New Mexico League of United Latin American Citizens

P.O. Box 1324 Las Cruces, NM 88004 (575) 312-6327

Paul Pablo A. Martinez Immediate Past State Director (2006-2010)

TO: FROM: DATE:

National LULAC Board of Directors Paul Pablo A. Martinez, Immediate Past NM LULAC State Director June 13, 2013 RE: Challenge to Legal Opinion rendered by Mr. Manuel G. Escobar, National LULAC Legal Advisor in the Disqualifications of numerous Arizona Councils

Please be advised that many of us have reviewed the opinion issued by Mr. Manuel G. Escobar, Esq., on June 12, 2013, regarding the above captioned matter. After careful review, many of us could not find any substantive legal arguments germane to the National LULAC Constitution and By-laws to support the veracity of the aforementioned opinion. The entire basis of the disqualification of these Arizona Councils was based on the following: Per Escobar: Mr. Zazueta was not a member in good standing of the League when he signed the applications referenced above. He was also not a member in good standing of the League at the time the applications for either individuals or councils were submitted to the League. The records of the League's membership office reflect that Mr. Zazueta's failed to pay his 2013 membership dues. As a consequence, and I reiterate, Mr. Zazueta was not a member in good standing of the League at all times relevant to this opinion. Because he was not a member in good standing, his signatures are not effective, and the various applications described above were fatally defective. On investigation of the issue presented, I have determined that the League has followed the above constitutional mandates for at least the entire terms of Past President Belen Robles, Past President Enrique "Rick" Dovalina, Past President Hector Flores, Past President Rosa Rosales and President Margaret Moran. It is believed that the League imposed these same requirements even before the terms of these past presidents.

For your information, prior to the writing this opinion, I was in communication with Mr. Zazueta. I requested that he provide any documents or other information he wished considered in connection with this issue. Further, additional information from the LULAC membership office was reviewed. Accordingly, it is my opinion that the charters of the newly formed councils whose charter applications or whose individual membership applications were endorsed or sponsored by Mr. Zazueta were improperly issued, and are null and void.

Our counter arguments are based on both the National LULAC Constitution and By-laws and substantive law. 1. Pursuant to Article VI, Section 8 (b) states: "A local council may be organized under the sponsorship of an active Council and/or any District, State or National Board of Director officer or any combination of these according to the procedures set forth below..." In addition, subsection (b) (1) states: "A group of not less than ten person ... desirous of forming a LULAC Council shall, on its own initiative or that of one of the possible sponsoring entities, stipulated above, meet and elect officers and otherwise constitute itself into an organized body;"

Mr. Escobar did not provide and Administrative- Constitutional or Written Directives to support that an organizing officer must be a LULAC Member or Officer in good standing. The National LULAC Constitution is moot and silent on this assertion and not accurate. As stipulated, Article VI, Section 8, subsection (b) (1), a council can form on its own initiative. This section implies and establishes the status of the council organizer may be an officer at any level (District, State, and National) or a group of individuals who on their own initiative may, organize a council. Mr. Escobar did not provide any specific historical or analogous information on past practices on this case and point, other than referring to what was believed to be the case in the previous administrations as alluded to in his opinion. Quite to the contrary, several councils in unchartered states have been allowed to organize without the signature of an organizing officer and in fact organized on their own volition as indicated above. When I

served on the National Board, several councils in Ohio, Washington and Nevada were created without an organizing officer, but the founding member was allowed to sign after the fact. The Board cognizant of this chartered several of these councils. This was during Hector Flores and Rosa Rosales administrations. 2. Miguel Zazueta has been a member in good standing for over ten (10) years. Mr. Zazueta did provide Mr. Brent Wilkes, Ms. Guadalupe Morales and Mr. Manuel Escobar documentation that he sent in dues for his council in February 2013. The National Office claims they did not receive it. However, in reviewing his check sequences, most of those checked issued for dues; District and State were cashed and the one outstanding or unreconciled was the one issued to National. He recently issued a stop payment of that check to due the fact that it was not received by the National LULAC Office. This does give his claim and version credence. The question is did he act in good faith and is their a reasonable duty owed to Mr. Zazueta as a member of the League? In past practices, I have witnessed several cases that these issues are administrative matters that were corrected by Ms. Morales. This happened in Puerto Rico when I was State Director. One of my Albuquerque Councils failed to remit membership dues for one of its members. The Council President acknowledged this and provided proof of membership application and the member in question provided copy of cancelled check issued in January of that year (2009). In good faith, Ms. Morales assisted and the issue was corrected. Good faith was exercised mutually. The bailment in these cases is the degree of ordinary care. Both parties must act in good faith. If Mr. Zazueta failed to provide any proof or if in the past has demonstrated a pattern or propensity of deception or any form of misrepresentation of the facts, this could give Ms. Morales or Mr. Wilkes reasonable cause to question his credibility. Mr. Zazueta is a former National Youth President and always held in high regards, regardless of political inclinations. 3. These Councils in question were formed prior to the extension deadline of April 15, 2013. There is documentation to prove this with a preponderance of the evidence. These Councils were issued Charters. Mr. Zazuetas dues in question are for 2013, which were due by April 15, 2013. The past practice accepted by National and most states is the post marking of the extension deadline. When Mr. Zazueta signed on these Councils in question, he was in fact a member in good standing. This is contrary to Mr. Escobars summation on the good standing argument. It would be considered a rebuttal presumption on this fact only, if Mr. Zazueta acted after the deadline. This of course is not withstanding the arguments enumerated above concerning the issue on the need or requirement of a sponsor? 4. The National Office deposited all of the funds for these councils and issued charters accordingly. This in most states is considered a contract. Also, this question is considered moot, if these Councils have their Charter and/or Council Numbers. This is pursuant to the aforementioned Subsection (b) (4) of the National LULAC Constitution and By-laws. According to Article II of the Bylaws (pg 82):

"Once duly chartered, the council shall have all the rights and powers and will be bound by the limitations as set forth in the LULAC Constitution and Bylaws, and this agreement." Accordingly, a council is duly chartered when it receives its Council Number. It is also substantiated that a Council is chartered when the Board approves the application. National LULAC denying these Councils membership after they issued charters would constitute both a breach of implied covenant and good faith and fair dealings and the duty of care. To deny membership or their rights after already issuing charters constitutes a waiver of rights or latches by estoppel. This places the League in serious peril of liability and even in a fraudulent posture. It will more than likely end up in litigation and my concern is that the League will not prevail in any affirmative defenses listed in Mr. Escobars opinion, if the Leagues position is based on these fallacies and where ambiguity exists. The League cannot afford any further litigation nor can it endure further adverse public reaction on clear violations of both our own Constitution and common law. Based, on these facts, the National Board and ultimately the Assembly need to consider what is in the best interest of the League. These members are ardent civil rights activists, professionals, attorneys, educators and from all walks of life. They were inspirational in recalling former Arizona lawmaker Sen. Russell Pearce, author of the infamous SB 1070. They have been active in fighting Jim Crow type legislation and literally in the trenches fighting the causes in Arizona. Now, they are under our banner and it would be a shame and embarrassment for the Board to act arbitrary and capricious denying them there rights guaranteed to them. This legal opinion needs to be restudied. We encourage that you as a Board seek a second opinion from an impartial attorney and allow both sides to provide documentation on the veracity of each respective positions. The perception in this case appears to be an appearance of an impropriety given Mr. Escobars relationship to the National President, Margaret Moran and former National President, Oscar Moran. Given these circumstances, Mr. Escobar should welcome a second opinion to avoid any appearances of impropriety. Thank you for your prompt attention and consideration in this regard.

Sincerely,

Paul Pablo A. Martinez Immediate Past State Director (2006-2010)

Cc:

NM LULAC State Board of Directors 4

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