SB0068

SENATE BILL 68

55th legislature - STATE OF NEW MEXICO - first session, 2021

INTRODUCED BY

Linda M. Lopez

ENDORSED BY THE LAND GRANT COMMITTEE

AN ACT

RELATING TO LAND GRANTS; AMENDING SECTION 49-1-5 NMSA 1978 (BEING LAWS 1907, CHAPTER 42, SECTION 5, AS AMENDED) TO ESTABLISH CANVASSING BOARDS FOR BOARD ELECTIONS; UPDATING PROVISIONS OF CHAPTER 49, ARTICLE 4 NMSA 1978 SO THAT THE DEFINITIONS, QUALIFICATIONS FOR THE BOARD, DUTIES AND POWERS OF THE BOARD, ELECTION PROCEDURES AND PROPERTY FORFEITURE RULES FOR THE CHILILI LAND GRANT-MERCED ARE SUBSTANTIALLY SIMILAR TO THE DEFINITIONS, QUALIFICATIONS FOR THE BOARD, DUTIES AND POWERS OF THE BOARD, ELECTION PROCEDURES AND PROPERTY FORFEITURE RULES FOR LAND GRANTS-MERCEDES GOVERNED PURSUANT TO CHAPTER 49, ARTICLE 1 NMSA 1978.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:

SECTION 1. Section 49-1-5 NMSA 1978 (being Laws 1907, Chapter 42, Section 5, as amended) is amended to read:

"49-1-5. ELECTION OF MEMBERS OF BOARD OF TRUSTEES-- VOTERS' QUALIFICATIONS--REGISTRATION--[PROVISIONAL BALLOTS] CANVASSING BOARD.--

A. Elections for the board of trustees shall be held on the first Monday in April or on a day designated in the bylaws, either every two or every four years as specified in the bylaws of the land grant-merced.

B. All qualified voting members of the land grant-merced are qualified to vote and may vote for trustees as specified in the land grant-merced bylaws.

C. The registration of qualified voting members shall be conducted in the manner prescribed in the land grant-merced bylaws. The secretary of the board of trustees shall maintain the registration books. Registration shall be closed beginning fifteen days before an election and reopened on the Monday following the election. The board of trustees shall meet to finalize the registration books by resolution at least five days prior to the election.

D. The registration books compiled before each election shall be used at that election. No person shall vote at the election unless duly registered in the books, and no ballot of any unregistered person shall be counted or canvassed.

E. A candidate for the board of trustees shall file a declaration of candidacy with the secretary of the board of trustees. The period when declarations of candidacy may be filed shall begin on the day the proclamation calling the election is published and shall remain open for at least ten days.

F. Whenever an election is to be called or is required by law, the board of trustees shall by resolution issue a public proclamation calling the election. The proclamation shall specify:

(1) the date on which the election will be held;

(2) the purpose for which the election is called;

(3) if positions on the board of trustees are to be filled, the date and time by which declarations of candidacy are to be filed;

(4) if a question is to be voted upon, the text of that question;

(5) the location of each polling place in the land grant-merced;

(6) the hours that each polling place will be open;

(7) the date and time of the closing of the registration books; and

(8) the date and time of the meeting to finalize the registration books.

G. Not less than thirty days nor more than forty-five days before the date of the election, the board of trustees shall publish in Spanish and English the proclamation in a local newspaper of general circulation available within the boundaries of the land grant-merced and post the proclamation in at least five public places within the land grant-merced.

I. The board of trustees shall provide in the bylaws for the forms and procedures by which the land grant-merced elections are conducted. If the board of trustees chooses to provide for early or absentee voting, it shall specify in its bylaws the procedures by which early or absentee voting shall be conducted."

SECTION 2. Section 49-4-4.1 NMSA 1978 (being Laws 2007, Chapter 145, Section 2) is amended to read:

"49-4-4.1. DEFINITIONS.--As used in Chapter 49, Article 4 NMSA 1978:

A. "board of trustees" means the board of trustees of the Chilili land grant-merced;

B. "child" means a biological, adopted or foster child, a legal ward or a child of a person standing in loco parentis;

[B.] C. "common lands" means lands owned by the Chilili land grant for the benefit of the heirs of the land grant-merced;

[C.] D. "heir" means a person who is a descendant of the original grantees and has an interest in the common land of the land grant-merced through inheritance, gift or purchase;

[D.] E. "land grant-merced" means the grant of land made by the government of Mexico to the town of Chilili in 1841, which was confirmed by congress in 1858 and issued a patent by the United States in 1909; [and]

F. "parent" includes a biological, adoptive or foster parent or an individual who stands in loco parentis to a child;

G. "precinct" means a geographic location such as a community or town that is guaranteed an apportioned amount of positions on the board of trustees of a land grant-merced as defined in the land grant-merced bylaws;

[E.] H. "qualified voting member" means an heir who is registered to vote in the land grant-merced as prescribed in the land grant-merced bylaws; and

I. "sibling" includes a stepsibling and a half-sibling."

SECTION 3. Section 49-4-5 NMSA 1978 (being Laws 2007, Chapter 145, Section 4) is amended to read:

"49-4-5. BOARD OF TRUSTEES--MANAGEMENT OF GRANT--POWERS.--The board of trustees shall have the power to:

A. control, care for and manage the land

grant-merced and real estate owned by the land grant-merced; prescribe the terms and conditions under which the common lands may be used and enjoyed; and make all necessary and proper bylaws, rules and regulations that shall be in substantial compliance with applicable statutes for the government thereof;

B. sue and be sued and have the standing to sue in law or equity to protect and expand the common lands of the land grant-merced;

C. convey, lease or mortgage the common lands of the land grant-merced in accordance with the land grant-merced bylaws;

D. determine the number of animals that may be permitted to graze upon the common lands and determine other uses of the common lands that may be authorized;

E. prescribe the price to be paid for the use of the common lands and resources of the land grant-merced and prohibit a person failing or refusing to pay that amount from using a portion of the common lands while the person continues in default in those payments; provided that the amount fixed shall be in proportion to the number and kinds of livestock pasturing upon the common lands or to other authorized use of the common lands;

F. adopt and use an official seal;

G. appoint judges and clerks and a canvassing board of election at all elections provided for in Chapter 49, Article 4 NMSA 1978 [and canvass the votes cast in those elections];

H. make bylaws, rules and regulations, not in conflict with the constitution and laws of the United States or the state of New Mexico, as may be necessary for the protection, improvement and management of the common lands and real estate and for the use and enjoyment of the common lands and of the common waters of the land grant-merced;

I. determine land use, local infrastructure and economic development of the common lands of the land grant-merced; [and]

J. determine zoning of the common lands of the land grant-merced pursuant to a comprehensive plan approved by the local government division of the department of finance and administration that considers the health, safety and general welfare of the residents of the land grant-merced [The department of finance and administration shall select a qualified arbitrator to arbitrate for zoning conflicts between the land grant-merced and neighboring municipalities and counties]; and

K. enter into memoranda of understanding, contracts and other agreements with a local, state or federal government or a government of a federally recognized Indian nation, tribe or pueblo, including but not limited to agreements concerning the protection and maintenance of cultural resources."

SECTION 4. Section 49-4-7 NMSA 1978 (being Laws 2007, Chapter 145, Section 6, as amended) is amended to read:

"49-4-7. ELECTION OF MEMBERS OF BOARD OF TRUSTEES--VOTERS' QUALIFICATIONS--REGISTRATION--CANVASSING BOARD.--

B. All qualified voting members of the land grant-merced are qualified to vote and may vote for trustees as specified in the land grant-merced bylaws.

C. The registration of [qualified] voting members shall be conducted in the manner prescribed in the land grant-merced bylaws. The secretary of the board of trustees shall maintain the registration books. Registration shall be closed beginning fifteen days before an election and reopened on the Monday following the election.

D. The registration books compiled before each election shall be used at that election. A person shall not vote at the election unless duly registered in the books, and a ballot of any unregistered person shall not be counted or canvassed.

F. Whenever an election is to be called or is required by law, the board of trustees shall by resolution issue a public proclamation calling the election. The proclamation shall specify:

(1) the date on which the election will be held;

(2) the purpose for which the election is called;

(3) if positions on the board of trustees are to be filled, the date and time by which declarations of candidacy are to be filed;

(4) if a question is to be voted upon, the text of that question;

(5) the location of each polling place in the land grant-merced;

(6) the hours that each polling place will be open; [and]

(7) the date and time of the closing of the registration books; and

(8) the date and time of the meeting to finalize the registration books.

H. The board of trustees shall appoint one election judge and at least [two election clerks] one election clerk for each polling place. The board of trustees shall appoint at least two individuals, excluding the election judge, to a canvassing board for each election. The election judge shall also [be present for the canvass of the vote] serve on the canvassing board. No person shall be qualified for appointment or service as an election clerk or judge who through blood, law or marriage is a spouse, parent, child, brother or sister of any candidate to be voted for at the election. I. The board of trustees shall provide in the bylaws for the forms and procedures by which the land grant-merced elections are conducted. If the board of trustees chooses to provide for early or absentee voting, it shall specify in its bylaws the procedures by which early or absentee voting shall be conducted."

SECTION 5. A new Section 49-4-7.1 NMSA 1978 is enacted to read:

"49-4-7.1. [NEW MATERIAL] PROVISIONAL BALLOTS--REQUIREMENTS FOR USE--PROCEDURES.--

A. A person shall be permitted to vote on a provisional paper ballot even though the person's name does not appear in the land grant-merced registration book; provided that the person:

(1) shows proof to the election judge and clerk that the person is a qualified voting member; and

(2) executes a statement swearing or affirming that to the best of the person's knowledge, the person:

(a) is a qualified voting member of the land grant-merced;

(b) is currently registered and eligible to vote in the land grant-merced election; and

B. A judge or election clerk shall write the person's name on the voter roster, have the voter sign next to the voter's name and issue the voter a provisional paper ballot, an outer envelope and an official inner envelope. The voter shall vote on the provisional paper ballot in secrecy and, when done, place the ballot in the official inner envelope, place the official inner envelope in the outer envelope, sign the outer envelope and return the envelope to the judge or election clerk. The election judge or clerk shall ensure that the required information is completed on the outer envelope and place the envelope in a container designated for provisional paper ballots.

C. At a minimum, the following information shall be printed on the outer envelope for a provisional paper ballot:

(1) the name and signature of the voter;

(2) the voter's registered address, both present and former, if applicable;

(3) the voter's date of birth;

(4) the reason for using the provisional ballot, including what proof was given to assert land grant-merced qualified voting member status; and

(5) sufficient space to list the disposition of the ballot after review by the canvassing board.

D. A provisional paper ballot shall not be rejected for lack of the information required by this section and shall be qualified as long as the voter provides a valid signature and sufficient information for the judge and canvassing board to determine whether the voter is a qualified voting member.

E. Knowingly executing a false statement constitutes perjury as provided in the Criminal Code, and voting on the basis of such falsely executed statement constitutes fraudulent voting.

F. Upon closing of the polls, provisional ballots shall be kept by the election judge until the canvassing of the votes by the election judge and canvassing board, who shall determine if the ballots will be counted prior to certification of the election.

G. If the voter was registered with the land grant-merced and the canvassing board determines that the individual was left off of the registration book in error, the provisional paper ballot shall be counted; provided that if the qualified voting member did not sign either the signature roster or the ballot's envelope, the provisional paper ballot shall not be counted.

H. If there is no record of the voter ever having been registered with the land grant-merced, the voter shall be offered the opportunity to register and the provisional paper ballot shall not be counted."

SECTION 6. Section 49-4-8 NMSA 1978 (being Laws 2007, Chapter 145, Section 7, as amended) is amended to read:

"49-4-8. ELECTION--VOTES REQUIRED--CANVASSING VOTES.--

A. The candidates receiving the most votes cast for the open seats on the board of trustees shall be elected to the board.

B. The election judges and [board of trustees] the canvassing board shall meet not later than seven days following the election and canvass the votes cast and issue to each candidate duly elected to a seat on the board a certificate of election.

C. In the event of a tie vote between any candidates for the board of trustees, the determination of which of the candidates shall be declared to have been elected shall be decided by lot. If the method for determining by lot is not set forth in the bylaws of the land grant-merced, the method shall be agreed upon by the tied candidates. The canvassing board shall issue the certificate of election to the candidate chosen by lot.

D. Any unsuccessful candidate for election to the board of trustees or any qualified voting member of a land grant-merced who believes that any portion of a land grant-merced election was conducted in violation of any requirements set forth in Chapter 49, Article 4 NMSA 1978 or the land grant-merced bylaws may contest the outcome of an

election; provided that the election contest is filed with the Guadalupe Hidalgo treaty division of the office of the attorney general within thirty days from the issuance of the

certificate of the election by the canvassing board.

E. In the event that the conduct or outcome of an election is contested, the person or persons holding a certificate of election shall take possession of and discharge the duties of the office until the contest is decided.

F. The Guadalupe Hidalgo treaty division of the office of the attorney general shall promulgate rules for investigating and deciding the outcome of contested elections, which rules shall include:

(1) forms for filing an official contest of an election;

(2) procedures for conducting investigations and collecting evidence for contested elections; and

(3) administrative procedures for appealing a decision made by the division.

G. The Guadalupe Hidalgo treaty division of the office of the attorney general shall render a decision on election contests within ninety days of the date on which the election contest was filed. If it is determined that the election requirements were violated, the decision shall include whether the election:

(1) could be remedied and the actions required, including dates of implementation, to effect a remedy; or

(2) is invalidated; provided that if a new election is required, the decision may include instructions for holding a new election to correct procedures that caused the violations."

SECTION 7. Section 49-4-9 NMSA 1978 (being Laws 2007, Chapter 145, Section 8, as amended) is amended to read:

"49-4-9. ORGANIZATION OF BOARD--BONDS--VACANCIES.--

A. All members of the newly elected board of trustees shall meet no later than seven days after the votes are canvassed and organize themselves by the election of a president, secretary and treasurer. The treasurer shall perform such duties as may be required by the board and shall furnish to the board a good and sufficient surety bond in a sum as set forth in this section, to be conditioned as are the bonds of other public officials handling public money. It is the duty of the treasurer to deposit all the money of the land grant-merced in a bank or credit union organized and doing business in New Mexico.

B. In the event of the death or resignation of the treasurer, the board shall fill the vacancy by appointing one of the members of the board as treasurer, who shall, before entering into the performance of the duties as treasurer, execute and furnish to the board a good and sufficient surety bond, similar to the bond entered into by the predecessor treasurer.

C. The amount of the bond required of the treasurer and the treasurer's successor shall at all times be for a sum of at least double the amount received by and deposited in the bank or credit union by the treasurer.

D. In the event the board of trustees delegates any other of its members to collect money due the land grant-merced, that person shall be bonded in the same manner as is provided in this section for the bonding of the treasurer.

E. Those authorized to collect money shall give receipts for the money collected, which receipts shall be in the form prescribed by the board of trustees in the bylaws as an official receipt."

SECTION 8. Section 49-4-12 NMSA 1978 (being Laws 2007, Chapter 145, Section 11) is amended to read:

"49-4-12. SALE OR MORTGAGE OF COMMON LANDS--RESTRICTIONS.--

A. A conveyance of a portion of or all of the common lands of the land grant-merced shall be effective only if:

(1) the conveyance is made in accordance with the land grant-merced bylaws and this section;

(2) the conveyance is made for the benefit of the land grant-merced;

(3) the board of trustees has approved a resolution to make the conveyance at a regular meeting held in accordance with Sections [9 and 12 of this 2007 act] 49-4-10 and 49-4-13 NMSA 1978;

(4) the board of trustees has petitioned for an order affirming the board's resolution from the district court of the district in which the property is located; and

(5) the district court has issued an order affirming the board of trustees' resolution pursuant to Subsection D of this section.

B. An heir may file a written protest of a conveyance with the board of trustees and the district court within thirty days of the date that the resolution approving the conveyance is passed by the board. The board of trustees shall address and make a decision on the protest at a special meeting held in accordance with Sections [9 and 12 of this 2007 act] 49-4-10 and 49-4-13 NMSA 1978 within thirty days of receiving the protest.

C. An heir dissatisfied with a decision of the board of trustees may appeal to the district court of the county in which the property is located in the following manner:

(1) appeals to the district court shall be taken by serving a notice of appeal upon the board within thirty days of the decision. If an appeal is not timely taken, the action of the board of trustees is conclusive;

(2) the notice of appeal may be served in the same manner as a summons in civil actions brought before the district court or by publication in a newspaper printed in the county in which the property is located, once per week for four consecutive weeks. The last publication shall be at least twenty days prior to the date the appeal may be heard. Proof of service of the notice of appeal shall be made in the same manner as in actions brought in the district court and shall be filed in the district court within thirty days after service is complete. At the time of filing the proof of service and upon payment by the appellant of the civil docket fee, the clerk of the district court shall docket the appeal;

(3) costs shall be taxed in the same manner as in cases brought in the district court, and bond for costs may be required upon proper application; and

(4) the proceeding upon appeal shall be

de novo as cases originally docketed in the district court. Evidence taken in a hearing before the board of trustees may be considered as original evidence subject to legal objection, the same as if the evidence was originally offered in the district court. The court shall allow all amendments that may be necessary in furtherance of justice and may submit any question of fact to a jury or to one or more referees at its discretion.

D. If the district court finds that all requirements of this section have been satisfied and that all protests and appeals are concluded, the court shall issue its order affirming the board of trustees' resolution conveying the property.

E. After the district court issues its order, the board of trustees shall execute the necessary documents in the name and under the seal of the land grant-merced, and all heirs shall be bound by the board's conveyance."

SECTION 9. Section 49-4-13 NMSA 1978 (being Laws 2007, Chapter 145, Section 12) is amended to read:

"49-4-13. MEETINGS TO BE PUBLIC--ANNUAL REPORT.--

A. All meetings of the board of trustees shall be held in accordance with the Open Meetings Act. Executive sessions shall not be held except in accordance with the Open Meetings Act. All heirs of the land grant-merced shall have the right to be present at all times when the board of trustees is in session and to be heard on all matters in which they may be interested.

B. The board of trustees shall annually make public a report of all its transactions for that year. The report shall include agendas, minutes, any actions taken and all financial transactions. The report shall be maintained in a public place and available for public review; for the purposes of this subsection, filing the report with the land grant council to be kept with the New Mexico community land grant registry shall be considered filing the report in a public place.

C. The secretary of the board of trustees shall reduce to writing, in a book kept for that purpose, minutes of the business transacted at each meeting of the board of trustees."

SECTION 10. Section 49-4-14 NMSA 1978 (being Laws 2007, Chapter 145, Section 13) is amended to read:

"49-4-14. VACANCIES.--If a vacancy occurs on the board of trustees, the remaining members shall fill the vacancy by appointment made at a regular meeting. The person appointed shall hold office [until the next regular election] for the remainder of the unexpired term of the trustee being replaced."

SECTION 11. Section 49-4-16 NMSA 1978 (being Laws 2007, Chapter 145, Section 15) is amended to read:

"49-4-16. PROTECTION OF COMMON LANDS-- DELINQUENCY--FORFEITURE.--

A. [If the board of trustees brings an action in accordance with Subsection B of Section 4 of this 2007 act and judgment is rendered in favor of the board of trustees, the court may award to the board of trustees possession of the tract, piece or parcel of the land and such damages as it may have proved for the wrongful detention and any other remedy provided for by law] If a person holds in possession or claims in private ownership, within the exterior boundaries of a land grant-merced, any tract, piece or parcel of land to which, in the opinion of the board of trustees, the person has no right or title, the board may institute an action of ejectment in district court against the person. If upon the trial it is determined that such possession is without right, judgment shall be rendered in favor of the board for possession of the tract, piece or parcel of land and for such damages as it may have proved for the wrongful detention.

B. A delinquent heir shall lose all right that the heir may have had to use the common lands of the land grant-merced unless the heir pays in full all legal assessments or dues due by the heir."

SECTION 12. EFFECTIVE DATE.--The effective date of the provisions of this act is July 1, 2021.

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