Prepatory Draft to Complaint Challanging Candidacy

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First Judicial District

State of New Mexico

County of Santa Fe

In the matter of the Objection

of the Nominating Petition for

FIRST JUDICIAL DISTRICT ATTORNEY

First Judicial District No.

01 CV 01 2008- 844

Joseph D R Sena, et al

v.

Eliot Gould, First Judicial District

Attorney candidate

Mary Herrera , Secretary of State

ANSWER TO PETITION

This day comes Eliot P. Gould , candidate for FIRST JUDICIAL DISTRICT

ATTORNEY in Answer To The Complaint and state s as Follows:

1. Admits Joseph D R Sena is a registered voter in the County of Santa Fe, registered at 2 Grazing Elk Dr, Santa Fe ( registration 749673); but has no knowledge or information as to whether Joseph D R Sena is also known as “Robert Sena” nor true standing in this matter; and would require “strict proof” thereof.

2. Admits “Eliot Gould” ( Eliot P. Gould ) is a registered voter and resident of Santa Fe, county, State of New Mexico.

3. Admits that on 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)

4. Admits 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 the residence address from Mary Herrera in her official capacity as Secretary of State.

5.Admit’s 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___ 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.

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).

7. Admits the requirements under the statutes 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, but disputes that he must be “learned in law” ; provides that the

New Mexico State Constitution provides that “ a district attorney must be learned in the law, ” NMSC 4 Section 24; and that any related argument as brought by the Complaint is unreasonable , argumentative with prejudicial purpose and malice.; and that the qualification includes the submission of a proper declaration of candidacy with sufficient signatures and subsequent election by secure secrecy of the ballot and purity of elections, guarded against the abuse of the election franchise.

8.Neither admits nor denies that “learned at law” is a term of art that has been strictly synonymous with “licensed attorney ” .

9. Admits familiarity with the New Mexico Supreme Court rules, District Court rules, Rules of Civil and Criminal Procedure, Rules of the Magistrates Court ( including civil and criminal procedure, Rules of Evidence, and Rules of Professional Conduct.

Part 2

1. The election franchise is a vital and integral right in the American way of life. Elections are to be “free and proper in each phase of the ballot process. As noted,

The election enfranchisement must be guarded against abuse. (1-1-1.1 Election Code

Of New Mexico).

2. 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 district elections.)

3. State’s 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.

4. The acceptable purpose for statutes of the Election code are to assure the integrity of

Election process-- not to provide a devise of exclusion by political attack under guise of

Law . The difference between the “political”, which is abuse, and legal may be

distinguished by character of the complaint. Does it complain about “voter fraud”--

Signatures which cannot be, or of some scheme to deprive a measurable minority or

candidacy from equal protection to the assured ballot rights.

5. The petition of Joseph D R Sena complaining and challenging the candidacy for the

nomination of the First Judicial District attorney may appear on the face to comport with

a voter’s right to challenge an improper petition, but taken as a whole, under a totality of

circumstances, it is sinister in value, improperly prepared ( if the Rules of Professional

are considered) and corrupted by a cascade of deceptions.

6. Joseph D R Sena brings the complaint forth as a “straw man” alleging that “he is a

retired and inactive lawyer . No bar number, “Joseph D R Sena “ admitted in 1975 and was inactive since 2005.

7. While the rules do allow for the “attorney appearance” (3- 107) to allege a complaint

in a manner which is substantially unverified, there is a significance variance from the

From the “petition being signed by a firm rather than an individual. All laws of elections

must comport to the basic principle of one person, one vote. The landmark cases of

Constitutional law first and foremost affirm the right of the individual to have the right of

Equal access to the popular vote. They do not practice exclusion through a legal charade

8. While Rule of the Civil procedure provide for the signing of a firm‘s partner, who

represents the client, presumed duty of the signing attorney to act in reasonable diligence

in proceeding for suit.--one partner signing for another further removes the most basic

principle of one person one vote. As it is done by multiple hands, it must be considered

spoiled. And to be sure, the principle of guarding against an election devise which is to be

with contamination, undue prejudice, intimidation, or outright hostility

9. Responsible party would have included. a reasonable inquiry preliminary and

responsible investigation before taking suit. There is a prohibition against firms and

lawyers providing invidious discrimination. Restraint or caution should have been

undertaken before providing a context of misspelled reference ( such as “learned at law”

rather than the New Mexico’s Constitutional “learned in the law”).

10. There should be marked a counter-complaint that a “retired lawyer” ( even an inactive

does not mark “the opportunity of one more Court case ( pro hac vice?) or pro per or pro

Se . Instead the “retired and inactive lawyer chooses to “hire a firm” .

11. It may be speculative, but it certainly is suspicious. Former mayor Richard Daley

once remarked “allegations, allegations, now show me the alligators.”

12. I f we are to continue analysis of the instant in the instant matter is “prosecution by

ambush” . or a “legal swift boat attack”. The complaint manifests by words and conduct

prejudice asserting a controversy that speculative upon some future condition and addressing the future substance as if the future was now, and the situation was urgent .

That is an unreasonable manner.

13. The time now is April, 2008 . It is well in advance of the Primary election scheduled

for June, 2008 and if successful, a general election in November 2008. Had there been

reasonable inquiry, such as by letter or telephone call, prior to the initiation of suit, it

would have found that the candidate was well qualified for the Office of First Judicial

District, even upon the “issue of license”. Mr. Gould’s qualification are public and

verified. A simple “google search” will reveal several items of interest and note.

14. Eliot Gould had been previously licensed in another jurisdiction, served honorably in

the military services, holds a BA degree in Religion, extended an LL.B. degree in law,

served honorably within the Circuit Courts of Cook County .

15. In 1994, Mr. Gould received a Ph.D. at the Academy of Political Sciences on the

16. Mr. Gould then brought residency to New Mexico in 1995. In 1996, bar

Scores from the National conference of Bar Examiners were provided from Illinois and

forwarded the New Mexico State Board of Bar Examiners.*

17. In 1997,a supervisory order was docketed before the New Mexico State Supreme

Court was denied but lay dormant.

18. In 2002, Eliot Gould lost in a Democratic Primary as Sandoval County

Magistrate. Afterward he served the Northern Pueblos literacy programs, received

Professional Development certificate in Emergency Management signed by Governor

Bill Richardson of New Mexico .He was also served as a mediator in several cases and

took some continuing Judicial training courses, including topics as “DWI”, “domestic

violence, and Calendar management.

19. In 2006, Eliot Gould was and was an unsuccessful candidate for 44th State

District. Eliot Gould moved to Santa Fe in December ,2006 . Santa Fe remains in the

First Judicial District.

20. The filing of the complaint is more that a question of propriety of suit without inquiry

or diligence to the Rules of professional conduct. Relative to the election law and

Campaign Finance statutes, the filing is an unlawful interference and expenditure. As a

Court document, it crosses the line of contempt of unacceptable practices to the same

degree that no party, candidate or organization “sponsor “ paid goons to block the

entrances or roadways outside the view of election authorities. Paid agents intimidating

others or discouraging selected precincts so to influence a final outcome or course of an

election violates by conspiracy the election franchisee.

21. Elections are to be free and proper in every phase of the ballot process. They cannot

weighted even to an iota, and be equal. The State laws against “election abuse” must be strictly enforced. Anything less, including the neglect to act by the State produces a less bonafide election result or loss of public integrity in the democratic processes..

22. It certainly should not lead to a “just reward of criminal enterprise”. Clearly,

the mechanism and manner of the process of the application runs counter the Campaign Practices Act of New Mexico. Article 1-19-16 provides:

A. It is unlawful for any person, organization or political campaign advertising or

Article 19.26.1 reads:

A. It is unlawful for any political committee that receives, contributes or expends in excess of five hundred dollars ($500) in any calendar year to continue to receive or make

any contribution unless that political committee appoints and maintains a treasurer of a campaign committee and registers with the Secretary of State.

B. A political committee shall register with the secretary of state within 10 days of receiving, contributing or expending in excess of five hundred dollars ( $500) by paying a

filing fee of fifty ($50.00) and filing a statement of organization under oath on the prescribed form showing:

(1) The full name of the political committee, which shall fairly and accurately reflect the identity of the committee, including any sponsoring organization, and its address;

(2) a statement of the purpose for which the political organization was organized;

(3) the name address and relationship of any connected or associated organization;

(4) the names and addresses of the officers of the committee

(5) the identification of the bank used by the committee for all expenditures made or received.

1-19-26 provides (F) “contribution’ means a gift, subscription, loan , advance, deposit of money or other thing of value, including the estimated value of an in-kind, that is made or received for a political purpose, including the payment of debt incurred in an election campaign, but does not include the value of services without compensation or reimbursed travel or other personal expenses of individuals who volunteer a portion or all of their time on behalf of a candidate or political committee, nor does it include the administrative or solicitation expenses of a political committee that are paid by an organization that sponsors the committee.

1-19-31 prohibits an outright unpaid campaign debt and that it is unlawful to not report the identity of the person to whom the debt is owed.

1-19-32 provides for an inspection of records. 1-19-34.4 provides: It is unlawful for a person [individual or entity] or political committee (which can be one person) to make, or a candidate or his agent to accept, a contribution that is reported as coming from one person or entity, when the candidate or his agent knows that the contribution is actually from another person or entity when the candidate or his agent is actually from another person or entity.

1-19-34. 3 (G) provides for criminal penalties. 1-19-34.6 provides for civil penalties.

Authority is granted the secretary of state such measures as necessary to regulate or adopt rules to comply with the provisions of the Act.

23. The Criminal statutes of the State of New Mexico also provide statutes prohibiting

the use of a forged, fictitious , altered or altered license and the concealing of identity

for the purpose of deceiving or depriving another .( See 30-22-3 and 66-5-18 )

Certainly the assured right of voting cannot be measured with an absolute value. It,

like assurances from libel or slander upon honor and distinction cannot be strictly

measured with the value of a property right. They are intangibles. But just the same, the

use with intent to deprive is criminal.

It should be fully enforced.

24. The Election Code offers several Offenses and penalties . Article 1-20-15 provides:

Conspiracy to violate the Election Code [1-1-1 NMSA 1978 consists of knowingly combining, uniting or agreeing with any other person to omit any duty or commit any act, the omission of which duty , or combination of such act, would by the provisions of the Election Code constitute a fourth degree felony.

Whoever commits conspiracy to violate the Election Code is guilty of a fourth degree

Felony.

Article 1-20-10 False swearing consists of taking any oath required by the Election Code with the knowledge that the thing or matter sworn is not true and correct statement.

Whoever falsely swears is guilty of a fourth degree felony.

Article 1-20-13 Coercion of Employees consists of any officer or agent of any corporation, company or association, or any person having under his direct control or in his employment entitled to vote in any election, directly or indirectly discharging or threatening to discharge such employee because of the employee’s political opinions or belief or because of such employee’s intention to vote or refrain from voting for any candidate, party, proposition, question or constitutional amendment.

Whoever commits coercion of employees is guilty of a fourth degree felony.

Article 1-20-14 Intimidation consists of inducing or attempting to induce fear in any member of a precinct board, voter, challenger or watcher by use of force, violence, infliction of damage, harm or loss or any form of economic retaliation, upon any voter, precinct board member, challenger or watcher for the purpose of impeding or preventing the free exercise of the elective franchise or the impartial administration of the election code. [1-1-1 NMSA 1978)

Whoever commits intimidation is guilty of a fourth degree felony.

Wherefore, it is requested of the Court that :

1. The Plaintiff’s “Complaint Challenging the Candidacy for District Attorney

For the First Judicial District “ be stricken .

2. That record be referred as appropriate for enforcement.

3. Award a judgment for costs upon the submission of hours and expenses related in

the instant proceedings.

Respectfully submitted,

Eliot P. Gould, candidate

First Judicial District Attorney

354 ½ Calle Loma Norte

Santa Fe, NM 87501-1279

Citizens’ Committee for Eliot Gould,

First Judicial District Attorney

125 E. Palace Ave., Suite 43

Santa Fe, NM 87501-2367

Notice of Service: A copy of the foregoing was delivered to the Plaintiff or his agent by United States mail at the address: Bennett J. Baur, Attorney for Plaintiff, 1322 Paseo de Peralta, Santa Fe, NM 87501 with proper postage affixed.

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