STATE OF NEW MEXICOCOUNTY OF SANTA FEIN THE FIRST JUDICIAL DISTRICT COURT

JOHN M. ONSTAD,Plaintiff,

v. Case No. _________________________

VALERIE ESPINOZA,in her capacity as Santa Fe County Clerk,

and

LUCIANO “LUCKY” VARELA, a real party in interest,

Defendants.

COMPLAINT CHALLENGING NOMINATING PETITIONAND REQUEST FOR HEARING

COMES NOW, John M. Onstad, pursuant to NMSA 1978, §1-8-31(D), §1-8-

35(A), and Rule 1-096 NMRA brings this action to challenge the nominating petitions

filed by Defendant, Luciano “Lucky” Varela (“Varela”) for the office of New Mexico

House of Representatives District 48 and seeking an Order of this Court declaring

Varela’s declaration of candidacy void and barring the name of Luciano “Lucky” Varela

from being placed on the Primary Election ballot of the Democratic Party for the office of

New Mexico House of Representatives District 48.

Parties and Procedure

1. This action is filed timely in accordance with NMSA 1978, § 1-8-35 and Rule

1-096 NMRA.

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2. Plaintiff John M. Onstad (“Onstad”) is a resident of Santa Fe County and a

registered Republican voter in New Mexico House of Representatives District

48.

3. Defendant Varela is a resident of Santa Fe County, New Mexico and seeks to

be a candidate for New Mexico House of Representatives District 48 for the

Democratic Primary Election in June 2012.

4. Defendant Valerie Espinoza is the duly elected and qualified Santa Fe County

Clerk with an office in Albuquerque, New Mexico. In this capacity, Ms.

Espinoza serves as the filing officer for those legislative districts located

entirely located in Santa Fe County, serves as agent for service of process for

nominating petition challenges, and has the authority for placing names on the

primary election ballot for those legislative districts entirely located within

Santa Fe County.

5. Venue is proper in Santa Fe County because Onstad and Varela are residents of

Santa Fe County and the position being challenged is located in Santa Fe

County.

Allegations Supporting Challenge

6. Pursuant to NMSA 1978, §1-8-33, in order to appear as a candidate for New

Mexico House of Representatives District 48 for the Democratic Primary to be

held on June 5, 2012, Varela was required to file nominating petition

containing the valid signatures of at least ninety (90) qualified Democratic

registered voters in New Mexico House of Representatives District 48.

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7. Varela submitted fifteen (15) Nominating Petitions to Ms. Espinoza containing

a total of one hundred and eighty-one (181) signatures.1

8. As required by Rule 1-096 NMRA, copies of Varela’s Nominating Petitions

are attached hereto as Exhibit “1”.

9. NMSA 1978, §1-8-31(D) provides that a nominating petition, including the

signatures contained thereon, are invalid if the district or division of the office

sought is not listed on the nominating petition. Specifically, NMSA 1978, §1-

8-31(D) states: “The following information shall be listed in the appropriate

space at the top of the nominating petition before the petition has been signed

by any voter: the party affiliation of voters signing the petition, the candidate’s

name, the candidate’s address, the candidate’s county of residence and the

office sought by the candidate, which shall include the district or division of

the office sought, if applicable. A nominating petition, including all signatures

on the petition page, shall be invalid if any of the preceding information is not

listed before the petition is signed by a voter or if any of the preceding

information is altered.” (emphasis added).

10. Pages 2, 3, 5, 8, 9, 12, and 15 of Varela’s nominating petitions do not contain

the required House of Representatives district number in which he seeks to run

as required by NMSA 1978, §1-8-31(D).

11. The New Mexico Supreme Court recently affirmed this requirement. “Given

that only those persons residing within the particular magistrate judgeship 1 On page 3 of the Varela nominating petitions, two of the entries on line 1 and 2 are deleted; and on page 9, no signature is contained on line 9.

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division may nominate a candidate for that office, we conclude that the

Legislature intended that the nominating petition state the division number

associated with the magistrate judgeship position that is up for election… If the

identity of the division had no bearing on whether those asked to sign the

petition are in fact qualified to sign it, failure to state the division would not be

as troublesome. However, because the petition must state the candidate’s party

affiliation and the county of the office in question so that those asked to sign

the petition know whether they are qualified to do so, the petition must also

state the division of the judgeship.” see Charley v. Johnson, 2010-NMSC-24,

¶26, 148 N.M. 246, 233 P.3d 775.

12. Moreover, the Secretary of State’s 2012 Candidate Guide also makes clear the

requirement that a district number must be included in a nominating petition.

“Signatures on a page will not be counted by the filing office at the time the

petition is filed if all general information and candidate information in the top

one-third of each page has not been completely filled in prior to circulation.”

See New Mexico Secretary of State’s 2012 Candidate Guide, p. 23 and 24.

13. Because Varela did not include a geographic boundary in pages 2, 3, 5, 8, 9,

12, and 15 of his nominating petitions, all of those nomination petitions as well

as the signatures contained thereon are invalid as a matter of law. Pursuant to

Rule 1-096 NMRA and NMSA 1978, §1-8-31, Plaintiff challenges pages 2, 3,

5, 8, 9, 12, and 15 of Varela’s nominating petitions.

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14. It is necessary to address the Memorandum issued by the Attorney General on

March 23, 2012 issued at the request of the Secretary of State

(“Memorandum”). In the Memorandum, the Attorney General concluded that

the candidates for state legislative office who did not include the legislative

district number on their nominating petitions were nonetheless eligible to have

their names placed on the ballot.

15. It is important to note that, in his Memorandum the AG acknowledges that

under both Charley v. Johnson, 2010-NMSC-024 and NMSA 1978, §1-8-31, a

nominating petition that does not include a district number is invalid. The AG

then goes on to argue that the Secretary of State may nonetheless accept the

nominating petitions because of “extenuating circumstances” that include

“absence of notice or knowledge” about the new requirements.

16. Varela had ample notice of the new requirement. Indeed, as a member of the

New Mexico House of Representatives, he heard testimony on and voted in

favor of the bill during the 2011 regular legislative session that added the

requirement that the nominating petition contain the legislative district number.

See SB403, 2011 Regular Legislative Session. As such, as assertion that this

new requirement was somehow imposed without his knowledge lacks merit.

17. Because pages 2, 3, 5, 8, 9, 12, and 15 of Varela’s nominating petitions are

invalid, only eight (8) pages of nominating petitions include the required

district number. This results in only one hundred and twelve (112) petition

signatures.

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18. However, many of the remaining petition signatures on those remaining eight

(8) pages are invalid.

19. Pursuant to NMSA 1978, §1-8-31(C)(3), a signature shall not be counted if that

person is not a registered voter within ten (10) days prior to the filing of the

nominating petition. The voter registrations records used to determine these

deficiencies were provided by the Secretary of State’s Office on March 30, 2012; the

records were reviewed by Rod Adair whose address is Box 1796, Roswell, NM

88202; the search was made on March 30, 2012; and no search of variations in the

names, spelling, or addresses were made because the names or corresponding

addresses were contained in the House District 48 voter file. 2 See Rule 1-096 NMSA.

Plaintiff challenges the following 53 signatures on Varela’s nominating petition

because they do not meet the requirements of NMSA 1978, §1-8-31(C)(3):

Page 13 Line 1 Not Registered in House District 48Page 1 Line 2 Not Registered in House District 48Page 1 Line 3 Not Registered in House District 48Page 1 Line 4 Not Registered in House District 48Page 44 Line 5 Not Registered in House District 48Page 65 Line 1 Not Registered in House District 48Page 6 Line 2 Not Registered in House District 48Page 6 Line 4 Not Registered in House District 48Page 6 Line 7 Not Registered in House District 48Page 76 Line 1 Not Registered in House District 48Page 7 Line 6 Not Registered in House District 48Page 7 Line 11 Not Registered in House District 48Page 7 Line 12 Not Registered in House District 48Page 7 Line 14 Not Registered in House District 48

2 Because no date is provided for each of the nominating petitions, the plaintiff is unable to determine when each of the signatures was made. However, on March 30, 2012, the identified signers were not registered voters in House District 48. 3 Page No. 1, beginning with the name John Hooper4 Page No. 4, beginning with the name Robert Nathanson5 Page No. 6, beginning with the name Bernard Nuanez6 Page No. 7, beginning with illegible name

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Page 107 Line 3 Not Registered in House District 48Page 10 Line 4 Not Registered in House District 48Page 10 Line 6 Not Registered in House District 48Page 10 Line 7 Not Registered in House District 48Page 10 Line 8 Not Registered in House District 48Page 10 Line 9 Not Registered in House District 48Page 10 Line 10 Not Registered in House District 48Page 10 Line 12 Not Registered in House District 48Page 10 Line 13 Not Registered in House District 48Page 10 Line 16 Not Registered in House District 48Page 10 Line 17 Not Registered in House District 48Page 10 Line 18 Not Registered in House District 48Page 10 Line 19 Not Registered in House District 48Page 10 Line 20 Not Registered in House District 48Page 118 Line 1 Not Registered in House District 48Page 11 Line 2 Not Registered in House District 48Page 11 Line 3 Not Registered in House District 48Page 11 Line 5 Not Registered in House District 48Page 11 Line 6 Not Registered in House District 48Page 11 Line 7 Not Registered in House District 48Page 11 Line 8 Not Registered in House District 48Page 11 Line 10 Not Registered in House District 48Page 11 Line 11 Not Registered in House District 48Page 11 Line 12 Not Registered in House District 48Page 11 Line 14 Not Registered in House District 48Page 11 Line 15 Not Registered in House District 48Page 11 Line 16 Not Registered in House District 48Page 11 Line 17 Not Registered in House District 48Page 11 Line 18 Not Registered in House District 48Page 11 Line 19 Not Registered in House District 48Page 11 Line 20 Not Registered in House District 48Page 139 Line 3 Not Registered in House District 48Page 13 Line 4 Not Registered in House District 48Page 13 Line 15 Not Registered in House District 48Page 13 Line 17 Not Registered in House District 48Page 1410 Line 3 Not Registered in House District 48Page 14 Line 4 Not Registered in House District 48Page 14 Line 5 Not Registered in House District 48Page 14 Line 6 Not Registered in House District 48Page 14 Line 7 Not Registered in House District 48Page 14 Line 11 Not Registered in House District 48Page 14 Line 14 Not Registered in House District 48

7 Page No. 10, beginning with the name Phil Carter8 Page No. 11, beginning with the name Melanie Montoya9 Page No. 13, beginning with the name Mark Valdez10 Page No. 14, beginning with the name Ronald E. Gaines.

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Page 14 Line 15 Not Registered in House District 48

20. Because the foregoing petition signatures do not meet the requirement of NMSA

1978, § 1-8-31 (C)(3), only fifty-nine (59) valid signatures, at most, remain. This

number is far short of the ninety (90) petition signatures required.

WHEREFORE, Plaintiff respectfully requests that the Court invalidate the

nominating petition signatures challenged herein and find that the declaration of

candidacy filed by Luciano “Lucky” Varela is void, thereby preventing the Santa Fe

County Clerk, as chief election officer from placing Varela’s name on the June 5, 2012

Democratic primary election ballot for the office of New Mexico House of

Representatives District 48; grant a hearing in this matter within ten (10) days as required

by Rule 1-096 NMSA; and grant such further relief as the Court deems proper and just.

Respectfully submitted,

__________________________FRED T. VAN SOELENHARMON LAW OFFICE812 MITCHELL STREETCLOVIS, NEW MEXICO 88101(575) 763-0077 (TELEPHONE)(575) 742-0077 (TELECOPIER)fredvansoelen @ gmail.com (EMAIL)ATTORNEY FOR PLAINTIFF

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