http://www.judicialcandidate.zoomshare.com/2.shtml Judicial Candidate Web Page: Compiled Reads Sat, 22 Nov 2008 23:53:55 -0600 http://www.judicialcandidate.zoomshare.com/2.shtml/f95e5f07769d509c38139e0cc58b63b9_4928efcc.writeback Sat, 22 Nov 2008 23:53:16 -0600 The character and standard of the Presidency is "best amongst best". It' s home, The White House, is a place associated not with arms or hostile agreements, but purposed as the focal point of a peace loving nation wishing to live its own life in a world fit and safe. Americans and the international community have come to recognize that within each Administration within the Presidency, there remain strong moral principles, the deepest preserve and safeguard of the Constitution of the United States, and the assurance of justice and fair dealings. There is also the understanding that America is not good because it is great, it great because it is good. One can hold solemn an appreciation of "the blessings of Liberty" and of a government which the balances and values of the Constitution. America is good because it relies upon the respect and dignities which are due a diverse of people. America is a nation of innovation in the sciences, and nation leading the world in food production, engineering, communications, manufacturing and innovations. As a nation, American have set feet upon the moon, constructed a space laboratory in cooperation with other nations of the world, and established several footholds in our solar system and the galaxies beyond. Such is but a small glimpse of the character and standard of best amongst best. By axiom it debunks the myth of the mediocre : "The Surge". When the surge was introduced, it was the month after Congressional elections of 2006. The President dismissed Defense Secretary Rumsfeld and introduced Secretary Gates for a new direction in Iraq. The political processes there had broken down. Growing violence and civil unrest in the marketplaces and upon the numerous oil resources were on the verge of secular civil war. Yet there was a clear message from the Congressional returns of 2006-that the continuing and unresolved consequences of ousting the Saddam regime needed to be addressed; along with the need to change the "character' of the conflict. There is no doubt that surge and destroy changed the perimeters of the conflict. Specialized forces quelled the insurrections and daily explosions killing thousands of Iraqi. It separated opposing parties with the construct of mazes and walls and checkpoints. Promises of economic stimulus, and principles of social and economic health for that nation were further removed and buried the fundamental flaws of the Coalition Authority. Post - election recommendations, such as Hamilton/Baker Commission, were placed aside with the President's announcement of a coming surge as response. The President announced that he was the sole decider of the surge. And the President destined the next President to resolve the complexities of Iraq. The president knew that the military was a special instrument and what it is meant to be : a lethal force. " It is not a civilian police force. It is not a political referee. And it is most certainly not designed to build a civilian society" ( Dr. Rice , Foreign Affairs, 10/2000). It would begin in the spring and last without a timetable, though inherently the President's term would come to pass. A few days later, Saddam Hussein was executed. There was a finality in the "coping with rogue regimes" and to the outlined goals : "Some states have been left by the side of the road. Iraq is a prototype. Saddam Hussein's regime is isolated, his conventional military power has been severely weakened, his people live in poverty and terror, and he has no useful place in international politics. He is therefore determined to develope WMD. Nothing will change until Saddam is gone, so the Unites States must mobilize whatever resources it can, including support from his opposition, to remove him. ( Dr. Rice, ibid). It was a theory not in fact. By spring the military began its cleansing. There were no displays of democracy, nor any hopes for a reform of political and economic systems. In places like Rimaldi, marines called in air strikes to destroy Insurgent homes. Cobra helicopters engaged insurgents on the roads and in time the nation was pacified. Agreements toward restructuring and preparing the Iraqi national government take on "their responsibilities' were pale in contrast to the force majure of continued military objectives. The surge left none of the foundations for which withdrawal could be reasonable. Without the foundations of democracy, including the stability of the national government to the social , economic and political health of the nation, the core problems perpetuate. In the most fundamental, the inclusion of the military and it continued existence is the antithesis to establishing democracy, freedoms, and the aspirations which people strive for-to be free of genocide, starvation, and the ravages of war and disasters. The result is an imperfect situation for a new President. However, it is not an impossible situation. Yet imperfect as it is, it provides an opportunity to adopt and accord structure and activity which provides definition upon the national government with stability and peace. The President- elect's proposed removal of the troops, phased in a responsible manner is but one of the essential steps to the avoid repetition of Ceasefire I and Ceasefire II during the Vietnam era. Withdrawal, even directed by our surest military leaders and done in consultation with the Iraqi government, provides little if any of the basis for international accord or the institutional social , economic and political health of the nation. Nor does pure withdrawal (W) address the most fundamental character of democratic governments: that they transcend themselves and turn over the powers of the nation to a new government that will support the next transcendence of government. For that to be, the next need stem the tide of regional isolations and animosity. That can best be addressed with the realism of the threats the American nation. There is a definite danger of a collapse or threat upon the national government which can further erode the perception of response by the American government to properly intervene and maintain an order in the conflicts and humanitarian needs of the world. The definition of an enhanced schedule of withdrawal must be accompanied by tandem schedules that provide verification to the American principles of democracy. Elections for a new national government are central. They can be done without the "imperfections" of 2005 and within the timetable (that American and Iraqi forces can provide apt security) of withdrawal. Operationally the conduct of elections adds a new dimension to the commanders withdrawal timetable, but measures a definition of stability for which forces may be minimized. Additionally, diplomatic measures must be administered. One clear and transparent measure is the holding of regional conferences , open to as diplomatic to the national governments of the region and qualified non governmental organizations. Regional conferences , the establishment of organization for the hearing of grievances , developing a functional organization with such efforts as economic development and assistance are beyond the battlefield duties of commanders with directives to maintain counter- insurgency and the strict protection. The character of best amongst best can do the simultaneous. It can addess with leadership engage in diplomacy, implement accords directly with the national government regarding conciliatory factors, national assets, and a specific course of postal, commerce, and maritime agreements and treaties of peace and friendship. http://www.judicialcandidate.zoomshare.com/2.shtml/eb0c8fa13b30b1a24186dad15aee5816_4918a79e.writeback Mon, 10 Nov 2008 15:29:02 -0600 The case against Kathleen Jacobson runs a collision course with Due process. In examining the instances of the case is a case of the opposites¡Xif due process calls for a speedy trial with witnesses, and exchanged discovery, and effective legal assistance. The charge she faces is ¡?battery upon a household member¡¨. It arises from an incident in July, 2007, where she was arrested and charged before the Magistrate Court. The case has several irregularities¡Xeach of which results in invidious discrimination. Beginning is that the case ¡? has been filed¡¦ not as an appeal in accordance to the Rules of the State to assure that a criminal charge complies with the equal protection rights which are due every citizen in every case without exception or prejudice. What stands before the District court is the result of an appeal of a trial in the Magistrate¡¦s Court. That is within the statutory review process and its intent is to review the question, did Ms. Jacobson receive ¡¥effective legal assistance¡¨ before the Magistrate¡¦s Court. Such appeals are ¡¥civil procedures¡¦ determined as a question of law applied in a particular set of circumstances. ¡?Effective legal assistance ¡¥is one of the Guarantees of the United States Bill of Rights and in the New Mexico Bill of Rights. A Defendant¡¦s Account Ms. Jacobson stated her factual story beginning with on July 29, 2007, Robert medrano (¡?the alleged victim¡¨) asked her if he could stay at her home on July 30th as ¡?he would be a lot closer to his job at Labor Ready on Fifth street in Santa Fe rather than his own residence out on Airport Road. She maintained that Mr. Medrano came over about 8 or 9 pm on the 30th, and she, her daughter ( age 12) and Mr. Medrano headed to bed about 10:30 to 11. The next morning she went about her household tasks. Mr. Medrano, rather than an early leave to Labor Ready, ¡?stayed in bed and rested until 2 or 3 pm in the afternoon¡¨. She denied sexual relations with him as he had claimed : ¡?This is absolutely not true¡¨ . Between 4 and 5pm on the 31st, according to Ms. Jacobson, she prepared a home made meal of steamed rice and shrimp. She served Mr. Medrano , her daughter and herself the meal. At about 5:30 p.m. her friend Daniel van Fleet rode his bicycle to her residence for a visit. She stated that she was happy to see him, but nervous because ¡?Mr. Medrano used to get extremely ¡¥bent out of shape¡¦ when other male friends were present.. According to Ms. Jacobson , Mr. Medrano ¡? got vastly jealous and possessive and that is how he reacted upon learning of Mr. Van Fleet¡¦s presence in our home¡¨ ¡?Although he joined joined Daniel , me and Gabriella ( her daughter) outside into our yard, he was an extremely negative presence¡Xmaking rude comments and calling us names Shortly thereafter, Mr. Van fleet rode his bicycle to Owl liquors and purchased a twelve pack of beer. In the meantime, Mr. Medrano ¡?had simply disappeared¡¨¡Xhaving gone to the church across the street to gain some solace. Upon Mr. van Fleet¡¦s return, he and Ms. Jacobson had a beer. Mr. Moreno returned shortly thereafter and ¡?grabbed a beer¡¨. Knowing that Mr. Medrano takes certain medications, Ms. Jacobson asked him if that was a good idea? Mr. Medrano stated ¡?its only one¡¨. ¡?It appeared to me that Mr. Medrano was trying to be ¡¥a man¡¦ in front of Mr. Van Fleet. It wasn¡¦t long before Ms. Jacobson asked Mr. Medrano to leave. ¡?He went into my bedroom to pack his bag, and came out into our living room carrying his stuff. Mr. Medrano began to verbally assault us. ¡? he went out our front door and placed his bags close to our front porch, in the driveway, then came back yelling screaming and shouting obsenities. ¡?Gabriella and Daniel stepped out into the driveway to try and get away. I followed them also. Daniel, Gabriella and I tried to calm Mr. Medrano and continued to ask him to leave. This seemed to make Mr. Medrano even more angry¡¨. ¡?Mr. Medrano punched Daniel and stated ¡?I¡¦m going to kill you¡¨. I stepped between them but to no avail.¡¨ ¡? Mr. Medrano was pacing our yard, walking back and forth between our house and the street yelling ¡?CALL THE COPS¡¨,etc. Daniel, Gabriella and I proceeded back into our home. Mr. Medrano ¡?came back onto our property and entered the front porch„mMr. Medrano began to break our stuff while continuing his verbal assault. I went out to try and calm him again. ¡?It was at this time that Mr. Medrano lunged at me, and I reacted in self defense, scratching his face. ¡?Mr. Medrano then caught me in another small enclosed space by the fence that enters our backyard. There was no where for me to escape. Once again, he lunged at me and I bit him on the chest. I did not chase after him. he attacked/ assaulted me and I defended myself„m ¡?Mr. Medrano then went out to the street once again. I told him that I was going to call his mother right away and have her come and pick him up immediately. Just before I entered our home , Mr. Medrano yanked my tube top down, and displayed my breasts in front of our neighbor across the street, and to my daughter. He ripped my top slightly.¡¨ ¡?I went inside and locked both doors proceeded to call his mother„mwhen no one answered , I left a voicemail and described what was transpiring„m Approximately, 20 minutes to half an hour after the assault began 2 Santa Fe Police Officers arrived in two separate cars. Officer van EttenOfficer knocked at our door, and I answered immediately. I stepped outside and spoke to the officer. I recalled the sequence of events and that on many occasions calling law enforcement ¡?is a waste of time¡¨ and beyond pointless¡XI explained to the Officer that I am frightened to call law enforcement. I explained ¡?I¡¦m extremely traumatized by law enforcement officials because it has been my bad experience that they are often not fair with Native folk/ persons of color. I furthered to the officer that I have P.T.S.D. and because of the event that had just taken place I was in a haze. Officer van Etten then went out to the street and out of sight behind the next door neighbor¡¦s tall hedge and was speaking with Officer Sabidres, who was questioning Robert Medrano. ¡?About ten minutes transpired, and Officer Van Etten came back and told me to turn around and proceeded to handcuff me. I was put under arrest. Robert Medrano was wanted on an outstanding warrant for his Arrest and put into Officer Salbrides¡¦ police car.An ambulance arrived and the EMT¡¦s attended to Mr. Medrano¡¦s injuries. Ms. Jacobson was taken to the Santa Fe county Jail where she was booked and charged upon a complaint of Officer van Etten for ¡?Domestic battery of Household member¡¨ ( Sec 30-3-15) Trial Process On August 2, 2007 Kathleen Jacobson appeared before Judge George Anaya of the magistrates Court of Santa Fe. A bond was set of $5000,surety with conditions not to possess firearms. Consume alcohol; violate criminal law, avoid contact with the alleged victim, etc. On August 10, 2007, an order of appointment of a Public Defender provided that the defendant was indigent and is unable to obtain counsel. On August 16, 2007 , ¡?an entry of appearance, motion for Discovery#1 and demand for Speedy trial¡¨ was filed by Elena Moreno, an assistant public defender. The filing which recited ¡?Rule - 5-604 of the Criminal Procedure of the Magistrate¡¦s Court, Brady v. Maryland, 373 U.S. 83 (1963), US v. Bagley Between that time and January 14, 2008 the defendant had little contact with her public defender, although she made repeated telephone calls and wrote numerous letters. Telephone calls were not returned, and the letters were not responded too. Contact was limited to the several ¡?status hearings¡¨¡Xwhich were formalized court calls where the public defender stood with the defendant or the formalized provision of ¡?trial settings requests¡¨. Face to face discussion of the issues and charges were deferred with statements: ¡?They¡¦ll probably dismiss this¡¨, ¡?I have other cases I have to work on now¡¨, ¡?We¡¦ll get to that later. Right now we have to do this¡¨. In December , 2007, the District Attorney issued subpoenas upon the State¡¦s witnesses: Modrano, and Officers van Etten and Salbrides. On January 11, 2008, the Friday before the scheduled trial, Ms.Jacobson and Ms. Moreno met to prepare for the trial. Primarily, that was a discussion and review o the circumstances, followed by reassurances that the trial will be before jury, and that she was well prepared for their selection. On January 14, the trial began with jury selection at 8:30. A six person jury was impaneled and one alternate juror selected.. Opening statements made. Mr. Medrano was asked to take the stand first At approximately 10:45 am the court recessed until 1:15 pm. Questioning of Mr Modrano continued after the lunch. Following his testimony Officers van Eetten and Salbrides were called by the State. A recess was called after the officers testimony. Thereafter the defense presented its ¡¥case¡¨: solely the testimony of Ms. Jacobson. Her testimony continued until approxiamately 5:15 p.m. The jury were then instructed to provide a verdict. At about 5:40 pm, it returned with a verdict of guilty. The jury found Ms. Jacobson ¡?guilty¡¨ of battery of a household member. Sentencing was scheduled for January 30, 2008. The next day, Ms. Jacobson in a combined sense of shock of finding and stress over the effect of her family life, Ms. Jacobson demanded the Public defender do ¡¥something¡¦. On January 28, 2008, Ms. Jacobson provided the Public defender¡¦s Office with a notice ¡?to stay the sentencing pending the appeal¡¨ ¡?on the basis of ¡?lower Court error and substantial ineffective assistance¡¨ . It also provided a listing of professional responsibilities and specific events to ¡?cite ineffective assistance of counsel. The Public Defender¡¦s Office provided a ¡?6-703 Request¡¦ on the Sentencing date, January 31, 2008 . The request for ¡?trial de novo¡¨ didn¡¦t cite any rational ¡?such as Ms. Jacobson sense that the trial counsel was ineffective, irresponsible, and unresponsive¡¨ . While Ms. Jacobson¡¦s sense of violation produced a ¡?district Court trial¡¨ or quasi appeal, it also had the effect of ¡?providing that Ms. Jacobson was ¡?disgruntled, uncooperative, and the personnel of the Public defender¡¦s Office was making the request reluctantly. On January 31, 2008, The Magistrate¡¦s Court rendered a judgment finding the jury verdict of guilty. It imposed a sentence of 365 days , suspending 335 days, deducting for four days credit in jail, and imposing the balance of 26 days to be executed. On February 7, 2008, the Magistrate Court issued an order to transfer the case to the District Court. The case was re-filed as a criminal charge in the manner that felony arraignments are transferred to the District Court. Recitation of Rule 6-703 Appeal. A. Right of appeal. A party who is aggrieved by the judgment or final order in a criminal action may appeal, as permitted by law, to the district court of the county within which the magistrate court is located. The notice of appeal shall be filed in the district court within fifteen (15) days after the judgment or final order appealed from is filed in the magistrate court clerk's office. The three (3) day mailing period set forth in Rule 6-104 NMRA does not apply to the time limits set forth above. A notice of appeal filed after the announcement of a decision, or return of the verdict, but before the judgment or order is filed in the magistrate court clerk's office, shall be treated as timely filed. Notwithstanding any other provision of this rule, no docket fee or other cost shall be imposed against the state or its political subdivisions or against a defendant who is represented by a public defender or court appointed counsel. B. Notice of appeal. An appeal from the magistrate court is taken by: (1) filing with the clerk of the district court a notice of appeal with proof of service; and (2) promptly filing with the magistrate court: (a) a copy of the notice of appeal which has been endorsed by the clerk of the district court; and (b) unless the appeal has been filed by the state, a political subdivision of the state or by a defendant represented by a public defender or court appointed counsel, a copy of the receipt of payment of the docket fee. C. Content of the notice of appeal. The notice of appeal shall be substantially in the form approved by the Supreme Court. D. Service of notice of appeal. At the time the notice of appeal is filed in the district court, the appellant shall: (1) serve each party or each party's attorney in the proceedings in the magistrate court with a copy of the notice of appeal in accordance with Rule 5-103 of the Rules of Criminal Procedure for the District Courts; and (2) file proof of service with the clerk of the district court that a copy of the notice of appeal has been served in accordance with Rule 5- 103 NMRA. E. Docketing the appeal. Upon the filing of the notice of appeal and proof of service and payment of the docket fee, if required, the clerk of the district court shall docket the appeal in the district court. F. Record on appeal. Within fifteen (15) days after the appellant files a copy of the notice of appeal in the magistrate court pursuant to Paragraph B of this rule, the magistrate court shall file with the clerk of the district court the record on appeal taken in the action in the magistrate court. For purposes of this rule, the record on appeal shall consist of: (1) a title page containing the caption of the case in the magistrate court and the names and mailing addresses of each party or, if the party is represented by counsel, the name and address of the attorney; (2) a copy of all papers and pleadings filed in the magistrate court; (3) a copy of the judgment or final order sought to be reviewed with date of filing; and (4) any exhibits. The magistrate court clerk shall give prompt notice to all parties of the filing of the record on appeal with the district court. Any party desiring a copy of the record on appeal shall be responsible for paying the cost of preparing the copy. G. Correction or modification of the record. If anything material to either party is omitted from the record on appeal by error or accident, the parties by stipulation, or the magistrate court or the district court, on proper suggestion or on its own initiative, may direct that the omission be corrected and a supplemental record transmitted to the district court. H. Conditions of release. At the time of the entry of the judgment and sentence, the magistrate court shall review the conditions of release pending appeal to assure the conditions are sufficient to secure the appearance of the defendant and the judgment of the magistrate court. The magistrate court may utilize the criteria listed in Paragraph B of Rule 6-401 NMRA, and may also consider the fact of defendant's conviction and the length of sentence imposed. The conditions of release shall be included on the judgment and sentence. A defendant released pending trial shall continue on release pending an appeal to the district court under the same terms and conditions as previously imposed, unless the court determines that other terms and conditions are necessary to assure the defendant's appearance or to assure that the defendant's conduct will not obstruct the orderly administration of justice. In the event the court requires a bail bond in the same amount as that established for release pending trial, the bond previously furnished shall continue pending appeal or disposition of a motion for a new trial, unless the surety has been discharged by order of the court. If the court determines that the previously imposed conditions are not sufficient to assure the appearance of the defendant or the orderly administration of justice, the court may increase the amount of the bond on appeal or terminate the conditions of release to assure the appearance of the defendant or the orderly administration of justice. Nothing in this rule shall be construed to prevent the court from releasing a person not released prior to or during trial. Upon filing of the notice of appeal, the bond shall be transferred to the district court pending disposition of the appeal. The district court shall dispose of all matters relating to the bond until remand to the magistrate court. I. Review of terms of release. If the magistrate court has refused release pending appeal or has imposed conditions of release which the defendant cannot meet, the defendant may file a petition for release with the clerk of the district court at any time after the filing of the notice of appeal. A copy of the petition for release which has been endorsed by the clerk of the district court shall be filed with the magistrate court. If the district court releases the defendant on appeal, a copy of the order of release shall be filed in the magistrate court. J. Trial de novo appeals. Trials upon appeals from the magistrate court to the district court shall be de novo. K. Notice; trial de novo appeals. In trial de novo appeals, the clerk of the district court shall give notice to all parties of the time and date set for a trial de novo not less than ten (10) days prior to the date set for trial. If the defendant is represented by counsel, the clerk shall give written notice to the defendant and the defendant's counsel. Notice to the defendant shall be mailed to the defendant's last known address. L. Disposition; time limitations. The time for trial in the district court on a de novo appeal shall be within six (6) months after the filing of the notice of appeal or the events described in Subparagraphs (2), (3), (4) or (8) of Paragraph B of Rule 5-604 NMRA of the Rules of Criminal Procedure for the District Courts. Any appeal pending without disposition upon expiration of the time for trial shall be dismissed and the cause remanded to the magistrate court for enforcement of its judgment. M. Extension of time. The time limit specified in Paragraph L of this rule may be extended one time for a period not exceeding ninety (90) days upon a showing of good cause to a justice of the Supreme Court. The party seeking an extension of time shall file with the clerk of the Supreme Court a verified petition for extension concisely stating the facts petitioner deems to constitute good cause to extend the time period for trial. The petition shall be filed within the six (6) month period, except that it may be filed within ten (10) days after the expiration of the six (6) month period if it is based on exceptional circumstances beyond the control of the party or trial court which justify the failure to file the petition within the six (6) month period. A party seeking an extension of time shall promptly serve a copy on opposing counsel. Within five (5) days after service of the petition, opposing counsel may file an objection to the extension setting forth the reasons for the objection. No hearing shall be held except upon order of the Supreme Court. If the Supreme Court finds that there is good cause for the granting of an extension beyond the six (6) month period, it shall fix the time limit within which the defendant must be tried. No other extension of time shall be allowed. N. Procedure on appeal. Unless there is a conflict with this rule or Rules 6-702 NMRA, 6- 704 NMRA or 6-705 NMRA of these rules, the Rules of Criminal Procedure for the District Courts [5- 101 NMRA] shall govern the procedure on appeal from the magistrate court. O. Disposal of appeals. The district court shall dispose of appeals by entry of a judgment or order disposing of the appeal. The court in its discretion may accompany the judgment or order with a formal or memorandum opinion. Opinions shall not be published and shall not be used as precedent in subsequent cases. A mandate shall be issued by the court upon expiration of whichever of the following events occurs latest: (1) fifteen (15) days after entry of the order disposing of the case; (2) fifteen (15) days after disposition of a motion for rehearing; or (3) if a notice of appeal is filed, upon final disposition of the appeal. P. Remand. Upon expiration of the time for appeal from the judgment or final order of the district court, if the relief granted is within the jurisdiction of the magistrate court, the district court shall remand the case to the magistrate court for enforcement of the district court's judgment. Q. Appeal. Any aggrieved person may appeal from a judgment of the district court to the New Mexico Supreme Court or Court of Appeals, as authorized by law in accordance with the Rules of Appellate Procedure [12-101 NMRA]. The conditions of release and bond approved or continued in effect by the district court during the pendency of the appeal to the district court shall continue in effect pending appeal to the Court of Appeals, unless modified pursuant to Rule 12-205 NMRA of the Rules of Appellate Procedure. R. Return of record. After final determination of the appeal, the clerk of the district court shall return the record on appeal to the magistrate court clerk. Bench Mark Book of Procedure of Appeal New Mexico¡¦s Judicial education center provides a ¡?best practices¡¨ overview. 1. A defendant convicted in a criminal case must be informed of the right to appeal at the time of entry of judgment and sentence or final order on criminal complaint. The defendant may appeal to district court. Sections 34-8A-6 and 35- 13-1; Magis. Ct. R. 6-703(A); Metro. Ct. R. 7-703 (A). 2. The prosecution may also file an appeal to the district court. Magis. Ct. R. 6-703(A); Metro. Ct. R. 7-703(A); Smith v. Love, 101 N.M. 355 (1984) (explaining the state¡¦s constitutional right to appeal adverse decisions). 3. The appeal must be filed in the district court within 15 days after entry of the judgment or final order by any aggrieved party. 4. The defendant (or another appellant) files a notice of appeal form and proof of service with the district court. Criminal Form 9- 607 (Notice of Appeal). The defendant-appellant pays the docket fee or submits an affidavit of indigency; the prosecution is not required to pay a docket fee on appeal. Section 39-3-12 (regarding free process in appeals); Magis. Ct. R. 6-703(A) & (E); Metro. Ct. R. 7-703(A) & (E). 5. Upon docketing in the district court, the defendant must also promptly file in the metropolitan or magistrate court an endorsed copy of the notice of appeal and, unless the defendant has a court appointed counsel or a public defender, or the appeal is by the government, a copy of the receipt for payment of the docket fee. Magis. Ct. R. 6-703(B) & (D); Metro. Ct. R. 7-703(B) & (D). The defendant or other appellant then serves a notice of appeal to each party in the action or the attorney for any party in the action. Transcript of Proceedings (Magis. Ct. R. 6-703 (F); Metro. Ct. R. 7-703(F)) 1. The magistrate or metropolitan court sends a transcript of the proceedings to the clerk of the district court within fifteen days after the filing of the notice of appeal. The court also sends any order that fixes the conditions of release and bond. 2. The transcript includes: a. A title page containing the caption of the case in the magistrate or metropolitan court and the names and mailing addresses of counsel; the copy is filed with the district court and the original is retained by the court. Magis. Ct. R. 6-703(F); Metro. Ct. R. 7-703(F); Crim. Form 9- 608 (Title Page of Transript of Criminal Proceedings and Certificate). b. Copies of all pleadings and any exhibits, including the criminal complaint, criminal summons and arrest warrant, if any. c. A copy of the judgment or order sought to be reviewed, with the date of filing noted on the copy. And, d. The record of the trial, if any. Conditions of Release (Magis. Ct. R. 6-703(H); Metro. Ct. R. 7-703(H)) 1. A defendant released before trial must continue on release during an appeal to the district court under the same terms and conditions as previously imposed, unless the court determines that other terms and conditions are necessary to assure the defendant¡¦s appearance and the orderly administration of justice. The judge may use the usual bail criteria and may also consider the conviction and the length of sentence imposed. 2. If the court requires a bail bond in the same amount as that used for release pending trial, the previous bond continues pending appeal or disposition of a motion for a new trial, unless the court has ordered the surety discharged. 3. If the court decides that the previous conditions are not sufficient to secure the defendant¡¦s appearance or the orderly administration of justice, the court may increase the amount of bond on appeal or terminate the conditions of release. 4. The court may release a person after judgment or sentence who was not released prior to or during trial. 5. The conditions of release must be included on the judgment and sentence. Disposition. Time Limitations. (Magis. Ct. R. 6-701, 6-702, and 6-703(J); Metro. Ct. R. 7-701, 7-702, and 7-703(J)) Note: Subsection D is for information only. The procedures described here take place in district court. 1. All de novo appeals in district court must be tried within six months after the filing of the notice of appeal. It is the responsibility of the defendant to obtain a trial date within that period; if the case is not heard within six months, the appeal is dismissed and the case remanded to the court for enforcement of its judgment and sentence. 2. The court may grant one extension of up to 90 days upon application to the Supreme Court, but only upon a showing of good cause. Magis. Ct. Rules 6-701, 6-702 and 6-703(M); Metro. Ct. Rules 7-701, 7-702 and 7-703(M). a. The party seeking the extension must make an application within the six- month period. b. A certified petition setting forth the facts that constitute good cause must be filed with the clerk of the Supreme Court. c. A copy of the petition must be served on the opposing party. ¡PThis case has furthered a wayward trial process, whereby the case is being ¡?discovered¡¨ with irrelevant arguments, absent vital testimony and all sorts of contradictory. The very mechanism of filing as variated from the best practices has resulted in multiple charges ( double jeopardy ) Contrary Discussion and Review: Jacobson I. Ineffective Legal Assistance The Sixth Amendment guarantees the right to reasonably effective counsel. ( USCA VI) To establish ineffective assistance of counsel, a defendant must show : (1) counsel¡¦s performance was deficient, and (2) the deficient performance prejudiced the defense. (USCA VI, State v. Hunter 140 NM 406, 2006, NMSC-043) . Trial counsel in general is presumed to have provided ¡?effective legal assistance¡¨ ( State v. Bernal 140 NM 644 (2006) . Yet , in the instant matters, the course and conduct of the court appointed Public Defenders Office falls below a reasonableness for which effective legal assistance can be determined and effects the defendant¡¦s liberty and continuing trial rights and with prejudice. The gravity is the vitality of Constitutional Amendment VI-and its complimentary article in the state constitution A. Matter is presented to the District Court for review of ¡?the ineffective trial rights¡¨ provided in magistrate Court in a hearing upon a charge of Domestic battery. B. Given the circumstances and the charges, ¡¥effective legal assistance¡¦ would have provided a clear and succinct defense: those effects that are charged are of ¡?duress¡¦ C. Duress is a legal defense in New Mexico. As applied, it should have called for witnesses to the showing: 1. ¡?Victim¡¨ does not fall within the definition of household member as required under statute. 2. ¡?Victim has a history of violence and mental illness and had repeatedly exhibited behavior of stalking the ¡¥accused¡¨ and her 12year old daughter. 3. Witness to the events and the character of the parties were neither properly examined or presented by the ¡?public defender¡¨. D. The proceedings before the District Court while providing ¡?procedural form¡¨ has not addressed the issue which was presented, ¡?that the trial rights or due process was assured¡¨ or not. Instead, the case has been filed as a ¡?criminal complaint¡¨ before the District and extended as if it is a trial de novo¡Xand limitless extended in time over one year and beyond a speedy trial as required. E. That bears that the proceedings are ¡?prosecutorial abuse¡¨. It has an effect of repeating the ¡?nightmarish trauma¡¨ or revictimizing the victim in a false prosecution¡X and assigning a ¡?public defender¡¨ who merely receives service of notices but provides ¡?the default defense¡¨. F. Contrasting the extended time and efforts before the Court , and the gravity of the charges, effective legal assistance should have produced or efforted a bonafide term of agreement, such as a plea to ¡?public disturbance¡¨ and/or similar disposition. The charge is of a battery of a household member„m This is not the case, though Mr. Moreno may have ¡?stayed the night¡¦--- but that is a leap, in the reality of ¡?domestic¡¦¡Xsharing meals, beds, bathrooms, checking accounts, and whole residences, regularly and habitually, that a reasonable person would conclude that the people are ¡?related¡¦. New Mexico law may include a form of definition for which any person could be attached as a domestic incident, but the relationship has to be for a formal charge of domestic charge. That has yet to be established. Mr. Medrano the ¡?alleged victim¡¨ is a Hispanic male, residing in a separate address¡Xand at which he receives regular social security payments for disability. It has been described in the petitions before the court as result of stress disorder arising in Mr. Medrano¡¦s youth. The State therefore has not only misfiled the matter of review as criminal, but proceeded upon charges which are as ¡¥domestic battery¡¦ without a showing of the elements of the charges. It is as if the arraignment process not be necessary because the ¡?defendant knows what she did¡¨. It is highly prejudicial to proceed to trial on an account of domestic violence without the establishment of elements. Instead, the discussion before the court has been upon the ¡?changes necessary for the public defender¡¨ with statements that the defendant is uncooperative. And without some type of settlement offer, the circular preliminary process of the additional charge found ¡?time running out¡¨ and an unopposed extension for exception to a speedy trial, which was granted. Due process is violated if a practice or rule ¡?offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.¡¨ Snyder v. Massachusetts, 291 US 97,105 (1934). II. These proceedings are offensive. The State¡¦s prosecution relies upon form rather than the substance of evidentiary statements and discovery. The very issue that produced the District Court case: ineffective legal assistance has not been addressed, and can be simply proven¡X if the process provide a fundamental fairness that has been absent. And as that has been , there should be a dismissal, with a prohibition upon further prosecution. It is over 365 days, and now contrary to ¡?speedy trial requirements.¡¨ The problem is the prejudice which the Court maintains in providing barriers to the fullness of the issues. It is a problem that frustrates the public, just as it provides no venue to defend. That prejudice may be invidious, and as the commonplace of practices long in standard, but they promote no better a justice than equally bad for all. That is not the justice that is required. Certainly, the legal spin and indifferences which Ms. Jacobson has been through is not a process which fits effective counsel, based upon one simple fact: the gravity of the charges upon the efforts in its prosecution. When we weigh the charges as a misdemeanor upon those events that are in the Courts¡¦ records, it is too long. Too ineffective to bear a conclusion, witnesses are mentioned and have died without statements. The ¡¥alleged victim¡¨ sits in a jail charged in another county, and no where is there a mention that ¡?there is not a domestic relationship¡¨ for which prosecution may be. It is simply a measure which is beyond the State¡¦s limitations to continue . http://www.judicialcandidate.zoomshare.com/2.shtml/bf274a47b0a67d47d57774811a72fcfe_48fb4d4c.writeback Sun, 19 Oct 2008 10:07:56 -0500 Following is the amended memorandum in case USDC_NM 08-0505: UNITED STATES DISTRICT COURT for the District of New Mexico Eliot P. Gould, Citizens Committee For Eliot Gould, First Judicial Attorney Petitioners v. CV 08-0505 JB/DJS Joseph E. Campbell, Mary Herrera ( Secretary of State) Respondents ( Amended) First Request for Leave to file Memorandum in Support of Request for Hearing. Pursuant to Rule 16 of the Federal Rules of Civil Procedure ( FRCP 16 ), Petitioner, Eliot P. Gould, requests leave to file "Memorandum in Support of Request for Hearing. A copy accompanies. (41 pages and Appendix) Respectfully submitted, Eliot Paul Gould Esq. Citizens for Eliot Gould District Attorney 354 ½ Calle Loma Norte Santa Fe, NM 87501-1279 Certificate : I certify a True Copy of the request for leave to File Memorandum in Support of Request of Hearing was Noticed to the Parties of record. Memorandum in Support of Request for Hearing: Poll taxes ( for both federal and state elections) were officially declared unconstitutional because they violated the Equal Protection clause of the Fourteenth Amendment. "To introduce wealth or payment of a fee as a measure of a voter's qualifications is to introduce a capricious or irrelevant factor. The degree of the discrimination is irrelevant. In this context - that is, as a condition of obtaining a ballot - the requirement of fee paying causes an "invidious" discrimination (Skinner v. Oklahoma, 316 U.S. 535, 541 ) that runs afoul of the Equal Protection Clause. Levy "by the poll," as stated in [383 U.S. 663, 669] Breedlove v. Suttles, supra, at 281, is an old familiar form of taxation; and we say nothing to impair its validity so long as it is not made a condition to the exercise of the franchise. Breedlove v. Suttles sanctioned its use as "a prerequisite of voting." Id., at 283. Harper v. Virginia Board of Elections (1966) While a license 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 a undue and burdensome. While appearing "neutral", it is decidedly discriminatory as the results is "it dilutes the voting strength of the minority group" (East Jefferson Coalition for Leadership and Development v. Jefferson Parrish-. 691 F.Supp 991) It is well established that the Fourteenth amendment protects the citizens and a truism that the 'reserved rights" are also limited by the Twenty-fourth Amendment. It may be a license requirement, a filing fee, or special assessment, but it still impairs the exercise to vote in the same manner and processes which were found before. BACKGROUND Atmosphere, History and Prologue New Mexico has a culture of corruption. At the core of it lies an election code and its prescribed procedures which acts as a key of legitimacy to its perpetuation of imbalanced applications contrary to the very principles of "one man, one vote". They often rely upon obsolete, antiquated out dated methods which are politically motivated. Historically, the outcome of elections is foregone conclusions, often the result of uncontested elections, weighted primaries and insiders' selection. The process of ballot access, whether Federal or State, is wrought with exclusionary devices, special interest and party influences. New Mexico's election code promotes the legitimacy in part through classification of candidates and parties. Additional Qualification of the United States Senate For example, the United States Constitution provides: The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, for six years; and each Senator shall have one vote. The electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislatures. US Constitution, Amendment XVII About a hundred years ago, there was a widespread belief throughout America that at the state level there was manipulation in the process of the method of electing Senators to the United States Senate in the proceedings of the various State legislatures. Evidence arose that the result of the Legislative selections were often influenced by corrupt political organizations and special interest groups through the purchase of legislative seats. Often when these organizations and groups did could not get their candidate selected there was a deadlock in the Legislatures with the result that US Senate seats were unfilled and vacant. Throughout the United States there was an increasing popular dissatisfaction. The belief became widespread that Senators ought to be popularly elected, in the manner which members of the US House were elected. By 1912, as the proposed Amendment was being circulated through States and as New Mexico was being proclaimed the 47th State of the Union, 29 States amended their state laws making it necessary to nominate Senators on a more popular basis. Many States afforded the voters more effective control through a primary election to designate their preference for one of several party candidates. The results were "unofficially" transmitted to the Legislatures where legislators elected the winning candidates of the majority. Until the ratification, which came in May 1913, the foundation of the nomination process was a "common understanding" that popular representation should eliminate corrupt practices and no more. The Amendment used the same language as found in Article I of the Constitution with respect to the election of House members of Congress. It was not long after its ratification of Amendment XVII that the Supreme Court determined that if a person possessed the qualifications requisite for voting for a Senator, the right to vote for the office was not derived from State constitutions and statutes, but the Constitution itself. States were given the discretion to set reasonable methods to establish voting qualifications. The method selected needed to act "neutrally" amongst the candidates and without an abridgment or discrimination. The full meaning of "the right to vote" includes a right to seek public office without onerous qualifications. Most states adopted nominating processes which included a primary election for the nomination of party candidates. However, several states enacted "onerous requirements," such as a poll tax, literacy requirements, and or residual residency requirements . Some requirements included "personal vouchers "--or having the voter applicant appear at limited hours of the week. Often the appearance would have to be repeated as the clerks or sheriffs were busy on other official business. Some provisions implicitly promised Court examination in the consideration of the registration to vote, often with criminal charges. Several states, like a South Carolina required as a prerequisite to voting that the voter "take an oath that he understands and believes in and will support social, religious, and educational separation"--although in 1948, the US Supreme Court struck down that requirement as invalid and a disregard of the right of the American citizen to exercise his own views and opinions (see Brown v Baskin). Several states placed "party rights statutes" so that candidates were required to take an oath to "support separation of the races." ( That the 'party" enforce its rules of course discharged the "State" from a legal fact contrary to Amendment XV) is prohibited. Amendment XV provides: Section 1. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude. Section 2. The Congress shall have power to enforce this article by appropriate legislation Amendment XV, United States Constitution Thus , the amendment prohibits each government in the United States from "officially" to preventing a citizen from voting . This amendment provided the basis for numerous civil rights cases. Until the 1960's Warren Court, such election controversies were few before the Supreme Court-- averaging about 10 per year. During the years of the Warren Court, the number rose to about 60 per year as the "principle of one man, one vote" was taking hold. Amendment XXIV prohibited the States from requiring property ownership or "Poll tax" type qualifications to vote in any primary or other election for "President or Vice President, for electors for President or Vice President, or for Senator or Representative in Congress, [the right to vote] shall not be denied or abridged by the United States or any State by reason of failure to pay any poll tax or other tax." In 1966, the Court struck down a Virginia statute which eliminated the poll tax as an absolute qualification for voting in federal elections and gave federal voters the choice either of paying the tax or of filing a certificate of residence six months before the election. Viewing the latter requirement as imposing upon voters in federal elections an onerous procedural requirement which was not imposed on those who continued to pay the tax, the Court unanimously held the law to be in conflict with the new Amendment by penalizing those who chose to exercise a right guaranteed (Forsennius v. Harmon). (Part of the reason for the ratification of Amendment XXIV was lack of constitutional challenges to onerous provisions, such as the poll tax.) As a result of the repeated decisions and the adoption of the Voter Rights Act of 1966 (VRA) providing for "one man, one vote," and "free and proper in every phase of the ballot process," the several states revised their respective state election codes. The revision, either by new state constitutional process or legislative statutes was often not as altruistic and principled as the clarity of the VRA and other Court decisions. Freezing the Qualifications The "reform" measures were often enacted with new, subtler and unchallenged obstacles. In New Mexico, where Constitutional challenges were few, the election code provides for a proclamation of the Governor the last Monday in January: 1-8-12. Primary Election Law; proclamation. The governor shall issue a public proclamation calling a primary election to be held in each county and precinct of the state on the date prescribed by the Primary Election Law [1-8-10 NMSA 1978]. The proclamation shall be filed with the secretary of state on the last Monday in January of each even-numbered year. The contents of the proclamation are: A. the names of the major political parties participating in the primary election; B. the offices for which each political party shall nominate candidates; provided that if any law is enacted by the legislature in the year in which the primary election is held and the law does not take effect until after the date of the proclamation but prior to the date of the primary election, the proclamation shall conform to the intent of the law with respect to the offices for which each political party shall nominate candidates; C. the date on which declarations of candidacy and nominating petitions for United States representative, any office voted upon by all the voters of the state, a legislative office, the office of district judge, district attorney, state board of education, public regulation commission or magistrate shall be filed and the places where they shall be filed in order to have the candidates' names printed on the official ballot of their party at the primary election; D. the date on and place at which declarations of candidacy shall be filed for any other office and filing fees paid or, in lieu thereof, a pauper's statement of inability to pay; E. the final date on and place at which candidates for the office of United States representative and for any statewide office seeking preprimary convention designation by the major parties shall file petitions and declarations of candidacy; F. the final date on which the major political parties shall hold state pre-primary conventions for the designation of candidates; and G. the final date on and place at which certificates of designation of primary election candidates shall be filed by political parties with the secretary of state. As used in the Primary Election Law [1-8-10 NMSA 1978], "statewide office" means any office voted on by all the voters of the state. In 2008, the effect froze the registrations for eligibility to gain public office to the place and residences and party affiliation to potential candidates based on the date January 28. 2008. 1-8-18 who may become a candidate. A. No person shall become a candidate for nomination by a political party or have his name printed on the primary election ballot unless his record of voter registration shows: (1) his affiliation with that political party on the date of the governor's proclamation for the primary election; and (2) his residence in the district of the office for which he is a candidate on the date of the governor's proclamation for the primary election or in the case of a person seeking the office of United States senator or United States representative, his residence within New Mexico on the date of the governor's proclamation for the primary election. B. Any voter may challenge the candidacy of any person seeking nomination by a political party for the reason that he does not meet the requirements of Subsection A of this section by filing a petition in the district court within ten days after the last day for filing a declaration of candidacy or a statement of candidacy for convention designation. The district court shall hear and render a decision on the matter within ten days after the filing of the petition. The decision of the district court may be appealed to the Supreme Court within five days after the decision is rendered. The Supreme Court shall hear and render a decision on the appeal forthwith. Thus, if a candidate were to seek a party nomination or an independent nomination for the Senate, he would have to be registered as a member of that party or as an independent member on the date of the proclamation. The candidate would also be required to reside in that residence through that election year. He would also have to comply with other requirements of statutes. Under New Mexico's election scheme, "Political Parties" are classified as "major' and "minor." The means of the nomination process of "major and minor parties " is as follows: 1-8-1.Nominating procedures; major political parties; minor political parties. A. Any major political party in New Mexico, as defined in Section 1-1-9 NMSA 1978, shall nominate its candidates, other than its presidential candidates, by secret ballot at the next succeeding primary election as prescribed in the Primary Election Law [1-8-10 NMSA 1978]. B. Any minor political party in New Mexico, as defined in Section 1-1-9 NMSA 1978, shall nominate candidates for public office in the manner prescribed in its party rules and regulations and according to the provisions of the Election Code [1-1-1 NMSA 1978]. PrePrimary Convention for Major Parties The statutes further provide for the candidates for statewide offices receive a designation of candidates by convention. 1-8-21.1. Designation of candidates by convention. A. State conventions of major political parties may designate candidates for nomination to statewide office or the office of United States representative. B. No state convention for designating candidates shall be held later than the third Sunday in March preceding the primary election, and delegates to the convention shall be elected according to state party rules filed in the office of the secretary of state. C. The state convention shall take only one ballot upon candidates for each office to be filled. Every candidate receiving twenty percent or more of the votes of the duly elected delegates to the convention for the office to be voted upon at the ensuing primary election shall be certified to the secretary of state as a convention-designated nominee for that office by the political party. Certification shall take place no later than 5:00 p.m. on the first Tuesday succeeding the state convention. D. The certificate of designation submitted to the secretary of state shall state the name of the office for which each person is a candidate, his name and address and the name of the political party that the candidate represents, and shall certify that the candidate has been a member of that political party for the period of time required by the Election Code [1-1-1 NMSA 1978]. Additional Qualification for Other Federal Offices While this certification process of the political parties seems to directly contravene Article I, which provides: The House of Representatives shall be composed of Members chosen every second Year by the People of the several States, and the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature, it has been met with a complacency if not advocacy over the years. Amendment XVII which provides similar access for Senate candidates: "The electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislatures" has also been accepted as the traditional practice without a direct challenge that it "adds additional qualification to the office." It should also be noted that in 2008, the Legislature reduced the preprimary requirement to a "more obtainable" 15% as six candidates filed in the Third Congressional District. Four did not achieve that requirement and filed additional signatures. The preconvention result ended one Second congressional candidacy as he did not file the additional signatures. And a Variable Signature System For nomination to the United States Senate by a "major" party, a declaration of candidacy, along with "proof of registration," ethics compliance and a threshold of signatures of voters are required. The required number is derived from the vote in a previous election. A Republican candidate is required to provide 3% of the vote in the last preceding Republican primary, while a Democrat is required 3% of the preceding Democratic primary vote. The number of signature requirements under this system is a changing number; hence it is called "the variable Signature System" 1-8-33. Primary election law; nominating petition; number of signatures required. A. As used in this section, "total vote" means the sum of all votes cast for all of the party's candidates for governor at the last preceding primary election at which the party's candidate for governor was nominated. B. Candidates who seek preprimary convention designation shall file nominating petitions at the time of filing declarations of candidacy. Nominating petitions for those candidates shall be signed by a number of voters equal to at least two percent of the total vote of the candidate's party in the state or congressional district, or the following number of voters, whichever is greater: for statewide offices, two hundred thirty voters; and for congressional candidates, seventy-seven voters. C. Nominating petitions for candidates for any other office to be voted on at the primary election for which nominating petitions are required shall be signed by a number of voters equal to at least three percent of the total vote of the candidate's party in the district or division, or the following number of voters, whichever is greater: for metropolitan court and magistrate courts, ten voters; for the public regulation commission, fifty voters; for the public education commission, twenty-five voters; for state representative, ten voters; for state senator, seventeen voters; and for district attorney and district judge, fifteen voters. One Thousand equals Two thousand equals Seventeen Thousand Translated into numbers, in 2008, the Democratic candidates for the United States Senate were required to obtain and file 2,162 party member's signatures, while the Republican Party members for the Senate needed 1,062 party members. Candidates for New Mexico's First Congressional District were required to file 607 party member' signatures for the Democrats and 329 for the Republicans. In the Second Congressional District, the requirements were 592 party Democrats and 402 Republican Party members, respectively. The Third Congressional District requirements included 959 Democratic signatures and 328 Republican signatures. Congressional Districts are Equal in Population Congressional district are equalized at 646,952. A statistical discrepancy betweene 959 and 329 as a percentage of 646,952 may not be a discrepancy of great magnitude. Nor might a difference between 1062 and 2162, as they each fulfill a recognizable minority group of voters of the State, but just as certain is that the requirements are not of equal measure. The variable system may produce results that appear insignificant. But measured then upon the requirements that are the alternatives to the major parties, the result of the variable system is clearly a dilution of the opportunity to represent . Minor party candidates for statewide office required 5,592 voter signatures, plus they had to meet the requirements of the election administration in order to qualify for ballot access. Independent candidates for the Senate needed 16,775 voter signatures. Independent candidates for Congress (which are typically localized issues candidacies) were required to file with the First Congressional District, 6,320 signatures, the Second Congressional District, 4,676 and the Third Congressional District, 5,779 signatures. Clearly, the access which results from the variable system is of a different magnitude. It weighs more heavy because it measures the scale rather than a quantified body of voters. Case Law of New Mexico New Mexico is in accord with much of the continuance of the procedures found in the New Mexico State Supreme Court decision of 1944, Roberts v. Cleveland. The statute defended the principle that a "political party shall have the right to select its own candidate and that such right was protected by the Legislature". Apparently then a party switch for a congressional office created a legal controversy in addition to a political challenge. The Congressional offices were elected every two years and until 1943, the delegation was one Congressman. (The elections of the second Congressional district were also held state wide until a later Court ruling required district wide, rather than state wide elections.) The understanding at the time was that the Party would apportion the state and federal candidates. This would mean that statutes providing that no person shall become a candidate for nomination for any office prior to the issuance of the Governor's proclamation would not be unconstitutional as a result of denying a candidate who was covered by upholding the restrictions of equal protection. Thus, New Mexico case law reflects opinions that veils a segregation or "Jim Crow" statute with the argument that the state is only avoiding as a laundry list [of candidates] which "tend to confuse and frustrate those who participate . " The laundry list , as it has been aptly characterized by our Chief Justice , is a real and present danger in our history. Our electoral history vividly demonstrates that unrestricted primaries....foster a rank and verdant growth of candidates. ... For example, in the 1972 primary race for the Senate nomination in the Democratic party ( in which under federal decree) no filing fee could be charged, twenty-eight candidates completed the course. The polls ranged from candidate 45, 648 for the successful candidate, Mr. Jack Daniels, to the least successful, Mr. Thomas S. "El Diferente" Macaione. By way of comparison, in the parallel race for the nomination of the Democratic party for the House of representatives, in which a filing fee was still required by our decision in State ex.rel. Apodaca v. Fiorina, there were only five candidates and the vote ranged from 27, 109 from the winner, Mr. Ernie Gallegos, to a respectable 3570 for Ms. Sparkle Plenty, who brought up the rear. Dillon v. King, 87 NM 79, 529 P. 2nd. 745 . ...The payment of a filing fee as a prerequisite for having a candidate's name served legitimate objectives of avoiding overcrowded ballots, in protecting the integrity of the state's political processes, and did not violate the equal protection clause of the Fourteenth Amendment. State ex. rel Apodaca v Fiorina, 83 NM 663, 495 P.2nd 1379 (1972) A filing fee of 6% of the first years salary of office is reasonable and provides no element of arbitrary or capricious discrimination against or among the candidates. ...The state in discharging the obligations to secure the secrecy of the ballot, the purity of elections and guarding against the abuse of the election franchise...is a legitimate interest and did not violate the equal protection clause State ex. rel Apodaca (1972) Three Phases of Selection Process Historically New Mexico has gone through three phases of selection process: The convention method which balanced the interests of the State through party appointment and representative process. In the 1960's, there developed the "wide open primary system". This had been favored by the Democratic Party forces of Senator Anderson, while those general supporters of Senator Chavez favored continuing the system of party selection. During this phase, a diverse number of persons posted the required bond amounts and declarations of candidacy. About a decade later, there was a general consensus for a modified selection process insofar as the wide open primaries system tended to encourage some party switching between the major parties. It also tended to create an array of names of persons without a modicum of reasoned success in election, but who were simply competing for ballot placement. Thus, a modified system of selection was adopted. The candidates of major Parties "would be serious candidates" who had not only survived the process of legal challenge which comes subsequent to filing of a declaration of candidacy, but they would have accomplished a showing of 20% of that party's pre-primary convention vote to obtain ballot positioning in that party's primary. If the 20% pre-primary convention is not obtained, the candidate's name will not appear on the ballots in the June primary, unless he or she makes a successful initiative for additional signature requirements. Essentially this procedure provides for a renewed declaration and the resubmission of signatures, or another additional qualification. In 2008, there were three candidates of the major parties for the Senate. Each was an incumbent Congressman. Each received their "pre- primary convention designation" and was certified for ballot placement. Congressional candidates seeking to fill their vacating seats did not fare so easily through the election administration. Two candidates received legal challenges which the state district courts did not uphold, while several others did not meet the requirements of 20%(15%) for the pre-primary convention. Some not receiving the 20% (15%) pre-primary designation reaffirmed their candidacy by submitting additional signatures. Some candidates were not certified for ballot access. The disparity is heightened by the provision in the Election code that bars a candidate, who was unsuccessful in the pre- primary convention, from "bolting" and seeking a general election designation from a different party or a designation as unaffiliated. A similar ban is placed upon candidates who successfully appear on the ballot, but who have not won that party's nomination. Primary Candidacy Bars Another for General Elections 1-8-19. Candidacy in primary of one party bars general election ballot designation of different party or as an unaffiliated candidate. If a person has been a candidate for the nomination of a major political party in the primary election, he shall not have his name printed on the ballot at the next succeeding general election except under the party name of the party designated on his declaration of candidacy filed for such primary election. While the modified system tends to provide for "party unity" at the general election, it limits or otherwise dilutes the practical influences of divergent groups in the general election. Some of the divergent groups may be small in number; they can also be very recognizable. And in several recent elections, the absence of these divergent groups has significantly affected the outcome of statewide elections. A Bolt of Green The recent history of the Green Party of New Mexico displays the disqualification of a minor party under color of statutes. The Green Party was founded in 1994. The candidate for Governor, Roberto Mondragon, left the Democrats after losing the primary to Governor Bruce King. As a result of the outcome of the general election, the Green Party had become the first 3rd 'major party" . As defined under the Election code: 1-7-2 Qualification; Removal; requalification . A. To qualify as a political party in New Mexico, each political party through its governing body shall adopt rules and regulations providing for the organization and government of that party and shall file the rules and regulations with the secretary of state. Uniform rules and regulations shall be adopted throughout the state by the county organizations of that party, where a county organization exists, and shall be filed with the county clerks. At the same time the rules and regulations are filed with the secretary of state, the governing body of the political party shall also file with the secretary of state a petition containing the hand- printed names, signatures, addresses of residence and counties of residence of at least one-half of one percent of the total votes cast for the office of governor or president at the preceding general election who declare by their signatures on such petition that they are voters of New Mexico and that they desire the party to be a qualified political party in New Mexico. B. Each county political party organization may adopt such supplementary rules and regulations insofar as they do not conflict with the uniform state rules and regulations or do not abridge the lawful political rights of any person. Such supplementary rules shall be filed with the county clerk and the secretary of state in the same manner as other rules are filed. C. All political parties that appeared on the 1988 New Mexico general election ballot shall continue to be qualified political parties unless disqualified in accordance with this subsection. Beginning with the general election in 1990, a qualified political party shall cease to be qualified for the purposes of the Election Code [1-1-1 NMSA 1978] if two successive general elections are held without at least one of the party's candidates on the ballot or if the total votes cast for the party's candidates for governor or president of the United States, provided that the party has a candidate seeking election to either of these offices, in a general election do not equal at least one-half of one percent of the total votes cast for the office of governor or president of the United States, as applicable. After giving notice by registered mail to the state chairman of the party at his last known address, the secretary of state shall remove all material dealing with the political party from his file of parties qualified in New Mexico. D. The secretary of state shall then notify all county clerks of the removal and no qualification of the political party. The county clerk is then authorized to remove such rules and regulations from the county files. The county clerk shall immediately notify by mail all voters registered as members of such party of the removal and nonqualification of the party. E. To requalify, the party must again comply with the provisions of the Election Code dealing with filing requirements for political parties. In 1996, the status obtained by the Green Party of New Mexico continued as a "major party." The National presidential candidacy of Ralph Nader polled over the disqualifying threshold of one half of one percent of the total votes cast. An Attorney General opinion provided that " a major party is a qualified political party " if any of whose candidates received the minimum votes" .(NMAG opinion 96-01) In 1998, the Green Party of New Mexico did not field a candidate for governor, but it did have a slate of candidates which polled enough to retain "major party status". In 2000 The Green party of New Mexico fielded Presidential candidate and a slate of other candidate. The results of the 2000 Presidential voting in New Mexico was: PRESIDENT OF THE UNITED STATES RALPH NADER / WINONA LA DUKE GREEN 21,251 4% AL GORE / JOE LIEBERMAN DEMOCRAT 286,783 48% GEORGE W. BUSH / DICK CHENEY REPUBLICAN 286,417 48% HARRY BROWNE / ART OLIVIER LIBERTARIAN 2,058 0% HOWARD PHILLIPS/ J. CURTIS FRAZIER CONSTITUTION 343 0% JOHN HAGELIN/ NAT GOLDHABER NATURAL LAW 361 0% PAT BUCHANAN / EZOLA FOSTER REFORM 1,392 0% Through November, 2000, the Green Party of New Mexico was treated as a major party and again featured a national candidate Ralph Nader. The percentage garnered did not meet statutory threshold requirements for votes of the total determined to be required to remain "a major party ". In March of 2001, the Secretary of State notified that the Green Party of New Mexico that they "were a minor political party," despite one of the 2000 Court judge polling 9% and its Public regulation candidate garnering 6%. In 2002, The Green party of New Mexico again featured a candidate for Governor who did not garner 5% . Subsequently the Green party has not fielded a candidate for Governor, but occasionally fielded some candidate in unsuccessful general elections. But to gain ballot access they needed to fulfill "requalification"under the statutes .In light that at all times the number of persons who had maintained their registration as Green Party voters exceeded three times the number of persons to "requalify" (2750), and that the treatment for the candidates included additional procedures not required of major party and their candidate. March 2001 also saw the Secretary of State issuing instructions to the County clerks to remove the Libertarian and Reform parties as they had been disqualified from "minor party" listing. The letter provided: "as required by law, you must remove the party rules and regulations from your files and notify all voters registered as members of that party of the disqualification. By axiom, the demotion and disqualification of the parties removed reduce or diluted the ability to field candidates and to present its platform . Implicitly, the removal letters promised litigation which has since been brought before several courts and extended over the years . Thus 'major party status and true ballot access ' was reserved on the basis and subject to numerous litigations. (Similar State authored proceedings were initiated upon other minor political parties.) Demotion Contrary to the Fundamental fact of a Recognizable Minority On the date of the proclamation of the Governor in 2008, despite its obscure status, the number of registered voters affiliated as "Green" exceeds 8300 persons, or three times the number for a party to "re-qualify" as a major party. Such classification as separate facilitation of candidates, with party requirements in addition to individual nomination requirements, dilutes the voice of those who freely have chosen 'the green alternatives and platform " Moreover, as the litigation has been preserved at State expense and with the directed purpose of disestablishing the parties, it is a denial of consequence. Extended into the State and district offices, such as the Judiciary and Legislature, the working order of the election administration effectively removed the apparatus of alternative access to the public ballots. With the additional requirements of requalification of parties, candidates desiring access under the "Natural Law", "Libertarian", "Green" and "reform" would be required to wait through the next election cycle under the New Mexico scheme that also "freezes" party affiliations. The results of the last three election cycles demonstrate the consequential effect of removing parties from access on to the ballots . The state legislative branch is composed of two houses: Senate and House. The senators are elected every four years. House members are elected every two years. The senate is composed of 42 members; the house has 70 members. No Opposition in the Statehouse In 2004, 60 % of the House district races, Democrats and Republicans had no opposition-- either in a primary or general campaign. In 2002, 54% had no opposition candidate-- none in party primaries nor from any general election opponent (green party, libertarian or independent.) In 2006, our last election cycle, 55.7% were without opposition. The overwhelming result is that its branch is composed in a manner of an aristocracy of the Roman republic rather citizen body of democracy and a great american experiment.. One of the onerous statutes which prevent opposition from arising after the date of the Governor's proclamation in January is a bar to "party switching". A dissatisfied constituent group cannot recompose itself after the January date for the general election in November. Effectively, a person must be registered with that party in January of the current year-or, in the case of an independent campaign arising after the "governor's proclamation," be a registered independent prior to its signing, to be eligible. The sheer number of "uncontested" races is the consequence. Another consideration is that from there are numerous challenges to the nomination petitions to other party candidates .These are stricken in a process which provides challenges nominations for "failures, such as signature requirements or objections which... underscored that the signatures did not fulfill [a] threshold number" or for failure on several other grounds. A signature shall be counted if: (NMSA 1-8-31) A person who signs a nominating petition shall sign only one petition for the same office unless more than one candidate is to be elected to that office, and in that case a person may sign not more than the number of nominating petitions equal to the number of candidates to be elected to the office. B. A person who signs a nominating petition shall indicate his residence as his address. If the person does not have a residential address, he may provide his mailing address. C. A signature shall be counted on a nominating petition unless there is evidence presented that the person signing: (1) was not a registered member of the candidate's political party ten days prior to the filing of the nominating petition; (2) failed to provide information required by the nominating petition sufficient to determine that the person is a qualified voter of the state, district, county or area to be represented by the office for which the person seeking the nomination is a candidate; (3) has signed more than one petition for the same office, except as provided in Subsection A of this section, or has signed one petition more than once; (4) is not of the same political party as the candidate named in the nominating petition as shown by the signer's certificate of registration; or (5) is not the person whose name appears on the nominating petition. In practice, objections of nominations are often practiced by professional firms representing an objector. Provision of the election code reads: 1-8-35. Primary Election Law; nominating petition; limitation on appeals of validity of nominating petitions. A. Any voter filing any court action challenging a nominating petition provided for in the Primary Election Law [1-8-10 NMSA 1978] shall do so within ten days after the last day for filing the declaration of candidacy with which the nominating petition was filed. Within ten days after the filing of the action, the district court shall hear and render a decision on the matter. The decision shall be appealable only to the Supreme Court and notice of appeal shall be filed within five days after the decision of the district court. The Supreme Court shall hear and render a decision on the appeal forthwith. B. For the purposes of an action challenging a nominating petition, each person filing a nominating petition under the Primary Election Law appoints the proper filing officer as his agent to receive service of process. Immediately upon receipt of process served upon the proper filing officer, the officer shall, by certified mail, return receipt requested, mail the process to the person. New Mexico's Court rules provide a limited Rule which governs one a challenge of a nomination petition is complained. Neither 1-8-35 nor Rule 1-096 (which provides for court proceedings of the objection) upon "fraud" or a "legitimate State interest." The acceptable purpose for the statutes of the Election code is to assure the integrity of Election process-- not to provide a device for exclusion by political attack under the guise of Law. The difference between the "politically motivated objection" and the "authority to regulate or otherwise supervise elections" can be distinguished by character of the complaint. Is the complaint about "voter fraud"? Is the complaint about are signatures invalid? Does the complaint include or involve a scheme to deprive a verifiable minority, or candidacy, of its equal protection to the assured ballot rights? Was the complaint by a citizen in his own name, a"political action committee" or an agency of government? "to the extent that they [campaign finance laws] prohibit a corporation from making expenditures expressly advocating the election, or defeat, of a candidate, except through political committee, such laws are unconstitutional as applied." Beaumont v. FEC, 395 Federal Supplement 2nd1001 ( Dist Ct of Colo, 2005) Governments must play an active role in structuring elections as a practical matter, because it is unavoidable that there must be substantial regulation of elections if they are to be fair and honest. Election laws should protect everyone if the democratic process is going to be successful. The right to vote is the right to participate. Burdick v. Takushi, 504 US 428, 112 S.Ct. 2059 "A state has legitimate interests in preventing corruption." Nixon v. Shrink Mo Gov't PAC, 528 US 377, 120 S Ct 897 The legitimate interests of the State includes to prevent abuse. The compelling interests are effected in a vigilance rather silent sit of neutrality. The purpose includes provide safeguards upon a process which by definition excises candidates for the public offices. The practice of private practice firms for preparing and executing a complaint , including at times , by a power pf attorney may well require address under campaign finance reform. The state has the power under the United States Constitution (Art 1 SS 4 cl 1) to regulate the time, place and manner of holding elections. That power is matched by state control over the election process for state offices. "Without additional protections for candidates in parties other than the Democrats and the Republicans, there is no justice in the current laws regarding the fundamental right to vote." Tashjian v Republican Party of Connecticut (479 US 208, 107 S.Ct. 544) Eliminations by Public Challenges An example originates in a complementary and second complaint: The petition of Joseph D R Sena complaining and challenging the Gould candidacy for the nomination of the First Judicial District attorney in the First Judicial District (NM 1-1- 2008 CV 0845).While it may appear on the face to comport with a statutory voter's right to challenge an improper petition, the Sena complaint provided several "irregularities" and no "the compelling state interests". It was not the complaint of a government agency, but one founded upon a "political interest". As not the complaint of the government administering the elections, and one conducted under the hand of a private citizen, it traditionally evaded the Constitutional bars upon the States. Challenges are civil action between citizens. The nature is upon statutory compliances, and for which no correction or changes can be made.. Upon the filing under this statute which provides for a "complaint by any citizen" , the State, by and through the Secretary of State provide is required to immediately forward a certified service to Respondent candidate" and "is made a party of service in the Court." Customarily, the Responding state office provides a strict appearance only, a statement of no preference in the dispute, and that the office shall comply with any Court order. Typically, these citizen complaints offer a statutory recitation and complaint which concludes that the signatures do not meet the statutory requirement and the Responding candidate should be "removed". These complaints, in accordance to the Rules of the District Courts, are often entered by attorneys for the objector. They are prosecuted by a reduction of the number of signatures as valid until a threshold number is reached. In proceedings, the counsel for the objector generally provides an opening statement as to "why" the statutorily the complaint was made. Respondents generally appear pro se and give a response "that they went out to all their friends, and in different neighborhoods and gathered signatures and filed the papers to run. They didn't know their friends were not registered'. ( see Proceedings of Montoya Nomination, First Judicial District, 2008) The proceedings then hear evidences, first being that the witness/objector with a showing that " he is a voter in the district and otherwise qualified to object." His counsel then calls upon an "expert witness". An examination of certified copies of registrations is compared upon the lists of signatures showing "the person signing was not provide a registered voter of the party, or a registered voter at that address," or that the person was not " a registered voter 10 days prior to the submission of the nominations" or that the "registered voter was not a registered voter of that district." The number of signatures is thus reduced from , say, 230 to 170 when the required statutory formula for that district is 185. There is typically no 'evidence" of fraud ( like the person signing the died six months ago) but evidences of irregularities and compliance requirements. . The disqualification of the candidate (unless reversed immediately) is final for that election cycle in light of the Governor's proclamation. As appeals and restoring ballot placement are few, if any, the consequence is generally that a (incumbent) candidate enjoys a "free ride" without any opposition. Upsidedown are the Purposes of Preventing Fraud New Mexico's process turns upsidedown the purposes of preventing fraud and abuse. The State, by and through its Attorney General, acts remedially upon that which is explicitly statutory notices ( 1-8-35) and implicitly with its "neutrality" between the private parties.. The practice of professional prosecution in these challenge cases introduces that which is the costs of private firms carrying forward a complaint in the district court, included with filing and service fees, amounts which are neither registered nor reported. The process effectively grants "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" contrary the "purity of election law and its guard against abuse." Relative to campaign finance statutes, these matters may well run afoul the Campaign Finance statutes. Article 1-19-16 provides: A. It is unlawful for any person, organization or political campaign advertising or Communication which does not specify the name of the sponsor or the name of the Responsible officer who authorized the printing or publication of such material , in any election, special election, school district election or an election authorizing a bond hearing. This prohibition extends only to handbills, petitions, circulars or similar written material. C. Any person, organization, or political committee violating the provisions of Sub- section A or B of Section1- 19-16 NMSA 1978 is guilty of a fourth degree felony and shall be punished as provided by the Criminal Code [30-1-1 NMSA 1978] 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. Related to this Section of the Disclosures , there was an absolute and determinable cost to the filing of the complaint of Sena. It is within the record itself. The cost for filing the complaint "Complaint Challenging Candidacy for District Attorney for the First Judicial District" required a filing fee of $122. Service by the Sheriff's Department adds $25. Hiring an attorney is be a thing of debt. Assuming a reputable firm's charges (as it clearly it names itself in a representative capacity) with a four hour minimum, the expenses are bound to exceed the $500 limitation. To date, there has been no filing as "a political action committee" nor made an accounting of costs with Election authorities. The outcome of the elections, both Federal and State is affected, and often with the reduced choice of one candidate. END BACKGOUND PART II The background and references in Part I of this memorandum attempts to present to the Court that there is winnowing process in the candidate selection founded in New Mexico election scheme. The process include : A. Additional Qualification for ballot access to Federal Offices B. Statutory Barriers upon small parties and unaffiliated independents, including State supported litigations C. Challenge Nomination proceeding for Compliances and Political purposes rather than Fraud or any State interest D. Complacent and Negligent Oversight by Election Officials E. Statutory Restrictions on Change of Parties for candidacies The result in the election races is more often than not 'uncontested race' or "predictable" two person races throughout the State and Federal election since the 2000 election. Further presented is that the Election code of New Mexico requires reform and necessitates of revision.. There is a pattern of outdated, antiquated processes and practices counter purity in the elections. There are statutes which clearly convene the explicit language in the United States Constitution. The background and references in Part I were presented to display a backdrop for the instant case, Gould v. Campbell. While Courts may not generally be disposed to musings or a prologue that are not direct upon the circumstances, issues of the particular constitutional question that is presented there is significance to the backdrop that legal foundation brings. The case brings its own particulars. It should be decided as in all matters, on a case by case basis. The backdrop is purposed toward providing a totality : an atmosphere of several of the restriction of the election code of New Mexico that counter the principle brought forth in Harper . (383 U.S. 663 ) In the recent decision, Crawford v. Marion County Board of Elections ( related to the voter identification .Justice Stevens, joined by The Chief Justice and Justice Kennedy, concluded that ....(a) Under Harper, even rational restrictions on the right to vote are invidious if they are unrelated to voter qualifications. However, "even handed restrictions" protecting the "integrity and reliability of the electoral process itself" satisfy Harper's standard. Anderson v. Celebrezze, 460 U. S. 780, 788, n. 9. A state law's burden on a political party, an individual voter, or a discrete class of voters must be justified by relevant and legitimate state interests "sufficiently weighty to justify the limitation." Norman v. Reed, 502 U. S. 279, 288- 289. Pp. 5-7. Perimeters of Review The instant case, Gould v. Campbell, necessitates required review. While the primary of June 2008 has passed, the issue is not moot. It is capable of repetition and yet evading review. Moore v. Oglevie, 394 US 814, 816 (1969) The right of a citizen to seek public office regardless of a candidate's race is a protected liberty under the first and Fourteenth Amendments amendment. The identification of the liberty interests that are protected by the Due process clause is a question of Federal constitutional law. Harper v. Young, 10th Circuit( 1995) Anderson v. Celebrezze 460 US 780 (1983) provided: " 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. 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 the extent 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) The instant case, Gould v Campbell, particularly provides that a declaration for candidacy was filed with the Secretary of State, along with over 950 signatures and proper ethics compliance by Eliot P. Gould for the office of First Judicial Attorney on March 18, 2008, the date for the submission of "nomination papers". On that same date, Joseph E. Campbell also filed declaration with 675 signatures for the same office. Joseph Campbell serves as an Asst. District Attorney in the first Judicial District. The First Judicial District Attorney's Office is located in Santa Fe, New Mexico. However, the judicial district encompasses three counties: Santa Fe, Los Alamos, and Rio Arriba. These counties cover a large area (7,876 sq. miles) and have a very diverse population. Santa Fe County is 1,909 square miles and has a population of about 120,000. The only urban area in the county is the city of Santa Fe, which serves as a haven for tourists year round. The county is primarily Hispanic with a small Anglo population. The city of Santa Fe has a significant population of gay, lesbian, bi- sexual, and transgender individuals. Los Alamos is a very small in land size, 109 square miles, but has a population of 18,200. Government scientists live and work in Los Alamos. Nuclear weapons are created and tested there. The community is very "closed" and employees have high-level security clearances. The population is largely Asian and Anglo, although there are a few Hispanics. Rio Arriba is the largest of the three counties, 5,858 square miles, and extends north to the Colorado border. This county has nine Indian reservations, one Apache and eight northern pueblos. Each reservation has its own government and court system. Tribes enjoy a tax- free income from casinos that on their reservations. There is also a large Hispanic population, and there has recently been an influx of Mexican nationals to this area. Rio Arriba County is often in the top ten counties in the nation when it comes to illegal drug use. Heroin is the primary drug of choice. The cities of Santa Fe, Los Alamos, and Espanola have municipal courts, which enforce city ordinances. The ordinances cover most of the misdemeanor crimes. Municipal courts have jurisdiction for crimes that carry penalties of 90 days or less. Police officers prosecute cases in municipal court and there are no victim advocates assigned to the court. Magistrate Courts are administered by the State and have jurisdiction in a specific county for misdemeanor cases. Judges in this court are required to have a high school diploma and are elected officials. This court hears cases for crimes that carry a punishment up to 364 days. Preliminary hearings for felonies also take place there. District Court hears felony cases that carry a punishment of more than one year. A fourth degree felony is punishable for 18 months or more, third degree for 3 years, second degree for 9 years, and first degree for 18 years. Native American reservations in the area each have their own court system. Tribal organizations handle their own misdemeanor domestic violence cases. Felony domestic violence cases are sent to the U.S. Attorney's Office and the Bureau of Indian Affairs investigates these cases. If a crime is committed on a reservation by a non-tribal member, the local law enforcement agency is called and the District Attorney handles the case. Issued a Certificate as Qualified Candidate On March 25, 2008, Secretary of State Mary Herrera issued a certificate find the candidate Eliot P. Gould 'qualified' to be on the ballots of the Democratic Party primary of June 4, 2008 for the First Judicial District. The Secretary of State also issued a certificate of qualification to Joseph E. Campbell. On March 28, 2008, Mr. Campbell filed a petition before the First Judicial District Court challenging the qualifications of Mr. Gould. Citing Chavez v. Evans ( Supreme Court of New Mexico No. 8746 79 N.M. 578, 446 P. 2nd 445 , 1968) with an excerpt of that case , " learned in the law " and being a "licensed attorney" as synonymous and with a claim that as "unlicensed", there must be a disqualification of the candidacy of Eliot P. Gould as First Judicial District Attorney the Campbell petition prayed. (0-01-CV 2008-0845, First Judicial District Court of New Mexico) Also on March 28, 2008, Eliot P. Gould and the Citizens Committee for Eliot P. Gould filed a petition challenging the candidacy of Joseph E. Campbell in the District Court . (0-01-CV 2008- 0845, First Judicial District Court of New Mexico) The allegations were that Mr. Campbell's signatures were insufficient in number to qualify for ballot placement and included fraudulent signatures and other irregularities. The complaint itemized by line and page each complained signature, including that "pages 21 and 19 " were written by the same hand and not of the registered Voters. A Request for a Jury Demand was Filed promoting that the District court impanel a jury to examine and otherwise count the signatures for validity. A request for a "handwriting expert' of the State was requested to examine and for testimony. On April 10, 2008 the District Court heard both cases independently. District Court Case against Gould's Candidacy In the state matter "Campbell v. Gould", Mr. Campbell presented opening remarks in essence complained that "on March 18, 2008 Respondent Gould filed all necessary documentation for certification as a candidate for the office of First Judicial District Attorney." Mr. Campbell complained that on March 25, 2008, Respondent Mary Herrera caused her office "to officially certify Eliot Gould" as a candidate to the office of First Judicial District Attorney. Mr. Campbell stated that the requirements for District attorney must be 18 years of age, a resident of New Mexico, must be learned in the law, and must be a resident in the district. Mr. Campbell then brought forth "State ex rel. Chavez v. Evans", a state Supreme Court case (1968) which equated that "learned in the law" was the same as "licensed attorney." "Respondent Eliot Gould is not a "licensed attorney and therefore is not qualified candidate for the office of First Judicial District Attorney." Mr. Campbell closed his remarks with the request that the Court find that "Eliot Gould is not a qualified candidate" and to "order Respondent Mary Herrera to remove his name from the official ballot." In response, Mr. Gould , who had filed a written answer to Campbell's petition, remarked that he agreed with the listed qualifications which Mr. Campbell had presented, but provided that the qualifications of "holding public office is an election franchise. The qualifications for District attorney requires fulfilling the state's constitutional provisions " It requires fulfilling the election statutes in conformity with the statutes with the constitution." Mr. Gould furthered that "it has been long established that the right to vote includes the rights to seek public office and in equal manner in each phase of the ballot process." Gould again reaffirmed the oath (holding up his right hand) and stating: 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__28_ 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. I will be eligible and legally qualified to hold this office at the beginning of the term. If a candidate for any office for which a nominating petition is required, I am submitting with this statement a nominating petition in the form and manner as prescribed 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. The duties and office of the District attorney are derived from the state constitution. The pertinent articles in creating the office is found at Article VI Sec. 24 of the state constitution: [ District attorneys] There shall be a district attorney for each judicial district, who shall be learned in the law, and who shall be a resident of New Mexico for three years next prior to his election, shall be the law officer of the state and of the counties within his district, shall be elected for a term of four years, and shall perform such duties and receive such salary as prescribed by law. (NMSC Art VI Sec 24) A second Article of the state constitution relating to the elective franchise including: Article VII: [Qualifications for holding office.] A. Every citizen of the United States who is a legal resident of the state and is a qualified elector therein, shall be qualified to hold any elective public office except as otherwise provided in this constitution. The language and specific term "learned in the law" has not been changed or amended to any other qualification relative to the District office qualification. Interpreting away from the straight forward and honest reading of the constitution and its flexibility in remaining unchanged and constant proposes not order but confusion. Thereafter, the District Court rendered the opinion and decision upon the challenge. It found candidate "learned in the law" and "unqualified as a candidate as not a licensed attorney. " "The Secretary of State shall remove his name from the ballots of the June primary. " Thus, Gould's name would not appear on the ballots of the June 4, 2008 primary. Next, Gould's Challenge as Fraud The matter, Gould and Citizens Committee v Campbell was heard immediately thereafter in separate Court by a different District Court Judge. Parties were introduced. The representatives of the Citizens Committee were barred from the Plaintiffs Table. Opening statements made. The Court ruled upon "pending motions"; that it had jurisdiction as an election matter; that the motion for Expert handwriting Analysis of the State Police be denied, and that the request for Jury Empanelment , as they had been paid for ,to examine the Signatures was denied. Mr. Gould brought forward that the voters on the lists could be verified by an internet site "voter View" through the Secretary of State's office. The Representative from the secretary of State's office then testified that the "voter View" might not be as accurate as the main Internal records. Testimony elicited that a CD Rom of the Voters of the District Might hold some inaccuracies between the time of transfer. The District therefore denied the use of the internet access to the voter records and the use a permanently printed CD-Rom of voters by Secretary of State's office. It further denied the introduction of expert testimony showing that "pages 21 and 19 were written by the same hand." Mr. Gould then requested a continuance with a "short date of Monday or Tuesday. The request was denied. Thus , the District Court dismissed the cause with a final order. Joseph Campbell's name would appear on the ballots of the June 4, 2008 primary. In accordance to the Statute 1-8-35, a petition for mandamus was filed in the New Mexico State Supreme Court by Mr. Gould on April 10, 2008 . ( No 8/ 31060 ) The petition provided that the district Court's determination "added additional qualification" to the sole source of the office, the State Constitution and otherwise abridged the candidacy and from participation in the election franchise. The writ was denied. Mr. Gould then filed "a reconsideration " as the "printing of the ballots was imminent" and insisting that he was due a reasoned opinion that he was not qualified in accordance to the explicit requirements of the State constitution . That reconsideration was denied without more. The result was that Mr. Gould's name was removed from the ballots of the primary of the state of New Mexico on June 4, 2008. Additionally, as a registered Democrat on the date of the Governor's proclamation, he was barred by statutes to fulfill a candidacy as 'unaffiliated" or "minor party"--not only for the office of the District attorney, also for the federal and state offices to be held on the general election of November 4, 2008. FOR REVIEW Thus while this controversy involves election to state office, and the state apparatus of election, presents an issue of Federal concern. Federal Courts have broad powers to remedy violations of the Voters Rights Act. Dillard v. City of Foley, 926 F Supp 1233 The Court is not being asked to interpret state laws but to measure the weight of those laws and practices applied by the State of New Mexico upon the scale of its powers and limitations. The Court is being asked to address that fundamental right of liberty to seek public office is entitled to each of its citizens and that in the Gould candidacy, it was taken in a manner contrary and arbitrary. While the Tenth Amendment of the Constitution preserves the rights of the individual states to control the election of presidential electors, and grants the States powers for public safety and regulation, the States are required to ensure that the enfranchisement are true and proper in each phase of the ballot process, to be absent discriminatory practices or effect the dilution of a politically cohesive minority. The Voter rights Act provides as much. In 1965 the Voter Rights Act of 1965 was enacted to provide a comprehensive and direct solution to protecting the rights guaranteed by the Fifteenth Amendment. With the support of President Lyndon B. Johnson, the Voting Rights Act of 1965 was specifically designed to combat racial discrimination in voting. The Voting Rights Act was used to register millions of Americans who had never been allowed to vote. Unfortunately, once the registration of new voters increased, many schemes were developed in an attempt to cancel out the effect of the new voters. Attempts such as changing elected positions to appointed positions, gerrymandering election boundaries, and changing single-member districts to at-large elections became commonplace. The Voting Rights Act was crafted with two main areas of coverage. The first area governed special remedies for specific areas of the country where statistics showed large differences between the number of eligible voters and the number of persons actually registered to vote. These special provisions authorized the United States Attorney General to provide for examiners and observers to register voters and monitor elections, banned the use of tests, and also required these certain areas to submit any changes in their voting laws to the federal government for approval . The second aspect of the Act generally prohibited discriminatory voting practices throughout the entire nation. The Voting Rights Act has been extended three times since 1965 -- in 1970, in 1975, and in 1982. While provisional section related to 'pre-clearance provisions' expired in 2007, the Voting Rights Act provision against discriminatory practices is permanent. In Harper v. Virginia Board of Elections (383 U.S. 663 1966), the U.S. Supreme Court held 6-3 that state poll taxes (for both federal and state elections) were officially declared because they violated the Equal Protection Clause of the Fourteenth Amendment. Harper followed a series of voting rights cases over states statutory techniques that had been used to disenfranchise along racial lines. These techniques included direct disenfranchisement and indirect disenfranchisement. "Direct" disenfranchisement refers to actions that explicitly prevent people from voting or having their votes counted, as opposed to "indirect" techniques, which attempt to prevent people's votes from having an impact on political outcomes (e.g., gerrymandering, ballot box stuffing, stripping elected officials of their powers). 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 U.S. 30 (1986). The amendment provided "that to make clear that a violation of ? 2 could be proved by showing discriminatory effect alone, rather than having to show a discriminatory purpose, and to establish as the relevant legal standard the "results test." Section 2(a), as amended, prohibits a State or political subdivision from imposing any voting qualifications or prerequisites to voting, or any standards, practices, or procedures that result in the denial or abridgment of the right of any citizen to vote on account of race or color. Section 2 (b), as amended, provides that ? 2(a) is violated where the "totality of circumstances" reveals that "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." "Once the franchise is granted to the electorate, lines may not be drawn which are inconsistent with the equal Protection Clause of the Fourteenth Amendment. Thus, state measures which have the effect of denying or diluting a citizen's vote must be justified with a compelling state interest.( Harper at 670, 86 Supreme Court 1079) (striking down the State Poll tax ); Reynolds v. Sims, 377 US 533. Title 42, Section 1973 (h) provides: Congressional finding and declaration of policy against enforced payment of poll taxes as a device to impair voting rights. The Congress finds that the requirement of the payment of a poll tax as a precondition to voting (i) precludes persons of limited means from voting or imposes unreasonable financial hardship upon such persons as a precondition to their exercise of the franchise, (ii) does not bear a reasonable relationship to any legitimate State interest in the conduct of elections, and (iii) in some areas has the purpose or effect of denying persons the right to vote because of race or color. Upon the basis of these findings, Congress declares that the constitutional right of citizens to vote is denied or abridged in some areas by the requirement of the payment of a poll tax as a precondition to voting. The right of a citizen to seek public office is a free exercise derived from the First Amendment. Additionally, the Fourteenth Amendment provides that no state shall "deprive any person of life liberty, or property, without due process of law." Under that light and the scope the Voter Rights Acts and Amendments , a review of the events will bear the following facts: 1. Gould's name did not appear on the ballots of the June 4, 2008 primary 2. Gould's name was removed through the application of a "test or device" as the state district Court required an" additional non-constitutional qualification though the candidacy satisfied the Statutory requirements and constitutional requirements of New Mexico for the office of District Attorney 3. No reasonable address nor meaningful hearing was conducted in the process of removing the candidate's name from the ballots-- though an appeal of the district Court's order was filed before the State Supreme court under the specific statutes governing. Invidious Discrimination Invidious discrimination applies a differentiation scale to people who belong or appear to belong group or another group. The group being discriminated against is generally seen as being lower, lacking or deficient in some way. (This type of discrimination is an unfair and often illegal practice that can go on daily in many different forms.) In the context of the instant matter, there was no overt or subtle racial appeal or issue. However, the Nomination Signatures constitute, by axiom, a "minority group that is politically cohesive". There were over 950 raw signatures, of which over the statutory requirement of 545 for the First Judicial District. The "minority" is a mixture of persons who had personal contact with the candidate. Most received literature of platforms and positions of the candidate . Their individual signatures were provided by their own hands, freely absent any coercions or misrepresentations, and recorded the names ( as registered to vote), signatures, places which the person resided and city of residences. The signature process was carried out regularly in public places, private lands and included persons from each of the three counties that compose the First Judicial District. The petitions clearly stated the candidate's name, address, county of registration, and the pertinent information regarding the time, place and conduct of the election. And the validity of the petitions were not challenged, except upon 'additional qualification" that a license was necessary. As the record reads, that issue was addressed before the state district court . " New Mexico's constitution provides: [District attorneys] There shall be a district attorney for each judicial district, who shall be learned in the law, and who shall be a resident of New Mexico for three years next prior to his election, shall be the law officer of the state and of the counties within his district, shall be elected for a term of four years, and shall perform such duties and receive such salary as prescribed by law. (NMSC Art VI Sec 24) The direct language of the State constitution upon the qualifications for the district attorney is the sole source of the qualifications. New Mexico's constitution also provides: "Every citizen of the United States who is a legal resident of the state and is a qualified elector therein, shall be qualified to hold any elective public office except as otherwise provided in this constitution. (Article VII, New Mexico State constitution) When the District Court's promoted its finding that the candidate was "learned in the law" but to be removed from the ballot as he was not a licensed attorney , in one swipe of his hand , the state district Court judge toppled the state's constitutional structure. "Every citizen of the United States who is a legal resident of the state and is a qualified elector therein, shall be qualified to hold any elective public office except as otherwise provided in this constitution." is rendered meaningless. So was another imperative of the state's constitution. Purity in elections be maintained is promoted in Article II of the New Mexico constitution : Sec 8. [Freedom of Elections] All elections shall be free and open, and no power, civil or military shall at any time prevent the free exercise of the right of suffrage. Direct Appeal Taken An appeal of the Gould's removal by the state District was taken as provided under the Election code: once the decision of the state district court is rendered, "The decision shall be appealable only to the supreme court and notice of appeal shall be filed within five days after the decision of the district court. The supreme court shall hear and render a decision on the appeal forthwith. 1-8-35 NMSA On April 14, 2008, Mr. Gould and a representative of the Citizen's Committee for Eliot Gould District Attorney appeared at the Clerk's office of the state supreme Court with a petition for mandamus to restore the ballot position. The state supreme court heads the Judicial Branch of State government. It is the state's appellate court of last review and has supervisory control over all lesser courts. The state supreme court has original jurisdiction. The court also is empowered to issue necessary and proper writs and to provide for the transfer of any action or decision enumerated in the statutes. The Appeal contained the necessary elements a reviewing Court to issue a mandamus and the compelling feature that 'time was of the essence" as the ballots were scheduled for printing. The general fee was tendered to the Clerk of the Court by certified check. The Respondent of the District Court, Mr. Campbell and the Attorney General for the Respondent Secretary of State were served with notice of the action and copies of the complaint. That court returned an order, "whereas, this matter came on for consideration by the Court upon motion for reconsideration and request for hearing, and the Court having considered said motion, and being sufficiently advised, Justice Patricio M. Serna, Justice Petra Jimenez Maes and Justice Charles W. Daniels concurring; Now therefore, it is ordered that the motion for reconsideration be DENIED... IT IS SO ORDERED. Witness, The Hon. Edward L. Chavez, Chief Justice That order gave form but not substance. It abdicated the Courts " reserved' powers. Whether by design or negligence, it failed to properly address the necessary reinterpretation of Chavez nor address other substantive predicates of election law. That order certainly left hollow any reason for the removal of the name from the ballots. About Chavez v. Evans Chavez v. Evans,[79 N.M. 587, 446 P.2nd 445 ] the state Supreme court case introduced and underlying the objections to the candidacy did not simply equate "licensed and learned" as interchangeable ( as is commonly understood). It did not attempt to raise itself to substantially amend the express state constitution. It 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 "People 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 the questions involving each of 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 the mandamus to 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 neither 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 creating authority 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. As Tijerina 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 an absence 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 our constitution, 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 be adopted 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 that time 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. 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 equal protection that must be afforded Much different is the set of circumstances than were present in 1968. Mr. Gould had never been engaged in any insurrection against the United States,nor participated in a rebellion or other crime. Unlike Monogye, Mr. Gould presented evidences that he was "learned in the law", having attended law school in Chicago and the passed the bar in Illinois. The state District court provided no rationale nor any compelling state reason of the State in its decision . Nor did it provide any rationale for removing his name for the ballot other than finding Mr. Gould was not a licensed attorney. The District Court did not, for example, find Mr. Gould had not filed the necessary papers. Or that he had filed them in the wrong office . Or that he had filed them on the wrong date. The Court did not include any finding related to collected fees or donations upon any promise or performance. Nor did it provide that there was coercive factors in their collection. Failure to Address is No Option The failure of the state Supreme Court to address the issue with reason and substance compounded the circumstances. The failure to properly review constitutes its own form of a denial of consequence. No State shall make or enforce any law which shall abridge the privileges or immunities of the citizens of the United States; nor shall any State deprive any person of life, liberty or property, without due process of law. Amendment XIV. Fundamental to due process is the process include a meaningful hearing of judicial review. Due process is violated if a practice or rule ''offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.'' Snyder v. Massachusetts, 291 US 97,105 (1934). That the "court was sufficiently advised in the premises was not enough." The reviewing court must include substantive predicates and employ explicitly mandatory language specifying how the outcome is reached. Part III In Part I there was presented an 'atmosphere and background' supportive that the election code and practices of administration of elections which provide undue restrictions upon candidates , with processes unchallenged, and thus maintained. In Part II, there is a specific set circumstances leading to "removal from the Primary ballots" of one candidacy by means and methods that not only removes the candidate's name from the ballot but prohibits him from registering, under separate party or unaffiliated, and further participation in the General election to be held on November 7, 2008. In Part III, the Petitioners are not asking the Court to "interpret state law" but to apply the same measure of facts that created controversy that resulted in the removal of the "name from ballots" as not compatible and acceptable under the Equal protection clause, prohibited by the limitations of the reserved rights upon the States, and contrary to the fundamental due process right of judicial review.. In the United States there exist concurrent powers. These are powers held by both the states and the federal government. These powers also have limitations and restrictions under the Constitution .The powers may be exercised simultaneously within the same territory and in relation to the same body of citizens. This is contrasted with delegated and reserve powers. Some of the concurrent powers enjoyed by both the federal and state governments are: the power to tax, make roads, protect the environment, create lower courts and borrow money. The foundation of the states' concurrent powers is a trusim: the Tenth Amendment to the United States: The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. Amendment X, United States Constitution The rights granted to the States are no more than a showing of a relationship between a national government in a declaratory manner allaying fears against a centralized tyranny. By inclusion in the Constitution, it offered no more nor any less than the states exercise those powers fully, but not in any prohibition. " The States' core police powers have always included authority to define criminal law and to protect the health, safety, and welfare of their citizens." Raich v. Gonzales, Opinion of Justice OConnor in dissent, joined by Chief Justice Rehnquist and Justice Thomas. This delicate relationship between the federal and state governments, and the judicial branches thereof, is basic to our system of Federalism. There is strong interest to ensure that the rights of the States, as individual states with the traditional autonomy to administer elections for the Federal and state offices free are to interpret state laws governing elections, and maintaining the core functions for the general welfare and peace without interference by the federal courts. Justice O'Connor in New York v. United States modeled a classic structure: States are not mere political subdivisions of the United States. State governments are neither regional offices nor administrative agencies of the Federal Government. The positions occupied by state officials appear nowhere on the Federal Government's most detailed organizational chart. The Constitution instead "leaves to the several States a residuary and inviolable sovereignty," The Federalist No. 39, reserved explicitly to the States by the Tenth Amendment. The holding in New York, that Congress may not ``commandeer'' state regulatory processes by ordering states to enact or administer a federal regulatory program, applied a limitation on congressional power previously recognized. This perspective of Federalism retains characteristics also known as trias politica. The model was first developed in ancient Greece and came into widespread use by the Roman republic. In this model of government, the state is divided into branches or estates. Each estate has separate and independent powers and areas of responsibility. The normal division of estates is into an executive, legislative and judiciary.Proponents of separation of powers believe that it protects liberty and democracy and avoids tyranny. Critics of separation of powers question whether it indeed does protect liberty, and historically point out that model of government that it may slows down the process. The founding fathers of the United States, in order to quell concerns about a centralized federal government imposing tyranny, incorporated the characteristics of trias politicia with the States and Commonwealths with a dual set of constitutional officers. The expressed and enumerated rights of the Federal government , and each of its branches, their authority and limitations were present in the Constitution recently ratified by the States. The Federal government would remain as it was composed and without amendment but for the " The Bill of Rights as " rights of the people" and thereafter, "the remainder the rights the States". So upon the States came "reserved rights". These have generally been in public safety, health and welfare of people, and other sovereign rights. However, the rights of the States are limited by the Tenth Amendment itself.: "nor prohibited by it to the States, are reserved to the States respectively, or to the people. One prohibition exists in 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. Title 42, Section 1973 (h) provides: Congressional finding and declaration of policy against enforced payment of poll taxes as a device to impair voting rights. The Congress finds that the requirement of the payment of a poll tax as a precondition to voting (i) precludes persons of limited means from voting or imposes unreasonable financial hardship upon such persons as a precondition to their exercise of the franchise, (ii) does not bear a reasonable relationship to any legitimate State interest in the conduct of elections, and (iii) in some areas has the purpose or effect of denying persons the right to vote because of race or color. Upon the basis of these findings, Congress declares that the constitutional right of citizens to vote is denied or abridged in some areas by the requirement of the payment of a poll tax as a precondition to voting. The state's powers for a license requirement is as much a truism as the amendment providing . A license is a payment of a tax, or fee affording and individual or company a privilege, for which no general right exists. While licensure statutes promote business and performances standards, assure a public confidence, and provide safeguards in public safety and health, relative to a qualification for public office, it constitutes beyond the State's limitations. It is " invidious discrimination"-a classification which is arbitrary, irrational, and not reasonably related to a legitimate purpose. (McLaughlin v Florida; 379 US In this case, the Tenth Amendment powers are limited by the Twenty-fourth Amendment. Amendment XXIV of the United States Constitution prohibits both Congress and the states from conditioning the right to vote in federal elections on payment of a poll tax or other types of tax. The amendment was proposed by Congress to the states on August 27, 1962 and was ratified by the states on January 23, 1964. It wasn't until the U.S. Supreme Court ruled 6-3 in Harper v. Virginia Board of Elections (1966) that all state poll taxes (for both state and federal elections) were officially declared unconstitutional, because they violated the equal protection clause of the Fourteenth Amendment. Thus the question involved in this controversy is not a question of the reserved rights to interpret the state laws. It is the often noticed or unmentioned component in federalism, the rights reserved to the people. The construct of the model of Federalism is more fluid than government to government, but active promotes the citizen participation. Justice Breyer, in dissent in United States v Morrison provides a key of the evolving fluidity." Its state/federal division of authority protects liberty-both by restricting the burdens that government can impose from a distance and by facilitating citizen participation in government that is closer to home. The matter Gould v. Campbell has significances. Just as the Tenth amendment extends powers to the States the truism of the Tenth Amendment provides that the States' rights, originally , as a political theory, every citizen had the right to appear at an election for any public office. Much of the United States lands, which had been acquired in the settlement with the British Government, accompanied the reserved powers delegated to the States. The period did not feature political parties per se, but were organized by States-- in minority and majority. Amendment X gives the minority party - whichever party that may be -- the power to make its case in each of the state legislatures , and thereby provides a vital outlet for their policy preferences. As for those elections to the Congress, the states would elect from their Legislatures , the Senator or 'representative of the sovereign state for the terms in the Constitution. The States also would have delegations "from the People" through elections to the House of Representatives. At the time of the American Revolution and at the framing of the Constitution, the right to vote was restricted upon two assumptions : First, that men who owned property, especially land, had a "stake" in preserving society and the government in order to protect their wealth. Second, only men of property had the "independence" to decide important political matters and to choose the members of the assembly who would debate and decide these matters. The Constitution did not original mention "voting" but referred to the election of offices and electors from the States. Restrictions to the right to vote or disqualification were constitutional provided for under the same Amendment that is generally cited as "Equal Protection" or Due Process. The Fourteenth Amendment provides that "no state shall deprive any person of life, liberty, or property, without due process of law". Section 2 of the Fourteenth amendment provides for Representation as it is Apportioned to the Congress and to be for the States and to provide for no denial including the Executive, judicial and legislatures; or in any way abridged: Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State. Section 3 of the Amendment provides the exceptions. Other than "non taxpaying Indians" certain classes were barred or disqualified for public office. : Section 3. No one shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability. By the time of Harper, many of the Reconstruction period objections ( "he was a confederate or had given aid or comfort to the enemies thereof ') had been codified by the State's legislatures. The right of Women came by Amendment and granted women full political equality. Progressive measures replaced the "confederate disqualifications". "laws relating to primaries and elections do not confer the rights of qualified persons to become candidates, but merely regulate the exercise of such right in an orderly way. (Manning v. Young , 210 Wis. 588, 247 NW 61 (1933). The majority opinion in Morrison write: The fourteenth amendment prohibits a state from depriving any person of life, liberty, or property, without due process of law; but this adds nothing to the rights of one citizen as against another. It simply furnishes an additional guaranty against any encroachment by the States upon the fundamental rights which belong to every citizen as a member of society . The rights of the State are "limited" by the Tenth Amendment itself. And by other portions of the Constitution and the power of Congress over elections. That power of Congress like that of interstate commerce `is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations other than are prescribed in the Constitution.' . . . That power can neither be enlarged nor diminished by the exercise or non- exercise of state power. . . . It is no objection to the assertion of the power to regulate interstate commerce that its exercise is attended by the same incidents which attended the exercise of the police power of the states. . . . Our conclusion is unaffected by the Tenth Amendment which . . . states but a truism that all is retained which has not been surrendered.''--Chief Justice Stone, 312 U.S. 100, 114, 123, 124 (1941). When the state district court judge ruled candidate Gould was " disqualified the candidate and removed his name from the ballot ", he did more than add additional qualifications not present in the creating document for the office-- the state constitution. He applied a standard from which he and other state officers are prohibited: a test or device. It is a fundamental prohibition of constitutional proportion. The right of citizens of the United States to vote in any primary or other election . . . shall not be denied or abridged . . . by reason of failure to pay any poll tax or other tax. Amendment XXIV (1964) But just as significant is that the matter was as provided statutes governing elections brought to the state Supreme Court. The fees paid, upon the state question: that the district court had added additional qualification to the language and meaning of the state's constitution and that the name would be placed on the ballot. When reason had to be, it was void. The statutes of the State dictate an answer "forthwith". Elections are inherently constitutional questions. The concept that a state Court judge could elevate a partial excerpt of a reference of a case and so disturb the voting rights is unacceptable. That it would reduce the viability of the minority and mark a change of the constitution of the state is appalling . That a review required of the consequences of such a decision is denied is outrageous conduct. Such process defying a true meaning of due process of the individual, substitutes additional denial of due process, and leaves the public only to speculate upon the meaning. Due process is best defined in one word-- fairness. Throughout the U.S.'s history, its constitutions, statutes and case law have provided standards for fair treatment of citizens by federal, state and local governments. These standards are known as due process. This includes informed statements that are established with predicators . When a person is treated unfairly by the government, including the courts, he is said to have been deprived of or denied due process. The Fourteenth Amendment prohibits the deprivation of liberty or property without due process of law. A due process claim is cognizable only if there is a recognized liberty or property interest at stake. Board of Regents v. Roth, 408 U.S. 564, 569 (1972). Negligence and arbitrarily applied procedures in the state's challenge process are further compounded by the State supreme abdication of review. Arbitrary procedures and the failure to provide adequate safeguards in that phase of the election process are contrary to the very principles of judicial review and the sanctity that the laws of the Constitution and state constitution are superior. Modern federalism adds an additional measure. Since 1970, and the national revenue sharing administrations, the states have been 'induced' to participate with the federal entity to assure certain objectives and programs with "grants". Participating states could opt out of participation in the general programs of the Federal government. Or they could choose to apply for discretionary grants, which require that State or its agency an additional and certain obligation. Compelling Mandate Since 2002, the primary vehicle for funding to the States has been the "Help America Vote Act". The goals of HAVA included: replace punch card voting systems, create the Election Assistance Commission to assist in the administration of Federal elections; and establish minimum election standards. Under HAVA, New Mexico provides an ongoing Certification that the standards in the conduct of elections include "Safeguards to ensure that eligible voters are not removed in error from the official list of eligible voters. " New Mexico is a participatory state, thus the complaint does not erode the right of the States. The imperative is that judicial review cannot be simply denied. It is compelled, and must bear more than form. It must be rational and reasoned, It must be timely and address the state's interest in the removal and be taken into the totality of circumstances that are election administration and process. The total HAVA funds received by New Mexico as reported to the Congress : $19,279,790. ( report of Election Assistance Commission , July 24, 2008). Role of the District Attorney It is more than mere irony that this case provides for the removal of a candidate for District Attorney in light of the concept of modern Federalism. The District Attorney, in the most comfortable model of modern Federalism is within the State's compliment of constitutional officers. Under no manner is the District attorney an agent of the Federal government or any of its agencies. The District Attorney is a representative of the State's traditional interest in sovereignty as they have been extended since the adoption of the Bill of Rights. Within the total structure of constitutional Federalism , the function of his office is constitutional , unique and one of the "seats" of the State government. Under new Mexico's constitution, the District Attorney participates as "the chief legal officer' of the District of the state. Under the most comfortable model of federalism, the district attorney of the state's district has responsibility, along with other state officials, to assure the procedures and safeguards to Voting rights are paramount. If there is a condition of fraud , one man attempting to vote twice or two men attempting to conspire in a manipulation of the vote, the District attorney dictated by custom and statute to prosecute the case that originates in his District. It is his obligation to perform within his solemn oath for a term of faithful service. While the District attorney's responsibilities include prosecutions of the criminal offenses--hence, he is popularly considered "the chief law enforcement' officer-- the duties are far more than that. The District attorney is the "chief legal officer "of the district. But the responsibilities are far more than that. They extend into the processes of the local administration of justice and the places where the rules of the Courts and issues begin. Just as the responsibilities extend into the conduct of state elections they extend with authority and certain immunities to the promotion of justice. They extend with authority to provide for compliance and revisions of environmental and emergency procedures. The office can promote applications for grants and provision for their dedicated services in the relationship with the Federal government for modernization and to implement learned lessons in the administration of justice and other public safety concerns. The office of district attorney of the First Judicial district of New Mexico is in the most suitable position of all the slate of State officials to deal with significance the very working of justice in the state's courts. "The system in these courts in Santa Fe isn't about the ideals of defense for the accused, or the individual rights which are secured by the nation's Constitution and the State's Bill of Rights. Theirs is geared for the major majority of charged. If you do the crime, do the time. Plea it out and be done with it. ". The state Court system is much worse than good intent gone awry. We are in the United States, defendants in the Magistrates Court entitled to "due process". That includes a procedural process that assures any and all individual from the throes of judicial tyranny. In New Mexico, if one is charged with a misdemeanor, that includes a meaningful hearing with 60 days on two simple questions: 1) is he a danger to any person or the community? and 2) will he be likely to appear in Court? . . Under Rule 5-401 A, the court MUST order the release of any person who is entitled to bail under Article II, Section ?13 of the New Mexico Constitution, either on personal recognizance or upon execution of an unsecured appearance bond, unless the Court determines that such release will not reasonably assure the appearance of the accused or "will endanger the safety of any other person or the community." If the court makes such a determination, the rule permits the court to impose such conditions as "will reasonably assure the safety of any person and the community." The New Mexico Constitution guarantees a defendant's right to be released on bond pending trial. N.M. Constitution, Article II, ?13. The court may only deny bail in non-capital cases for up to sixty days after the defendant's incarceration, by an order entered within seven days of incarceration, and only in specified cases where the defendant, who is accused of a felony, has been previously convicted of felonies. Specifically, if the defendant has been previously convicted of two or more felonies committed within New Mexico, neither of which arose from the same or a common transaction with the case for which the defendant is now before the court, the court may deny bail for sixty days. The constitution also allows denial of bail altogether for the sixty-day period if the defendant has been convicted of only one prior felony within the State, if the current charge involves a felony alleged to have been committed with a deadly weapon. The sixty-day limit may be extended to the extent that the trial has been delayed at the request of the defendant. But rather than go to that extent of what it MUST do, the Magistrate Courts organize a deception of itself, rerouting arraignments on the same charges, and then again, and then again. Never giving a thought to the meaning of liberty or the Constitutional requirements of the State. And how does Chad Redhouse deal with this? To save his soul and to preserve his sanity at the depths of this Kafkaesque nightmare, he files motions. The motions are denied. He filed one last week, asking that the charges be dismissed because he hadn't been arraigned for 110 days after his arrest, and the New Mexico Statutes say it must be done within 30 days. Judge David Segura denies the motion, and then arraigns him, as if the statutes somehow don't apply, how many days late? 110-30=80 days late. It seemed another example of surreal justice under a guise of law. Then there are the questions of double docketing and triple docketing, filing the same charges in 3 different courtrooms with three different judges. And keeping him in longer because they have never been consolidated-or were they as the NM Courts website reports two orders to consolidate and then a reconsideration to deny consolidation. . In all twelve charges in 4 cases brought before 3 Judges based on two events. There are constitutional limits to what the Court can and cannot do. Excerpt from "UNFAIR PROSECUTION DENIES BULLYING LEGAL TACTICS ON NAVAJO ACCUSED OF BATTERY by Eliot Gould, Sun News of Santa Fe, November 2007. The District Attorney is not an agent of the Federal government. His duties and responsibilities to the discharge of justice are unique under the constitutional system. It is from that office that the leadership necessary to take proactive compliance measures may undertaken. Learned lessons need not remain buried in silence. ... While Mr.Redhouse was released and all charges dismissed, which is the point of a habeas, there is a sadness in that silence that now is. We have knowledge that the magistrates Court employs an inferior public defender system. We witnessed arraignment processes over 100 days late. And that "the 60 day " bond requirement was either misinterpreted or ignored as an obligation by the magistrates Court. The exactness may be better understood with an examination of the Courts calendar years rather than a single case which by now is a "given" as an example of the badly broken system. In 2002, the Santa Fe Magistrate Court had 843 misdemeanor cases filed. Based on the disposition codes entered by the Administrative Office of the Supreme Court, 29 resulted case trials. In 2007, the number of misdemeanor cases had risen 1521, and the number of case trials had reduced to 8. Of course there are several ways to interpret those figures; but the only reasonable conclusion that can be is that the "system" is out of balance, lacking constitutional integrity. That conclusion becomes even clearer, with its underlying disparaging effect with some additional information. The report shows while there were 8 trials of 1526 cases, and 5942 traffic cases, there were also issues 2452 bench warrants issued. For the most part, bench warrants are issued for failure to appear. The summarized jail time for sentencing and warrants in 2007 was 137,018 days. Fines and fees summarized $511,989. Community service and credits for jail time were summarized with negative figures, so those are not useful figures now to consider the consequence and effects. .... Certainly the figures are alarming. And that is the case without delving into profiles, racial, economic or age characteristics. What seems certain is less than constitutional integrity. The figures are alarming in comparison to findings of Court statistics nationwide related to "innocence" whereby 94 % of accused are decidedly guilty without doubt, and more than reasonably so. To them I say" Do the crime, you'll do the time". But then there is the nebulas, the 6% who are not guilty beyond a shadow of a doubt. There seems a 99% certainty that they will face jail time. This despite constitutional protections and assurances, which are often obscured in misapplied practices. -- excerpt "Protecting the Quality of Life, Eliot Gould, First Judicial Candidate, Sun News of Santa Fe , March 2003 The District Attorney is in the most suitable office under Federalism from which justice may prevail and be served equally for all. Elected directly of the people, while he represents the State in prosecutions of alleged criminals, the District Attorney also serves as the people's representative from judicial abuse and tyranny. The District attorney can most suitably act in the role of training law enforcement and his prosecution staff that assure the production of evidences, witnesses, and timely processing of arrests and trials. He can address a system that is prone to errors and defects with techniques that inherently apply the fundamental safeguards and integrity which the public expects in its courts administration. The District attorney is in an extraordinary position to establish that justice is for all, and not equally bad-therefore equal. The District attorney can raise the standards so that prosecutions are not handled with deficiencies but the state's rights are applied with the assurances and proficiencies. It may not be a popularly accepted position as the street often holds Justice Scalia's sarcasm: "Why try him? We know he's guilty". The removal abridged any hope of a public discourse. That, according to Mr. Jefferson on his queries, is the intent of a campaign. That right was barricaded -- the right to speak and campaign and formulate the public opinion. It may not sit well with the politicians or the public in general to address such concerns, balances and constitutional integrity. It is a liberty right, the right to seek public office. A liberty right is the freedom which does not entail the obligation of others, but rests solely upon the permission of the rightholder. It is an instilling thing to have a vision that justice be served equally for all. It is instilling to set forth to constitutionally advance rather than accept a badly broken system that contravenes fundamental rights of so many. It is a worthy endeavor toward an extraordinary office. And as endeavor was denied under the pretense of law absent its constitutional moorings, it is debasing. To the extent that a citizen's right to vote is debased, he is that much less a citizen. ... This is the clear and strong command of our Constitution's Equal Protection Clause. .... As long as ours is a representative form of government, and our legislators are those instruments of government elected directly by and directly representative of the people, the right to elect legislators in a free and unimpaired fashion is a bedrock of our political system Chief Justice Earl Warren , Reynolds v. Sims, 1962 And Now, Without the Court's intervention the compounded acts to remove the candidate's name by manner contrary to equal protection and continued denial of due process in the judicial review would likely repeat. PROPOSED ORDER: The Federal District Court of New Mexico for an order : 1.Declares it finds jurisdiction and that the the removal of the name "Eliot P. Gould" from the ballots void of the June 2008 primary improper and specious. 2. Direct the Respondent Secretary of State decertify the results of the election primary results and conduct a special election on or before December 15, 2008 in the First Judicial District for the office of District Attorney 3. The Clerk of the District Court is instructed for a copy of the order to be direct to the New Mexico State Supreme Court for appropriate measure. Verification: Also denied the fair and equal opportunity of the salary that is established by the Legislature for the term. The complaint is not an abstract exercise. It holds a solemn purpose: a fundamental right to seek public office direct of the people in accordance to the prescribed constitutional requirements. End memorandum/ Appendix: Table of Citations United Sates Constitution and Amendments: Article I, USCA Elections for Congress' House of Representatives Amendment I Liberty Rights of the People Amendment X Reserve Rghts of the States Amendment XIV Sec. 1 Equal protection and Due process Sec 2 Apportionment requirement Sec. 3 Excluded Individuals Amendment XV Prohibition of Governments to prevent Vote on account of race, color or previous servitude Amendment XVII Direct Election of US Senators Amendment XXIV Poll tax Prohibition Congressional Legislation : Help America Vote Act, 2002 Voter Rights Act, 1965 Guarantee to Provide Comprehensive Solution Sec. 2(a) prohibits practices that result in denial or Abridgement of any citizen on account of race Sec 2(b) provides for a "totality of circumstances" upon processes not equally open 1982 Amendment Sec. 1973aa: "Test or Device" defined Sec. 1973 (h) Congressional declaration against enforced payment of poll taxes U.S. Cases: Anderson v. Celebreeze 460 U.S. 780 (1983) Board of Regents v. Roth 408 U.S. 564, 569 (1972) Burdick v. Takushi 504 U.S. 428, 112 S.Ct. 2059 Crawford v. Marion County Board of Elections, U.S. Supreme Ct, 2008 East Jefferson Coalition for Leadership & Development v. Jefferson Parrish 691 F.Supp.991 Forsennius v. Harmon 380 U.S. 528 Harper v Virginia Board of Elections 383 U.S. 663 (1966) Harper v. Young U.S. Tenth Circuit (1995) McLaughlin v. Florida 379 U.S. Moore v. Oglevie 394 U.S. 814, 816 (1969) New York v. United States 505 U.S. 144 (1992) Nixon v. Shrink Mo Gov't PAC 528 U.S. 377 Norman v. Reed 502 U.S. 279, 288-289 (1992) Raich v. Gonzales 545 U.S. 1 (2005) Reynolds v. Sims 377 U.S. 533 (1962) Snyder v. Massachusetts 291 U.S. 97, 105 (1934) Tashjian v. Republican Party of Connecticut 479 U.S. 208, 107 S. Ct. 544 Wilkerson v. Austin 545 U.S.209, 221 (2005) New Mexico Constitution Article II Sec. 8 Freedom of Elections Sec.13 Defendant's Right to be released on Bond Article VI Sec. 24 District Attorney Established; Qualifications Article VII Sec 1 Qualifications of Voters Sec 2 Qualifications for holding Office New Mexico Statutes and Rules 1-7-2 Oualification;removal:requalification of Political Parties 1-8-1 Nominating procedures 1-8-12 Proclamation of the Governor 1-8-18 Requirement of candidates by record of voter 1-8-19 Candidacy in primary of one party bars change in general election 1-8-21 Designation fo candidate by "preprimary" Convention 1-8-31 Requirements for valid signatures 1-8-33 Establishes variable signature requirements 1-8-35 Establishes Challenge Procedures 1-19-16 Campagn Finance Requirements Rule 1-096 Petition Challenge Procedures New Mexico Cases Chavez v. Evans 79 N.M. 587 Dillon v. King 87 NM 79 ( see also 549 F.2nd 183) Roberts v. Cleveland 48 NM 226 (1944) State ex. rel Apodaca v. Fiorina 83 N.M. 663 (1972) Sena v. Gould , First Judicial District of New Mexico, 1-1-2008CV 0845 Additional References Manning v Young 210 Wis 588, 247 N.W. 61 Bullying Legal Tactics, Sun-News of Santa Fe, November, 2007 Protecting the Quality of Life, Sun- News of Santa Fe,March ,2008 http://www.judicialcandidate.zoomshare.com/2.shtml/def44d94f15f8af650edb2c6a652ae60_48df897d.writeback Sun, 28 Sep 2008 08:41:17 -0500 As former Soviet President Mikhail Gorbachev provided in the position assessment of the Russian Army's invasion of Georgian cities in the South Ossetia region points out, the boiling point of the crisis is behind us .In its wake is a propaganda campaign that Russia was at blame. Like most things out of the countryside and mountains of Eastern Europe, the truth can never reach the west in full. he boiling point may be past, but the flame can again be easily sparked, and again bring crisis. It needs be properly addressed. While the American response to the Russian tanks fore-doomed the collapse of the Georgian state government, that objective was not the objective of the Russian war planners. The Saakashvili government is an American ally now receiving subsidies, training, and promises of full NATO partnership-- and for which that government supply 4000 troops to Iraq as part of it commitment to NATO and agreement for the placement of "defensive" missiles. The Russians may be to blame, and by the nature of their armies location has definite responsibility. As to whether it was provoked or instituted its army to protect citizenry and quell the peace or whether it was a belligerent aggressor as American Secretary of State Condolezza Rice has maintained, the arguments disguise the most fundamental premises : that the United States government was abrogating prior treaties. In engaging in the agreements in "leadership in NATO" with measures that train and arm the Georgians was pursuing a strategy which is was unacceptable to the Russians. As Secretary Rice warned the Russians that they would suffer isolation and consequences such as expulsion from international organizations, the Secretary displayed an emptiness to the words of Support to the Georgian government and the "democracy" it was experiencing in the post-soviet world. After denouncing the Russian invasion and destruction of Georgian cities, with a demand to meet a ceasefire negotiated by the French government, Secretary Rice flew to a meeting with President Saakashvili where the ceasefire terms were signed with American statements of support for "democracy". Then the Secretary flew to Crawford Texas to meet with President Bush, again denounce the Russians and demand withdrawal of the troops from Georgia. The next day the Secretary flew to Poland and engaged their officials in an agreement for placement of defensive missiles. the Secretary didn't speak directly with the Russians, but warned repeated that they would be ostracized by the 'international community". It seemed that her words were hollow. The Russian tanks would remain past the inaugeration and new President. A few days later, to emphasize the " American" position, Vice President Cheney went to Georgia and signed additional agreements relating to what was described as "humanitarian aid. Striking is that the Bush European policy is an affront to the Russian leadership and another of a fundamental shift from the peaceful coexistence and partnerships in peace that had existed in the close of the twentieth century. The words telling the Russians what they must do seemed hollow and a death knell to the confrontational politics of the Bush Administration. First of all, it's NATO ground forces are largely committed in the Iraq war. The recall of the Georgian troops from Iraq to meet the crisis reflected how thin ground forces are to meet the "challenges of a large scale army set to depose a national government". In the former Soviet sphere it is impossible to simply exclude the Russians as irrelevant or to guise the "establishment of defensive missiles for rouge states. The Russians know that those same missiles can be directed at Moscow. Simply, the Grand Masters of Russia will not be disarmed by Bush-Rice's fool's mate. Every Russian military official receives indoctrination that understands and will preserve the "buffer states" between Europe and Russia. The distance and time to travel and supply large scale armies to conquer Russia met the end of Napolean's army in the 19th century. In the 20th Hitler's eastern conquest met a doom at the footsteps of Moscow. The natural resources of Russia and its neighboring states in oil, gas, and an industrial capacity which are still centrally controlled despite the capitalization in the creation of the "independent states" and their new found partnerships in peace. Russia displayed as much in operations landpower projection into Georgia. And in a certain light, the advantage of experience and planning will come to show. In six months, the Bush-Cheney government and policies will be gone and subject to a new presidential directive. This lame duck position of the President is further limited on options of response due to the assignments of land forces in Iraq. In the meantime, the Russian planners hold a continuity of understanding over the issues. But the primary principle is whether the new President continues the policy of NATO missile deployments and continue "suspension" of strategic arms limitations or show the diplomatic course which guided itself upon coexistence partnership and peace. If the United states is serious about peace in the world, it needs to withdraw the NATO deployments unconditionally. http://www.judicialcandidate.zoomshare.com/2.shtml/42627fd13f808ff8653261bcdea1f09f_48de9aa2.writeback Sat, 27 Sep 2008 15:42:10 -0500 The month of September is one of a change of seasons-and by that I mean more than from summer to fall. On the national scene of Politics, the Presidency, and the Congress, fall has been of one and several Wall Street firms, and their sale and closure to new entities. Goldman Sachs of course is one shining example of a favored company and lucrative commissions in the sale of Governmental bonds and other instruments. Secretary Paulson before his term at Treasury chaired that firm. As their changed of structure and auditing has undergone, with similar preferred, I am highly suspicious of what is now regarded as a "bailout plan" I am reminded that the "new "President in 1932 inherited a failed a failed Republican policy and measured a bank holiday, then a series of Reconstruction programs. As that fiscal crisis has challenged subsequent Administrations. So the economic challenge of today is no greater a measure. It is just one of progress, with failed Administration ready to leave office. As if it is a lasting grasp to "build equities in the Treasury, ala "privatized social security", the current proposals toward stability of the nation are filled with perks and immunities which cannot be if we are nation . Aside from the potential conflicts of interests, and assurances to those leaving office into 'the private sectors" ( without retirement), there is an interweaving of several definitions. This oversimplification with staggering amounts as 700 bn are of such a scale that realities are lost, and indifferences of consequential policies which secure the nation's health, commerce and welfare become muddled. Much of it is the Federal Budget itself, and its dealing should be separated from that of "wall street". Either Presidential candidate will lead the country in another term, with new addresses of freedom, global policies and domestic initiatives. Presumably, neither hopes to inherit instruments which hinder those plans into execution. And if there is anything this has been learned by this Administration, it has failed in the execution of defense, American foreign policy and domestic capabilities. It has deluded itself with a doubling of a national debt while claiming the strive of balanced budget. It has repeated provided stealth to programs which it knows better in a convoluted spin of facts. The dealing with the nation's economy is no different. We are given the public pronouncements that if the "bailout" is not given that "pay- checks will not be, businesses fold," and likely the sky will fall in the uncertainties of tomorrow. We should have better faith in America than that. Counting all the American blessings, and noting the numerous ills of history, (and even late modern American experiences of governmental closings, and financial fiascos), here is still a promise of tomorrow-if the new President can chose his own. Yet the Congress under urgency from the Administration considers binding the next President by prior restriction. An incremental approach to the Federal budget and the raising of the debt ceiling is far more judicious than locking the future capabilities to relieve failed policies. http://www.judicialcandidate.zoomshare.com/2.shtml/cd585d1599257fc2dc66e5c0c7d56326_4870dfc0.writeback Sun, 06 Jul 2008 10:07:44 -0500 In the United States District Court District of New Mexico Eliot P. Gould, Citizens Committee For Eliot Gould, First Judicial Attorney Petitioners v. USDC Civ 08-505 Governor Bill Richardson, MV/DJS Joseph E. Campbell, Mary Herrera ( Secretary of State) Respondents Objection to Defendant Mary Herrera's " Motion to Dismiss" In accordance to the Federal rules of civil procedure and the local rules of the Court, Plaintiff Eliot Paul Gould objects to the Defendant Mary Herrera's "Motion to Dismiss". The motion is specious, misleading and omits substantive facts and issues. The duties and office of the District attorney are derived from the state constitution. The pertinent articles in creating the office is found at Article VI Sec. 24 of the state constitution: [ District attorneys] There shall be a district attorney for each judicial district, who shall be learned in the law, and who shall be a resident of New Mexico for three years next prior to his election, shall be the law officer of the state and of the counties within his district, shall be elected for a term of four years, and shall perform such duties and receive such salary as prescribed by law. (NMSC Art VI Sec 24) A Second Article of the state constitution relating to the elective franchise including: Article VII: [Qualifications for holding office.] A. Every citizen of the United States who is a legal resident of the state and is a qualified elector therein, shall be qualified to hold any elective public office except as otherwise provided in this constitution. The language and specific term "learned in the law" has not been changed or amended to any other qualification relative to the District office qualification. Interpreting away from the straight forward and honest reading of the constitution and its ambiguity in remaining unchanged proposes not order but confusion. It is not a nebulas of questions, but the result of deliberate and intentional consideration. The qualification is clear with the language "except as otherwise provided in this constitution' gives emphasis to the straight and honest reading of the clear language of the constitution. By comparison, the constitutional language related to judges as members of the bar presents itself defined number of years experience in its own section of the constitution. Art IV related to the office and duties of the District attorney provides that ambiguity for the flexibility which defined understanding of "learned in the law" and its meaning falls upon an oath, faithful service and subject to judicial scrutiny . Further, as constitutionally derived, related to elective office, the qualification as might be with an interpretive of the constitution is an argument of the moot. It is not a matter of license, but of election franchise, direct from the constitution itself, and without exception or interpretation, except by the constitution itself. The ambiguity in the language is assurance of choice on the ballots of the people, government of the people. That is the genuine purpose for the democratic way of governance , the so-called 'new federalism" The motion confuses the clear reading of the constitution with the requirements of appointive office, standardized merit selection and performance of public employees. "The legislature may provide by law for such qualifications and standards as may be necessary for holding an appointive office. " The distinction is to remain integrity of the office direct of the people and upon their approval in the election franchise. That is in contrast with "Assistant District attorneys," and other appointed public servants. Legislative enactment requires the license for the performance of their duties and the public integrity. That still,however, falls into a different constitutional class and the qualifications are derived separately. The Petitioner holds to those points, that he was legally qualified for ballot placement and removed under a specious practice. The Respondent Mary Herrera's "motion to dismiss' is thus objected to. Accompanying is a memorandum in support of that position. The Petitioner notes that by Agreement the parties seek to have heard the question of the motion as it may be heard. Respectfully submitted, Dated: Memorandum in Support The complaint here is not an abstract exercise. It holds a solemn purpose. The fundamental interest herein is the Equal Protection Clause. Fundamental is the right to seek public office in accordance to the prescribed constitutional requirements. I. New Mexico's constitution provides: [District attorneys] There shall be a district attorney for each judicial district, who shall be learned in the law, and who shall be a resident of New Mexico for three years next prior to his election, shall be the law officer of the state and of the counties within his district, shall be elected for a term of four years, and shall perform such duties and receive such salary as prescribed by law. (NMSC Art VI Sec 24) The essence of this case evolves from when the State District Court found the Petitioner "learned in the law" then directed the Secretary of State to remove him by ballot placement for not being a "licensed attorney". By doing so the District Court added additional qualification to the state constitution. At the same time, it also extended an order contrary the equal protection assured under the Voter Rights Act as amended: A violation of a subsection(a) is established if, based on the totality of circumstances, it is shown that the political processes leading to nomination or election in the State or political subdivision are not equally open to participation by members of a class of citizens protected by subsection (a) in that its members have less opportunity to participate in the political process and to elect representatives of their choice. In the particular, the requiring of a license as a prerequisite for office or a suitable foundation for removal from enfranchisement, absent the explicit qualifications of the state constitution, by the district court acts as a "hybrid poll tax/literacy test" which results in a denial or abridgement or be arbitrarily dispensed. In this case, the contravention may be measured with the equal treatment with the other candidates who declared for the office and placed on the ballots being voted upon by the people. There were four candidates who submitted their declarations of candidacy for the Democratic primary of June 4, 2008. Two candidates, Joe Campbell and Eliot Gould, challenged one another's nomination petition. The other two candidates, Anthony "AJ" Salazar and "Angela "Spence" Pacheco petition signatures and declaration met no challenge; and thus presumed correct. The Campbell petition, along with a second petition ( the "Sena petition" ) challenging the Gould nomination petitions complained " that the Supreme Court in Chavez equated "learned in the law" as substantially the same as "licensed"; and thus, Gould was not qualified. Gould's challenge upon the Campbell petitions were that it did not contain the required number, included fraudulent and irregular signatures, and other improprieties. The Sena petition challenging the Gould petitition mirrored the Campbell objection, citing the shorthand "learned in the law" equates as "licensed attorney" and therefore the Gould candidacy must be stricken. Taken with a totality of circumstances, including that New Mexico statutes prohibit change of registration subsequent to the date of a proclamation by the Governor to hold the elections, and thus any effort to seek the office as an independent or other party and that the fact that the State Supreme court denied without reason or explanatory the petition for mandamus, ("no state compelling reason"), the result is not only the absence of equal ballot placement, but practically acts to foreclose the petitioner from active participation in the (future) government of the state. Further, the majority the over 950 signatures (by axiom a minority of the First District population) are denied their opportunity to elect their candidate of choice. Many had expressed that proposals to improve the court and justice system . Others expressed a dissatisfaction by personal experiences. Clearly, the result of the Court proceedings was to disenfranchise. The proceedings were not intended to any legitimate purpose of the State. The record is filled with parallels to practices of the post Reconstruction South and contrasts a specious use of nomination objections. In Harper v. Virginia Board of Elections (383 U.S. 663 1966) the U.S. Supreme Court held 6- 3 that state poll taxes (for both federal and state elections) were officially declared because they violated the Equal Protection Clause of the Fourteenth Amendment. Harper followed a series of voting rights cases over states statutory techniques that had been used to disenfranchise along racial lines. These techniques included direct disenfranchisement and indirect disenfranchisement. "Direct" disenfranchisement refers to actions that explicitly prevent people from voting or having their votes counted, as opposed to "indirect" techniques, which attempt to prevent people's votes from having an impact on political outcomes (e.g., gerrymandering, ballot box stuffing, stripping elected officials of their powers). In 1965 the Voter Rights Act of 1965 was enacted to provide a comprehensive and direct solution to protecting the rights guaranteed by the Fifteenth Amendment. With the support of President Lyndon B. Johnson, the Voting Rights Act of 1965 was specifically designed to combat racial discrimination in voting. The Voting Rights Act was used to register millions of Americans who had never been allowed to vote. Unfortunately, once the registration of new voters increased, many schemes were developed in an attempt to cancel out the effect of the new voters. Attempts such as changing elected positions to appointed positions, gerrymandering election boundaries, and changing single-member districts to at-large elections became commonplace. The Voting Rights Act was crafted with two main areas of coverage. The first area governed special remedies for specific areas of the country where statistics showed large differences between the number of eligible voters and the number of persons actually registered to vote. These special provisions authorized the United States Attorney General to provide for examiners and observers to register voters and monitor elections, banned the use of tests, and also required these certain areas to submit any changes in their voting laws to the federal government for approval . The second aspect of the Act generally prohibited discriminatory voting practices throughout the entire nation. The Voting Rights Act has been extended three times since 1965 -- in 1970, in 1975, and in 1982. While provisional section related to 'pre- clearance provisions' expired in 2007, the Voting Rights Act provision against discriminatory practices is permanent. Extended the right to vote is a right to seek public office. In New Mexico, "Every citizen of the United States who is a legal resident of the state and is a qualified elector therein, shall be qualified to hold any elective public office except as otherwise provided in this constitution. (Article VII, New Mexico State constitution) The threshold of qualification is direct of the state constitution. While the qualification is determinant for judges having been in the actual practice of law for 6 years or the attorney or that the attorney general of the State be a licensed attorney of the supreme court, those thresholds are direct of the state constitution under different sections. Applying the same standard of qualifications for those offices to displace the direct language of the State constitution upon the qualifications for the district attorney is a breach of the direct language and meaning of the qualifications. Chavez v. Evans,[79 N.M. 587, 446 P.2nd 445 ] the state Supreme court case introduced and underlying the objections to the candidacy and leading to the candidacy being stricken from the ballots of the June 4, 2008 Democratic primary, while holding to the effect that "learned in the law" is substantially the same as "licensed attorney' did not simply equate "licensed and learned" as interchangeable ( as is commonly understood). It did not attempt to raise itself to substantially amend the express state constitution. It presented the state's compelling rationale as to why certain candidates were withheld from the ballots in 1968. Chavez was written in the era Harper and voting rights expanse. It established a review of the threshold qualifications of the slate of "People 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 the questions involving each of 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 the mandamus to 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 neither 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 creating authority 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. As Tijerina 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 an absence 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 h 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 our constitution, 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 be adopted 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 that time 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. The instant case, however, is a different set of circumstances than were present in 1968. The state district court added additional qualification when it found the candidate "learned in the law" and then proceeded to disqualify the candidate for not being a "licensed attorney." The state District court provided no rationale nor any compelling reason of the State in its decision. The District Court decision merely took a bareface order to disqualify the candidate. Appeal under the election code was made to the Supreme Court of the State. The appeal provided that the District Court was 'adding qualification" to an otherwise qualified candidate. It provided that the candidate was "invoking his right", that time was essential, and that there was an imperative and principle to the state Supreme court appeal. Given that the address to the state Supreme Court was denied without rationale or reason, the change is invidious discrimination-a classification which is arbitrary, irrational, and not reasonably related to a legitimate purpose. (McLaughlin v Florida; 379 US 1984 (1964) Invidious discrimination applies a differentiation scale to people who belong or appear to belong group or another group. The group being discriminated against is generally seen as being lower, lacking or deficient in some way. (This type of discrimination is an unfair and often illegal practice that can go on daily in many different forms.) Relative to the specifics of the instant case, it is based upon the 'assumption that a license is required' rather than a right assured by state and federal constitutions and statutes. The right to seek public office of a future government cannot be so disregarded. It fundamentally breaches the Equal Protection Clause The persons who filed for the office of First Judicial District Attorney on March 18, 2008 constitute a group or class-those persons who filed for the office. Differentiating the results of those filings, only one person was stricken from the ballot. He was not stricken for age requirement nor residency requirements, nor upon the requirements explicit in the election code. Those would be factual issues which apply. The foundation for striking from equal balance placement was upon a "legal issue"-licensing as a requirement. The end result is that result that the candidates for primary election are only of those that are "pre-qualified' upon an arbitrary or less than transparent standard. The desire to harm a politically unpopular group" is not a legitimate interest of the State. (Thompson v. Colorado, 278 F3rd 1020; 10th Circuit 2001)." When a state acts with invidious intent there is an equal protection violation even if no facial distinction has been made." The apparatus of the state's courts to give legitimacy to such desires, but must be upon conformity with are consistent to the constitutional standard. "Once the franchise is granted to the electorate, lines may not be drawn which are inconsistent with the equal Protection Clause of the Fourteenth Amendment. Thus, state measures which have the effect of denying or diluting a citizen's vote must be justified with a compelling state interest.( Harper at 670, 86 Supreme Court 1079) (striking down the State Poll tax ); Reynolds v. Sims, 377 US 533. Title 42, Section 1973 (h) provides: Congressional finding and declaration of policy against enforced payment of poll taxes as a device to impair voting rights. The Congress finds that the requirement of the payment of a poll tax as a precondition to voting (i) precludes persons of limited means from voting or imposes unreasonable financial hardship upon such persons as a precondition to their exercise of the franchise, (ii) does not bear a reasonable relationship to any legitimate State interest in the conduct of elections, and (iii) in some areas has the purpose or effect of denying persons the right to vote because of race or color. Upon the basis of these findings, Congress declares that the constitutional right of citizens to vote is denied or abridged in some areas by the requirement of the payment of a poll tax as a precondition to voting. Taking the events of "licensing requirement" as the abstract of a payment of a tax, along requiring that as a measure to precondition operates as a "poll tax". The Gould candidacy was not fulfilled but for the additional non-constitutional qualification. While a license 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 a undue, burdensome and while appearing "neutral", it is discriminatory. "To introduce wealth or payment of a fee as a measure of a voter's qualifications is to introduce a capricious or irrelevant factor. The degree of the discrimination is irrelevant. In this context - that is, as a condition of obtaining a ballot - the requirement of fee paying causes an "invidious" discrimination (Skinner v. Oklahoma, 316 U.S. 535, 541 ) that runs afoul of the Equal Protection Clause. Levy "by the poll," as stated in [383 U.S. 663, 669] Breedlove v. Suttles, supra, at 281, is an old familiar form of taxation; and we say nothing to impair its validity so long as it is not made a condition to the exercise of the franchise. Breedlove v. Suttles sanctioned its use as "a prerequisite of voting." Id., at 283. Harper v. Virginia Board of Elections (1966) It results in the abridgement of "the ability of citizens to band together in promoting among the electorate candidates who espouse their political views." v. Jones (99-401) 530 U.S. 567 (2000), Justice Stevens in dissent. Combining and enforcing the requirement of State Bar examiners, and rules thereof, merely blurs beyond the constitutional qualifications as a measurement of the knowledge beyond " learned in the law" also violates another section of Federal statutes related to voting rights. 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. Thus it cannot be employed as a device to prevent equal treatment in the phase of the ballot process. This section of law also extends the contravening practice (as has been intertwined upon a racial or color ) which would be the strict application of Sec.2 of the Voter Rights Act. It is more akin to the lone dissenter in Plessy v Ferguson, the landmark case that upheld the separate but equal doctrine. The lone dissenter, Justice John Harlan, declared, "Our Constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law." II. There are also several "burdensome issues" which were intertwined to the methods determining that the "candidate as not qualified for equal ballot placement. The procedural processes including appeal present issues of due process. The District Court in the proceedings alleging "fraudulent signatures" repeatedly denied the introduction of each tool and witness toward the full investigation. At the same time, it "excused" without comment the statutory requirements which the election code provided upon the Secretary of State. That "due process" seems arbitrary and prejudicial. The very "appeal rights" whereby the determination of the vitality of the candidacy is required to pay the fee for an appeal, and theeafter spend precious days before receiving an "unreasoned" state Supreme Court decision is by axiom an unreasonable deprivation. The garb of "interpretation of the constitution" without reason is a naked affront to the transparency required in bona-fide review . The garb simply is a cloak without statement that impermissibly amends the constitution which those justices are to uphold. That silence is death to the construct that the constitution "speaks for itself". "Every citizen of the United States who is a legal resident and is a qualified elector therein shall be qualified to hold any elective public office except as otherwise provided herein. The state courts are required to uphold the qualifications articulated therein as dutiful to limiting the arbitrary (political) processes. The silence clouds the distinction between those laws that abridge participation from those that encourage participation. It blurs a statutory scheme in which laws are routinely used to exclude the minority or "less than serious candidate" in contrast to the preserving elections free of fraud. Such invites future frauds and schemes as it perpetuates a decision without reason. It is the failure of the state Courts to uphold that which not only the clear and concise language of its constitution, but the solemnest to uphold the laws of the United States and its constitution (as provided in State constitutional Article I that bears this matter be brought to the Federal District. Certainly it is not an ordinary request, but integrity in the election process is of pillars set upon the Federalism which constitutes the American working order. The role of the Court should be to protect the people's right, not to thwart it. The equitable principle in light of the actions, even "when the plaintiff's are likely to prevail weigh heavily against the nullification of election results. (Cardonna v. Oakland Unified School District , 785 F.Supp 837). The "well established" rule is that courts will not block a scheduled election. Clark v. Roemer, 500 U.S. 646 (1991) But there is a compelling reason "for the clear and unequivocal direction by the United States District Court toward a compliance affirming the right of the candidate toward participation. The process is likely to repeat if not corrected. Additionally, for with the disqualification by the State court decisions, and with so much time passed, yet still 120 days before the general election , how can it be that the candidate is stands foreclosed from seeking the office by other means? And would it be met with the same circular actions that have been present? It may be an extraordinary relief request but the "totality" includes the New Mexico's statutory scheme is askew. In part, that reliance bars the change of party and or independent candidate status by virtue of a "governor's proclamation" [NM state election code 1-18-12.] The governor shall issue a public proclamation calling a primary election to be held in each county on the date prescribed by the Primary Election Law [1-8-10 NMSA 1978]. The proclamation shall be filed with the secretary of state on the last Monday in January of each numbered year. 1-8-13 Primary Election law, contents of proclamation. The proclamation calling a primary election shall contain: A. the names of the major political parties participating in the primary election; B. the offices for which each political party shall nominate candidates; provided that if any law is enacted by the legislature in the year in which the primary election is held and the law does not take effect until after the date of the proclamation but prior to the date of the primary election, the proclamation shall conform to the intent of the law with respect to the offices for which each political party shall nominate candidates; C. the date on which declarations of candidacy and nominating petitions for United States representative, any office voted upon by all the voters of the state, a legislative office, the office of district judge, district attorney, state board of education, public regulation commission or magistrate shall be filed and the places where they shall be filed in order to have the candidates' names printed on the official ballot of their party at the primary election ; D. the date on and place at which declarations of candidacy shall be filed for any other office and filing fees paid or, in lieu thereof, a pauper's statement of inability to pay; E. the final date on and place at which candidates for the office of United States representative and for any statewide office seeking preprimary convention designation by the major parties shall file petitions and declarations of candidacy; F. the final date on which the major political parties shall hold state preprimary conventions for the designation of candidates; and G. the final date on and place at which certificates of designation of primary election candidates shall be filed by political parties with the secretary of state. As used in the primary Election law [1-8- 10 NMSA 1978], "statewide office" means any office voted on by all the voters of the state. And the foreclosing measures that : 1. If a person has been a candidate for the nomination of a major political party in the primary election, he shall not have his name printed on the ballot at the next succeeding general election except under the party name of the party designated on his declaration of candidacy filed for such primary election [1-8-19 NMSA 1978]. 2. The restriction defined upon "minor political party" in qualification; removal; requalification. A. To qualify as a political party in New Mexico, each political party through its governing body shall adopt rules and regulations providing for the organization and government of that party and shall file the rules and regulations with the secretary of state. Uniform rules and regulations shall be adopted throughout the state by the county organizations of that party, where a county organization exists, and shall be filed with the county clerks. At the same time the rules and regulations are filed with the secretary of state, the governing body of the political party shall also file with the secretary of state a petition containing the hand- printed names, signatures, addresses of residence and counties of residence of at least one-half of one percent of the total votes cast for the office of governor or president at the preceding general election who declare by their signatures on such petition that they are voters of New Mexico and that they desire the party to be a qualified political party in New Mexico. B. Each county political party organization may adopt such supplementary rules and regulations insofar as they do not conflict with the uniform state rules and regulations or do not abridge the lawful political rights of any person. Such supplementary rules shall be filed with the county clerk and the secretary of state in the same manner as other rules are filed. C. All political parties that appeared on the 1988 New Mexico general election ballot shall continue to be qualified political parties unless disqualified in accordance with this subsection. Beginning with the general election in 1990, a qualified political party shall cease to be qualified for the purposes of the Election Code [1-1-1 NMSA 1978] if two successive general elections are held without at least one of the party's candidates on the ballot or if the total votes cast for the party's candidates for governor or president of the United States, provided that the party has a candidate seeking election to either of these offices, in a general election do not equal at least one-half of one percent of the total votes cast for the office of governor or president of the United States, as applicable. After giving notice by registered mail to the state chairman of the party at his last known address, the secretary of state shall remove all material dealing with the political party from his file of parties qualified in New Mexico. D. The secretary of state shall then notify all county clerks of the removal and nonqualification of the political party. The county clerk is then authorized to remove such rules and regulations from the county files. The county clerk shall immediately notify by mail all voters registered as members of such party of the removal and nonqualification of the party. E. To requalify, the party must again comply with the provisions of the Election Code dealing with filing requirements for political parties. When if fact that such measures have been used to keep able candidates from ballot positions in the general election. ( In the case of the "green party", it was removed under this statute despite it remaining with over 3 times the threshold requirement of the now statutory requirement of 3 per cent of the last general election vote. Those restrictive measures constitute a totality of circumstances. But in each, they are to use of exclusion rather than the momentum of inclusion. The result is a perpetuation of "delay, deny, defer". Equitable principles preclude the continued promotion of the "plan of elections" as proclaimed by the state governor. The legitimate interests of the state are to perform "free and proper elections" respective of the rights of the individuals, candidates, and parties. The extension of actions, supplanting the free rights, or requiring a servitude to the State, or the promotion of exclusionary rules under a guise of law, with the result that "charter members" ( see Rehnquist, "All the Laws But One) are passed through and generally face no opposition in the general elections is a scheme askew. The introduction of a specious argument as the Chavez argument presents is a non-bona-fide use . It compels intervention. It proves the qualifications were raised and implicitly amended the constitution . The practice in no manner applied the compelling reason for election challenges-fraud and corruption. It is in direct contrast to the District Court dismissed the complaint against the factual questions of fraud, irregular practices, and the denial of a jury "to determine as to whether the candidate did indeed provide the true number of signatures in conformity with the election code. In contrast, the requirements of Election code pertaining to notices were not duly provided as they must. Other instances, such as the practices of attorneys and counsels prosecuting objections by their representation for client- voter defies the clear transparency required under elections and election finance laws. In the instance of Sena, the partner to the representing counsel for the firm signs the complaint for the (voter) --a retired lawyer. No application is made under the Campaign finance laws of the state-as is required; nor is there an investigation as to its character. Such practices run counter the concept provided in the recent Crawford vs. Marion County Election Board . (2007 term) Justice Stevens writes " in the 2003 Democratic primary for East Chicago Mayor-though perpetrated using absentee ballots and not in-person fraud-demonstrate that not only is the risk of voter fraud real but that it could affect the outcome of a close election. There is no question about the legitimacy or importance of the State's interest in counting only the votes of eligible voters. Moreover, the interest in orderly administration and accurate recordkeeping provides a sufficient justification for carefully identifying all voters participating in the election process. While the most effective method of preventing election fraud may well be debatable, the propriety of doing so is perfectly clear.... They must be taken with the seriousness which matters breaching the propriety of elections must initiate... Safeguarding Voter Confidence Finally, the State contends that it has an interest in protecting public confidence "in the integrity and legitimacy of representative government." Brief for State Respondents, No. 07- 25, p. 53. While that interest is closely related to the State's interest in preventing voter fraud, public confidence in the integrity of the electoral process has independent significance, because it encourages citizen participation in the democratic process. As the Carter-Baker Report observed, the "electoral system cannot inspire public confidence if no safeguards exist to deter or detect fraud or to confirm the identity of voters." Supra, at 10. III. Before the furtherance down that road of fact or frauds, the propriety of the question of ballot qualification is made so to not proceed into mootness. The viability of practical and principle must be established before time upon the general election runs out. If the candidacy was as complained proper , it is practically foreclosed unless there is a supplemental filing under a formula of least restrictive signature requirement as provided the "major' parties ( and without the variable of multiple magnitude, and upon a date , such as August 19, 2008 ( 90 days prior to general election) for the residency and registration requirements. If the candidacy is not as complained, and improper to the office, then such thinking toward cure by principle and practicality is not necessary. '" http://www.judicialcandidate.zoomshare.com/2.shtml/ac3d79472fba2780c561ca6fadd65a08_480e492e.writeback Tue, 22 Apr 2008 15:23:10 -0500 The Supreme Court of the State did what was unthinkable in the nominations challenge in the District attorney's race. It denied that mandamus that was petition to restore the name "Eliot P. Gould" to the ballots of the June 3, 2008 Democratic primary. The ruling sanctioned the District Court's finding that while I was "learned in the law", I was disqualified for not being licensed. As I had presented in the District Court, I presented to the Justices. The qualification is toward an elective office. The state constitution is apt for a variety of reasons to provide the qualification to include "learned in the law" with age requirements, residency requirements, and natural signatures of the people. Such is part of the progress of democracy and the unfolding freedoms which we as a nation can share. The license question is not relevant as the office is direct to the people for a term. In this case, 2009- 2012. I tried to preserve the straight-forward reading of the constitution with regard to being "learned in the law". I provided that any other reading provided an imbalance in a superior law of elections and constitutional right to vote. I offered that extended the right to vote was also an assured right to seek public office. Well they mopped the floor with me. Denied, I could only wonder what part of elections to be equal in each phase of the ballot process was misunderstood? ON is equal. Off is not. Enfranchised. Not Enfranchised. All the other is legal argument passing the reality with legal fiction. In the meantime it is as if the Great experiment of Democracy has transformed into a generation of selected few and excluded others. Denied, I again applied to the justices--for reconsideration-- but I hold little optimism. http://www.judicialcandidate.zoomshare.com/2.shtml/4f2b41012c47fe9d23fe89d8fb511069_47f3e940.writeback Wed, 02 Apr 2008 15:14:56 -0500 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. I will be eligible and legally qualified to hold this office at the beginning of the term. If a candidate for any office for which a nominating petition is required, I am submitting with this statement a nominating petition in the form and manner as prescribed 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. "To the extent that it prohibits a corporation from making expenditures expressly advocating the election or defeat of a candidate, except through political committee is unconstitutional as applied. (Beaumont v. FEC, 395 Federal Supplement 2nd)1001 ( Dist Ct of Colo, 2005) The power of the state under the United States Constitution (Art 1 SS 4 cl 1) to regulate the time , place and manner of holding elections for which power is matched by state control over the election process for state offices does not justify, without more, abridgement of the fundamental right to vote. Tashjian v Republican Party of Connecticut (479 US 208, 107 S.Ct. 544) Government must play an active role in structuring elections an active role since as a practical matter, there must be substantial regulation of elections if they are to be fair and honest, and if some sort of order is to accompany the democratic processes; the right to vote is the right to participate. Burdick v. Takushi, 504 US 428, 112 S.Ct. 2059 A state has legitimate interests in preventing corruption . Nixon v. Shrink Mo Gov't PAC, 528 US 377, 120 S Ct 897 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 sure to be with contamination, undue prejudice, intimidation, or outright hostility 9.A 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 allegators." 12. The complaint 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 is 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. It is malice. It is prejudice. 13. The time 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 Presidential Study of the Textbook of Woodrow Wilson and Missile Boat Diplomacy, served for the Naval Liaison Services at the Center for Policy Development. In 1995 , he wrote The Fulcrum of Peace: An Introduction to President Clinton's Partnerships for Peace (PfP). 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 thugs, agents or goons to block the entrances to the school yards, or muddle the roadways to the polling places. All just 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 for 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 Communication which does not specify the name of the sponsor or the name of the Responsible officer who authorized the printing or publication of such material , in any election, special election, school district election or an election authorizing a bond hearing. This prohibition extends only to handbills, petitions, circulars or similar written material. C. Any person ,organization, or political committee violating the provisions of Sub- section A or B of Section1- 19-16 NMSA 1978 is guilty of a fourth degree felony and shall be punished as provided by the Criminal Code [30-1-1 NMSA 1978] 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. Related to this Section of the Disclosures , there was an absolute and determinable cost to the filing of the complaint of Sena. It is within the record itself. The cost for filing the complaint "Complaint Challenging Candidacy for District Attorney for the First Judicial District" required a filing fee of $122. Service by the Sheriff's Department adds $25. Hiring an attorney is be a thing of debt. Assuming a reputable firm's charges (as it clearly names itself in a non individual capacity) with a four hour minimum, the expenses are bound to exceed the $500 limitation. 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. An "administrator at law " was substantially the same as that of Attorney at law 88GLS 069 ; First Appellate District of Illinois 89-655 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. by http://www.judicialcandidate.zoomshare.com/2.shtml/2c22505fc22729d645c8537c123a8c26_47d455a3.writeback Sun, 09 Mar 2008 16:24:51 -0500 Preventing Prosecutorial Errors, Omissions, and Catastrophic Indifference: Vital to District Attorney's Duties By Eliot Gould, Candidate for First Judicial District Attorney Justice done equally bad is not equal justice, at least the kind of justice I think about when I put my hand over my heart and recite the "Pledge of Allegiance." It involves new techniques of investigation, assurances of unflawed chains of evidence, and faithful and reasoned applications. Santa Fe should not continue its silence. The intent of good programs to meet the challenges of dealing with misdemeanor, domestic violence or traffic cases have consequences upon the future. Our beacon to the world must be based faithfuly ona system of Constitutional integrity. Protecting the quality of life, both environmentally and in terms of civil rights, which is presently enjoyed in the First Judicial district (Santa Fe, Rio Arriba, and Los Alamos counties): this is one of my highest considerations in the principles of my candidacy for District Attorney. My focus is on the safety and way of life for all of the people, yet the approach has a few pitfalls of seeming to be divided between being a man of principle and of ideals, questing towards a distant vision, conflicting with the need for urgent and pragmatic correcting of serious jurisprudential problems. I have long held that the mis- delivery of services, the basic things which State government by political theory should be doing, has resulted in disparaging effects and a downward spiral for too many of our citizens. Citizens' complaints about those practices and their un-constitutionality, have for the most part been met with "deny, defer and deflect." It is almost as if this has become the Mantra of the State when criticism is brought forth, a mantra which prevents learned lessons, and endeavors for better practices. One example was the Redhouse case which was featured in the earlier Sun --News issues and pointedly presented several flaws (and I dare say: "fatal flaws") in the misdemeanor courts. Eventually, after six months, Mr. Redhouse was released and all charges were dismissed : this was the point of a habeas corpus petition. We clear witnessed that the Magistrates Courts utilize a markedly inferior public defender system. We witnessed contrived arraignment processes, over 100 days late, and that "the 60 day " bond requirement was either misinterpreted or ignored as an obligation by the Magistrate Courts This is better understood with an examination of the Courts' calendar years, rather than a single case, which by now is a "given" as an example of a badly broken system. In 2002, the Santa Fe Magistrate Court had filed 843 misdemeanor cases. Based on the disposition codes entered by the Administrative Office of the Supreme Court, only 29 resulted in Case Trials. In 2007, the number of misdemeanor cases had risen to 1521, and the number of case trials was reduced to 8! The only reasonable conclusion from these statistics is that the "system" is out of balance, and lacking constitutional integrity. That conclusion becomes even clearer, and its underlying disparaging effect, with some additional information. The report shows while there were 8 trials out of a total of 1526 cases, there were 5942 traffic cases, and there were also 2452 bench warrants issued last year. Most bench warrants were issued for failure to appear. > The summarized jail time for sentencing and warrants in 2007 was 137, > 018 days. Fines and fees totaled $511,989. Community service and > credits for jail time were summarized as negative figures, so those > are not useful figures now to consider the consequence and effects of sentencing procedures. > While my inquiry produced Exhibit copies of Orders to Show Cause > > relative to the issuances of the bench warrants, the notices and > postages for notifications were omitted, as "our case management system is unable to supply them." > The figures are shocking, and that is the case without even beginning to delve into profiling based on racial, economic or age characteristics. What is certain is > that we have in this district a less than constitutional integrity. The > figures are alarming in comparison to findings of Court statistics > nationwide related to "innocence," wherein 94 % of the accused are in fact, decidedly guilty, without doubt, and more than reasonably so. To them I say as your > future District Attorney:" Do the crime and you'll do the time". Then there is the glaring fact that 6% are not guilty beyond a shadow of > a doubt. In Santa Fe, there a 99% certainty that even they will face jail > time; this, despite constitutional protections and assurances. Unfortunately, these are totallyobscured in misapplied practices. I aim to correct all of those misapplied practices. We must prevent the downward spiral to which no innocent person should be subjected. We have the obligation to do so. It is our consitutinal duty. I am constantly told by Santa Feans that the present practices exclude a full and adequate disclosure of evidences before a Neutral court, and are neither fair nor just; however, what we have here in Santa Fe too oftenis a Magistrate Court reminiscent of the Spanish Inquisition or the Salem Witch Trials. The defendant is outmatched and overwhelmed by the silence of grey and hardened walls, facing an accusation which is circular ("I don't want to hear the case. He must guilty, just because he was accused!") The procedures are designed and amply planned aforethought to induce a confession or a desired statement within 48 hours. There are lots of ways to do that, but they involve casting aside all of the constitutional protections-or worse, just pretending that they are in effect. Public Defender cases, where there is a court entered appearance of a public defender, numbered 28 in 2005 and 2 in 2006 (Figures for 2007 were not included in the report), but during those > same years, the probation violation hearings ( presumably resulting in > jail time) were 257 in 2005 and 155 in 2006. > The quality of life that we share in Santa Fe and in the First Judicial District requires innovation and improvements in the way that things are done. The courts seem to operate in a 15th century manner, with a few 20th century rules. Yet we are now in the 21st century. Ladies and Gentlemen: my opponents have worked for many many years in the First Judicial District Attorney's Office to achieve their high level in this absurd 4 dimensional Martian Checkers' legality. The citizens have been left behind, and my opponents are not capable of changing anything, nor are they so inclined. The beacon we deserve in this district is equal, balanced, and Constitutional integrity, which requires precision in every detail, and I shall faithfully serve. http://www.judicialcandidate.zoomshare.com/2.shtml/5c09e98609a92121e85f0f04072469b8_479627d9.writeback Tue, 22 Jan 2008 11:28:57 -0600 Priority: Normal I was just reading about the medical marijuana lawsuit in Eddy County--where a parapalegic has sued the sheriff's Department for sezing his medicinal marajuana."Leonard French received a license to cultivate and use small quantities of marijuana for medicinal purposes from the State of New Mexico under the Lynn and Erin Compassionate Use Act. The American Civil Liberties Union (ACLU) of New Mexico, which represents French, says the deputies' actions violated not only that law, but also state forfeiture laws and a constitutional prohibition on unreasonable searches and seizures. "The New Mexico state legislature, in its wisdom, passed the Compassionate Use Act after carefully considering the benefits the drug provides for people who suffer from uncontrollable pain, and weighing those benefits against the way federal law considers cannabis," said Peter Simonson, ACLU Executive Director. "With their actions against Mr. French, Eddy County officials thwarted that humane, sensible law, probably for no other reason than that they believed federal law empowered them to do so." At the Trader Joe's parking lot while gathering signatures I was also asked my veiw. And I began with the thoughts that I had left off in the Legislative campaign of 2006. That included the 5- 4 US Supreme Court decision that continued the Federal pre-emption of what former Justice OConner speaking in a dissent from the Court in Gonzales v. Angel Reich: "This case exemplifies the role of States as laboratories. The States' core police powers have always included authority to define criminal law and to protect the health, safety, and welfare of their citizens. Exercising those powers, California (by ballot initiative and then by legislative codification) has come to its own conclusion about the difficult and sensitive question of whether marijuana should be available to relieve severe pain and suffering. Today the Court sanctions an application of the federal Controlled Substances Act that extinguishes that experiment, without any proof that the personal cultivation, possession, and use of marijuana for medicinal purposes, if economic activity in the first place, has a substantial effect on interstate commerce and is therefore an appropriate subject of federal regulation. I thought further that the Compassionate Use Act was a responsible act and measure. It didn't reach the threshold of supervisory authorty necessary to satisfy the Majority of the Courts' reservations and constitutional objections. Instead it relegated the statutory authority in much the same manner as the California scheme which was struck down. And without discounting that the Court would change in the next presidential term, I just admited that I was for the bill. A statutory or judicial plan however should have addressed the substantial "commerce clause questions" which were brought to reveiw by the majority. The majority did not address the due process clause which were raised. Justice Stevens, the senior justice who many expect to be next in line to retire was adament for the Majority, "since marijuana is a popular part of commerce, and that the Commerce Clause applies whether the commerce is legal or not. Justice Scalia wrote a separate concurrence that aimed to differentiate the decision from the more recent results of United States v. Lopez and United States v. Morrison. Although Scalia voted in favor of limits on the Commerce Clause in the Lopez and Morrison decisions, he said that his understanding of the Necessary and Proper Clause caused him to vote for the Commerce Clause with Raich for the following reason: " Unlike the power to regulate activities that have a substantial effect on interstate commerce, the power to enact laws enabling effective regulation of interstate commerce can only be exercised in conjunction with congressional regulation of an interstate market, and it extends only to those measures necessary to make the interstate regulation effective. As Lopez itself states, and the Court affirms today, Congress may regulate noneconomic intrastate activities only where the failure to do so "could ... undercut" its regulation of interstate commerce. ... This is not a power that threatens to obliterate the line between "what is truly national and what is truly local." The issue of the Commerce clause must therefore be dealt with with any statutory scheme. Or perhaps a legislative address to the Congress for an exemption from the commerce clause.