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‘This is the hill to die on’

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Originally filed in the three counties of the 5th Judicial District — Lea, Eddy, and Chaves — a total of 21 New Mexico counties are currently circulating or have filed similar citizen petitions to convene a grand jury, to investigate Gov. Michelle Lujan Grisham’s actions during the pandemic

The pandemic has changed daily life, and now one more thing can be added to that list — a seldom if never used legal action of a citizens petition to convene a grand jury.

On Friday, a citizens petition calling for a grand jury investigation of Gov. Michelle Lujan Grisham and her health orders creating COVID-19 restrictions was filed in the Fifth Judicial Court.

While laid out in the N.M. Statute Rule 5-302B, the process for a citizen petition to convene a grand jury is something no one in the court system has any experience with.

“We’re in uncharted waters for what’s going to happen,” Fifth Judicial District Attorney Dianna Luce told the News-Sun. “Since I’ve been district attorney, I’ve not had a citizens petition grand jury convened.” the cess is so unique and never been done before, the News-Sun contaced former New Mexico Supreme Court Justice, Fifth Judicial District Judge and long-time Hobbs attorney Gary Clingman, who is not affiliated with the grand jury petition group, for his independent legal analysis and historic context to the petition and grand jury process.

Clingman said a criminal grand jury, instituted by the courts and law enforcement, hasn’t been convened for about 30 years in Lea County, but he can’t remember if a citizen petition to convene one has ever been done in the county.

“The last one, George Teague I believe was the sheriff then. They had a murder, or something, and (the sheriff) convened a grand jury for that,” Clingman said of a grand jury formed driven by law enforcement’s request.

This citizens petition request to convene a grand jury was filed last Friday by Sen. David Gallegos, R-Eunice, along with petition author, witness, and owner of Marker Oil, Larry Marker, after collecting nearly 1,000 signatures from registered voters in the county.

“We wanted to have way more than the 800 required (for Lea County), and not loose it to (signatures not being verified),” Gallegos said.

SEE PETITION, Page 5 from PAGE 1

“A citizens petition for grand jury is a right of the citizens of New Mexico. The framers of the Constitution, retained the right to have access to the judicial system as oversight of our elected officials,” Marker said.

The citizen petition requests a grand jury to investigate the governor for the crimes of malfeasance in office, misfeasance in office, violation of oath of office, and maladministration.

“Those are archaic terms from basically the common law,” Clingman said. “Malfeasance is when the governor, in this case, intentionally commits crimes. Misfeasance is when she’s just not doing her job. … Then, of course of oath of office is kind of a catch-all phrase that she was doing things that she’s not constitutionally authorized to do, or statutorily authorized to do, and just making it up as she goes.”

And, while a grand jury being called is relatively rare in southeast New Mexico, calling a grand jury is a judicial tool routinely used in other areas by the courts and law enforcement, Clingman said.

“We don’t use them much down in this part of the state, but they are used extensively in Texas and in Albuquerque in their indictment process,” Clingman told the News-Sun, noting that a grand jury in this case is being called for investigative purposes. “What they’re wanting this grand jury to do is investigate whatever the governor did or didn’t do and her authority to do it.”

As of Thursday, D-506-GJ-2021-01 — the citizens petition grand jury request in Lea County — has been sealed, according the district court offices in Lovington, so they cannot give out any information of where it is in the process.

Why the grand jury is needed?

Currently, there are petitions circulating, or have been filed, in 21 of New Mexico’s 33 counties to convene a grand jury for the purpose of investigating Lujan Grisham’s actions relating to the pandemic, said Marker.

Gallegos, along with the petition signers have filed petitions in Lea, Eddy, and Chaves Counties. Gallegos, as just a citizen — not a state senator he said, filed the petition in Lea County, Stacy Turner filed in Eddy County, and Marker filed in his home county of Chaves. Those three counties are in the Fifth Judicial District.

Today, Marker said a petition will be filed in Roosevelt County, and Curry County will most likely be filed early next week — and each county’s petition is asking to convene a citizens grand jury. That means at least two percent of voters in those counties have signed a petition and believe there is enough cause to investigate what Lujan Grisham has done or not done during the pandemic.

Marker and Gallegos said the petition by citizens is necessary because the courts, in particular the New Mexico Supreme Court, being controlled by Lujan Grisham’s Democratic Party would not allow any cases to go forward investigating any wrong doing by Lujan Grisham.

Most cases were not heard due to the court finding a lack of standing by the plaintiffs. Standing, simply put, is whether a party has a vested interest in the case. In layman’s terms, or colloquialisms, standing means: Is it any of your business? Or do you have a dog in the hunt or a horse in the race?

“There’s no options,” Gallegos said. “The governor has no one holding her accountable, so I look at this as the last option for the citizens to have any say.”

“This is the last hill, this is the hill to die on,” said Marker. “All three branches of government are supposed to operate under the citizens. It’s a Constitutional Republic. … This is one our mechanisms for oversight.

“I agree the citizens petition for a grand jury is a radical remedy, which is why it has never been done. When it gets to this point there’s a problem.”

What is the process?

The process starts once the petitioners acquire the required number of signatures — which vary according to population by county. Not less than the greater of 200 or two percent of the registered voters of the county signatures are needed in order to file the citizens petition to convene a grand jury.

“The court has the ability to first ask the county clerk to verify the signatures,” said Luce. “That’s the court’s decision.”

So far, the Lea County Clerk Keith Manes has not been asked to verify the signatures by any district judge.

“I have not (been asked to verify any signatures),” Manes said. “If we get them, we’ll verify them.”

Manes noted verification of petition signatures usually has a set of qualifications, but he has not been made aware of what those will be.

“I don’t know what (the qualifications) are, because we’ve never done one,” Manes said. “If we can determine that is the person, we’ll count them. … Whenever we get them, we’ll get right on them and get them verified.”

“The court will then order a grand jury, if there’s not already one convened, if the court determines (the petition is) a proper subject of the grand jury,” Luce said. “Then, in our district, a grand jury would have to be summoned, because we don’t have a standing grand jury in any of our three counties in the Fifth Judicial District.”

A grand jury summons is almost identical to a normal petit jury summons Luce said, except the length of the term. A grand jury term is only for 90 days, she added.

“If it is ordered, you have to summons jurors, and have sufficient time for people to reply, and the clerks to do all of their work. So there are several weeks in there to do that process,” said Luce. So the timeline for when a grand jury would actually convene is up in the air until it is called, she added.

What happens when a grand jury is convened?

When the grand jury is called it will investigate any evidence presented. And, that evidence isn’t limited to just to the charges being questioned, Clingman said. Nor is the grand jury required to return any indictments.

“They don’t have to return any indictments,” he said. “The thing about a grand jury is once they’re convened, they’re not limited in investigating only that one thing. They can investigate anything they want to.”

Luce agreed.

“A grand jury can be investigatory, so you can have a grand jury because you need to investigate a big complex case … and you may not be sure there’s a crime there, but there’s enough there for probable cause,” said Luce. “You can have a grand jury come in and they can issue subpoenas, and back records and documents. Then depending on what develops, the grand jury could then be presented with an actual case.

“By Constitution the grand jury is considered to be investigatory versus having just what law enforcement and the district attorney’s office would do — whether or not we think a crime has occurred.”

Once a grand jury is convened, the district attorney basically works for them in gathering evidence, Clingman said. Luce also noted that once a grand jury is called, the matter is no longer public record and is sealed. The only time the public will know what transpired is if an indictment is returned, and in the formal report.

“It becomes a sealed document, so it’s not public record,” said Luce. By N.M. Statute 31-6-7 the district attorney must conduct the grand jury unless there’s a conflict.

Ironically, one reason there isn’t a standing grand jury in the Fifth Judicial District, is because there isn’t a specific funding consideration from the N.M. Legislature for the cost of a grand jury, said Luce. She added that in the district there are a sufficient number of magistrate judges to carry the load so the need for a grand jury is minimal.

According to N.M. Statute 31-6-7 the grand jury, if they meet, “will make a formal report as to the condition and operation of any public office or institution it has investigated. The report shall not charge any public officer or other person with willful misconduct, corruption or malfeasance unless an indictment or accusation for removal from public office is also returned by the grand jury,” Luce quoted.

Marker reiterated the need to have a citizen grand jury convened to investigate what has or hasn’t happened in the governors office during the time she declared a public health emergency for the state.

“The governor cannot grant herself unlimited authority do whatever she wants. That’s not constitutional,” Marker said. “The governor does not have the authority to make laws. We have three branches of government for a reason.”

“If they seat it, it will be 12 Lea County residents who listen to the testimony and make the determination of what is right,” Gallegos said. “She’s (Lujan Grisham) never given anyone in the state any options, she’s just held the power to herself. … She did not do her job by elongating (her public health emergency past 60 days) without input from the Legislature.”

Registered voters wanting to add their name to the petition can do so in Lea County at the Gun Shack, 324 W. Bender Blvd., Gallegos said.

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