IN RE RESCUE ECOVERSITY PETITION
CLAUDE D. CONVISSER, Petitioner-Respondent, v. ECOVERSITY, PRAJNA FOUNDATION, and JEFFREY HARBOUR, Respondents-Petitioners.
Docket No. 33,362
IN THE SUPREME COURT OF THE STATE OF NEW MEXICO
August 15, 2013
Michael Eugene Vigil, District Judge
ORIGINAL PROCEEDING ON CERTIORARI
Walter J. Melendres
Victor R. Ortega
Andrew S. Montgomery
Seth C. McMillan
Santa Fe, NM
for Petitioners
Claude David Convisser
Santa Fe, NM
for Respondent
OPINION
DANIELS, Justice.
{1}
I. BACKGROUND
{2} In July 2009, attorney Claude Convisser filed a petition with the First Judicial District Court to initiate1 a Santa Fe County grand jury proceeding. Convisser‘s petition sought an investigation of a “suspicion of criminal fraud” in connection with the activities of “[Jeffrey] Harbour and his cohorts” in procuring a will from Frances Harwood
{3} When Convisser filed his grand jury petition in district court, he included the affidavit of the Santa Fe County Clerk, whom he asked to verify that his petition signatories were Santa Fe County registered voters. In her affidavit, the County Clerk stated (1) that Convisser needed the signatures of 1770 registered voters in order to meet the constitutional requirement and (2) that of the signatures Convisser submitted, the names of 1808 (sixty eight percent of the 2658 submitted signatures) were the same as names of people who appeared on Santa Fe County‘s voter registration rolls; but (3) the County Clerk could not verify that any of the petition‘s signatories were actually registered voters, primarily because the petition failed to include the signatories’ addresses, which the County Clerk could use to confirm whether the signatories were registered to vote in Santa Fe County.
{4} Before ruling on whether Convisser‘s petition satisfied the requirements of
{5} Santa Fe County also filed a response, arguing that the petition failed to establish compliance with the requirements of
{6} In addition to soliciting and considering the written submissions, the district court scheduled a hearing to allow all interested parties to be heard. Following the hearing, the district court issued an order denying Convisser‘s petition, finding that “the petition signers did not provide sufficient information to determine if any signer is a qualified voter in Santa Fe County.”
{7} The Court of Appeals reversed the district court on the theory that the district court‘s ruling impermissibly added a signatory address requirement to
{8} After first holding that “[o]nce the County Clerk determines that the requisite number of persons purporting to be registered voters in the county have provided their names and signatures, and those names correspond to names of registered voters within the county, the Constitution has been satisfied,” id. ¶ 4, the Court of Appeals went on to create a new, three step burden-shifting procedure for grand jury petitions. First, the petitioners would have an initial burden of production, showing that a sufficient number of names of petition signatories facially match the names of registered voters within the county; once petitioners carry
{9} Applying its new procedure, the Court of Appeals concluded that petition opponents in this case had not carried their burden of producing sufficient evidence to show that the petition signatures were not those of registered voters and that the district court therefore abused its discretion in determining that Convisser had not met his constitutional burden of establishing compliance with
{10} We granted certiorari to determine the precedential issues of constitutional interpretation that this case presents.
II. DISCUSSION
A. The District Court Has the Judicial Responsibility to Determine That a Voter Petition Meets Constitutional Requirements
{11} Although this Court has not previously considered the precise manner in which a district court must determine whether a voter-initiated grand jury petition meets the constitutional requirement that it be signed by the requisite number of “registered voters of the county,” we have addressed other issues relating to the sufficiency of grand jury petitions. See Pino v. Rich, 1994-NMSC-105, ¶ 3, 118 N.M. 426, 882 P.2d 17 (A “district court judge must determine the legality of a petition to convene a grand jury by deciding whether ‘the petition on its face delimit[s] an area of inquiry that colorably lies within the permissible scope of grand jury inquiry.‘” (alteration in original) (citation omitted)); Dist. Court of Second Judicial Dist. v. McKenna, 1994-NMSC-102, ¶¶ 14-15, 118 N.M. 402, 881 P.2d 1387 (“As part of its ‘residuum of supervisory authority,’ the reviewing court may consider matters beyond the face of the petition if necessary to determine the petition‘s legal validity,” including holding an evidentiary hearing. (citation omitted)); Cook v. Smith, 1992-NMSC-041, ¶¶ 6, 12, 114 N.M. 41, 834 P.2d 418 (“[W]e think it clear that the judge must make a legal, nondiscretionary determination that the inquiry proposed by the petition is valid.“). While these cases focus on the validity of the petition‘s inquiry, this Court specifically explained in Cook that “the sole issue committed to the discretion of the [district] court appears to be verification that the petition meets the constitutional conditions, namely whether the petition contains the requisite number of signatures and whether the signatories are registered voters of the county.” Cook, 1992-NMSC-041, ¶¶ 5-6 (emphasis added).
{12} We clarify that the issue here is not whether any further constitutional requirements can be added to the text of
{13} To the contrary, it was the appellate creation of a new three-step burden-shifting procedure that added provisions to the constitutional mandate, a creation that we conclude is unjustified by law or reason. Neither the text of
{14} Requiring a district judge to accept a grand jury petition as sufficient to order a grand jury inquiry simply because it contains signatures that are spelled the same as those of registered voters overlooks the judicial duty of the district court to ensure the actual validity of a grand jury petition. As we recognized in Cook and McKenna, we will honor “the public‘s constitutional right to petition the courts to convene a grand jury” by protecting “the balance struck by our constitution between the government and the people.” McKenna, 1994-NMSC-102, ¶ 10 (citing Cook with approval). As part of that balance, the citizen petition right “checks the traditional process by permitting the citizens to trigger inquiry into matters that for reasons of political acquiescence, oversight, or impasse evade traditional means of inquiry.” Cook, 1992-NMSC-041, ¶ 8. On the other side of the balance is our judicial responsibility to protect “the integrity and respectability of our judicial system” by preventing the grand jury process from being misused “for a fishing expedition (or worse, a witch hunt).” McKenna, 1994-NMSC-102, ¶ 17. As we recently observed in Jones v. Murdoch, 2009-NMSC-002, ¶¶ 13, 38-39, 145 N.M. 473, 200 P.3d 523, a court has a supervisory duty “to see that its grand jury and its process are not abused, or used for purposes of oppression and injustice” (internal quotation marks and citation omitted) (holding that the courts may enforce fairness responsibilities of a prosecutor to avoid unwarranted harm to targeted individuals).
{15} As a practical matter, there often is not an identifiable opponent before the court to shoulder the new burden of production imposed by the decision below because nothing in
{16} We must also recognize that the burden-shifting procedure would place a nearly insurmountable burden on a party who had adequate notice and a timely opportunity to attempt to oppose a grand jury petition. To impose a burden of producing evidence that a petition‘s signatories are not registered voters would necessarily require contacting each and every voter in the county with the same name as each signatory to have each establish that he or she was not the person who signed the petition, a task compounded by the frequency of people who share common names, such as the district judge and one of the Court of Appeals judges in this case.
{17} Because we conclude that the three-step burden-shifting procedure is grounded in neither law nor practicality, we formally hold what we previously stated in addressing other issues in Cook and McKenna: determining whether grand jury petition signatories are actually registered voters of the county is a judicial determination committed to the sound discretion of the district court. Appellate review is therefore governed by an abuse of discretion standard.
B. The District Court Did Not Abuse Its Discretion in Rejecting Convisser‘s Petition
{18} Having concluded that the registered voter mandate is a factual determination properly within the discretion of the district court, we address whether the district
{19} “An abuse of discretion occurs when the ruling is clearly against the logic and effect of the facts and circumstances of the case.” State v. Rojo, 1999-NMSC-001, ¶ 41, 126 N.M. 438, 971 P.2d 829 (internal quotation marks and citation omitted). “We will uphold a trial court‘s findings if they are supported by substantial evidence.” Chavarria v. Fleetwood Retail Corp., 2006-NMSC-046, ¶ 12, 140 N.M. 478, 143 P.3d 717. “Substantial evidence is that which a reasonable mind accepts as adequate to support a conclusion.” Id. (internal quotation marks and citation omitted). Where the exercise of judicial discretion involves fact-finding, “we will not reweigh the evidence nor substitute our judgment for that of the fact finder.” Bishop v. Evangelical Good Samaritan Soc‘y, 2009-NMSC-036, ¶ 28, 146 N.M. 473, 212 P.3d 361 (internal quotation marks and citation omitted). See Ruiz v. Vigil-Giron, 2008-NMSC-063, ¶ 13, 145 N.M. 280, 196 P.3d 1286 (reviewing whether a district court‘s determination of the validity of signatures for a ballot petition satisfied statutory requirements under the abuse of discretion standard); see also State v. Gonzales, 2005-NMSC-025, ¶ 21, 138 N.M. 271, 119 P.3d 151 (“Standards of review reflect the different functions trial and appellate courts serve. Disputes over historical facts are resolved by trial courts, and appellate courts give great deference to a trial court‘s factual determinations, reviewing to determine whether substantial evidence supports those determinations.“).
{20} In this case, the district court not only considered the factual and legal materials submitted in writing, it conducted a full hearing on the issues before rejecting Convisser‘s petition due to an insufficient showing that the petition had been signed by the requisite number of registered Santa Fe County voters. Rather than rebut the sworn statement of the County Clerk that the signatures could not be verified or present other forms of evidence that the signatories were the registered voters, Convisser simply argued that matches between the names of signatories and names of registered voters should be conclusive. However, “matching” is not “verifying.” To “match” is “[t]o be like (another)[;] . . . to resemble.” The American Heritage Dictionary of the English Language 1082 (5th ed. 2011). To “verify” is to “demonstrate the truth or accuracy of, as by the presentation of evidence.” Id. at 1924. In this case, the County Clerk clearly stated that she could not verify that Convisser‘s petition was supported by the requisite number of registered voters, and Convisser provided no evidence to prove otherwise. Convisser apparently recognized that merely asserting that a signatory is a registered voter is constitutionally insufficient when he asked the County Clerk to verify his petition‘s signatures before he submitted the petition to district court.
{21} Voters’ addresses, while not constitutionally required for a grand jury petition, play an important role in voter registration and verification of registered voter status. See, e.g.,
{22} Our statutes and administrative regulations provide numerous other instances in which addresses are required for petitions in order to aid in the process of signature verification. See, e.g.,
{23} We note that voter addresses play an important role in petition verification in the few states that provide for voter-initiated grand juries. While not dispositive, we also consider the approaches taken by the five other states with similar grand jury provisions. Oklahoma is the only other state that provides such a right in its constitution. See
{24} Of these five states, three—Kansas, Nebraska, and Nevada—explicitly require a grand jury petition to include signatories’ addresses. See
{25} Regardless of the source of the authority, each of these five states explicitly requires signatory verification. Kansas and Nebraska rely on either the county clerk or a county election officer to verify signatories. See
{26} The fact that all of the states with citizen-initiated grand jury provisions not only require the verification of signatories but most commonly do so through the use of voter addresses supports our conclusion that it was a reasonable exercise of judicial discretion for the district judge in this case to take into account the lack of voter addresses or other means of confirming the registration status of the petition signatories.
{27} In upholding the district court‘s exercise of discretion in this case, we do not rigidly require voters’ addresses on grand jury petitions, however useful addresses may be to the County Clerk and the court. Other verification aids are theoretically possible, particularly in light of New Mexico statutory requirements that voter registration records maintained by election officials must contain other identifying information in addition to voter addresses, such as dates of birth and social security numbers. See
{28} We do not intend to circumscribe the reasoned exercise of judicial discretion by dictating what particular forms of evidence the district court must consider in the course of determining whether a signatory is a registered voter, any more than we would do in the context of other factual determinations. We have long recognized that “[a]ny attempt to define the phrase ‘judicial discretion’ is generally regarded as a difficult and dangerous undertaking.” Pankey v. Hot Springs Nat‘l Bank, 1938-NMSC-067, ¶ 21, 42 N.M. 674, 84 P.2d 649. “But we venture that such a discretion as the law sanctions is not arbitrary, vague, or fanciful, nor is it to be controlled by humor or caprice, but is to be governed by principle and regular procedure for the accomplishment of the ends of right and justice.” Id. Our approach is consistent with that of courts elsewhere. See, e.g., Shook v. Bd. of Cnty. Comm‘rs of El Paso, 543 F.3d 597, 603 (10th Cir. 2008) (“When applying an abuse of discretion standard of review, we necessarily recognize that there may be no single right answer to the question at hand, but a range of possible outcomes sustainable on the law and facts, and we will defer to the district court‘s judgment so long as it falls within the realm of these rationally available choices.” (internal quotation marks and citation omitted)).
{29} Accordingly, we hold that the district court did not abuse its discretion in rejecting Convisser‘s petition in this case. In order to provide guidance for all in the future, we ask our criminal rules committee to consider recommendations for rules and forms to assist in implementing the citizen grand jury petition requirements in a way that will “secure simplicity in procedure, fairness in administration and the elimination of unjustifiable expense and delay.” See
III. CONCLUSION
{30} We reverse the Court of Appeals and affirm the district court‘s denial of Convisser‘s grand jury petition.
{31} IT IS SO ORDERED.
CHARLES W. DANIELS, Justice
WE CONCUR:
PETRA JIMENEZ MAES, Chief Justice
RICHARD C. BOSSON, Justice
EDWARD L. CHÁVEZ, Justice
BARBARA J. VIGIL, Justice