A hearing has been set for Oct. 27 after a judge awarded summary judgment in a lawsuit against Edgewood Mayor John Bassett, the town’s governing body, and the mayor’s mother and brother.
The hearing is on an amended motion by the town to set aside default judgement and summary judgment in the case, filed by Marcus Rael, whose law firm represents the town of Edgewood. The motion also asks the Court for an expedited decision.
“The town of Edgewood is confident that the plaintiffs in this case did not follow correct legal procedure, that they did not serve the motion for default judgment or summary judgment on the town or the mayor,” said Marcus Rael, the town’s attorney. “Nor did they follow the correct process before the court, in that the orders were entered wrongfully, and therefore in my opinion will have no legal effect. We expect this will be cleared up in the hearing Oct. 27.”
According to an Order for Partial Summary Judgment, Bassett “willfully violated the Nepotism Ordinance,” is “deemed guilty of malfeasance in office,” and subject to “dismissal and removal from office as mayor” and “subject to punishment for a misdemeanor criminal offense” due to violation of the ordinance.
An Order for Default Judgment says that Bassett and the town of Edgewood “judgment by default is entered against Defendant John Bassett” on counts including a count of fraud and a violation of the Fraud Against Taxpayers Act. The order also includes a writ of mandamus against the governing body of the town which would compel it to take legal action against Bassett.
It’s the latest in a convoluted lawsuit brought by Tom McGill, Jerry Powers and the late Howard Calkins against the mayor and governing body. McGill and Powers created Citizens for an Open and Responsible Edgewood, or CORE, which successfully petitioned for a special election to change Edgewood’s form of government.
That election was held Aug. 24, with voters approving, by a wide margin, the change from the council-mayor format to commission-manager.
An opinion by the Attorney General says that Edgewood’s governing body will remain in its current council-mayor configuration while it plans for the transition to commission-manager, at which point five commission seats will be up for election, in November, 2021, with the newly seated commissioners coming into office in January, 2022.
Part of CORE’s complaints against Bassett and the governing body is that when Edgewood’s council voted to opt in to the Local Elections Act, they did so extending their terms rather than curtailing them. Both options were provided for in the Act, and municipalities across New Mexico went both ways in its implementation.
The lawsuit’s court documents show the State of New Mexico and Town of Edgewood as plaintiffs in what is called a “qui tam” action, meaning one brought by a citizen on behalf of the government.
Both the Attorney General and the town of Edgewood declined to join the lawsuit.
Rael’s motion for a hearing seeks to have the two orders overturned, arguing that the proper time frame wasn’t followed.
On Oct. 8, Terry filed a Motion for Default Judgment; an Order was entered Oct. 14, less than the two weeks allowed for a response from opposing counsel.
A Motion for Partial Summary Judgment was filed Oct. 9, with the Order entered Oct. 15.
That motion argues that because the mayor is “charged by law with the duty of appointing the municipal officers and employees for the Town of Edgewood, it cannot be argued that Mayor Bassett’s appointment of his first cousin to the Planning and Zoning Commission was anything other than a deliberate act.”
Bassett, for his part, has acknowledged that he violated the town’s nepotism ordinance, but said it was not intentional; his cousin, Cheryl Huppertz, resigned from the board.
Rael said that neither the town’s governing body nor Bassett were properly served with copies of the motion or order, and said that means they won’t have a legal effect, in his opinion.
The order reads, “Submitted By: Adrian Terry, Esq., Attorney for Plaintiffs, Parties Entitled to Notice:, Adrian Terry, Esq.”
Another wrinkle in the legal proceeding is the way the case was filed, as “qui tam,” meaning that the Amended Complaint by McGill et al was sealed for 60 days, and the recusal of the first judge on the case, followed by entry of a new judge. In addition, the first Complaint was replaced by an Amended Complaint.
Rael argued in his motion for a hearing that the court orders were premature. “Courts have held that summary judgment is an ‘extreme remedy, [which] must be utilized only with due caution and cannot be granted if a single issue of material fact exists in the case.’”
The motion adds that the Orders did not permit the parties to assert their arguments, “nor allow Mayor Bassett to demonstrate that there are disputed material facts present in regards to the Motion for Summary Judgment.”
In a June online forum, Terry and Powers described CORE’s ongoing efforts to unseat Bassett, including the petition to change the form of government and complaints to the Attorney General, State Auditor, state Environment Department and Foundation for Open Government, in what Terry described as a “shotgun approach.”