, as he has
not received notice of Robles motion, but did receive it directly from Robles by mail.
Plaintiff is unaware if Robles made a limited entry of appearance representing Esquivel
or the filing of the motion constitutes making his entry of appearance.
However, when Robles makes his request of the court:
WHEREFORE, Defendant Esquivel respectfully requests that this Court grant
his Motion to Dismiss Plaintiffs Complaint without prejudice, dismiss Plaintiffs
Complaint against Defendant Esquivel in full, and for any other relief this Court
deems proper.
Especially when Robles asks that the court to dismiss Plaintiffs Complaint against
Defendant Esquivel in full, and for any other relief this Court deems proper, has
accepted the jurisdiction of the court over defendant Esquivel rendering the matter of
perfected service moot and the motion based on it invalid.
Even if the service of the human named defendants are deemed by the court to not be
perfected, plaintiff still has no idea who is the proper person at APS is designated to
accept service for the three institutional defendants: The Albuquerque Public Schools
Board of Education, the Albuquerque Public Schools, and, the Albuquerque Public
Schools Police Department.
Plaintiff made inquiry through the Albuquerque Public Schools web site in an attempt to
locate the name of anyone who would be the authorized person designated to accept
process service.
Plaintiff further asserts that, Arthur D. Melendres, of Modrall, Sperling, Roehl, Harris &
Sisk, P.A., Patrick Allen, of Yenson, Allen & Wosick, P.C., and Louis Robles, of Robles,
Rael & Anaya P.C. have through their actions and inactions failed to treat plaintiff in a
fair and honest manner by providing the name(s) and title(s) of the authorized person(s)
designated to accept process service.
Melendres provided a specific name, Mr. Mike Wilson, Director of Risk Management at
the Albuquerque Public Schools as the person who can accept service at the tower, and
then asserting that, Your attempted service is invalid and is not recognized or accepted
as proper service of process, and By improperly invoking my name as being the person
who gave you direction to deliver papers to Mr. Wilson, you or your agent made a
material misrepresentation and further compounded the defective attempt to accomplish
service.
Plaintiff learned on January 15, 2014, that in the above mentioned, MacQuigg, vs. The
Albuquerque Public Schools Board of Education, et al, that Luis Robles waived summons
and accepted service for Marty Esquivel and Pat Allen accepted service for all APS
defendants except for Marty Esquivel.
A cursory search of other cases in which APS is named as defendant, one will find that
there are no return of services or waivers of service in the court records.
Plaintiff asserts that it is the regular pattern and practice of APS to accept service for its
defendant clients.
This is a practice dating back at least 20 years as attested to by former APS board of
education member Donald P. Patterson.
See attached affidavit of Donald P. Patterson.
Allen, by refusing to return plaintiffs several phone calls seeking pertinent information
about the identity of who might accept service, he aids in the inability of the plaintiff to
complete what the defense claims as a failure to perfect service on institutional
defendants. Allen avoided service of his defendant clients.
Plaintiffs final attempt to reach Allen was on December 16, 2013, shortly before
receiving the information on the identity of Wilson passed on indirectly from Melendres
through his assistant.
Plaintiffs continued unsuccessful attempts to communicate with Melendres and
especially Allen shows a diligent effort, by plaintiff, to make the service prior to the e-
mail from Melendres law office.
Robles further engages in speculation, when he wrote:
On December 16, 2013, one day before the 120 day period had lapsed, Plaintiff
attempted service through an individual, presumably a process server, who lied
about his identity and left copies of Plaintiffs lawsuit with a person not
authorized to accept service. On his way into his office on December 16, 2013,
Mike Wilson, the Director of Risk Management for APS, encountered a man
claiming to be from the office of Art Melendres, an attorney with the Modrall
firm.
Plaintiff asserts that based on what he told the process server about how he knew to serve
Wilson, refutes Robles assertion, especially that the server had reason to or did lie. The
process server, though engaged by the plaintiff to serve the documents, does so under the
authority of the court and is bound to the rules and laws on service.
See attached affidavit of Galen Smith who made the service.
Quoting from the case cited by Robles, Espinoza v. United States, 52 F.3d 838, 841 (10th
Cir. 1995).
If good cause is shown, the plaintiff is entitled to a mandatory extension of time.
If the plaintiff fails to show good cause, the district court must still consider
whether a permissive extension of time may be warranted. At that point the
district court may in its discretion either dismiss the case without prejudice or
extend the time for service.
Emphasis added Espinoza v. United States, 52 F.3d 838, 841 (10th Cir. 1995)
If the court were to find that the rule 4 was not complied with:
If a defendant is not served within 120 days after the complaint is filed, the
court--on motion or on its own after notice to the plaintiff--must dismiss the
action without prejudice against that defendant or order that service be made
within a specified time. Fed. R. Civ. P. 4(m).
A dismissal without prejudice in this matter would in fact be a dismissal with prejudice,
because the chronologically the first action mentioned in the complaint occurred August
19, 2010, and plaintiff would be barred from re-filing back to original date of the first
injury.
CONCLUSIONS
Based on the forgoing, plaintiff has perfected service on all defendants based on the
information he received, believed, and relied upon from chief counsel for APS.
If the service is found to not have been proper, plaintiff has shown good cause as to why
it was deficient.
The reason for the deficiency was the direct result of the concerted efforts of chief
counsel for APS and Patrick Allen in not being open, candid, and responsive to plaintiffs
efforts to make proper service and by misdirecting his good faith efforts to serve the
proper designated person who could accept service.
PRAYER FOR RELIEF
Plaintiff believes there are five options available the courts in disposing of this motion
made by defendant Esquivel:
1. By filing this motion and asking the court for relief beyond the limited
purpose of contesting proper service, defendant Esquivel has, in fact,
accepted the jurisdiction of the court intentionally or unintentionally,
making the matter of service moot and Esquivel actually recognizing the
courts jurisdiction over him.
2. The court can find the service was perfected and service returned within
the limits Rule 4.
(m) TIME LIMIT FOR SERVICE. If a defendant is not served
within 120 days after the complaint is filed, the courton motion
or on its own after notice to the plaintiffmust dismiss the action
without prejudice against that defendant or order that service be
made within a specified time. But if the plaintiff shows good cause
for the failure, the court must extend the time for service for an
appropriate period. This subdivision (m) does not apply to service
in a foreign country under Rule 4(f) or 4(j)(1).

3. If the court finds the service was deficient, it may find plaintiff has shown
good cause as to why it was deficient.
If good cause is shown, the plaintiff is entitled to a mandatory
extension of time
Espinoza v. United States, 52 F.3d 838, 841 (10th Cir. 1995)

4. The statute of limitations would bar the plaintiff from refilling his entire
complaint.
In considering dismissal without prejudice, the court should
consider, whether the statute of limitations would bar the plaintiff
from refilling his complaint, whether the plaintiff is proceeding pro
se, and whether the defendants are evading service.
Martinez-Jones v. Dulce Indep. Sch., CIV 07-0703 JB/WDS, 2008
WL 2229457 *4 (D.N.M. Mar. 14, 2008).

5. The court may find that plaintiff was hampered by the actions of
Defendants attorneys (Melendres) by misdirection and (Allen) by failure
to respond, thereby avoiding service of defendants.
WHEREFORE, Plaintiff respectfully requests that this Court dismiss Defendants
Motion to Dismiss Plaintiffs Complaint without prejudice, by finding service completed.
Or within the courts finding that. plaintiff shows good cause for the failure, the court
must extend the time for service for an appropriate period.
In order to assist the court in its considerations, to hold a hearing, if need be, to take
testimony from witnesses plaintiff has had no access to.


Respectfully submitted,

__________________________
Mark G. Bralley
(Pro Se)
2626 Morrow Rd. N.E.
Albuquerque, NM 87106
(505) 232-8056
__________
Declaration Under Penalty Of Perjury
The unueisigneu ueclaies unuei penalty of peijuiy that he is the plaintiff in the
above action, has piepaieu the above iesponse anu the infoimation containeu
heiein is tiue anu coiiect.
28 0.S.C Sec. 1746. 18 0.S.C Sec. 1621.

Executeu at ___________________________________________________ on }anuaiy 27, 2u14.

____________________________________
I hereby certify that on this
27
th
day of January 2014, the
foregoing was mailed to the
following:
Luis Robles
Attorneys for Defendant Esquivel
500 Marquette Ave., NW, Suite 700 Albuquerque, New Mexico 87102
(505) 242-2228
(505) 242-1106 (facsimile)
Patrick D. Allen Yenson,
Lynn, Allen & Wosick, PC
4908 Alameda Blvd. NE
Albuquerque, NM 87113-
1736 (505) 266-3995 (505)
268-6694 facsimile
Arthur D. Melendres
Modrall Sperling Roehl Harris & Sisk P.A.
Bank of America Centre
500 Fourth Street NW Suite 1000
Albuquerque,
New Mexico 87102
PO Box 2168
Albuquerque,
New Mexico 87103-2168
Tel: 505.848.1800 www.modrall.com

__________________________
Mark G. Bralley
(Pro Se)


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I, Petei St. Cyi, state the following fiom peisonal knowleuge, anu belief, anu unuei
penalty of peijuiy:
1. I am a peisonal fiienu anu colleague of Naik Bialley.
2. 0n Becembei 16, 2u1S at aiounu 2:1S p.m. Naik Bialley stoppeu by my
house.
S. Be iequesteu the use of my cellulai telephone.
4. Ny AT&T phone bill pioviues an itemizeu log of both incoming anu outgoing
phone calls.
S. The log inuicateu that at 2:26 p.m. Ni. Bialley uialeu (SuS) 266-S99S.
6. That numbei belongs to Yenson, Lynn, Allen & Wosick, PC.
7. I heaiu him ask whoevei answeieu the phone call to have Ni. Allen call him
at my cell numbei.
8. Then, at 2:S1 p.m. Ni. Bialley maue anothei outgoing call.
9. The itemizeu phone bill inuicates Ni. Bialley uialeu (SuS) 848-18uu
1u. That numbei is assigneu to to Nouiall Speiling Law Fiim.
11. I heaiu Ni. Bialley ask whomevei answeieu the phone that he neeueu to talk
to Ait Nelenuies.
12. Buiing the same phone call I heaiu Ni. Bialley ask whethei theie hau been a
ueteimination as to whethei Ni. Nelenuies woulu accept seivice foi the
Albuqueique Schools Boaiu of Euucation.
1S. I uiu not heai the answei.
14. I uiu heai Ni. Bialley ask when he woulu get an answei.
1S. I uiu not heai an answei to his question.
16. Next, I heaiu Ni. Bialley inuicate that the mattei was uigent.
17. Ni. Bialley then gave whomevei was on the phone my cellulai numbei. Be
tolu them he woulu be at my house foi a while anu then coulu be ieacheu at
his home numbei.
18. Naik Bialley left my house aiounu 2:4S p.m.
19. Aftei Naik was gone, the itemizeu phone log foi my AT&T customei account
inuicates that at 2:S9 p.m. I ieceiveu an incoming call fiom (SuS) 848-18uu.
This is the same numbei that Naik hau maue an outgoing call to talk to Ni.
Nelenuies.
2u. I answeieu the phone anu a woman askeu to talk to Naik Bialley.
21. I inuicateu he was gone.
22. At that time, the woman, whose name I uo not iecall, tolu me to tell Naik
Bialley that Nike Wilson at APS Risk Nanagement woulu accept seivice.
2S. I tolu hei thank you foi the infoimation anu saiu that I woulu ielay the
message to Ni. Bialley.
24. I emaileu Ni. Bialley the infoimation at S:uS p.m., but useu the name Naik
Wilson insteau of Nike Wilson.
(See email attacheu).
2S. Ny itemizeu phone log shows that Ni. Bialley calleu me fiom his home
phone (SuS) 2S2-8uS6 at S:u4 p.m. anu tolu me that he hau ieceiveu the e-
mail to thank me foi foiwaiuing the infoimation to him.
26. Buiing same phone conveisation I tolu Ni. Bialley that I hau wiitten the
name Naik Wilson but that Ni. Wilson's fiist name was Nike, not Naik.
F0RTBER AFFIANT SAYETB NA0uBT.

__________________
Petei St. Cyi
STATE 0F NEW NEXIC0 )
) ss.
C00NTY 0F BERNALILL0 )


S0BSCRIBEB ANB SW0RN to befoie me this ____ uay of }anuaiy 2u14 by
Petei St. Cyi

__________________
Notaiy Public

My Commission Expires:

__________________




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From: From: "Peter St. Cyr" <peter.stcyr@gmail.com> [Edit Address Book]
To: To: "mgbralley@earthlink.net" <mgbralley@earthlink.net>
Subj ect: Subj ect: Go to APS Risk Mgt
Date: Date: Dec 16, 2013 3:03 PM
Lawrm called back ...
Said Mark Wilson (APS Risk Management) can accept service at the tower.
Call Wilson 830-8460
--
/s/ Peter St. Cyr
(505) 319-3237
Peter.StCyr@Gmail.com
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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO

Mark G. Bralley

Plaintiff

v

The ALBUQUERQUE PUBLIC
SCHOOLS BOARD OF EDUCATION,
et al.,
Defendants



Cause No: 1:13-cv-00768 WP/RHS

AFFIDAVIT OF DONALD P. PATTERSON

I, Don Patterson, state the following from personal knowledge, and belief, and under
penalty of perjury:
I was an elected member of the Albuquerque Public Schools Board of Education serving
from 1993 1997.

During the time of my term, I was named in up to or about 20 cases a year.

As memory serves, I was never served with a summons.

APS attorneys always accepted the complaints.

I would be advised by APS attorneys and briefed on the facts of the cases.

FURTHER AFFIANT SAYETH NAUGHT.

________________________________
Donald P. Patterson
STATE OF NEW MEXICO )
) ss.
COUNTY OF BERNALILLO )


SUBSCRIBED AND SWORN to before me this ____ day of January 2014 by
Galen Smith

________________________
Notary Public

My Commission Expires:

________________________


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I, ualen }. Smith, ueclaie anu affiim unuei penalty of peijuiy that the
following statement is tiue anu coiiect to the best of my knowleuge anu belief.
1. I am moie than eighteen yeais of age anu not a paity to the above
titleu action.
2. 0n Becembei 16, 2u1S, I accepteu a commission to seive piocess
fiom this Couit on Nike Wilson, Biiectoi of Risk Nanagement foi the Albuqueique
Public Schools (APS) at its 0ptown Toweis offices, joining the fifteen uefenuants.
S. The plaintiff, Naik u. Bialley, fiom whom I ieceiveu the commission,
coulu not accompany me when I went to uo the seivice.
4. In accepting the commission I hau no ieason to expect that Ni. Wilson
eithei coulu not, woulu not oi is not appointeu to accept seivice of a civil summons
anu complaint in this action on behalf of the fifteen uefenuants.
S. 0n aiiival at the APS offices I checkeu in with Secuiity, stating the
natuie of my business being to seive piocess at the Risk Nanagement Bivision.
6. Theie aie a numbei of offices in the uivision suite, with a ieceptionist
at the entiance. The ieceptionist, Ns. Bope Kaehlei, askeu whethei she coulu help
me. I askeu hei wheie I woulu finu Ni. Nike Wilson. I saiu I hau some legal papeis
to uelivei to him. She askeu whethei I woulu like to leave them with hei. I ueclineu
hei offei, stating the papeis weie couit piocess I neeueu to uelivei to Ni. Wilson
peisonally.
7. She pointeu uown a hallway to my left towaiu a gioup of men talking
in an open aiea about foity feet away anu saiu, "That's him iight theie."
8. "The tall gentleman with the silvei haii." I askeu.
9. "Yes." She ieplieu. I thankeu hei anu staiteu uown the hall in his
uiiection. At the same time he finisheu his conveisation anu heaueu my way.
1u. I hau the seivice packets in a caiuboaiu box unuei my left aim. In my
iight hanu I helu the oiiginal summonsietuins of seivice in a binuei clip.
11. When he was about to pass me shoit of the halfway point -- he moveu
moie quickly -- I stoppeu him with a queiy, "Ni. Nike Wilson."
12. "Yes," he ieplieu. "Bow can I help you."
1S. "I have summonses anu complaints fiom the 0niteu States Bistiict
Couit to seive you on behalf of a numbei of APS entities, Boaiu membeis anu
employees." I saiu.
14. I helu the sheaf up anu tuineu the cleik's embosseu, oiiginal seal on
the top oiiginal summonsietuin of seivice towaiu Wilson as I spoke.
1S. Be iolleu his eyes, looking off into space. "Why me." Be askeu, his
voice tingeu with exaspeiation.
16. Although I suspecteu his question was ihetoiical, I answeieu it
liteially, telling him what Plaintiff Bialley tolu me about the APS ueneial Counsel's
office, contiacteu to Nouiall, Speiling, Roehl, Baiiis & Sisk, P.A., having
communicateu to Bialley, in iesponse to his inquiiy uiiecteu to Ni. Aithui B.
Nelenuies, APS ueneial Counsel, that Wilson was the man appointeu to ieceive
seivice foi all the uefenuants.
17. Wilson ieplieu, "Then it's all iight, I guess."
18. I explaineu that it woulu take me a couple of minutes because I hau
just ieceiveu the papeis anu I neeueu to match each oiiginal summonsietuin of
seivice to its companion summons anu complaint packet befoie giving the lattei to
him so that I coulu make a positive affiuavit foi ietuin to the Couit stating that I hau
seiveu each one.
19. I apologizeu foi not being piepaieu anu suggesteu he might authoiize
me to leave them with the ieceptionist when I was finisheu so that he woulu not
neeu to wait.
2u. Be saiu, "That woulu be fine," anu he went back uown the hall fiom
whence he hau come iathei than continuing on towaiu the uooi to the suite.
21. Mr. Wilson never indicated he coulu not, woulu not oi is not appointeu
to accept seivice of a civil summons anu complaint in this action on behalf of the
fifteen uefenuants.
22. Ni. Wilson uiu not ask foi me to wait while he calleu Ni. Nelenuies oi
anyone else foi guiuance oi inuicate that he neeueu any. Be simply accepteu the
papeis without objection oi stateu ieseivation.
2S. As a pieiequisite to my execution of the affiuavits of seivice, it was my
impiession that he unueistoou cleaily befoie he left my piesence that he was being
!"#$"% piocess issueu by the 0niteu States Bistiict Couit in the foim of a summons
anu complaint uiiecteu to each of the fifteen uefenuants, anu that the gioup
consisteu of inuiviuual employees, APS School Boaiu membeis anu APS anu
component entities.
24. I matcheu up each summons copy with its oiiginalietuin of seivice
anu uepaiteu, taking the ietuins of seivice with me anu leaving the fifteen paiieu
copies of complaint anu summons with Ns. Kaehlei. I completeu the seivice
affiuavits anu gave them to Ni. Bialley.
2S. Affiant has not ieceiveu any communication uiiecteu to him fiom Ni.
Wilson, Ni. Nelelnuies, Befenuant Naitin Esquivel (movant, the School Boaiu
piesiuent anu also an attoiney), oi Ni. Esquivel's attoiney Louis Robles, oi fiom any
othei paity, oi fiom Patiick B. Allen of Yenson, Lynn, Allen & Wosick, PC, the
attoiney who has enteieu an appeaiance on behalf of all uefenuants except Ni.
Esquivel, to the effect that Affiant's seivice on Wilson was in eiioi.
26. Bowevei, Affiant was notifieu Ni. Bialley hau ieceiveu a ceitifieu
lettei fiom ueneial Counsel Nelenuies alleging the piocesses Affiant hau caiiieu
simply hau been ueliveieu to the Risk Nanagement office anu as such was impiopei
seivice anu woulu not be accepteu. Ni. Nelenuies uiu not inuicate what he woulu
ueem "piopei piocess" that woulu be accepteu.
27. Bialley pioviueu Affiant a copy of a motion Plaintiff Bialley hau been
seiveu electionically on }anuaiy 1u, 2u14, fiom attoiney Louis Robles, Robles, Rael
& Anaya, P.C., fileu in this case on behalf of Befenuant Naitin Esquivel (the Notion),
asking foi uismissal of the DGHF@D TQZ[C?FGH foi lack of piopei seivice on any of the
uefenuants.
28. Ni. Robles uiu GQH inquiie of Affiant iegaiuing the facts befoie filing
the Notion, in which he states Affiant "lieu about |Affiant'sj iuentity ..." p.2.
29. Exhibit "A" to the Notion is an affiuavit fiom Ni. Wilson setting foith a
much uiffeient uesciiption of the occasion of Affiant's seivice on Ni. Wilson than
Affiant hau ielateu to Ni. Bialley, fai too uiffeient to be caielessly mistaken oi
innocently unintentional on Wilson's pait. Affiant believes Wilson lieu uelibeiately.
Su. Exhibit "B" to the Notion is the lettei Ni. Nelenuies sent to Plaintiff
Bialley, now a pait of the iecoiu of this Couit, making scuiiilous accusations against
Affiant anu uemonstiating cooiuination among Ni. Wilson, the lawyeis anu fiims
appeaiing in this case, anu one oi moie of the nameu uefenuants to misleau Affiant
anu Ni. Bialley with the puipose of concealing the uefenuants to pievent oi to uelay
Affiant seiving them until expiiation of the 12u uay peiiou aftei filing of the
Complaint uuiing which time Plaintiff hau to complete seivice on the uefenuants oi
face possible uismissal of the complaint.
a. Ni. Nelenuies, ueneial Counsel foi APS anu associate attoiney
at Nouiall, et al., one of the laigest law fiims in the State of New Nexico,
falsely states that Affiant seiveu Ni. Wilson on Becembei 17, 2u1S,
appaiently the last uay of the 12u uays in which the plaintiff hau to seive the
uefenuants. Affiant seiveu Ni. Wilson the uay befoie, so Affiant hau plenty of
time to seive the piocess on someone else, oi foi Ni. Bialley to obtain anu
Affiant to seive, alias summons hau eithei been appiizeu piomptly that the
Becembei 16, 2u1S seivice on Ni. Wilson was not authoiizeu.
b. Ni. Nelenuies falsely accuses Affiant of misiepiesenting to Ni.
Wilson that Affiant was ueliveiing papeis fiom Ni. Nelenuies as a iuse to get
the piocess accepteu. Affiant nevei iepiesenteu himself as ueliveiing papeis
fiom Ni. Nelenuies' office, iathei, Affiant stateu explicitly to Ni. Wilson that
Affiant was seiving piocess unuei authoiity of the 0.S. Bistiict Couit.
c. Ni. Nelenuies falsely states that Affiant meiely ueliveieu
"copies of the above mentioneu lawsuit to Ni. Wilson's office." In fact Affiant
!"#$"% Ni. Wilson, who consenteu to accept seivice in the mannei of Affiant
leaving the uocuments with the Risk Nanagement ieceptionist aftei Ni.
Wilson hau seen an oiiginal summons with its embosseu seal fiom the Cleik
of the 0.S. Bistiict Couit.
u. Whethei seiving Wilson oi simply ueliveiing copies as Ni.
Nelenuies claims, Affiant hau no ieason to say he was fiom Nelenuies' office.
e. Ni. Wilson uiu not ask to look at any of the iest of the
piocesses befoie he agieeu to accept seivice via Affiant leaving the piocesses
foi all uefenuants with the Risk Nanagement ieceptionist, Ns. Bope Kaehlei.
f. Ni. Nelenuies falsely states Affiant maue a "uefective attempt
to accomplish seivice." In fact Affiant &"#'"()"% seivice on Ni. Wilson, but
the seivice, if uefective insofai as joining the uefenuants, is so because Ni.
Wilson withhelu infoimation, appaiently within his knowleuge accoiuing to
Befenuant Esquivel's Notion, p.6, that woulu have alloweu Affiant to peifect
timely seivice otheiwise on the uefenuants. Then Ni. Wilson lieu unuei oath
in his affiuavit, saying Affiant nevei saiu he was a piocess seivei, while not
aumitting Wilson knew beyonu uoubt he was being seiveu piocess in
Affiant's peihaps mistaken belief Wilson was appointee foi the uefenuants.
Wilson peijuieu himself as to Affiant's iepiesentations, to covei up the fact
that Wilson uelibeiately hau misleu Affiant by withholuing infoimation
Wilson was obligateu to uisclose to Affiant, Wilson insteau accepting seivice
he knew woulu not be effective as to the uefenuants. Biiectoi Wilson thus
puiposefully pieventeu Affiant fiom making timely anu effective seivice on
the uefenuants.
g. Affiant hau no ieason to seive the wiong peison(s).
h. Affiant uiu not conspiie with Plaintiff Bialley to make
ineffective seivice foi any ieason whatevei.
i. To the best of Affiant's knowleuge anu belief he was making,
anu hau maue, piopei anu effective seivice on the uefenuants by seiving Ni.
Wilson in the mannei Affiant has uesciibeu heiein.
j. Bau Wilson been appointeu to ieceive seivice foi the
uefenuants, the seivice maue in the mannei Affiant uesciibes heiein woulu
have joineu the uefenuants to this case.
S1. It is stiictly tiue that Affiant "nevei saiu he was a piocess seivei."
Bowevei:
a. Affiant tolu Ni. Wilson to his face, in uiiect anu unambiguous
teims, that Affiant was theie to seive Wilson as an agent Affiant believeu was
appointeu to ieceive, foi the nameu entities, officeis anu employees, feueial
couit piocess joining them as uefenuants in the above-titleu case.
b. When Wilson askeu, "Why me." Affiant tolu Ni. Wilson the
founuation of Affiant's unueistanuing that Wilson was the peison appointeu
to ieceive seivice foi those nameu on the piocess. This was the only time
Affiant mentioneu Nelenuies' name to anyone at APS anu then only as
Nelenuies' office being Bialley's souice of infoimation iegaiuing seivice.
c. Affiant showeu Wilson the embosseu seal of the Cleik of the
0.S. Bistiict Couit on the top oiiginal summonsietuin of seivice, the
inuisputable bauge of authoiity foi Affiant's commission to caiiy out such
seivice on Wilson foi the nameu uefenuants.
u. Affiant tolu Wilson that Affiant woulu have to sign the affiuavit
on the ietuins of seivice stating Affiant hau maue the seivice on Wilson foi
each of the nameu uefenuants, an act only the seivei of piocess can -- anu
must -- uo.
e. Theie is no uoubt whatevei in Affiant's minu that Ni. Nike
Wilson, Biiectoi of Risk Nanagement foi APS, knew anu unueistoou that
Affiant was seiving on Wilson piocess fiom this Couit asseiting #$ &'()*$+,
juiisuiction ovei the nameu uefenuants in the above-titleu action.
S2. Affiant unueistanus his uuty in seiving piocess to be a ministeiial
function of this Couit, not an auveisaiial act between the paities.
SS. Eveiy peison nameu in this affiuavit (excluuing the plaintiff anu the
ieceptionist), ?CC \PH QGD QI ]KQZ FO ?G QIIFTD@ QI HKFO !QP@H, hau an affiimative
uuty to facilitate Affiant's completion of seivice of this Couit's piocess on the
uefenuants.
S4. Insteau each one actively oi passively obstiucteu seivice, iesoiting to
willful peijuiy, suboination of peijuiy anu conspiiacy to accuse Affiant falsely of
peijuiy anu of ueieliction of his uuty as an aim of this Couit, intenuing by theii
actions to uefiauu this Couit of its juiisuiction ovei these uefenuants anu ovei this
case.
SS. To Affiant's knowleuge, no one has come foiwaiu to say who is
authoiizeu to accept seivice foi any uefenuant in this case, oi answeieu any inquiiy
iegaiuing seivice, othei than the one Ni. Nelenuies now uenies having maue. If Ni.
Bialley commissions Affiant with alias summons, Affiant will pioceeu to seive each
inuiviuual uefenuant peisonally, baiiing othei instiuctions fiom Plaintiff Bialley.

F0RTBER AFFIANT SAYETB NA0uBT.

________________________
ualen }. Smith
STATE 0F NEW NEXIC0 )
) ss.
C00NTY 0F BERNALILL0 )


S0BSCRIBEB ANB SW0RN to befoie me this _______ uay of }anuaiy 2u14 by
ualen }. Smith.

________________________
Notaiy Public

My Commission Expires:
________________________