District Court of Second Judicial Dist. v. McKenna, 21881

• Decision Date: 21 September 1994
• Docket Number: No. 21881,21881
• Citation: 881 P.2d 1387,1994 NMSC 102,118 N.M. 402
• Parties: . Patricia E. McKENNA, Respondent. Supreme Court of New Mexico
• Court: New Mexico Supreme Court

Page 1387

881 P.2d 1387

118 N.M. 402

DISTRICT COURT OF the SECOND JUDICIAL DISTRICT, Petitioner, v. Patricia E. McKENNA, Respondent.

No. 21881.

Supreme Court of New Mexico.

Sept. 21, 1994.

[118 N.M. 404] Freedman, Boyd, Daniels, Peifer, Hollander, Guttmann & Goldberg, P.A., Charles Daniels, Albuquerque, for petitioner.

Patricia E. McKenna, pro se.

Bridget U. Lotze, Taos, Barbara L. Shapiro, Albuquerque, for amicus curiae Family Law Section Bd.

Robert M. Schwartz, Dist. Atty., Steven S. Suttle, Asst. Chief Deputy Dist. Atty., Albuquerque, for amicus curiae Dist. Attys' Ass'n.

Tom Udall, Atty. Gen., Mary Catherine McCulloch, Asst. Atty. Gen., Santa Fe, for amicus curiae Office of the Atty. Gen.

Ray Twohig, P.C., Ray Twohig, Albuquerque, for amicus curiae New Mexico Criminal Defense Lawyer's Ass'n.

Maureen A. Sanders, William Carpenter, Tracy McGee, Albuquerque, for amicus curiae N.M. Trial Lawyers Ass'n and N.M. Defense Lawyers Ass'n.

OPINION

RANSOM, Justice.

The Second Judicial District Court petitioned this Court for a writ of superintending control, asking generally for guidance and assistance in controlling and regulating the proper exercise of special grand jury petitions allowed by the New Mexico Constitution. See N.M. Const. art. II, Sec. 14 (providing that two hundred registered voters may petition the district court to convene a grand jury). The District Court also asks that we specifically decide the legality of the grand jury petition in question. At issue is our holding in Cook v. Smith, 114 N.M. 41, 45 834 P.2d 418, 422 (1992), in which we stated that a district court has a "residuum of supervisory authority over the convening of [a] grand jury" and that "the district court must make ... a determination of the legality of the proposed grand jury inquisition." We assume jurisdiction of this case pursuant to Article VI, Section 3 of the New Mexico Constitution and articulate some further standards for determining whether a public-initiated grand jury petition is valid. We determine that the petition in question is invalid.

Facts and proceedings. On December 20, 1993, Patricia E. McKenna filed a petition in the Second Judicial District Court seeking to convene a grand jury. In its entirety the petition reads as follows:

COMES NOW Patricia E. McKenna and hereby submits the Petition of over two hundred voters in Bernalillo County to empanel a grand jury with a Special Prosecutor to investigate and, if appropriate, to indict, Second Judicial District Judge Anne M. Kass and any other judge and/or officer of the Court, those persons in the Office of the District Attorney, the Department of Human Services, and any person or other public or private agency that have engaged in acts of misconduct or abuses of authority resulting in the perpetuation of child abuse, extortion, violations of civil rights, and other wrongdoing or violations of law.

The Bernalillo County Clerk verified that the petition contained the requisite number of voters' signatures. Thereafter, because the petition named one judge of the District Court explicitly and named all of its judges and court employees implicitly, the judges determined that they should recuse themselves as a matter of judicial ethics. The District Court notified this Court of the recusals and filed the petition for a writ of superintending control.

Court's authority under superintending control. The New Mexico Constitution grants this Court "superintending control over all inferior courts." N.M. Const. art. VI, Sec. 3. "The power of superintending control is the power to control the course of ordinary litigation in inferior courts...." State v. Roy, 40 N.M. 397, 421, 60 P.2d 646, 661 (1936). Inherent within that power is the authority to regulate pleading, practice, and procedure in the district courts. Id. at 422, 60 P.2d at 660. We exercise this authority by promulgating rules that regulate pleading, practice, and procedure, see Ammerman v. Hubbard Broadcasting, Inc., 89 N.M. 307, 310, 551 P.2d 1354, 1357 (1976), cert. denied, 436 U.S. 906, 98 S.Ct. 2237, 56 L.Ed.2d 404 (1978); by issuing opinions or decisions, see Alexander v. Delgado, 84 N.M. 717, 718, 507 P.2d 778, 779 (1973); by issuing administrative orders, see Russillo v. Scarborough, 935 F.2d 1167, 1173 (10th Cir.1991); and by issuing extraordinary writs, see Roy, 40 N.M. at 422, 60 P.2d at 661.

Although our jurisdiction under superintending control seemingly is boundless, see Roy, 40 N.M. at 422, 60 P.2d at 662, we have stated previously that we will exercise that jurisdiction through the use of writs in exceptional circumstances only, see State ex rel. Transcontinental Bus Serv., Inc. v. Carmody, 53 N.M. 367, 378, 208 P.2d 1073, 1080 (1949). In Carmody we said that "this [C]ourt may intervene by an appropriate writ in an exercise of its power of superintending control, if the remedy by appeal seems wholly inadequate ... or where otherwise necessary to prevent irreparable mischief, great, extraordinary, or exceptional hardship[, or] costly delays and unusual burdens of expense." Id. (citation omitted).

Using these standards, this Court has used its power of superintending control to address issues "of great public interest and importance," State Racing Comm'n v. McManus, 82 N.M. 108, 110, 476 P.2d 767, 769 (1970), in which "our refusal to entertain jurisdiction might amount to a denial of justice," id. at 111, 476 P.2d at 770. We also have used this authority when it was the only means available "to maintain the integrity of our court system and the respect in which it is held." State ex rel. Anaya v. Scarborough, 75 N.M. 702, 712-13, 410 P.2d 732, 739 (1966). We will not, however, use our power of superintending control simply because the parties expect the matter to be appealed eventually. See State ex rel. Oil Conservation Comm'n v. Brand, 65 N.M. 384, 388-89, 338 P.2d 113, 116 (1959). "The [power of] superintending control will not be invoked merely to perform the office of an appeal." State Game Comm'n v. Tackett, 71 N.M. 400, 404, 379 P.2d 54, 57 (1962).

McKenna challenges the exercise of superintending control in this case on several grounds. First, she argues in essence that because she is not a judge or a member of the judiciary this Court cannot use its superintending authority to issue a writ to her. In acting, however, this Court is not issuing a writ to McKenna; we are taking control of the course of the litigation in this case. By issuing the writ of superintending control, we are informing the recused judges of the District Court that we deem this case to be sufficiently important that we are deciding it directly rather than designating a judge of another district court.

McKenna also contends that the District Court's petition for a writ of superintending control is premature and deficient because the District Court has not shown how it would be harmed if another district court actually ruled on the petition to convene a grand jury. We agree with McKenna that "[a]nticipation of a ruling, the execution of which might be damaging," is not alone sufficient grounds to invoke our supervisory authority. We believe, however, that allegations of judicial misconduct and abuse raise matters of significant public interest. Further, as we determined in State ex rel. Anaya, this Court has a strong interest in preserving the integrity of the judicial system and in ensuring that "traditional respect and high regard in which courts generally are held will in no way be encroached upon." 75 N.M. at 710, 410 P.2d at 737.

Finally, the District Court argues that superintending control is proper in this case because McKenna's petition is vague and overly broad. McKenna responds that a more specific petition should not be required because, once empaneled, the grand jury's inquiry is not limited to the allegations in a petition. McKenna bases her contention on State ex rel. Deschamps v. Kase, 114 N.M. 38, 39, 834 P.2d 415, 416 (1992), in which this Court held that a judge must charge the grand jury with the duty of investigating any public offense. McKenna's argument fails for two reasons. First, our decision in Deschamps was based on our interpretation of NMSA 1978, Section 31-6-9 (Repl.Pamp.1984). The legislature has since amended Section 31-6-9, see 1993 N.M.Laws, ch. 71, Sec. 1, and the mandatory language requiring the district judge to allow the grand jury to inquire into any public offense has been deleted. Under the amended statute the district court may limit the grand jury's investigation to those specific incidents identified in the petition. See NMSA 1978, 31-6-9 (Cum.Supp.1994) ("The district court judge convening a grand jury shall charge it with duties and direct it as to any special inquiry into violations of law that he wishes it to make.").

Second, a grand jury's inquiry always has been limited. In Deschamps, 114 N.M. at 39, 834 P.2d at 416, and in Cook v. Smith, 114 N.M. 41, 45, 834 P.2d 418, 422 (1992), this Court stated that the grand jury is not allowed to engage in a "fishing expedition." "[T]he common law does not endow a grand jury with an unlimited charter to forage for unlawful conduct on speculative whim." Cook, 114 N.M. at 45, 834 P.2d at 422. Accordingly, as explained in further detail below, the petition to convene a grand jury must contain sufficient information to enable the court to determine whether the petitioners seek a legitimate inquiry into alleged criminal conduct or malfeasance of a public official or whether the petitioners seek nothing more than a witch hunt.

Sufficiency of grand jury petitions. We continue to respect the sanctity of the public's constitutional right to petition the courts to convene a grand jury. See Cook 114 N.M. at 43, 834 P.2d at 420. We will not limit the ability of individual citizens to seek legitimate redress for the criminal wrongdoing or malfeasance of public officials, because this would offend the balance struck...