November 15, 2011 – In re Rescue Ecoversity Petition, No. 30,100

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number: 	________________
Filing Date: 	November 15, 2011
NO. 30,100
IN RE RESCUE ECOVERSITY PETITION
APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY
Michael E. Vigil, District Judge
Montgomery & Andrews, P.A.
Walter J. Melendres
Seth C. McMillan
Santa Fe, NM
for Appellees EcoVersity, Prajna Foundation, and Jeffrey Harbour
Stephen C. Ross, County Attorney
Ted Apodaca, Assistant County Attorney
Santa Fe, NM
for Appellees Santa Fe County and Santa Fe County Clerk
Claude D. Convisser
Santa Fe, NM
for Appellants

OPINION
KENNEDY, Judge.
{1} 	In this case, we are asked to construe Article II, Section 14 of the New Mexico
Constitution, which requires a district judge to convene a grand jury “upon the filing
of a petition therefor signed by not less than . . . two percent of the registered voters
of the county[.]” Petitioner filed a handwritten “Citizens’ Petition Pursuant to Article
II, 	Section 	14 	of 	the 	New 	Mexico 	Constitution 	to 	Convene 	a 	Grand 	Jury
Investigation” in the district court, seeking a grand jury investigation of whether fraud
was committed in connection with two non-profit corporations, EcoVersity and Prajna
Foundation. Attached to the Petition were 339 identical petitions entitled, “Rescue
EcoVersity,” stating, “We petition the First Judicial District Court to convene a grand
jury to investigate [the] matters [set forth], pursuant to Article II, [S]ection 14 of the
New Mexico Constitution.” 	Each sheet has two columns, one for the person’s
signature and one for the person’s printed name, directly below a heading which
reads: “Registered voters of Santa Fe City and County.
{2} 	Prior to filing the Petition, Petitioner asked the County Clerk to verify that the
Petition had the required number of signatures of registered voters in Santa Fe County
to convene a grand jury. The County Clerk confirmed that two percent of the number
of registered voters in Santa Fe County is 1,770. The County Clerk stated that the

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process used by her office to verify voter registration in Santa Fe County requires the
address of each signatory to be provided. Specifically, various types of petitions, not
including a petition to convene a grand jury, the applicable statute requires an address
in the petition, and the Clerk uses that address to verify that the person is a registered
voter of Santa Fe County. The address is used to ensure that a signatory on a petition
is not (1) mistaken for another voter with the same name, (2) a voter with the same
name who may have been removed from the file as ineligible, (3) an individual with
the same name who is registered to vote in another county, or (4) an individual with
the same name who is not registered to vote. Since the Petition to convene the grand
jury did not contain addresses, the County Clerk stated that, while she was able to
“confirm that the [P]etition contains 1808 names of individuals matching the names
of registered voters in Santa Fe County[,]” she could “not verify that any of the
individuals who signed the [P]etition are indeed registered voters in Santa Fe County.”
(Emphasis omitted.)
{3} 	Before the Petition was filed, the district court received a letter from the County
Clerk addressing her concern that the Petition did not have addresses, as well as
objections to the convening of the grand jury from an attorney who apparently
represented one or more of the proposed targets of the investigation. 	After the
Petition was filed, the district court noted that these were received, and it entered an

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order allowing the County Clerk and other interested parties to file a response to the
Petition. The County Clerk, EcoVersity, Prajna Foundation, and Jeffrey Harbour, as
an officer and director of EcoVersity and Prajna Foundation, filed responses.
Following a hearing, the district court entered its order making the following findings:
1. 	Article II, Section 14 of the New Mexico Constitution requires a
petition for the convening of a grand jury to investigate the subject
of the petition to be signed by not less than the greater of two
hundred registered voters or two . . . percent of the registered
voters of the county.
2. 	The . . . County Clerk and the [district c]ourt cannot verify that
any of the signers of the subject [P]etition are registered voters of
Santa Fe County because the [P]etition signers did not provide
sufficient information to determine if any signer is a qualified
voter in Santa Fe County.
3. 	The [P]etition in this cause does not meet the [c]onstitutional
requirement for convening a grand jury by petition of two . . .
percent of the registered voters of Santa Fe County.
In accordance with these findings, the district court denied the Petition to convene a
grand jury and dismissed the cause with prejudice. Petitioner appeals.
{4} 	We hold that Article II, Section 14 of the New Mexico Constitution requires
only that the requisite number of signatures that can be matched to the voter rolls as
those of registered voters be submitted in support of a petition for a grand jury
investigation. There is no requirement imposed by the Constitution to produce voters’
addresses. Once the County Clerk determines that the requisite number of persons

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purporting to be registered voters in the county have provided their names and
signatures, and those names correspond to names of registered voters within the
county, the Constitution has been satisfied. We therefore reverse the district court.
I. 	DISCUSSION
A. 	Addresses Are Not Constitutionally Required
{5} 	Under Article II, Section 14 of the New Mexico Constitution, members of the
public can petition the district court to convene a grand jury. To do so, the petitioners
must obtain signatures from two percent or more of registered voters within the
county. At issue here is whether addresses must accompany the signatures, so that the
County Clerk may verify that the signatories are registered voters. Petitioners contend
that addresses are not constitutionally required. New Mexico’s appellate courts have
yet to address this issue, as the three cases that have discussed public petitions to
convene grand juries under Article II, Section 14 dealt with the attributes of the
investigation sought to be instituted by the citizen petition, not the petition’s
signatures. See Pino v. Rich, 118 N.M. 426, 428, 882 P.2d 17, 19 (1994); Dist. Ct. of
Second Jud. Dist. v. McKenna, 118 N.M. 402, 405, 881 P.2d 1387, 1390 (1994); Cook
v. Smith, 114 N.M. 41, 43, 834 P.2d 418, 420 (1992).
{6} 	Matters involving the interpretation of the Constitution or a statute are legal
questions to be reviewed de novo. State v. Lucero, 2007-NMSC-041, ¶ 8, 142 N.M.

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102, 163 P.3d 489. When interpreting the Constitution, we follow the plain meaning
rule. State ex rel. Gomez v. Campbell, 75 N.M. 86, 101, 400 P.2d 956, 966 (1965).
Therefore, “[i]t is presumed that words appearing in [the C]onstitution have been used
according to their plain, natural, and usual signification and import, and the courts are
not at liberty to disregard the plain meaning of words of [the C]onstitution in order to
search for some other conjectured intent.” Id. (internal quotation marks and citation
omitted). 	We will not read into the Constitution “language which is not there,
especially when it makes sense as it is written.” 	Reule Sun Corp. v. Valles, 2010-
NMSC-004, ¶ 15, 147 N.M. 512, 226 P.3d 611 (internal quotation marks and citation
omitted).
{7} 	Here, the pertinent portion of Article II, Section 14 of the New Mexico
Constitution reads as follows:
A grand jury shall be convened upon order of a judge of a court
empowered to try and determine cases of capital, felonious or infamous
crimes at such times as to him shall be deemed necessary, or a grand jury
shall be ordered to convene by such judge upon the filing of a petition
therefor signed by not less than the greater of two hundred registered
voters or two percent of the registered voters of the county, or a grand
jury may be convened in any additional manner as may be prescribed by
law.
Thus, the pertinent constitutional conditions for a petition convening a grand jury in
this case are two: “whether the petition contains the requisite number of signatures

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and whether the signatories are registered voters of the county.” Cook, 114 N.M. at
43, 834 P.2d at 420.
{8} 	Article II, Section 14 does not state that addresses are required to support
ascertaining the identity of persons signing the petition. It only requires signatures
from two percent or more of registered voters. We apply the plain meaning rule in
this instance to indicate that no more is constitutionally required of Petitioners in their
petition for a grand jury investigation. We will not read language which is not there
into the Constitution in order to require petitioners to include addresses of signatories
in their petition.
{9} 	This interpretation of Section 14 is supported by our case law. In McKenna, our
Supreme Court stated that the inquiry as to whether a petition is valid “is quite
minimal.” 118 N.M. at 409, 881 P.2d at 1394. As our Supreme Court explained in
Cook, “Section 14 reflects populist values.” Cook, 114 N.M. at 43, 834 P.2d at 420.
Cook explicitly reminds us that by enacting Section 14, the people of New Mexico
kept for themselves direct access to the criminal prosecutorial system by enacting “a
mechanism for convening a grand jury that is directly responsive to the public.”
Cook, 114 N.M. at 43, 834 P.2d at 420. Cook points out that, in so doing, the people
of New Mexico have retained the right unto themselves to convene a grand jury in
instances apart from the other constitutional provision that conveys such power to the

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judiciary. Id. The grand jury has been recognized since colonial times to act “in the
nature of local assemblies[—]making known the wishes of the people, proposing new
laws, protesting against abuses in government, performing administrative tasks, and
looking after the welfare of their communities.” 	Richard D. Younger, 	THE
PEOPLE’S PANEL: The Grand Jury in the United States, 1634-1941, at 2 (Am. Hist.
Res. Ctr., Brown Univ. Press) (2d ed. 1965). Because there is great importance in
providing the public with an avenue specifically to inquire “into matters that for
reasons of political acquiescence, oversight, or impasse evade traditional means of
inquiry[,]” we will not read further requirements for the petition, such as verification
of signatures by comparing addresses, into the Constitution. Cook, 114 N.M. at 43,
834 P.2d at 420. This informs our decision to maintain the simplicity and accessibility
of the petitioning process and reject Appellees’ argument that addresses must be
included on the Petition.
B. 	Challengers of the Petition Carry the Burden of Production Once
Petitioners Have Presented a Petition With a Sufficient Number of
Signatures Purporting to be Those of Registered Voters
{10} 	Although the petitioner always has “the burden of persuasion, which never
shifts, he may produce sufficient evidence that his opponent’s failure to adduce
contradictory proof either may lead to a decision for [the petitioner], or must lead to
such a ruling.” Duke City Lumber Co. v. N.M. Envtl. Improvement Bd., 95 N.M. 401,

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403, 622 P.2d 709, 711 (Ct. App. 1980) (internal quotation marks and citation
omitted). 	Thus, once the petitioner produces sufficient evidence, the burden of
production falls upon the opponent of the petition to produce contradictory evidence.
{11} 	We hold that once petitions are submitted, which demonstrate on their face that
the signatories purport to be registered voters within the county and that they contain
the names and signatures corresponding to the greater of two percent of registered
voters or two hundred registered voters in the county, the petitioners have met their
initial burden. 	Those who oppose the petition then have the burden to produce
evidence demonstrating that the signatures on the petition are not those of registered
voters within the county. Nonetheless, the ultimate burden of proof still generally
rests with the petitioners whose evidence must be sufficient to overcome those
objections raised by the opposition when the district court reviews the petition’s
sufficiency. 	See Sonntag v. Shaw, 2001-NMSC-015, ¶ 27, 130 N.M. 238, 22 P.3d
1188 (stating that the burden of production shifts to the defendant only after the
plaintiff has made a prima facie showing); Chavez v. Manville Prods. Corp., 108 N.M.
643, 648, 777 P.2d 371, 376 (1989) (holding that when the “plaintiff has introduced
evidence that . . . provides adequate support for all of the essential elements of his
claim, it is for the jury to weigh that evidence against contradictory evidence

CORRECTION PAGE: In re Rescue Ecoversity Petition, No. 30,100, filed 11-15-11 (KSV): 	On page 10, line
16, insertion of “and”. On page 10, line 17, deletion of “and Petitioners’ counsel’s conflict of interest.”
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introduced by the defense and determine if the plaintiff has met the burden of proof
required in the case”).
{12} 	In this case, Petitioners demonstrated that they had signatures from two percent
or more of registered voters within the county. The signatories identified themselves
as registered voters of the county by signing the petitions under the heading that read:
“Registered voters of Santa Fe City and County[.]” Petitioners thus met their burden
of production upon presenting the names and signatures of a sufficient number of
registered voters as confirmed by the County Clerk.
{13} 	Nonetheless, the court dismissed the Petition, stating that “[it] rel[ies] on the
County Clerk for these verifications and without that . . . the [P]etition is not proper
and, therefore, the court is not going to convene a grand jury to investigate the matters
set out in that [P]etition.” Here, the district court misconstrued the role of the County
Clerk. To the extent Petitioner presented the [P]etition to the County Clerk prior to
filing, the County Clerk’s role, though constitutionally superfluous at that point, ended
when the County Clerk certified that a sufficient number of signatures matched names
on the County’s voter rolls. Nothing was required of the County Clerk or Petitioners
for the Petition to be sufficient on its face at the time it was filed with the district
court. 	The district court erred by imposing the additional requirement of further
verification.

CORRECTION PAGE: In re Rescue Ecoversity Petition, No. 30,100, filed 11-15-11 (KSV): 	On page 10, line
16, insertion of “and”. On page 10, line 17, deletion of “and Petitioners’ counsel’s conflict of interest.”
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{14} 	Once the facial validity of the Petition was established, Appellees should have
had an opportunity to present evidence showing that the Petition failed to meet
constitutional requirements. 	It appears as though Appellees desired to present
evidence of withdrawn signatures—the type of evidence which would be useful to
oppose this grand jury petition. 	Yet, the district court, rather than weighing the
evidence offered by each side, abused its discretion by imposing requirements beyond
what was required by Article II, Section 14. See Cook, 114 N.M. at 43, 834 P.2d at
420 (“[T]he 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.”).
{15} 	We reverse, as Petitioners met their burden of production, and we remand for
further proceedings in accordance with this Opinion. 	As Petitioners’ remaining
arguments, regarding the procedure to withdraw signatures and the scope of grand
jury inquiries, involve weighing of evidence and matters which the district court never
made a ruling, we do not address these issues. 	See In re Termination of Parental
R i g h t s 	o f 	W a y n e 	R . N . , 	1 0 7 	N . M . 	3 4 1 , 	3 4 5 ,
757 P.2d 1333, 1337 (Ct. App. 1988) (“It is for the trial court to weigh the evidence,
resolve conflicts in the testimony, and determine where the truth lies. On appeal, this

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[C]ourt may not substitute its judgment for that of the trial court.”); see also Rule 12-
216(A) NMRA (“To preserve a question for review[,] it must appear that a ruling or
decision by the district court was fairly invoked[.]”).
II. 	CONCLUSION
{16} 	Petitioners 	have 	successfully 	met 	their 	burden 	of 	production 	and 	the
constitutional requirements for a grand jury petition. 	In meeting this burden,
Petitioners need not present the addresses of signatories on the Petition. Thus, we
reverse the district court and remand for further proceedings.
{17} 	IT IS SO ORDERED.
_______________________________
RODERICK T. KENNEDY, Judge
WE CONCUR:
__________________________
JONATHAN B. SUTIN, Judge
__________________________
MICHAEL E. VIGIL, Judge