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Today a filing was made before the State Supreme Court, The number issued is NM State Supreme Court 31,060 . It will speak alot about the means and mechanisms of elections as free and proper.
Here's the content of the petition:
Before the
SUPREME COURT
STATE OF NEW MEXICO
In the matter of the Objection
of the Nominating Petition for
FIRST JUDICIAL DISTRICT ATTORNEY
A case arising from
First Judicial District No.
01 CV 01 2008- 845
Hon. Daniel Sanchez , Presiding
Joseph E. Campbell, Plaintiff/Appellee
v.
Eliot Gould, First Judicial District Attorney candidate
Respondent / Petitioner
Mary Herrera , Secretary of State ( in her official capacity)
PETITION FOR WRIT OF MANDAMUS
JURISDICTION
This cases arises before the Supreme Court of the State of New Mexico by direct appeal from a “nominations challenge” in the First Judicial District for the office of First Judicial District Attorney .(see Rule 1-096 NMRP; Election Code of New Mexico ( 2007) 1-8-35 “ Nomination challenges” NMEC 1-8-35)
ISSUE : MANDAMUS
The constitution of the State is the sole creator of the offices and qualifications of the officeholders. It is specific in providing : [Qualifications for holding office.] “Every citizen of the United States who is a legal resident of the state and is a qualified elector therein shall be qualified to hold any elective public office, excepting as herein provided in this constitution. Article VII NM State Constitution
The District Court Erred in Finding that the First Judicial District Attorney candidate Eliot P. Gould ” was not qualified for lack of being a “licensed attorney” after finding that the candidate was “learned in the law” and otherwise fulfilled the qualifications required.
The error adds a qualification to the state constitution providing : “There shall be a district attorney for each judicial district, who shall be learned in the law, and who shall have been a resident of New Mexico for three years prior to his election, shall be the law officer of the state and the counties within his district, shall be elected to a term of four years, and shall perform such duties and receive such salary as prescribed by law. Article VI, Section 24 NM State Constitution
The candidate is otherwise qualified, and the decision abridges the candidacy and its signatories from equal participation in the election franchise.
A mandamus must be issued .
The state constitution is the sole source of the offices of the state, and the decision is effective disenfranchisement from an assured right. While there is a specific legal question as provided under the basis of the issues of “Chavez” ( State ex rel. Chavez v. Evans, Secretary of State, No. 8746, Supreme Court of NM, 79 N.M. 578) (1968) and was presented in the hearing, the substantive issue is that the process displaces “free and equal in every phase of the ballot, forecloses the opportunity of participation in the future government and administration of the State ( for the elected term 2009-2013).
By axiom the District Court decision disintegrates ,disenfranchises and unduly burdens the representative minority of the population from equal ballot access.
PARTIES
The parties are Joseph E. Campbell, a candidate for First Judicial District Attorney. Mr. Campbell was the plaintiff in the Nomination Challenge.
The Honorable Mary Herrera , Secretary of State, STATE OF NEW MEXICO is in her official capacity.
The Petitioner is Eliot P. Gould, a Democratic candidate for the First Judicial District. Mr. Gould was the Respondent to the Nomination Challenge.
FACTS
The June 3, 2008 primary date in New Mexico approaches. In preparation for a candidacy for the office of the First Judicial District Attorney, this petitioner organized a “Citizen’s Committee for Eliot Gould, First Judicial District Attorney ”, filed with the Secretary of State the appropriate documents as required under the New Mexico election code in October, 2007, and subsequently.
In order to gather necessary signature requirements of 534 registered democrats, the candidate began the process in November and regularly spoke with people about signing the petition and thus qualify for ballot placement. Throughout the period, he wrote articles for publication ( Santa Fe New Mexican, Santa Fe Sun-News) . He appeared at gatherings where he publicly spoke about the issues ( use of jury demand in the Magistrate court’ “ improvements in DWI technologies” “ effecting a proper sexual assault victim investigation Mexican, “ the sixty day bond rule ” etc.).
During the period, Eliot Gould responded to several public inquiries regarding his license by providing that first was the signature, stated that “first would be the signatures, then would be the election, then would be the license question.” He also stated: “ I’ve read the constitution and will be fully qualified if elected”.
On March 18, 2008, Eliot Gould ( Eliot P. Gould) filed a declaration of candidacy with over 950 signatures upon nomination petitions accompanying and the proper ethic compliance and certificate of registration at the Office of the Secretary of State ( the proper filing office for the candidacy of the First Judicial District Attorney. On March 18, 2008 the Secretary of State also received a declaration with nomination signatures from Joseph E. Campbell ( currently an Assistant District Attorney with First Judicial District Attorney’s office.) as a candidate for the First Judicial District Attorney..
On March 28, 2008, Mr. Campbell filed a petition before the First Judicial District Court challenging the qualifications of Mr. Gould citing Chavez v. Evans ( Supreme Court of New Mexico No. 8746 79 N.M. 578, 446 P. 2nd 445 , 1968) with an excerpt of that case , “ learned in the law ‘ and being a “licensed attorney” synonymous and with a claim that as “unlicensed ’, there must be is disqualification from candidacy.
Mr. Campbell’s original summons served April 1, 2008 had no complaint attached. The District court summons was served again on April 4, 2008.
The Secretary of State provided no service as accorded in the Election code: 1-8-35 (B) For the purposes of an action challenging a nomination petition , each person filing a nominating petition under the Primary election law appoints the proper filing officer as his agent to receive service of process. Immediately upon receipt of process served upon the proper filing officer, the officer shall, by certified mail, return receipt requested, mail the process to the person. No such certified process was conducted.
On April 10, 2008, Eliot Gould filed an answer to the petition. It admitted that March 18, 2008, a statement of candidacy and Nominating Petition with in excess of the 534 required Democratic Party member signatures was filed with the proper filing officer ( “Mary Herrera”, Secretary of State) in accordance to 1-8-18 of the Election Code. (1-8-18 NMSA 1978) ( see also 1-8-21 NMSA 1978). (Record Proper)
It further provided on March 28, 2008, a certificate of ballot placement and qualification for the Democratic Party Primary for the Office of First Judicial District Attorney was received by United States Mail at Gould’s residence address from Mary Herrera in her official capacity as Secretary of State.
The answer furthered “ the Declaration of Candidacy submitted on March 18, 2008 included:
I, Eliot P. Gould, first being duly sworn say that I reside at 354 ½ Calle Loma Norte, Santa Fe, as a voter of Precinct No__28_ of the county of Santa Fe, State of New Mexico;
That I am a member of the Democratic Party as shown on my certificate of registration and that I have not changed such party affiliation subsequent to the governor’s proclamation calling the primary for which I seek to be a candidate;
I desire to be a candidate for the office of the First Judicial District Attorney on the date set by law this year, and if the office be that of a member of the Legislature or that of the State Board of Education, that I actually reside at the address designated on the Certificate of voter registration.
I will be eligible and legally qualified to hold this office at the beginning of the term.If a candidate for any office for which a nominating petition is required, I am submitting with this statement a nominating petition in the form and manner as prescribed by the primary election Law; and I make the foregoing affidavit under oath, knowing that any false statement herein constitutes a felony under the criminal laws of New Mexico.
And that the same was duly subscribed and sworn. (see 1-8-29 NMSA).
The answer provided : “the requirements under the constitution include the candidate for First Judicial District Attorney must be 18 years of age, a resident of New Mexico three years prior to his or her election, “learned in the law ” [NMSC 4 Section 24] , and that the qualification includes the submission of a proper declaration of candidacy with sufficient signatures and shall be elected to a term of four years. ( R.P)
Furthers that the state constitutional language “learned in the law” has not been changed or amended to any other qualification. Interpreting away from the clear and concise language of the state constitution displaces the paramount of law regarding the qualifications of the elective franchise. New Mexico State constitution also provides:
Article VII :[Qualifications for holding office]
“Every citizen of the United States who is a legal resident of the state and is a qualified elector therein, shall be qualified to hold any elective office, excepting as herein provided in this constitution.”
NMSC Article VII
As the office of the District Attorney is derived from the constitution itself, and “learned in the law ” has remained in the language of the constitution, it is central “learned in the law” has remained unchanged .Such is as much intertwined with the “elected to a four year term” and the Article VII of the state constitution.
In comparison, the constitutional language related to the qualifications, election or retention of judges, and as members of the bars, is defined in separate section of the constitution is defined as “been in the actual practice of law”.
In contrast so are the qualifications (and the requirement of a license ) upon a different class of persons: the appointed offices of government.
Article VII B. The legislature may by law for such qualifications and standards as may be necessary for holding an appointive office.
NMSC Article VII B
For such positions as to provide for appointive office, a licensing requirement provides a public good. It assures a merit system which is based on qualitative achievement made in obtaining the license. The merit system provides that the branches of government make selection upon rules of professional conduct and an adherence to standards set forth in a uniform manner. The conduct includes maintaining adherence to reasonable standards, the avoidance of conflicts of interests and the promotion of a public integrity
The election of the District Attorney is by axiom an elective franchise, direct of the constitution.. While the requirements of the standards such as a trained lawyer may hold is an asset to a candidate for election as District Attorney, but they are not one in the same the qualifications as in the constitution itself..
On April 7, 2008 a notice of hearing was sent to parties advising that the matter was set for April 10, 2008. At 2 pm the parties had assembled, excepting the Attorney General representative and the representative from the Secretary of State. A few moments later, they arrived and the Court hearing began. Mr. Gould objected that the matter was proceeding in a manner consolidated with a separate petition challenging on the grounds of the Chavez excerpt. The Court then proceeded to call case # 2008 845, “Campbell v. Gould”. Parties were introduced. The Court inquired as to whether an answer had been filed.. A brief recess was called.
Mr. Campbell presented opening remarks in essense complained that “on March 18, 2008 Respondent Gould filed all necessary documentation for certification as a candidate for the office of First Judicial District Attorney.” He complained that on March 26, 2008 Respondent Mary Herrera caused her office “to officially certify Eliot Gould ” as a candidate to the office of First Judicial District Attorney. Mr. Campbell stated that the requirements for District attorney must be 18 years of age, a resident of New Mexico, must be learned in the law, and must be a resident in the district .
Mr. Campbell then brought forth “State ex rel. Chavez v. Evans, the Supreme Court case that ruled that learned in law was the same as “licensed attorney.” Respondent Eliot Gould is not a “licensed attorney and therefore is not qualified candidate for the office of First Judicial District Attorney.” Mr. Campbell closed his remarks with the request that the Court find that “Eliot Gould is not a qualified candidate” and to “ order Respondent Mary Herrera to remove his name from the official ballot. ”
The District attorney candidate Eliot Gould remarked that he agreed with the listed qualifications which Mr. Campbell had presented , but provided the qualifications of “ holding public office is an election franchise. “ It requires fulfilling the election statutes in conformity with the statutes. Mr. Gould furthered that “it has been long established that the right to vote includes the rights to seek public office and in equal manner in each phase of the ballot process.”
Article VII of the New Mexico provides:
[Qualifications for holding office] Every citizen of the United States who is a legal resident of the state and is a qualified elector therein, shall be qualified to hold any elective office. The District Attorney is an elective office. It requires a showing of “learned in the law”. The Chavez case dealt with several issues of qualifications for ballot access including seeking a mandamus to certify a list of parties slated for the 1968 elections in New Mexico. Taking the statement “learned in the law ” as synonymous and one in the same “licensed attorney” misapplies the concept.
Ballot access for any candidacy is a vital part of the election process. Candidates whose name do not appear upon the ballots cast and requiring a “write-in candidacy” are practically foreclosed in statewide or district elections. (The instances where “write-ins” are successful are generally municipal or smaller election districts.) . Under New Mexico statutes, a candidate who has filed a declaration for one office, cannot later “switch parties or offices sought during the same election cycle. Practically non ballot positioning ends the realistic opportunity of the elections.
States, such as New Mexico, are given the discretion to set reasonable safeguards to protect the integrity of the election process. This includes reasonable methods to establish voting qualifications and methods selected need “act neutrally” amongst the candidates, without an abridgement or discrimination -- or the intent thereof
Respondent Secretary of State made no opening remark but that his office was neutral..
Mr. Campbell then brought evidences including a signed letter of the Clerk of the Supreme Court stating that the name Eliot Gould is not on the roll of attorneys in good standing with the Court ”. He presented a call of witnesses beginning with Respondent Gould, which was objected to, along with a “lack of proposed witness list.” A witness from the Office of the Secretary of State then testified that the proper declaration and signatures
were submitted by candidate Eliot Gould and that a certificate had been issued as qualified to have his name placed on the ballot.
Thereafter, Mr. Gould brought evidences forward for introduction with statements as to their content as a showing that he “was indeed learned in the law”. One exhibit was a signed letter from the Clerk of the Supreme Court returning his original documents for a temporary license. Another was a letter from an Administrative Law Judge dated in 1992. Another was that the National Conference Bar Examiners had forwarded in 1996 the results of the testing done November, 1988.( Mr. Gould stated that the results exceeded the standard required under New Mexico rules. ) He also introduced an article published by the Natural Resources and Energy Division of the State Bar of New Mexico where he was cited for his argument that a formal designation of the reservation is not necessary for designation as “Indian Country”. ( VISTA, State Bar of New Mexico, Spring 2006).
In closing arguments, Mr. Campbell reasserted that “Gould is an unqualified candidate” because he is not licensed and therefore must be removed from the ballots of the June primary . Gould again reiterated that the controlling and superior factor is the constitution itself. The rights to election franchise are in each phase of the ballot process. “I am qualified. I have turned in an oath, under penalty of law, to faithfully serve. If a license is necessary, I have every belief that, if elected, I shall be able to “dot every I” and “cross every T” that would be necessary.
Gould again reaffirmed the oath ( holding up his right hand) and stating:
The Declaration of Candidacy submitted on March 18, 2008 included:
I, Eliot P. Gould, first being duly sworn say that I reside at 354 ½ Calle Loma Norte, Santa Fe, as a voter of Precinct No__28_ of the county of Santa Fe, State of New Mexico;
That I am a member of the Democratic Party as shown on my certificate of registration and that I have not changed such party affiliation subsequent to the governor’s proclamation calling the primary for which I seek to be a candidate;
I desire to be a candidate for the office of the First Judicial District Attorney on the date set by law this year, and if the office be that of a member of the Legislature or that of the State Board of Education, that I actually reside at the address designated on the Certificate of voter registration.
I will be eligible and legally qualified to hold this office at the beginning of the term.If a candidate for any office for which a nominating petition is required, I am submitting with this statement a nominating petition in the form and manner as prescribed
by the primary election Law; and I make the foregoing affidavit under oath, knowing that any false statement herein constitutes a felony under the criminal laws of New Mexico.
And that the same was duly subscribed and sworn
The duties and office of the District attorney are derived from the state constitution.
The pertinent articles in creating the office is found at Article VI Sec. 24 of the state constitution: [ District attorneys] There shall be a district attorney for each judicial district, who shall be learned in the law, and who shall be a resident of New Mexico for three years next prior to his election, shall be the law officer of the state and of the counties within his district, shall be elected for a term of four years, and shall perform such duties and receive such salary as prescribed by law. (NMSC Art VI Sec 24)
A second Article of the state constitution relating to the elective franchise including:
Article VII: [Qualifications for holding office.] A. Every citizen of the United States who is a legal resident of the state and is a qualified elector therein, shall be qualified to hold any elective public office except as otherwise provided in this constitution.
The language and specific term “learned in the law” has not been changed or amended to any other qualification relative to the District office qualification. Interpreting away from the straight forward and honest reading of the constitution and its flexibility in remaining unchanged and constant proposes not order but confusion. The constant is not a nebula of questions, but the result of deliberate and intentional consideration. The qualification is clear with the language “except as otherwise provided in this constitution’ gives emphasis to the straight and honest reading of the clear language of the constitution.
By comparison, the constitutional language related to judges as members of the bar presents itself defined number of years experience in its own section of the constitution. Art IV related to the office and duties of the District attorney provides that ambiguity for the flexibility which defined understanding of “learned in the law” and its meaning falls upon an oath, faithful service and subject to judicial scrutiny .
Further, as constitutionally derived, related to elective office, the qualification as might be with an interpretive of the constitution is an argument of the moot. It is not a matter of license, but of election franchise, direct from the constitution itself, and without exception or interpretation, except by the constitution itself.
The ambiguity in the language is assurance of choice on the ballots of the people. That is the genuine purpose for the democratic way of governance. The state constitution is the sole source of the office of First Judicial District Attorney.
The complaint and presentation confuses the clear reading of the constitution with the requirements of appointive office, standardized merit selection and performance of public employees.
“The legislature may provide by law for such qualifications and standards as may be necessary for holding an appointive office. ”
The distinction is to remain integrity of the office direct of the people and upon their approval in the election franchise. That is in contrast with “Assistant District attorneys,” and other appointed public servants. Legislative enactment requires the license for the performance of their duties and the public integrity. That still falls into a different constitutional class. The qualifications are derived separately. While the debate of learned in the law presents itself as interesting, it is frivolous as confusing different classes established by the constitutions with qualifications of one section being established for another.
The District attorney is an elective office. It is an unreasonable application to excerpt part of a statement of Chavez which equates “learned in the law” with “licensed attorney’. The superior law is the constitution itself, and that there shall be no exception “as otherwise provided herein”.
Not even Chavez made such a pronouncement:
“There shall be a district attorney for each judicial district, who shall be learned in the law, and who shall be a resident of New Mexico for three years prior to his election, shall be the law officer of the state and of the counties within his district, shall be elected for a term of four years, and shall perform such duties and receive such salary as may be prescribed by law.***”(Emphasis added)
By affidavit the petitioner [Monongye] sets forth his qualifications which do not include completion of a law course or graduation from an approved law school. Neither does he claim that he has been admitted or is qualified to be admitted to practice law in this or any other state. Under these circumstances, can he be “ learned in the law“?
We would answer unhesitatingly in the negative were it not for the different qualifications contained in our constitution, as noted above for holding the offices of district attorney, attorney general and justice of the Supreme Court.
It would seem self-evident that admission to practice law before the highest courts of a state would amount to a determination, prima facie at least, that an individual is learned in the law, and that in the absence of such admission, a person is presumptively
not learned in the law . See opinion of the Justices, 279 Ala. 38, 181 So.2d ; Jamieson v. Wiggin, 12 S.D. 16, 80 N.W.137, 76 Am.St.Rep. 585; 50 A.L.R1156 (1899); state ex rel Jack v. Schmal, 125 Minn.533, 147 N.W. 425 (1914). Compare , Heard v. Moore, 154 Tenn. 566, 290 S.W. 15, 50 A.L.R. 1152 (1926). For other cases, see Annot.,50 ALR 1156. Indeed the decisions just cited generally hold the requirements to be the right to practice law in the state where the candidate seeks office wherein “learned in the law” is a qualification ,must have been{*585}determined before the election by admission to practice by the proper authority.. See Jamison v. Wiggin, supra. Since the petitioner here neither asserts his right to be admitted to practice here or elsewhere, now or anytime in the future, we do not perceive that we need express an opinion on the question of when, where and by whom the admission must be performed.
The Court inquired (from Chavez) as effect of “It is thus manifest that one “learned in law” who had “been in the actual practice of law” in this state, required for a person to qualify for the Supreme Court, he must have been admitted to practice just as certainly as the attorney general, who is specifically required to be a “licensed attorney”. How does the situation differ where no actual practice is specified in addition to being “learned in the law” as provided in art. VI, Sec 24, supra. for the office of district attorney? It is our considered judgment that admission to practice, or qualification to be admitted is no less a requirement than is true of supreme court justices. The only difference is that district attorneys need not have had the actual practice required in art.VI, sec. 8, supra. To our minds, we hold that “learned in the law” and being a “licensed attorney” are synonymous is indicated and reasonable, whereas it is awkward and unreasonable, and was no less so when the constitution was ratified, to conclude that one found qualified and licensed could be attorney general, while no need is present to show admission to practice for one to qualify for district attorney.
The Court furthered (from Chavez): We would add one additional word. The duties of the district attorney are found in Sce. 17-1-11 N.M.S.A. in a form practically unchanged since adopted in 1909.see Ch.22,Sec.2, N.M.S.L. 1909. Appearance in courts is required in the very {*586}first paragraph. As already noted, admission to practice is, and since at least 1909 has been, a prerequisite to practice in court. It follows that in light of the statute and the surrounding circumstances present when our constitution was adopted, an interpretation such as that argued for by petitioner Monongye is unreasonable and incongruous and will not be adopted by us.
Thereafter, the District Court rendered the opinion and decision upon the challenge finding first that it was evident that the candidate was learned in the law, but just so evident that you are not licensed to practice in the State. Therefore, in accordance to the standards of Chavez, I find you ‘learned in the law” and “unqualified as a candidate to have your name on the ballots of the June Democratic primary.
The Court instructed the Plaintiff Mr. Campbell to draft such an order. Mr. Gould stated he would like to review the order for language and meaning. The Court then ordered the parties to gather at 1:30 pm Monday April 14, 2008 to so draft.Wherefore it is petitioned :
1. Issue Mandamus upon the Secretary of State be issued provide the name
“Eliot P. Gould “ upon the ballots of the Democratic Party Primary to be held
on June 3, 2008 for the office of First Judicial District Attorney.
2. Instruct the Clerk of Court to provide a briefing schedule for the legal issues presented.
3. Mete such ends as justice may determine.
Respectfully submitted,
Eliot P. Gould
Democratic candidate, First Judicial District Attorney
