STATE OF NEW MEXICO COUNTY OF SANTA FE FIRST JUDICIAL DISTRICT COURT a 5! First Judicial Districi? STATE OF NEW MEXICO, Court Plaintiff, MAR 14 2016 v- PHIL A. GRIEGO, Sama Fe- NM 8723342268 Defendant. MOTION TO STRIKE OBJECTIONS COMPEL PRODUCTION OF SUBPOENAED MATERIALS The State of New Mexico, through Deputy Attorney General Sharon Pino and Assistant Attorneys General Clara Moran and Zach Jones, moves this Court to strike Legislative Council Service?s Obiections of Legislative Council Service to Subpoena dated March 3, 2016, ?led March 10, 2016, and compel production of documents subpoenaed by the State on the grounds that LCS failed to comply with Rule 5-511 NMRA. Alternatively, the State asks this Court to compel production of subpoenaed documents for the reasons herein stated. In support of this Motion, the State avers: FACTS Facts relating to the 202 ?le 1. Upon information and belief, LCS documents instances when a legislator seeks its assistance. One legislative measure?s ?le can contain subparts if multiple legislators seek consultation on the same measure. When a legislator agrees to waive con?dentiality in his ?request or statement for service? to LCS pursuant to NMSA 1978, Section 2-3-13 (1951), LCS treats that waiver as affecting only that legislator?s portion of its ?le; E, other portions of the ?le containing requests by other legislators on the same measure are still treated as con?dential. _S_e_e Objections of LCS p. 2. Representative Jim R. Trujillo consented to disclosure with regards to his communications with LCS on House Joint Resolution 8 (2014) the measure permitting the State?s sale of 139-141 East De Vargas in Santa Fe. Objections of LCS p. 2. Former Senator Griego has not consented to similar disclosure. Materials disclosed to the State by LCS due to Representative Trujillo?s consent show that Trujillo contacted LCS on or about January 13, 2014, to start the process of drafting HJ 8. Representative Trujillo is the only sponsor of HJ 8. As stated above, LCS has not disclosed anything relating to Griego?s communications with LCS on HJR 8. The State does, however, have evidence that Griego?s contact with LCS pre-dated Trujillo?s. Evidence of Griego?s early involvement with HJR 8, legislation he later pro?ted from, is material to the State?s criminal case against Griego. Energy, Minerals and Natural Resources Department Deputy Cabinet Secretary Brett F. Woods disclosed an email dated December 18, 2013, from LCS employee Gordon Meeks in which Meeks stated Griego ?came by a few minutes ago? to speak with him regarding the De Vargas sale. Exhibit A, attached. The State is unaware of contact Griego had with LCS regarding HJR 8 prior or subsequent to Meeks? email. But, as stated above, the dates, frequency, and content of Griego?s contacts with LCS on this issue are material in Griego?s pending criminal case. Facts relating to the Ethics ?le 1. A Senate Investigative Subcommittee convened on an ethics matter against Griego relating to his ?nancial interest in the sale of the De Vargas property. Obiections of LCS p. 3 n. 1. The State is unaware when it convened, why it of?cially convened, how often it convened, what was said at any hearing(s), what materials were reviewed or relied upon, and what ?ndings it made. Griego resigned on or about March 14, 2015, while the Legislature was still in session. That same day, his legal counsel publicly released a document stipulating to facts and admitting ethical violations. Exhibit (?Stipulated Facts and Ethical Violations?), attached. LCS subsequently chose to ?[make] public the same information? despite not having a written waiver of con?dentiality from Griego as required by NMSA 1978, Section 2-15- Obiections of LCS p. 4.1 It is unknown if Griego executed a written waiver authorizing LCS to make this disclosure. Griego?s resignation caused the Subcommittee to abandon its ethics investigation. Griego can waive con?dentiality in these proceedings pursuant to NMSA 1978, Section (1993). LCS, in its Objections, did not indicate he has not done so. 1 It is unknown if the Subcommittee authorized release of this document and its attachments pursuant to NMSA 1978, Section (1993), if the parties agreed to its release, or if LCS simply released the document because Griego had already done so. In any event, this uncertainty should weigh against allowing LCS to assert con?dentiality in documents publicly released by both it and Griego. ARGUMENT I. Objections should be stricken for failure to comply with Rule 5-511 NMRA. Rule 5-511 NMRA imposes duties on those who respond to subpoenas. That rule states that ?[w]hen information subject to a subpoena is withheld on a claim that it is privileged the claim shall be made expressly and shall be supported by a description of the nature of the documents, communications, or things not produced that is suf?cient to enable the demanding party to contest the claim.? Rule NMRA. LCS has failed to comply with this rule, instead stating that summary of withheld documents will be provided to counsel in accordance with Rule Objections p. 5. LCS does not state when it will deliver this summary of documents relevant to this pending case, and Rule NMRA clearly requires the ?description of the nature of the documents, communications, or things not produced? simultaneous with the ?ling and stated therein. I_d. Not only did LCS fail to provide a summary as Rule 5-511 NMRA requires, its ?led Objections are not at all speci?c enough to allow the State to dispute its broad claims of con?dentiality and privilege on constitutional and statutory grounds. These bare assertions prejudice the State because it is not reasonably able to contest any of claims. On March 11, 2016 (the day after LCS ?led its Objections), undersigned counsel, based on failure to comply with Rule 5-511 NMRA, requested of LCS counsel a summary of documents. LCS counsel, Thomas M. Hnasko, responded that same day that he was ?preparing a log?, but would like to speak with the parties before disclosing it. The parties have a conference call set for Tuesday, March 15, 2016, at 9:00 am to discuss this. However, Rule 5-511 NMRA does not contemplate the party serving the subpoena having to make efforts to force an objecting party to properly follow procedures for objection or having to assist in the formulation of the ?summary? of withheld documents. Because the Objections did not conform to the rules of discovery at initial ?ling, and because this non?conformation prejudiced the State, this Court should strike them. II. Rule 11-501 NMRA requires disclosure. In general, court rules require broad disclosure of documentary evidence in judicial proceedings. ?Unless required by the constitution, these rules, or other rules adopted by the supreme court, no person has a privilege to refuse to produce any object or writing.? Rule 11- 501 NMRA. LCS does not rely on any court rule in its Objections and its constitutional arguments are unavailing for the reasons discussed below. The Speech or Debate Clause does not prohibit pre-trial disclosure of documents. LCS objects under the Speech or Debate Clause as to both the 202 ?le and the records of the interim legislative ethics committee. This argument is misplaced because the Speech or Debate Clause does not bar pre-trial discovery of documentary evidence. The Clause applies, if at all, during trial: [W]hile the Speech or Debate Clause prohibits hostile questioning regarding legislative acts in the form of testimony to a jury, it does not prohibit disclosure of Speech or Debate Clause privileged documents to the Government. Instead, as we have held before, it merely prohibits the evidentiary submission and use of those documents. In re Search of Electronic Communications in Account of chakafattah@gmail.com at Internet Service Provider Google, Inc., 802 F.3d 516, 529 (3rd Cir. 2015). Thus, the Clause cannot be invoked to prohibit the State from obtaining documentary evidence for pre-trial investigation. United States v. Renzi, 651 F.3d 1012, 1036-39 (9th Cir. 2011) Clause does not incorporate a non~disclosure privilege as to any branch?); but see United States v. Rayburn House Of?ce Building, Room 2113, Washington DC. 20515, 497 F.3d 654, 660 (D.D.C. 2007). State?s subpoena is based on its need to prepare for trial and obtain the material, relevant evidence contained in the ?les. The State has already established a strong prima facie case of criminal conduct by its investigation and Griego?s formal, stipulated admissions to ethical violations. The documents must be produced in response to the subpoena. The trial admissibility of any document is an issue for another day. IV. LCS must disclose the 202 file. A. Communications are not con?dential when they constitute an element of a crime or are made in furtherance of a crime. As discussed above, the Speech or Debate Clause does not bar pre-trial discovery of evidentiary documents. Even setting this distinction aside, the Clause also ?does not privilege either Senator or aide to violate an otherwise valid criminal law in preparing for or implementing legislative acts.? Gravel v. United States, 408 US. 606, 626 (1972). Because the Clause exists to protect the independence of the legislature, any con?dentiality ?does not extend beyond what is necessary to preserve the integrity of the legislative process.? United States v. Brewster, 408 US. 501, 517 (1972). ?[F]inancia1 abuses by way of bribes would gravely undermine legislative integrity and defeat the right of the public to honest representation. Depriving the Executive of the power to investigate and prosecute and the Judiciary of the power to punish bribery is unlikely to enhance legislative independence.? E. at 524-25. Thus, the Clause does not prevent the State from investigating ?the excesses of those who would corrupt the process by corrupting? legislators. E. at 526. The LCS, however, asserts an absolute privilege. This is inconsistent with United States Supreme Comt precedent and the State?s power to ?investigate and prosecute? crimes by legislators. E. at 524-25; Gravel, 408 U.S. at 626. B. Fraud, bribery, perjury, and the other charged crimes are not legislative acts. ?Taking a bribe is, obviously, no part of the legislative process or ?mction; it is not a legislative act.? Brewster, 408 U.S. at 526. This is crucial because the Speech or Debate Clause protects only ?legislative acts.? 1d. at 515-16; _Re_nzi, 651 F.3d at 1021. Legislative acts include ?speech? and ?voting? but not what Griego stands accused of various crimes committed ?in preparing for or implementing legislative acts.? M, 408 U.S. at 626legislative act itself; rather, it is preparation for a legislative act. C_f. Further, the investigation in this case, including Griego?s stipulated admissions, make a strong prima facie showing of criminal violations. Therefore, if the ?le contains any statements relevant to fraud, bribery, perjury, or the other charged crimes, it cannot be withheld under the Speech or Debate Clause. E4 Brewster, 408 U.S. at 524?25. C. Because the 202 file is sought in a judicial proceeding, any statutory con?dentiality cannot trump the court?s rules of discovery. Under Rule 11?501 NMRA, ?[u]nless required by the constitution, these rules, or other rules adopted by the supreme court, no person has a privilege to refuse to produce any object or writing.? Despite this, LCS asserts con?dentiality under NMSA 1978, Section 2-13-3 (1951), which states that LCS shall not reveal ?the contents or nature of any request or statement for service, except with the consent of the person making such request or statement.? While Section 2-13-3 might prohibit general disclosure in an extrajudicial context, the calculus changes in a judicial proceeding. a privilege is not recognized or required by the New Mexico Constitution or court rule, then the Legislature may not enact such a privilege because to do so would con?ict with Rule 11?501.? Albuquerque Rape Crisis Center v. Blackmer, 11, 138 NM. 398. If any statutory privilege con?icts with court rules, then ?the statutory privilege is not given effect and the constitutional or court rule privilege prevails.? I_d. For the reasons discussed above, the Speech or Debate Clause does not prohibit disclosure in this case. Court rules require disclosure under Rule 11-501 NMRA. Therefore, Section 2?13?3 cannot be read to prevent discovery. Albuquerque Rape Crisis Center, 2005- NMSC-032, 1f 11; see also State v. Strauch, 1] 39, 345 P.3d 317 (statutory provisions that ?arguably create evidentiary privileges cannot prevent court-ordered disclosure of communications that would be mandated by the discovery and evidence rules of this Court?). V. LCS must disclose the investigative records of the interim legislative ethics committee. A. The Speech or Debate Clause does not privilege the investigation into a legislator?s ?nancial con?icts. The central allegation against Griego is that he failed to disclose his interest in a State contract. Griego admitted to this interest in his formal admission to the interim legislative ethics committee. The committee investigation related to the ?nancial disclosures and Griego?s personal interest, not to ?a pending bill or any other legislative matter.? United States v. Rose, 28 F.3d 181, 188 (D.D.C. 1994). The investigation is therefore not shielded by the Speech or Debate Clause. Rose, 28 F.3d at 188-89; United States v. Myers, 692 F.2d 823, 849 (2d Cir. 1982). B. The probable-cause standard for release of investigatory materials is met because Griego formally admitted to ethical violations. NMSA 1978, Section (1993) states that the interim legislative ethics committee ?shall not publicly disclose any information relating to the ?ling or investigation of a complaint until after a ?nding of probable cause has been made that a violation has occurred.? In this case, Griego entered a stipulated admission to ethical violations (Exhibit B, attached) before the committee made any ruling. LCS argues that because the committee did not rule on probable cause, the statute prohibits disclosure. This argument ignores the fact that an admission to a higher standard necessarily includes a ?nding to any lower standard. State v. Bent, 2012-NMSC-O3 8, 11 18, 289 P.3d 1225. Because Griego?s formal admissions conclusively establish the admitted violations, the standard of probable cause is necessarily met. Section therefore authorizes disclosure of the investigative records. And, as stated above, even if that statute created any con?dentiality, it cannot overcome court rules of discovery in a judicial proceeding. Albuquerque Rape Crisis Center, 2005-NMSC-032, 11 11; 2015-NMSC-009, 39. C. Release of Griego?s stipulation waived any privilege in the remaining investigative records. LCS maintains that the ethics materials is shielded by Rule 11-503, the lawyer-client privilege. But that privilege disappears when privileged communications are released to a third party. State v. Allen, 2000-NMSC-002, 1[ 33, 128 NM. 482. Under Rule 11-511 NMRA, person who possesses a privilege against disclosure of a con?dential matter or communication waives the privilege if the person voluntarily discloses or consents to disclosure of any signi?cant part of the matter or communication.? In this case, the most signi?cant portion of the investigation its outcome was already released by both Griego and LCS. The remainder of the investigative ?le is therefore no longer con?dential. Rule 11-511 NMRA. D. The investigative file is material for rebutting Griego?s claims. In his stipulation, Griego formally admitted to an unethical interest in a state contract. He asserts, however, that he was ?unaware? of his ethical obligations under the New Mexico Constitution. By denying his mental state in a formal proceeding, Griego has placed this crucial fact in controversy and opened the door to rebuttal by the State. Any evidence supporting or refuting Griego?s admissions is therefore material and may be utilized without offending the Speech or Debate Clause. m1, 769 F.3d at 747-50. The investigative ?le must therefore be released. VI. Conclusion and request for relief stated objections are without merit. The State respectfully requests this Court strike the ?led Objections and order LCS to produce both the 202 ?le relating to HJR 8 and the records related to the interim legislative ethics committee?s investigation. Alternatively, the State requests this Court simply order disclosure of all material, relevant evidence pursuant to the subpoena. The State attempted to contact opposing counsel, Thomas M. Clark, for his position on this @1493 by e-mail on 03/13/16 and by phone the morning of 03/ 14/16 and was unable to reach prior to ?ling; however, opposition to this Motion is presumed. 10 Respectfully submitted: March 14 2016 Date lk?hmo??l?i?r?j?eputy Attorney General Clara Moran, Assistant Attorney General Zach Jones, Assistant Attorney General I certify that on March 2016, I emailed a copy of this Motion to defense counsel, Thomas M. Clark and LCS counsel, Thomas M. Hnasko a? Depd?h?torney General ll FIFTY-SECOND LEGISLATURE FIRST SESSION, 2015 BEFORE THE SENATE HEARING SUBCOMMITTEE of the INTERIM LEGISLATIVE ETHICS COMMITTEE STIPULATED FACTS AND ETHICAL VIOLATIONS IN THE MATTER OF AN ETHICS COMPLAINT AGAINST SENATOR PHIL A. GRIEGO Stipulated Facts 1. Senator Phil A. Griego has been a member of the New Mexico Senate since 1997 and is currently serving a four-year term that began in 2013. 2. In the months before the Second Session of the Fifty-First Legislature convened, Senator Griego agreed to assist Galisteo Street Inc. in a proposed purchase of certain improved property owned by the State of New Mexico through the Energy, Minerals and Natural Resom'ces Department (EMNRD), with a physical address of 139-141 East DeVargas Street in Santa Fe, New Mexico, 87501. 3. The preperty is designated as a historic "contributing" property under the City of Santa Fe's historic preservation standards. It is adjacent to a hotel owned by Galisteo Street Inc. and, at all material times, was leased by Galisteo Street Inc. ?'om the State of New Mexico. Exhibit A, Appraisal af139-l4] East De Vargas Street, March 2014. 4. The lease agreement conferred upon Galisteo Street Inc. the absolute and unconditional ?rst right to purchase the property at fair market value based upon an appraisal if the EMNRD ever offered the property for sale. Exhibit B, Lease Agreement. 5. The sale of any state-owned property with a value of more than $100,000 requires legislative approval through the passage of a joint resolution. See Section 13-6-3 NMSA 1978. 6. Senator Griego initiated the legislative approval process by obtaining the agreement of a member of the house of representatives to introduce the joint resolution as House Joint Resolution 8 (HJR 8). Senator Griego monitored the progress of HJR 8 throughout the legislative process. Exhibit C, Enrolled and Engrossed Copy of HJR 8. 7. The house of representatives passed HJR 8 on February 14, 2014. Exhibit D, Journal of the House of Representatives, y'ty-F irst Legislature, Second Session, page 278. 8. On February 18, 2014, with fewer than 48 hours remaining in the legislative session, the Senate Rules Committee reported favorably on HJR 8, the resolution was withdrawn ?om the ?nal committee to which it was referred and it was placed on the senate calendar for ?nal consideration. Exhibit B, Journal of the Senate, ifty?F irst Legislature, Second Session, page 5] 6. 9. When Senator Griego was recognized to present HJR 8 to the senate on February 19, 2014, he deferred to a senate colleague to present the measure. Exhibit F, Video of Senate Floor Proceedings, February 19, 2014, nm/governor-nm 10. Senator Griego remained on the ?oor of the senate during the debate on HJR 8, and, consistent with the requirement of Senate Rule 7-5 that a senator vote on each question "unless he has a direct personal or pecuniary interest in the question", Senator Griego exited the ?oor immediately prior to the vote and did not return to the ?oor until the vote was announced. Exhibit F. 11. Senator Griego did not publicly disclose any direct or indirect interest in the matter that was before the senate. 12. The senate approved HJR 8. Exhibit G, Journal of the Senate, ifty-First Legislature, Second Session, page 543. 13. On March 24, 2014, Galisteo Street Inc., as buyer, executed an agreement entitled "Buyer's Agency Agreement" with Excalibur Asset Management LLC "acting by and through its broker, Senator Phil Griego". Exhibit H, Buyer's Agency Agreement. 14. The agreement provided that Senator Griego, as agent, would receive $50,000, plus gross receipts tax, for "obtaining a signed Purchase Agreement, coordinating the documentation needed for closing, and assisting Buyer in matters that may arise prior to closing". Exhibit H. 15. After the 2014 legislative session ended, Senator Griego continued to monitor the required review of the proposed sale by the Capitol Buildings Planning Commission and did not disclose his interest in the transaction. 16. Galisteo Street Inc. paid the agreed-upon ?at fee of $50,000, plus the applicable -2- gross receipts tax, to Excalibur Asset Management LLC on or about June 26, 2014. Exhibit I, Settlement Statement. 17. The fee equaled 8.8 percent of the ?nal purchase price, which was in excess of the customary percentage charged by real estate agents for the purchase and sale of improved property in Santa Fe, especially given the simplicity of the transaction. Acknowledgments by Senator Griego 18. Senator Griego contends that he was unaware of the prohibition in Article 4, Section 28 of the Constitution of New Mexico against a legislator having an interest in a contract with the state that was authorized by any law passed during the legislator's term. 19. Senator Griego now understands the force and effect of that constitutional prohibition and that it applied to his interest in the purchase of the property. 20. Senator Griego understands the seriousness of his conduct and willingly submits himself to the disciplinary decision of the senate. Senator Griego wishes to make clear to the body that he has been a duly elected member of the senate for 18 years, that prior to that time he served as an elected member of the Santa Fe City Council, and, until this instance, he has never been accused of any ethical impropriety with respect to his elective duties. Stipulated Ethical Violations 21. Senator Griego's receipt of a commission from Galisteo Street Inc. following the sale of the property violated Article 4, Section 28 of the Constitution of New Mexico, which prohibits "any member of the legislature during the term for which he was elected nor within one year thereafter, be[ing] interested directly or indirectly in any contract with the state which was authorized by any law passed during such term". 22. Senator Griego violated Senate Rule 26-1, which requires him to treat his of?ce as a public trust, conduct himself in a manner that justi?es the con?dence placed in him by the people and maintain the integrity and discharge ethically the high responsibilities of his of?ce. 23. Senator Griego violated the Senate Oath of Ethical Conduct in which he af?rmied that he would "ethically and with integrity discharge the high responsibilities placed upon" him, -3- "abide by the Spirit as well as the letter of the senate rules pertaining to ethical conduct" and "scrupulously avoid any act of impropriety or any act that gives the appearance of impropriety". Exhibit J, Journal of the Senate, Ifty-F irst Legislature, First Session, page 5. 24. Senator Griego, therefore, submits himself to the discipline of the senate. Accepted by the Senate Hearing Subcommittee of the Interim Legislative Ethics Committee Linda M. Lopez, Chair March 2015 Brancard. Bill, EMNRD From: Woods, Brett.F. EMNRD Sent: Wednesday, December 18, 2013 12:12 PM To: Brancard. Bill, EMNRD Subject: Fwd: sale of de Vargas building Sent from my Verimn Wireless 40 LTE DROID Original Message -- Subject: sale of de Vargas building From: "Meeks, Gordon" To: "Woods, Brett.F, CC: Brett, Phil Griego came by a few minutes ago. It appears that the statutory authority is contained in Section 13-6-2 NMSA 1978 and the NMAC Section 1.5.23.9. So to ratify it pursuant to 13-6-3 we would probably need the terms of the sale to put in a joint resolution. Check with Bill Brancard to verify our understanding of this. Gordon