834 P.2d 418 (N.M. 1992), 20517, Cook v. Smith

• Judge: BACA, MONTGOMERY, FRANCHINI and FROST, JJ., concur.
• Parties: Elizabeth H. COOK, Frank Bowden, James T. Cooper, James Hare and Billy Johnson, Petitioners, v. Hon. W.C.
• Docket Number: 20517.
• Date: 07 July 1992
• Court: New Mexico Supreme Court
• Citation: 834 P.2d 418,114 N.M. 41,1992 -NMSC- 041

Page 418

834 P.2d 418 (N.M. 1992)

114 N.M. 41, 1992 -NMSC- 041

Elizabeth H. COOK, Frank Bowden, James T. Cooper, James Hare

and Billy Johnson, Petitioners,

v.

Hon. W.C. "Woody" SMITH, District Judge, Respondent.

No. 20517.

Supreme Court of New Mexico.

July 7, 1992

[114 N.M. 41] Oman, Gentry & Yntema, P.A., Hessel E. Yntema, III, Albuquerque, for petitioners Cook, et al.

Robert M. Schwartz, Dist. Atty., Steven S. Suttle, Asst. Chief Deputy, Dist. Atty.,

Page 419

[114 N.M. 42] Albuquerque, Jones, Snead, Wertheim, Rodriguez & Wentworth, P.A., John Wentworth, Santa Fe, for respondent Smith.

OPINION

RANSOM, Chief Justice.

Article II, Section 14 of the New Mexico Constitution states that "a grand jury shall be ordered to convene ... upon the filing of a petition therefor signed by not less than the lesser of two hundred registered voters or five percent of the registered voters of the county." In this mandamus action we assumed original jurisdiction, N.M. Const. art. VI, Sec. 3, to decide whether a district judge enjoys discretionary authority to refuse to convene a grand jury requested by petition. We conclude a judge is mandated to convene the grand jury or otherwise substantially comply with the request.

Facts and proceedings. Registered voters of Bernalillo County filed a petition in district court requesting that the court convene a grand jury and appoint a special prosecutor ¹ to investigate alleged misconduct of unspecified persons at the Albuquerque Technical-Vocational Institute. The petition stated:

We the undersigned registered voters in the county of Bernalillo, hereby petition the judges(s) of the Second Judicial District Court, pursuant to Article II, Sec. 14 of the New Mexico State Constitution, to convene a grand jury to investigate allegations of malfeasance, misappropriation of public money, and any other illegal acts committed by any individual associated with or employed at any time by the Albuquerque Technical-Vocational Institute.

These allegations include, but are not limited to, the following: fraud, malfeasance, improper disbursement and handling of public funds, improper employment practices, destruction of public records to hide improper and questionable financial transactions from public view, authorizing T-VI personnel to make trips for personal reasons and reimbursing their expenses from T-VI funds, procurement of life insurance for select T-VI management that violates New Mexico anti-donation statutes, concealment from the New Mexico Legislature of balances in accounts at fiscal year end, and illegal disposal of T-VI leased vehicles to accommodate T-VI management.

The district court denied the petition without the benefit of a hearing. The denial was premised on the court's "Constitutional and Statutory authority and obligations * * * [to] determine that matters in the petition are reasonably within the lawful scope of Grand Jury inquiry." The court then articulated certain reasons why the petition should be denied. According to the court, inquiries into the matters raised in the petition were "being conducted by the appropriate authorities" and the New Mexico Attorney General's office had "elected to pursue matters in the Grand Jury petition by civil suit rather than by criminal charges." The court stated that the grand jury should "not be used as a 'watchdog' for specific government agencies and should not and may not be used to conduct fishing expeditions." Finally, convening a grand jury "would not be in the public interest and would be legally inappropriate under present circumstances."

Petitioners filed an original action in this Court seeking a writ of mandamus or, in the alternative, a writ of superintending control to require the district court to convene the grand jury as requested.

Mandamus, nature of issue. Mandamus will compel only the performance of ministerial acts. NMSA 1978, Sec. 44-2-4; Lovato v. City of Albuquerque, 106 N.M. 287, 289, 742 P.2d 499, 501 (1987). Discretionary acts are beyond the reach of the writ. Id. Consequently, the issue framed by this action is whether the district court has any discretion under Article II, Section 14 not to convene a grand jury when

Page 420

[114 N.M. 43] presented with a public petition conceded to have met the requirements of Section 14.

Constitution is mandatory. We begin with the text of Article II, Section 14: "[A] grand jury shall be ordered to convene ... upon the filing of a petition therefor" signed by the requisite number of voters. ² By its plain terms, Section 14 is mandatory. While the court impliedly must determine the legality of the inquiry proposed by the petition, the sole issue committed to the discretion of the court appears to be verification that the petition meets the constitutional conditions, namely whether the petition contains the requisite number of signatures and whether the signatories are registered voters of the county. Section 14 vests no further discretion in the district judge.

Here, the court expressly found that the petition contained the threshold number of signatures, and the parties have not questioned the number of signatories or their legitimacy. The constitutional conditions being satisfied in all respects, the district court was under a duty to convene the grand jury.

--Constitution reflects populist values. We find further support for our conclusion in the policies advanced by Section 14. The citizens of New Mexico have seen fit to elevate to constitutional stature two mechanisms for convening a grand jury. The first expressly vests the judiciary with authority to decide whether to convene a grand jury. The court shall convene a grand jury "at such times as to him shall be deemed necessary." The second, at issue here, is of a different sort. The petition method provides a mechanism for convening a grand jury that is directly responsive to the public. In so doing, Section 14 reflects populist values. The citizens have reserved for themselves direct access to the criminal process. The petition-initiated grand jury checks the traditional process by permitting the citizens to trigger inquiry into matters that for reasons of political acquiescence, oversight, or impasse evade traditional means of inquiry. ³

As such, Section 14 cannot suffer discretionary screening of the scope, nature, or subject matter of inquiry. To do so would subvert the very purpose that Section 14 seeks to advance. It is the grand jurors, under the oath of NMSA 1978, Section 31-6-6(A)(1) (Repl.Pamp.1984), and properly charged with their statutory duties according to Section 31-6-9, who must decide, after full and rigorous inquiry, whether probable cause exists to initiate prosecution against any persons associated with the misconduct identified in the petition. To hold otherwise would disparage the critical values of public participation that we identify in Article II, Section 14.

--Oklahoma courts are deemed to have no discretion to deny a constitutionally sufficient petition request for a grand jury. The petition method for convening a

Page 421

[114 N.M. 44] grand jury contemplated by Article II, Section 14 is relatively rare in the United States. But, in Oklahoma, the only other state in which the public-initiated grand jury enjoys constitutional status, ⁴ the supreme court has held that a district court has no discretion to deny a constitutionally sufficient petition request. State ex rel. Ogden v. Hunt, 286 P.2d 1088, 1093 (Okla.1955). The Oklahoma constitutional provision, as a practical matter identical to ours, provides:

A grand jury shall be convened upon the order of a district judge upon his own motion; or such grand jury shall be ordered by a district judge upon the filing of a petition therefor signed by qualified electors of the county equal to one percent (1%) of the population of the county according to the last preceding Federal Decennial Census, with the minimum number of required signatures being two hundred (200) and the maximum being five hundred (500).

Okla. Const. art. II, Sec. 18.

The court in Ogden, faced with a factual predicate similar to the one we face today, focused on the term "shall" and reasoned that use of the mandatory term clearly precluded any discretionary authority on the part of the district court to deny a valid petition request for a grand jury:

When so initiated, it is plain that the judge is without the power or discretion to decline or refuse to make the order, but must do so if the petition meets the requirements of said section, as the one here admittedly does. This does not mean that he must act instanter or that he is wholly without any reasonable discretion as to when he will order the grand jury convened. It does mean, however, that when a sufficient petition is filed, it lies beyond his prerogative to determine the necessity of having a grand jury, or to refuse to order one because he feels that "no emergency exists" or that "the prosecuting officers" of the county will...