Thursday, September 23, 2010

Supreme Court Orders Secretary Of State To Look Into Reserve Case

By John Severance

RESERVE -- The New Mexico Supreme Court has mandated that Secretary of State Mary Herrera look into the Reserve election case by Sept. 17.
Bob Caylor’s attorney Sherry Tippett filed a writ of mandamus, insisting the Secretary of State and Attorney General look into the case. And the Secretary of State has until Sept. 17 to respond to Tippett’s petition.
The case came about when Caylor lost the Village of Reserve trustee seat back in March by one vote to Keith Riddle. Caylor contested the election, claiming there were 12 people who illegally voted in the election.
“I do think the Secretary of State needs to get involved,” Village of Reserve attorney William Perkins said. “An outside party needs to look at this.”
Riddle could not be reached for comment.
Tippett, who also filed a motion for Reynolds to disqualify himself from the case in district court and to set aside the ruling he made on Aug.25 where he dismissed the case but did not issue an order, had been thinking about filing a writ for sometime.
“They have to do their job,” Tippett said of the Secretary of State’s office
Among the highlights of the writ:
• Tippett wrote that Caylor made a public records request to the Catron County Clerk, requesting voter applications and was denied. Between March 9 and April 30, more than 15 phone calls and emails were sent to the Secretary of State’s office.
• On April 1, a certified letter was sent to Don Francisco Trujillo II, N. M. Secretary of State’s office, Bureau of Elections Division, documenting violations of the Reserve Municipal Election. The letter was signed for but no response has been received from the Secretary of State’s office.
• Tippett also wrote that no investigation has been conducted by the NM Secretary of State and that the office failed to perform its clear legal duty to investigate election fraud in a municipal election. The Petitioner has no plain, speedy and adequate remedy in course of law to investigate the alleged fraud in the municipal election.
The Secretary of State’s office, itself, has been beset by controversy.
The Attorney General's Office, last week, confirmed it was investigating allegations of wrongdoing in the Secretary of State's Office. Current and former employees of Herrera have leveled allegations ranging from possible kickbacks on contracts to office employees campaigning for Herrera on state time. Herrera has said the allegations were false and politically motivated. There were media reports that Herrera had fired two of her employees as well.
Meanwhile, in her motion to district court, Tippett requested that Reynolds be removed from the case and that his ruling be set aside.
Reynolds recused himself on Aug. 26.
And that means the case fell to Judge Kevin Sweazea.
“The case will be kicked over to Sweazea,” Village attorney William Perkins said. “He can issue an order, he can conduct a new hearing, he can consider the motions and make his own decisions.”
And on Tuesday, Tippett filed a writ of mandamus to the State Supreme Court, insisting the Secretary of State and Attorney General initiate an investigation into the case.
Tippett received a fax from Catron County attorney Ron Shortes, which contained a copy of a letter to Reynolds requesting advice from the judge on whether Shortes should represent a voter in the case.
In his letter, Shortes asked “If this person is subpoenaed, do you think it is appropriate for me to represent the voter after our conversation.”
Tippett left her Albuquerque home on Aug. 23 and she did not receive the Reynolds letter until after the evidentiary hearing on Aug. 25.
Tippett wrote in her motion that she appreciated that Reynolds disclosed the content of his comments to Shortes in the letter. But she was concerned about the content of Shortes’ comments to Reynolds regarding the case and what possible bias it might cause Caylor.
“Reserve is a very small town and there are many overlapping relationships. For an example, Mr. Shortes is the County Attorney for Catron County and has served in this position for nearly eight years. As County Attorney, Mr. Shortes represents Catron County Commission Chair Ed Wertheim who is coincidentally married to Village of Reserve Mayor Connie Wertheim, an Intervenor in this case.
“This voter fraud case alleges various improprieties in the Village of Reserve municipal election as well as improper and possible criminal behavior of many individuals employed in both the Village of Reserve and County of Catron.”
Tippett wrote that the conversation between Shortes and Reynolds constituted a clear violation of Rule 21-300 (B)(7) of the Code of Judicial Conduct which states “A judge shall accord to every person who has a legal interesting in a proceeding, or that person’s lawyer, the right to be heard according to the law. A judge shall not initiate, permit, or consider ex parte communications, or consider other communications made to the judge outside the presence of the parties concerning a pending or impending proceeding …”
Tippett also wrote that Shortes violated the Rule 16-305 (A) of the Code of Professional Conduct by engaging in ex parte communication with Reynolds in this case while it was pending. Rule 16-305 (A) clearly states that an attorney shall not “seek to influence a judge, juror, prospective juror or other official by means prohibited by law, these rules or the Code of Judicial Conduct.”
As far as Reynolds dismissing the case but not issuing an order, Perkins said, “Their protest was not timely filed. All of the information was there although it was not titled as such. I do think Judge Reynolds made the right decision.”
Tippett said, “The certificate of election and the canvassing certificate are two different documents. When he made that decision, my jaw dropped.”
The judge gave both sides 15 days to come up with briefs for the case.
“It’s inconceivable to give them 15 days and then dismiss the case,” Tippett said. “When he (Reynolds) recused himself, the motion was to disqualify the judge and set aside the ruling. Then he recused himself but the ruling was set aside. Where do we go from here?
“Now we have Sweazea, and it will be up to him whether he sets aside the ruling or orders another hearing.”

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