By Jack King
District Court Judge William McBee dismissed two complaints against Curry County Wednesday that had been filed by residents of the Wheaton Street neighborhood south of the Burlington Northern Santa Fe railroad tracks. They had claimed the Curry County commissioners harmed them when they voted to close the Wheaton Street crossing.
McBee dismissed with prejudice a complaint filed by Victor Chavez, of 3532 West Brady Ave., and other residents of the neighborhood, against each commissioner. Dismissing a complaint “with prejudice” means it cannot be filed again.
However, McBee dismissed without prejudice a complaint “Chavez et al” filed against Curry County as a governmental entity.
The hearing, held at 11 a.m. Wednesday, was to address motions to dismiss the complaints filed by Curry County. McBee said that, in making his rulings, he could only address the motions, not the merits of Chavez’ complaints.
Curry County Attorney Stephen Doerr told the court state law protects individual commissioners from being sued for performing legitimate government functions in an official session and that closing a railroad crossing is a legal right of a county commission.
He said Chavez’s complaint that, in closing the crossing, Curry County had harmed him was premature, because Chavez and his neighbors had not yet shown that the closing had done them any damage.
Plaintiffs against a commission have the right to petition a district court through a “writ of certiori,” stating that the commission’s action was arbitrary, capricious or fraudulent. But it is too late to file a writ of certiori, which must be filed within 30 days of the action, he added.
Chavez told the court that when they filed their petition he and his neighbors had hoped to get a jury trial.
“When we filed it the first time, we maintained that they weren’t following the rules of the subdivision code. We feel it’s wrong to jeopardize our families to cater to a rich individual, which is the railroad,” he said.
Chavez also said in two incidents in September ambulances had been unable to answer calls properly because of the closing of the Wheaton Street crossing. He said in an incident Sept. 1, “a man named Gonzalez” died because the ambulance didn’t arrive on time. Also, on Sept. 19, an ambulance couldn’t reach an accident at the corner of Brady Avenue and Martin Luther King Boulevard, he said.
Fire Chief Ron Edwards said in neither case did an ambulance have to cross the train tracks. In answering a Sept. 3 call to the home of Samuel Gonzalez, an ambulance from Fire Station 5, 220 Brady Ave., went down Brady Avenue to Gonzalez’ home. Ambulance personnel received a call that a subject was not breathing at 12:39 a.m. and arrived at Gonzalez’ address at 12:46 a.m., he said.
Battalion Chief Kevin Crouch, who did a computer search of fire department records, said he could not find a record of a Sept. 19 accident at Brady Avenue and Martin Luther King Boulevard. But, Edwards said, even if an ambulance had answered the call, it would not have had to use the Wheaton Street crossing, because the Brady-M.L.K. intersection is south of the railroad tracks.
At a hearing at 10 a.m. Wednesday, McBee dismissed all complaints filed by “Chavez et al.” against the city of Clovis, because the plaintiffs did not show up for the hearing.