Sheriff’s Attorney Files Brief In Advance Of Hearing At Los Alamos Justice Center May 10

By MAIRE O’NEILL
Los Alamos Daily Post

Sheriff Marco Lucero’s attorney Blair Dunn filed his response in First Judicial District Court Thursday to Los Alamos County’s brief in support of a restraining order, preliminary injunction and permanent injunction against Lucero. A hearing on the case is slated for 10 a.m., May 10 at the Los Alamos Justice Center before Judge Francis J. Mathew.

Los Alamos County Attorney Alvin Leaphart maintains in his April 29 brief that Lucero has unlawfully exceeded the limits placed on his elective office by the citizens of the Incorporated County of Los Alamos through their lawful exercise of self-government as expressed in the County Charter. By engaging in law enforcement duties Leaphart said Lucero acts in “disregard of the consent of the governed” and “tramples and trespasses on specific constitutional and legal rights of self-government” vested in the County as expressed in the Charter.

Leaphart’s brief said no money judgment can be rendered to compensate for this kind of harm. It states that by all indications, including the Sheriff’s “vigorous pursuit of his legal actions against the County”, this harm will continue unless the court orders him to stop.

“Therefore, the Sheriff is causing an irreparable injury to the Incorporated County and its citizens that has no remedy at law,” the brief states. “This warrants a permanent injunction from this court ordering Sheriff Lucero to forever cease and desist from keeping the peace and enforcing the laws of the State and ordinances of the County while acting as Sheriff of the Incorpporated County of Los Alamos.”

Dunn has called those assertions “beyond absurd” saying that the County is declaring itself to be a higher authority than the New Mexico Legislature not subject to state law.

In his latest brief, Dunn said the County has gone too far and has acted with professed intent to subjugate state law to their own municipal ordinances.

“What is clear is that the power of the municipality to act at all derives from state law and the limitations placed by state law. While the County may in fact act as a municipality, any such municipality is limited by the New Mexico Constitution,” he said.

Dunn said the Constitution permits the County to designate officers and employees, which shall perform the duties as assigned by law to county officers. He maintains that the County is limited in designating employees to perform duties to those duties the law has “assigned” to the County.

“It is equally plain that it is state law that identifies which duties the municipality has discretionary authority over and that such municipal authority exists as long as not inconsistent with statutory or constitutional law and limitations,” Dunn said.

He concluded that the Constitution and interpreting or clarifying provisions of New Mexico statutes are a limitation on the County’s ability to remove all but the most menial of the sheriff’s duties.

“The law is unclouded; the State’s edict is that the Sheriff shall be the conservator of peace in his county,” Dunn said.

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