Convisser v. Ecoversity

IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

Opinion Number: ________

Filing Date: August 15, 2013

Docket No. 33,362

IN RE RESCUE ECOVERSITY PETITION

CLAUDE D. CONVISSER,

Petitioner-Respondent,

v.

ECOVERSITY, PRAJNA FOUNDATION,
and JEFFREY HARBOUR,

Respondents-Petitioners.

ORIGINAL PROCEEDING ON CERTIORARI
Michael Eugene Vigil, District Judge

Montgomery & Andrews, P.A.
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} Article II, Section 14 of the New Mexico Constitution provides that, in addition to
other permissible methods for convening a criminal grand jury, “a grand jury shall be

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ordered to convene by [a district] judge upon the filing of a petition therefor signed by not
less than the greater of two hundred registered voters or two percent of the registered voters
of the county . . . .” We hold that determining whether a grand jury petition is supported by
the requisite number of “registered voters” is a judicial function calling for the exercise of
judicial discretion and that the district court did not abuse its discretion in this case by
rejecting a grand jury petition whose signatories were not confirmed to be registered voters.

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 shortly
before her death in 2003 that gave Harbour control of Harwood’s two nonprofit
organizations, EcoVersity and Prajna Foundation. Convisser sought to compel a grand jury
investigation through a citizens’ petition after the New Mexico Attorney General and the
Santa Fe District Attorney separately declined Convisser’s requests to pursue the matter. The
underlying controversy, which is not directly relevant to the issue in this appeal, is discussed
more fully in Convisser’s related attorney disciplinary proceeding. See In re Convisser,
2010-NMSC-037, 148 N.M. 732, 242 P.3d 299.

{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 Article
II, Section 14, the district court issued an order permitting responses from “Santa Fe County
and other interested parties.” The joint response of Harbour, EcoVersity, and Prajna
Foundation argued that Convisser’s petition did not meet the requirements of Article II,
Section 14 because (1) the County Clerk could not verify its signatories as registered voters,
(2) simply comparing signatory names to names of registered voters did not verify that the

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Although caselaw and the proceedings in this case often refer to “convening a grand
jury” by petition, this Court clarified in Cook v. Smith, 1992-NMSC-041, ¶ 18, 114 N.M. 41,
834 P.2d 418, that Article II, Section 14 is satisfied by submitting the subject matter of the
petition to an already-convened grand jury without the need to convene an additional one.

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signatories were in fact the registered voters of the same name, as illustrated by affidavits
of Santa Fe County registered voters whose names matched those on Convisser’s petition
but who swore that they had not signed his petition, and (3) numerous signatures were the
result of fraud and misrepresentation, an allegation supported by affidavits, letters, and
emails attached to the joint filing.

{5} Santa Fe County also filed a response, arguing that the petition failed to establish
compliance with the requirements of Article II, Section 14 because the County Clerk was
unable to verify by “an address or some other reliable way” that the signatories were
registered voters. The County’s response noted that before circulating his petition Convisser
did not consult with the County Clerk to determine what information the Clerk needed in
order to verify whether she could confirm a signatory as a registered voter.

{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 Article II, Section 14. See In
re Rescue EcoVersity Petition, 2012-NMCA-008, ¶ 8, 270 P.3d 104 (“We will not read
language which is not there into the Constitution in order to require petitioners to include
addresses of signatories in their petition.”).

{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 that initial burden, the district court would be without discretion to deny the petition
unless an opponent of the petition then satisfies a burden of producing “evidence
demonstrating that the signatures on the petition are not those of registered voters within the
county”; and finally, if an opponent were to satisfy that burden of production, the petitioner
would then bear the burden of persuading the district court that the constitutional
requirement is met. Id. ¶ 11.

{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 Article II, Section 14. Id. ¶ 14.

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{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 Article II, Section 14 that grand jury petitions be signed by the
requisite number of “registered voters of the county”; instead, the issue is whether the
district court acted within its lawful discretion in determining that the petitioners had not
shown that they met that constitutional requirement. Although we agree with the view of the
Court of Appeals that our courts are not free to add requirements to those set forth in the
Constitution, nothing in the district court’s rulings purported to add any further constitutional
requirements for a grand jury petition. The relevant finding in the final order recites simply
that the “Santa Fe County Clerk and the Court cannot verify that any of the signers of the
subject petition are registered voters of Santa Fe County because the petition signers did not
provide sufficient information to determine if any signer is a qualified voter in Santa Fe
County.”

{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

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is unjustified by law or reason. Neither the text of Article II, Section 14 nor any of our
precedents prescribe shifting burdens or other special standards by which a district judge is
constrained in exercising judicial discretion to determine whether a petition has met the
constitutional requirements of being signed by a specified number of actual “registered
voters of the county.”

{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
Article II, Section 14 requires naming a target of the proposed investigation. See Cook, 1992-
NMSC-041, ¶ 14 (observing that “the petition need not articulate specific allegations of
crime” so long as it simply “delimit[s] an area of inquiry that colorably lies within the
permissible scope of grand jury inquiry”); McKenna, 1994-NMSC-102, ¶ 11 (emphasizing
that “a petition to convene a grand jury need not name persons specifically, because grand
juries investigate crimes or acts of malfeasance, not people”). There is nothing in the
Constitution or any other law that requires notification to interested parties of a petition to
convene a grand jury. The district court necessarily has the primary duty to ensure that the
grand jury process is lawfully invoked, whether or not other interested parties learn of the
request and seek to intervene.

{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

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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 court
abused its discretion when it rejected Convisser’s petition.

{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

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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.,
NMSA 1978, § 1-4-5.1(I)(4)(a) (2007) (requiring one of several forms of identification “that
shows the name and current address of the applicant” to support a voter registration
application); see also NMSA 1978, § 1-4-5.3 (2007) (providing the means of voter
registration when a person lacks a physical address); NMSA 1978, § 1-4-5.4(B) (2011)
(requiring that the voter registration form include an applicant’s residence); and NMSA
1978, § 1-4-17 (1993) (requiring a voter who changes addresses to submit a certificate of
registration form).

{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., NMSA 1978, § 1-7-2(A) (2011) (requiring that petitions to establish
a political party in New Mexico include signatures and addresses of a requisite number of
qualified voters); NMSA 1978, § 1-8-2(B) to (C) (2007) (requiring the county clerk to
certify, based on the inclusion of addresses, that a requisite number of signatories to election
nominating petitions voted in the last preceding general election); NMSA 1978, § 1-8-31(A)
to (B) (2011) (limiting the number of election nominating petitions a person can sign and
requiring signatories to include their registration addresses); NMSA 1978, § 1-15A-6 (2011)
(requiring the secretary of state to verify as registered voters the requisite number of
signatories to a presidential nominating petition); NMSA 1978, § Section 1-17-2 (requiring
that a referendum petition include signatory addresses); see also 1.10.24.3, .7, .9 NMAC
(04/15/2004) (requiring, under the Election Code, verification as “registered voters” of the
signatories to a referendum petition); NMSA 1978, § 3-2-1(A) (2013) (requiring a petition
seeking incorporation as a municipality to include the street addresses of “qualified elector”
signatories); NMSA 1978, §§ 22-7-6 (1993) and 22-7-10(F) (1977) (requiring inclusion of
“Address as Registered” for school board recall petitions as well as verification that a recall
petition includes the requisite number of valid signatures); accord State ex rel. Citizens for
Quality Educ. v. Gallagher, 1985-NMSC-030, ¶ 17, 102 N.M. 516, 697 P.2d 935 (holding
that “where the information contained in the [school board recall] petition substantially
complies with [the statutory requirements] and is sufficient to allow the county clerk to
verify that the signer is a registered voter of the county and school district,” the statute’s
purpose is satisfied).

{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

7
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 Okla. Const. art. II,
§ 18 (A “grand jury shall be ordered by a district judge upon the filing of a petition therefor
signed by qualified electors of the county.”). Four other states provide for grand jury
petitions in statutes. See Kan. Stat. Ann. § 22-3001(c) (2013); Neb. Rev. Stat. Ann. §
29-1401(3) (2010); Nev. Rev. Stat. Ann. § 6.132 (2001); N.D. Cent. Code Ann. § 29-10.1-02
(2013).

{24} Of these five states, three—Kansas, Nebraska, and Nevada—explicitly require a
grand jury petition to include signatories’ addresses. See Kan. Stat. Ann. § 22-3001(c)(3)
(requiring a petition to include a “signer’s place of residence, giving the street and number
or rural route number, if any”); Neb. Rev. Stat. Ann. § 32-628(1) (2012) (requiring “date of
birth and street name and number, city or village, and zip code” for all petitions requiring
signature verification); Nev. Rev. Stat. Ann. § 6.132(2)(a)(3) (“Each signature contained in
the petition . . . [m]ust be followed by the address of the person signing the petition and the
date on which the person is signing the petition.”).

{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 Kan. Stat. Ann. § 22-3001(c)(3) (requiring the
county election officer to “determine whether the persons whose signatures are affixed to
the petition are qualified electors of the county” after which the reviewing judge “shall then
consider the petition and, if it is found that the petition is in proper form and bears the
signatures of the required number of electors, a grand jury shall be ordered to be
summoned”); Neb. Rev. Stat. Ann. § 29-1401.02(3) (2002) (requiring either the county clerk
or the election commission to “determine the number of valid signatures appearing on such
petitions and certify the findings”). Nevada requires the district court clerk to certify a grand
jury petition as statutorily sufficient, including that it contains signatures of the requisite
number of registered voters. See Nev. Rev. Stat. Ann. § 6.132(2)(a), (6)(a); cf. Nev. Rev.
Stat. Ann. § 6.132(7) (requiring that a petition not be certified as insufficient when, absent
other proof of disqualification, any signature does not correspond exactly with the signature
on the official register of voters and the signatory’s identity can be ascertained from the face
of the petition); see also Nev. Rev. Stat. Ann. § 6.132(8)(b) (providing judicial review of any
petition determined to be insufficient). North Dakota takes yet another approach, requiring
a petition to “be verified on information and belief by at least three of the petitioners.” N.D.
Cent. Code Ann. § 29-10.1-04 (1971). Oklahoma vests verification directly with the
presiding district court judge, who “shall determine whether or not that number meets the
requirement of a grand jury petition pursuant to Section 18 of Article II of the Oklahoma
Constitution.” Okla. Stat. Ann. tit. 38, § 107 (1989).

{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

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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 NMSA 1978, §1-4-5.4(B) (“The
certificate of registration form shall require the following elements of information
concerning the applicant for registration: name, gender, residence, municipality, post office,
county of former registration, social security number, date of birth, political party affiliation,
zip code, telephone number at the applicant’s option and statement of qualification for
voting”). Other options conceivably could include handwriting comparisons by a qualified
witness or testimony of questionable signatories. See NMSA 1978, § 1-4-5.4(C) (“Provision
shall be made for the usual signature or mark of the applicant, for the signature of the county
clerk and for the dates of such signatures.”). We need not address the sufficiency of any of
those methods because none were presented to the district court in this case.

{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 Rule 5-101(B) NMRA.

III. CONCLUSION

{30} We reverse the Court of Appeals and affirm the district court’s denial of Convisser’s

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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

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