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Eliot P. Gould, Citizens CommitteeFor Eliot Gould, First Judicial Attorney Petitioners v. CV 08-0505 JB/DJS Governor Bill Richardson,Joseph E. Campbell,Mary Herrera ( Secretary of State) Respondents Objection to Expedited Motion to Quash Subpoenas Served on theNew Mexico Chief Justice and Clerk of the New Mexico Supreme Court The Petitioners caused to issue subpoenas on the Honorable Edward L. Chavez, Justice of the New Mexico Supreme Court and Kathleen Jo Gibson, Chief Clerk of the New Mexico to have them deliver and appear with documents of vital and necessary foundation for the Federal District Court to hear upon the “Motion of Mary Herrera to Dismiss” ( Doc. 15) scheduled to be heard on March 20, 2009 at 1:30pm in the Vermijo Courtroom of the New Mexico District Court in Albuquerque. The time, place, and subject documents were clear upon the subpoenas issued. The amount of time between the delivery date ( 2/09/09) and the hearing date (3/20/09) provides ample time to alleviate burden upon the witnesses.Attached to each subpoena was a certified check of in the amount of $41.96 to further
reimburse the cost or expense of travel to Albuquerque from the New Mexico State
Supreme Court to the Federal District Court. The persons subject to the subpoenas can present that the facts and law that Mary Herrera’s Motion to dismiss the Complaint is unfounded; that the Complaint holds merit;The practices lack safeguards required; the right to pursue public office is a substantial liberty right; and must be protected with “judicial scrutiny” as affirmative compliances. Mary Herrera’s Motion to Dismiss is a claim that the matter of removal from ballot position is summarized as “without proper knowledge” , “moot” , the state district court decided the matter with finality and proper interpretation of the state constitution, and that the Supreme Court upheld the state District decision in a manner which was reasoned and rationale. Mary Herrera’s motion was objected to as “frivolous, misleading, and omits substantial facts and issues. The necessity of the witnesses is upon those points. The complaint measures certain factual basis which include: A. The filing of the declaration and nomination papers were filed in proper form and conformity for ballot placement upon the Democratic primary of June 4, 2008.B. Challanges of the candidacy of Eliot P. Gould for First Judicial Attorney
were not in accordance to the statutory provisions of the Primary election and in the case Sena v. Gould , illegally composed and violating of campaign finance and disclosure laws. C. The candidate Gould ( without waiving upon the “necessity ”) submitted upon the Chief Clerk of the Court of the New Mexico Supreme Court on April 1, 2008 “ a NM Supreme Court docketing fee and requisite disciplinary fee for a “temporary license”. ( see also NM State Supreme Court Matter # 24, 318 (1997) The fee was returned on April 9, 2008 by the Clerk “as unqualified”. D. On April 10, 2008, the state district Court added an additional qualification for the candidate which was not present in the State’s constitution, and is explicitly prohibited in another section of the state Constitution. That qualification, sourced in an extraction of a statement within an obscure New Mexico state case law regarding elections ( Chavez v Evans, 1968) , raised an “unwritten qualification” to as paramount over the prescribed qualifications of the State constitution. The order of the StateDistrict Court included the candidate was “learned in the law” but to be removed as not a
licensed attorney. E. That issue as “additional qualification” was addressed to the State Supreme Court with a docketing fee paid on April 14, 2008 for a mandamus. The State Supreme Court is vested with the “interpretation of State law”. As the State Supreme Court “denied” hearing the petition and “denied” a reconsideration for the issuance of Mandamus without rational or reason in April, 2008 , it breached the fundamental “reason and rationale” necessary for the removal of a right—an extended right assured the state and United States Constitution. The 1982 amendment to the Voter Rights Amendment provided: Section 1973aa provides: Application of prohibition to other States; "test or device" defined (a) No citizen shall be denied, because of his failure to comply with any test or device, the right to vote in any Federal, State, or local election conducted in any State or political subdivision of a State. (b) As used in this section, the term "test or device" means any requirement that a person as a prerequisite for voting or registration for voting (1) demonstrate the ability to read, write, understand, or interpret any matter, (2) demonstrate any educational achievement or his knowledge of any particular subject, (3) possess good moral character, or (4) prove his qualifications by the voucher of registered voters or members of any other class. In this amendment, the Congress made clear that while the numerous cases that had minorities were not strict upon race or color, but purposed “to the political processes leading to nomination or election . . . are not equally open to participation by members of a [protected class] . . . in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice, Thornburg v. Gingles ,478 US 30 (1986 ) In particular, brought in the complaint is Harper and officially declared “poll taxes”-- unconstitutional for both Federal and state election because the violated the equal protection clause. While a license fee for which a fee is paid is necessary in the absence of a right, the absence of a license as a rationale for the removal of a right is undue and burdensome. It is irrelevant as a voting right, unless so specified by constitution. That the duties and office of the District Attorney were derived from the state Constitution were clearly presented to the State Supreme Court. That Petition for Mandamus clearly petitioned that the State district court provided an “additional qualification” not of the state constitution. The question was clear for which reason and rationale would be expected. In absence of a mandamus, there was an expectation that a reasonable and meaningful opinion would be issued. State election statutes require as much where it is provided “shall be forthwith” (NMSA 1-8-35). As pointed out in the Memorandum in support and in the petition for Mandamus,Chavez v. Evans, the state supreme Court case of 1968 is cited as the source that provides “learned in the law” and “ licensed attorney “ are synonymous. Chavez ,however , did not simply equate the two as interchangeable. It did not attempt to expand reserved rights and substantially alter or amend the express state constitution.
Chavez presented the state‘s compelling rationale as to why certain candidates were withheld from the ballots in 1968. It also offered that certain other candidates would be returned to the ballots as their removals were based upon additional qualifications of the state‘s constitution or of the Federal government. Chavez was written in the era of Harper and voting rights expanse. It established a review of the threshold qualifications of the slate of “Peoples Constitutional Party. ―Petitioners, eight in number, seek mandamus to require to certify their names… for the offices to which they were nominated….The remaining candidates of that party have already been certified. Chavez articulated each caseof the Peoples Constitutional party candidates separately. The Court noted that the ―constitution must be read as a whole’ and that two sections must be read together. In ordering for a mandamus for the candidates for President, Vice –president, (a state board of education member) and (at that time) the two Congressional District candidates, Chavez provided that the refusal to certify those candidates was erroneous. ―The constitutional qualifications for membership in the lower house of Congress exclude all other qualifications, and state law can niether add nor subtract from them. The state may provide such qualifications and restrictions as it may deem proper for offices created by the state; but for offices created by the United States Constitution, we must look to the creatingauthority for all qualifications and restrictions.”
Thus it followed that the statute unconstitutionally adds additional qualifications. With respect to the candidates of the Peoples Constitutional state offices of Governor, Lt Governor and District attorney, Chavez provided that those candidates did not meet the qualifications as provided for office. Gubernatorial candidate Tijerina was denied certification because ‗a conviction of a felony within the constitutional prohibition. AsTijerina was disqualified , so to was the candidate for Lt. Governor ‗as those offices are elected jointly.
Finally, Chavez dealt with the question of Preston Monongye, the candidate for District Attorney of the Peoples Constitutional Party. It pointed out that Montagye was denied certification for the announced reason that he is not learned in the law as required by the New Mexico Constitution for one to hold that office. “While providing ―to our minds to hold that ―learned in the law and being a licensed attorney are synonymous as indicated, it more importantly showed that the denied certification of Monongye was because of anabsence of any showing of “learned in the law” as constitutionally required.
“ By affidavit the petitioner sets forth his qualifications which do not include the 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 unhesitantly in the negative were it not for the different qualifications contained in ourconstitution, as noted above, for the holding of the offices of district attorney, attorney
general and justice of the Supreme Court. It follows that in light of the statute and the surrounding circumstances present when our constitution was adopted, an interpretation such as argued for by petitioner Monongye is unreasonable and incongruous and will not beadopted by us.
Chavez per se is not the fault. In no manner did it attempt to provide an undeclared amendment to the state constitution. Rather categorically, Chavez provided a straight-forward and direct interpretation. It dealt with circumstances which were specific to thattime and those events, stated the questions and provided a rationale direct upon those questions.
Chavez per se is not at fault. It is the practices such as introducing excerpts and concluding that the excerpt gives the full meaning without more and absent reason.
Election controversies are inherently constitutional. The elimination with a broad swath of one or several candidates requires a substantive and rational basis for which the state law is interpreted and a declaration that the removal is not offensive to the very essence of “due process”. What is offensive is that the principle of interpretation is conducted in the negative and the broad swath leaving a fog over a removal. The more modern State Supreme Court failed to properly address. Its denial of the Petition for Mandamus by that mechanism which was employed failed to provide an “interpretation of the state constitution and law ” as required. It treated the election matter as a discretionary and superficial consideration rather than the meaningful process that must be where the statutes provide: “shall be forthwith”. Mary Herrera’s Motion to Dismiss ( Doc. 15) presents that the State Supreme Court applied a rationale and reason that “learned in the law and “licensed attorney” were interchangeable. It further suggested that the interpretation by denial of mandated hearing was proper and proves the legitimacy of expulsion from the election process.. We cannot disagree more. What can agree upon is that Gould’s name did not appear upon the ballots in the result and wake of the events and activities subsequent to the filing of a petition for mandamus and following a state court decision which was cited as adding “additional qualifications”. Those called witnesses can directly clarify the controverted facts and issues. Further, there are additional facts and processes of state law and administration for which the called witnesses can uniquely provide. The requirements of a mandamus and the procedure for a writ are spelled out in the statutes. ( NM 44-2-1 to 14) A mandamus is toward a writ being issued upon “ inferior tribunal, board, corporation or person to compel the performance of an act which the law specially enjoins as a duty resulting from and office trust or station.” (Myers, NM Law Review, 1978). The New Mexico Constitution provides that the Supreme Court shall have original jurisdiction in mandamus …against all state officers. Mandamus may well be characterized as an exclusive remedy against official wrongdoing.In resolving constitutional challenges to a State’s election laws, a court must first
consider the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiff seeks to vindicate. (Anderson v. Celebreeze 460 US 780. It must then identify and evaluate the interests asserted by the State to justify the burden imposed by its rule. In passing judgment, the Court must not only determine the legitimacy and strength of each of these interests, it must also consider theextent to which those interests make it necessary to burden the plaintiff's rights.
The Fourteenth Amendment of the United States provides that no state ‘ shall deprive any person of life, liberty, or property, without due process of law. (USCA XIV) A liberty interest may arise from the Constitution itself, by reason of guarantees implicit in the word “liberty” or it may arise from an expectation or interest created by state laws or policies. ( Wilkinson v. Austin, 545 US 209, 221 (2005) Compared upon the liberty lost by the Petitioners, it is reasonable to provide the witnesses with the documents required. Each of the persons were noticed previously of the pendency of the action. Each are employees of the State and were given certified checks to reimburse the travel expenses upon the State in order to appear in Albuquerque on the date of hearing. Each holds vital information which is unique and likely to promote a totality of circumstances with direct and pertinent information for the foundation of the Court’s review upon the motion. Finally, it is anticipated that questions as may be shall be pertinent to the issues and facts, promoted with judicial discretion and maintain that decorum. Forasmuch, the Petitioners move the Court to deny the Motion to Quash Subpoenas. Respectfully submitted, For the Petitioners
