A New Mexico Supreme Court panel ruled unanimously Friday that the secretary of state must include advisory questions on general election ballots, clearing the way for Santa Fe County voters to give their opinion in November on whether possession of small amounts of marijuana should be decriminalized.

The ruling also puts two advisory questions on the Bernalillo County ballot — one about reducing penalties for marijuana and one that asks if the county should levy a tax to provide more mental health care.

Officials from Santa Fe and Bernalillo counties said they were happy with the high court’s ruling. “I feel really good about the decision because I feel we followed the proper procedure,” Santa Fe County Clerk Geraldine Salazar said.

“Now we can just get on with preparing the ballots,” Salazar said, as she stood in the hall of the state Supreme Court shortly after the decision, directing her staff via smartphone to send the ballot question, once again, to the Secretary of State’s Office. Under federal election law, overseas ballots have to be mailed by Saturday, Sept. 20. Salazar said the county is mailing 48 ballots to people who live out of the country.

Secretary of State Dianna Duran didn’t back down from her stance and called the three-member court panel that ruled on the emergency petition “makeshift.”

The Supreme Court panel included Justices Petra Jimenez Maes and Barbara J. Vigil and Court of Appeals Judge Michael Bustamante. The court has a total of five justices.

“I am disappointed in this order,” Duran said in a statement. “We of course will comply with this order, but what it means is that Bernalillo County voters will be using a ballot printed in tiny 7-point font, just so people can be presented with a meaningless public opinion poll.”

Pat Davis of ProgressNow New Mexico said his group is mounting a campaign in support of the marijuana proposals.

“The time for playing politics with our ballot is over. Now we can start having a conversation about the issue and move forward,” Davis said in a statement.

A new Albuquerque Journal poll of 500 voters statewide found that 50 percent opposed Colorado-style legalization of pot, while 44 percent supported it.

County commissions from Santa Fe and Bernalillo voted in early September to put the nonbinding questions on the ballot. The county clerks certified their portions of the ballot as correct and sent them on to Duran.

Duran told the county clerks that she wouldn’t include advisory questions on the ballot because state law doesn’t allow questions that merely poll voters and have no force of law.

Debbie O’Malley, chairwoman of the Bernalillo County Commission, said the commissioners were surprised when Duran chose to keep the questions off the ballot. “We had never had these kinds of polling questions before, but we certainly asked our legal counsel what our authority was and did our homework, and we thought we were good to go.”

The two counties asked the Supreme Court to intervene quickly so the matter could be settled before the deadline for mailing the ballots.

Duran sought to have a federal judge decide the matter, but her request was rejected Thursday.

The high court panel ruled that state law gives county clerks the authority to approve the portion of ballots that have only countywide impacts. The three nonbinding questions only impacted the counties where they were approved by commissioners.

The 3-0 ruling could be seen as a political victory for Democrats. Republicans have accused the party of wanting the nonbinding pot questions included on the ballots in order to coax more Democrats, especially young ones, to the polls.

In Bernalillo County, the commission vote to place the marijuana and tax questions on the ballot passed along party lines, with Republican commissioners in opposition.

In addition, Duran, a Republican, is running for re-election against Bernalillo County Clerk Maggie Toulouse Oliver, a Democrat.

Santa Fe County Commissioner Liz Stefanics said she thought the pot question is an important one for voters to have a voice in. She asked her fellow commissioners to add the nonbinding question to the ballot after the Santa Fe City Council voted 5-4 to decriminalize small amounts of pot. Santa Fe Mayor Javier Gonzales said at the time that while he was in favor of legalizing pot, he thought reducing penalties for possession of small amounts of the drug is an issue voters should weigh in on.

“My issue was so many people in the city and the county had signed a petition that they wanted this question on the ballot regardless of how the answers are,” Stefanics said. The all-Democrat commission voted 5-0 to add the question to the ballot.

Stefanics said the state Legislature has been dealing with the marijuana issue for a long time. “The results of the advisory vote gives us as the County Commission something to take to our legislators and say, ‘here is what your voters think,’ ” she said.

Duran said she’s worried now that politicians will use the ballot to “play with voters.”

“It had been my prayer that the court would follow the law and not yield to partisan pressure,” she said in a statement. “The reason I take a comprehensive, very detailed view of the election code on these kinds of questions is that decisions like this have ramifications that will last forever. Good luck putting the public opinion poll genie back in the bottle.”

Bernalillo County Clerk Toulouse Oliver said in a statement, “Our statutes are clear and Dianna Duran violated those statutes. Election officials cannot say what goes on the ballot and what doesn’t. And the secretary of state may not interfere in the legal process for creating and printing ballots as she did in this case.”

Contact Staci Matlock at 986-3055 or smatlock@sfnewmexican.com. Follow her on Twitter @stacimatlock.

(14) comments

Donald Sure

Justice Jimenez-Maes - Strong D
Justice Vigil - Strong D
Neither Justice Chavez, Daniel, or Bosson were present.
I believe the third "Justice" is from the Court of Appeals.

At the very least they could have pretended to be non partisan.

Mike Johnson

Indeed, but with no accountability and no possible way to overturn them, why should they pretend. They are like an Imperial entity, they can never be wrong and never be questioned, that is why we need some new laws.

Colleen Harper

Does "non-partisan" apply to ALL Justices?

After all, Supreme Court Justice Clarence Thomas' wife is the leader of a major Tea Party organization and he constantly receives speaking fees from right wing organizations.

I only ask because you made such an issue of two Justices being "Strong D".

Mike Johnson

The problem with the NM Supreme Court is that ALL of the justices are strong "D"s, otherwise known as left wing liberal partisans who make no bones about their bias and unfairness on issues. At least the SCOTUS is almost evenly divided, and many ruling are 5-4 or 4-5 with the swing justice Kennedy. The NM Supremes have no balance, no objectivity, no diversity of thought, no discussion needed on case, and all the outcomes are totally predictable along partisan lines, they should be impeached and removed.

Mike Johnson

This is of course all about partisan politics as continually practiced by this court. In another case, where a judge has been given a "do not retain" recommendation, an impartial commission weighs in thusly: “Attorneys give her low ratings when it comes to treating all participants equally and for displaying fairness and impartiality toward each side of the case,” the commission says in the evaluation. “They also rate her lower for not always exercising sound legal reasoning and for not being thoroughly knowledgeable of the law. In addition, attorneys rate her poorly for not always conducting herself in a manner free from arrogance.”

In looking at these three, it is very unfortunate the same commission cannot evaluate them, and this kind of brazen, politically motivated judicial group continues for life. All the more reason we need a Constitutional Amendment to allow recall elections of partisans like this on our benches, no matter what court, The people need a voice when the judiciary ignores the Constitution and the people's business.

Mike Johnson

Yes, I do know they are not officially in the job for life, but considering the way they get re-elected, it may as well be for life, if they play their partisan cards correctly while on the bench.

Juan Blea

The politics, to me, aren’t important. What is important is the question, “Should marijuana be legal?” I recently ran a survey called the Substance Abuse & Addiction Survey between August 16th and September 16th. There were 100 responses and two (2) things were clear: 1) That responders see Alcohol and Heroin as far more dangerous that marijuana; and, 2) That marijuana should be, at the very least, de-criminalized. I believe we are heading into interesting times and should consider the issue separately from the politics. Full survey results are here: http://wp.me/p3xGVw-my

James Wilson

>> If the poll is meaningless, why is she so opposed to it?

Uh, because that's what "meaningless" means? Your nasty diatribe makes no sense. You want marijuana, and that fills you with irrational anger for Duran, is the only thing that comes through. We hear you, Wads.

Trevor Burrowes

I did get the sense that Republican politics was at work in the opposition to the ballot measure. And I can't say that Democrat politics wasn't also in play. If it was, the difference is that the Democrats listened to the people and the Republicans did not.

Paul Schmolke

I think it would be entirely appropriate to put one more item on the ballot...a recall vote for Secretary of State Duran. Since when is anything other than the voting booth a means of obtaining accurate and decisive public opinion. I've read the text of her opinions and can't understand why she insists that we can't poll the voters on important public issues...this makes no sense unless we inject political motivation on behalf of our misguided Governor, a proponent of the "smaller is better" idea regarding government involvement in the private sector. Both these ladies seem to be in disagreement with themselves.

John Wilson

'Duran said she’s worried now that politicians will use the ballot to “play with voters.” '

I guess lots of us know when a politician is playing with us. Many of us have played before and find that the crew who is texting messages to Duran or giving heavy-handed guidance to Martinez are not the best players we have seen.

It is refreshing to see that the courts are wise to the play as well.

William Wadsworth

Secretary of State Dianna Duran ... called the three-member (Supreme) court panel that ruled ... “makeshift.”

(Duran's comment is an entirely inappropriate, unprofessional response. She's been slapped down by both Federal and State courts. Ouch! )

“I am disappointed in this order,” Duran said in a statement. “We of course will comply with this order, but what it means is that Bernalillo County voters will be using a ballot printed in tiny 7-point font, just so people can be presented with a meaningless public opinion poll.” Secretary of State Dianna Duran

(The degree of Duran's arrogance is astonishing. If the poll is meaningless, why is she so opposed to it? As for 7-point font, it seem she'll do whatever she can to flaunt her contempt for the Courts' decisions.)

Duran said she’s worried now that politicians will use the ballot to “play with voters.”

(Her concern would be touching, were it not dishonest and deceitful.)

“It had been my prayer that the court would follow the law and not yield to partisan pressure,” she said in a statement. “The reason I take a comprehensive, very detailed view of the election code on these kinds of questions is that decisions like this have ramifications that will last forever. Good luck putting the public opinion poll genie back in the bottle.” Secretary of State Dianna Duran

(Prayer? More dishonesty and deceit. Our courts determine what the law says, not a too-big-for-her-britches political buffoon. A pathetic showing by someone who belongs behind bars for her criminal behavior.)

Donald Sure

Makeshift is exactly the right definition. 2 of five justices and a COA judge. We didn't elect a Supreme Court to act with only a minority present. Where was the third justice?

Mike Johnson

Maybe out smoking pot??

Welcome to the discussion.

Thank you for joining the conversation on Santafenewmexican.com. Please familiarize yourself with the community guidelines. Avoid personal attacks: Lively, vigorous conversation is welcomed and encouraged, insults, name-calling and other personal attacks are not. No commercial peddling: Promotions of commercial goods and services are inappropriate to the purposes of this forum and can be removed. Respect copyrights: Post citations to sources appropriate to support your arguments, but refrain from posting entire copyrighted pieces. Be yourself: Accounts suspected of using fake identities can be removed from the forum.