STATE OF NEW MEXICO COUNTY OF SANTA TE. FIRST JUDICIAL DISTRICT COURT DaecRaNEI EN STATE OF NEW MEXICO, First Judicial Distier Court Phas WAR LA 2016 Teas Bear « PHIL A. GRUEGO, ay Defendant. MOTION TO STRIKE OBJECTIONS AND/OR sL PRODUCTION OF SUBPOENAED MATERIALS ‘The State of New Mexico, through Deputy Attorney General Sharon Pino and Assistant Awomeys General Clara Moran and Zach Jones, moves this Court to strike Legislative Council Service's ("LCS") Objections of Legislative Council Service to Subpoena dated March 3,2016, filed March 10, 2016, and compel production of documents subpoenaed by the State on the ‘grounds that LCS filed to comply with Rule 5-511 NMRA. Alternatively, the State asks this Court to compel production of subpoenaed documents for tie reasons herein stated. In support of this Motion, the State avers FACTS Facts relating to the 202 file 1. Upon information and belief, LCS documents instances when a legislator seeks its assistance. One legislative measure’s file can contain subpers if multiple legislators seek consultation on the same measure. When a legislator agrees to waive confidentiality 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 fil other portions ofthe file containing requests by other legislators on the same measure ae still eated as confidential. See 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) (“HIR 8"), the measure permitting the State's sale of 139-141 East De Vargas in Santa Fe, Objections of LCS p. 2 Former Senator Grego has not consented to similar disclosure, Materials disclosed to the State by LCS due to Representative Tryjilo's consent show ‘hat Trilla contacted LCS on or about January 13,2014, to stat the process of drafting HRS. Representative Trujillo isthe only sponsor of IR 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 predated Tryjilo's. Evidence of Griego's early involvement with HJR 8, legislation he later profited from, is material tothe State's criminal case against Grego. nergy, Minerals and Natual Resources Department (CEMNRD") Deputy Cabinet Secretary Brett F. Woods disclosed an email dated December 18, 2013, fiom LCS employee Gordon Meck in which Mecks stated Grego “came by a few minutes ago” to speak with him regarding the De Vargs sale. Sec Exhibit A attached. ‘The State is unaware of contact Griego had with LCS regating HIR 8 prior or subsequent to Meeks’ email, But as stated above, the dats, equeney, and content of Griego’s contacts with LCS on this issue are material in Griego's pending criminal caseFacts relating to the Ethics file {A Senate Investigative Subcommittee convened on an ethics matter agsinst Griego rating this financial interest nthe sale ofthe De Vargas property. Obictons af LCS 1.3.1. The State is enatare when it convened, why it officially convened, how often it convened, what was suid at any hearings), what materials were reviewed or relied upon, and what findings it made. Griego resigned on or about March 14,2015, while the Legislature was stil in sesion. ‘That same day, his legal counsel publicly released a document stipulating to facts and admitting ethical violations. See Exhibit B ("Stipulated Facts and Ethical Violations”), attached. LLCS subsequently chose to “{make] public the same information” despite not having a ‘writen waiver of confidentiality from Griego as required by NMSA 1978, Section 2-15- 9G). See Objections of LCS p.4.! It is unknown if Griego executed a written waiver authorizing LCS to make this disclosure Griego’s resignation caused the Subcommitte to abandon its ethics investigation. Id. Griego ean waive confidentiality in these proceedings pursuant to NMSA 1978, Section 2-15-9(E) (1993). LCS, in its Objections, didnot indicate he has not done so. "Tris unknown if the Subcommittee authorized release of this document and its attashments pursuant to NMSA 1978, Section 2-15-9(E)() (1993), ifthe partes agreed to its release, or if TLCS simply released the document because Griego had already done so. In any even, this ‘uncertainty should weigh against allowing LCS to assert confidentiality in documents publicly released by both it and Griego. 3ARGUMENT 1LCS's Objections should be stricken for failure to comply with Rule -S11 NMRA, Rule 5-511 NMRA imposes duties on those who respond to subpoenas. That rue states that “[w]hen information subject toa subpoena i withheld on a claim tat itis 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 sufficient t» enable the demanding. party to contest the claim.” Rule $-511(D)(2) NMRA. LCS has failed to comply with this rule, instead stating that “[2] summery of withheld documents will be provided to counsel in accordance with Rule 5-511(D) NMRA.” Objections ‘AfLCS p. 5. LCS does not state when it will deliver this summary of dccuments relevant to this penging case, and Rule 5-511(D) NMRA clearly requires the “desripion ofthe nature of the documents, communications, or things not produced” simultaneous with the filing and stated therein. Id. Not only did LCS fail to provide a summary as Rule 5-511 NMRA requites, its fled Objections are not at all specific enough to allow the State to dispete its broad claims of confidentiality and privilege on constitutional and statutory grounds. ‘These bare assertions prejudice the State because itis not reasonably able to contest any of LCS's claims. (On March 11, 2016 (the day after LCS filed its Objections), undzrsgned counsel, based ‘on LCS's failure to comply with Rule 5-511 NMRA, requested of LCS counsel a summary of documents. LCS counsel, Thomas M. Hrasko, responded that same day tat he was “preparing & Jog", but would lke to speak with the parties before disclosing it. The partes have conference cal set for Tuesday, March 15, 2016, at 9:00 am to discuss this. However, Rule $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 asst in the formulation of the “summary” of withheld document Because the LCS's Objections did not conform tothe rules of discovery at initial filing, and because this non-conformation prejudiced the Stte, this Cour should strike them. TI, Rule 11-501 NMRA requires disclosure. In general, court rules require broad disclosure of dovumeutaty evideuve iu juli proceedings. “Unless required by the constitution, these rules, or other rules adopted by the supreme court, no person has 2 privilege to. refuse to produce any object or writing” Rule 11+ 501 NMRA. LLCS does not rely on any court rule in its Objections and its constitutional arguments are ‘unavailing forthe reasons discussed below. IIL. The Speech or Debate Clause does not prokibit pre-trial disclosure of documents. LLCS objects under the Speech or Debate Clause as to both the 202 file andthe 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 tall, uring til: [Whhile the Speech or Debate Clause prohibits hostile questioning regarding legislative acts in the form of testimony to jury, it doesnot wohibit disclosure of | Speech or Debate Clause privileged documents to the Government. Instead, as wwe have held before, it merely prohibits the evidentiary submission and use of those documents. th of Electronic Communications in Account of chakafe Inve S Service Provider Google, In., 802 F.3d $16, $29 (3rd Cir. 2015). Thus, the Clause cannot be invoked to prohibit the State from obtaining documentary evidenes for pre-trial investigation United States v. Renzi, 651 F.3d 1012, 1036-39 (Sth Cir. 2011) (“[T]he Clause does notincorporate a non-disclosure privilege as to any branch."); but see United States v. Raybum House Office Building, Room 2113, Washington D.C. 20515, 497 F.3d 654, 660 (D.D.C. 2007). ‘State's subpoena is based on its need to prepare for tril and obtain the material, relevant evidence contained in the files. 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 tril admissibility of any document isan issue for another day. IV. LCS must disclose the 202 file. A. Communications are not confidential when they constitute an element of a ‘rime or are made in furtherance ofa crime. As discussed above, the Speech or Debate Clause does not bar pre-irial discovery of evidentiary documents. Even setting this distinction aside, the Clause also “does not privilege either Senator o aide to violate an otherwise valid erisinal lw in preparing for or implementing legislative acts.” Gravel v, United States, 408 U.S, 606, 626 (1972) Because the Clause exits to protect the independence of the legislature, any confidently “does not extend beyond what is necessary to preserve the integrity of the legislative proces.” United States v, Brewster, 408 US. 501, 517 (1972). “[Financal abuses by way of bribes... would gravely undermine legislative integrity and defeat the right ofthe public to honest representation. Depriving the Executive ofthe power to investigte and prosecute and the Judiviny ofthe power to punish bribery. is unlikely to enhance legislative independence Ig, at 52425, Thus, the Clause does not prevent the State from investigating “the excesses of those who would corrupt the process by corrupting” legislators Id. at $26,‘The LCS, however, asserts an absolute privilege. This is inconsistent with United States ‘Supreme Court precedent and the State's power to “investigate and prosecute” crimes by legislators. Id. at $24-25; 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 function; it is not a legislative act.” Brewster, 408 U.S. at $26, This is crucial because the Speech or Debate Clause protects only “legislative acts.” Id. at $15-16; Renzi, 651 F.3d at 1021. Legislative ats include “speech” and “voting” but not what Griego stands accused of ~ various crimes committed “in preparing for or implementing legislative acts” Gravel, 408 U.S. at 626. ‘The 202 file is nota legislative act itself rather, itis preparation fora legislative act. Cf. ‘id. Further, the investigation in this case, including Griego’s stipulated admissions, make @ strong prima facie showing of criminal violations, Therefore, ifthe fle contains any statements relevant to fraud, bribery, perjury, or the other charged crimes, it cannot be withheld under the ‘Speech or Debate Clause. 1d. Brewster, 408 U.S. at 524-25. C. Because the 202 file is sought in a judicial proceeding, any statutory confidentiality cannot trump the court's rules of discovery. Under Rule 11-501 NMRA, “{ulnless required by the constitution, these rules, or other rules adopted bythe supreme cout, no person hus a privilege to. refuse to produce any object ‘or wing” Despite this, LCS asserts confidentiality under NMSA 1978, Section 2-13-3 (1951), ‘which states that LCS shall not reveal “tbe contents or nature of any requestor statement for service, excep with the consent ofthe person making such requestor sateen.” ‘While Section 2-133 might probit general disclosure in an extajudicial context, the calculus changes in a judicial proceeding. “{I}f 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 conflict with Rule 11-501." Albuquerque Blackmer, 2005-NMSC-032, § 11, 138 NM. 398. [fany statutory privilege conflicts with court sn effect and the constitutional or court rule privilege rls, then “the statutory privilege is not prevails.” 1d FFor the reasons discussed above, the Speech or Debate Clause does not prohibit isclosure inthis case. Court rules require disclosure under Rule 11-501 NMRA. Therefore, Seetion 2-13-3 cannot be read to prevent discovery. Albuquerque Rape Crisis Center, 2005- ‘NMSC-032, $ 11; see also State v. Strauch, 2015-NMSC-009, 4 39, 345 P.3d 317 (statutory provisions that “arguably create ... evidentiary privileges cannot prevent court-ordered disclosute 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. ‘The Speech or Debate Clause does not privilege the investigation into a legislator's financial conflicts. ‘The central allegation against Grieg is that he filed to disclose his intrest in a State contrat. Grego admit to this interest in his formal admission to the interim eisative ethics commitee, The committe invesgntion related to the financial disclosures and. Grego’s personal interest, ot to “a pending bill r any other legislative mater.” United States, Ross 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 623, 849 (2d Cit 1982),B. The probable-cause standard for release of investigatory materials is met because Griego formally admitted to ethical violations. NMSA 1978, Section 2-15-9(E)1) (1993) states that the interim legislative ethics “shall not publicly disclose any information relating to the filing or investigation of complaint. until after a finding 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 committe Sid not rule on probable cause, the statute prohibits disclosure, ‘This argument ignores the fact that an admission toa higher standard necessarily includes finding to any lower standard, State v, Bent, 2012-NMSC-038, § 18, 289 P.3d 1225. Because Griego's formal admissions conclusively establish the admitted violations, the standard of probable cause is necessarily met. Section 2-15-9(E)(1) therefore authorizes disclosure of the investigative records. And, as stated above, even if that statute created any confidentiality, it cannot overcome court rues of discovery in a judicial proceeding, Albuquerque Rape Crisis Center, 200S-NMSC-032, 4 11; ‘Strauch, 2015-NMSC-009, 4 39 C. Release of Griego’s stipulation waived any privilege in the remaining investigative records. LLCS maintains that the ethies materials is shielded by Rule 11-503, the lawyer-client privilege. But that privilege disappears when privileged communications are released to» third party. State v. Allen, 2000-NMSC-002, 433, 128 NIM. 482. Under Rule 11-511 NMRA, “[a] person who possesses a privilege against disclosure of a confidential matter or communication, waives the privilege if the person voluntarily discloses or consents to disclosure of any significant part of the matter or communication.”In this cas, the most significant portion ofthe investigation — ts outcome - was already released by both Griego and LCS. The remainder ofthe investigative fil is therefore no longer confidential. Rule 11-511 NMRA. D. The investigative file is material for rebutting Griego’s claims. Inkis stipulation, Griego formally admitted to an unethical interest ina state contract. He ascents, however, that he was “unaware” of hia ethical obligations under the New Mexico Constitution By denying his mental state in a formal proceeding, Griego has placed this sucil fact in controversy and opened the door to rebutal 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. Renzi, 769 F.3d at 747-50, The investigative file must therefore be released. VL. Conclusion and request for relief LCS's stated objections are without merit, The State respectfully requests this Court strike the fled Objections and order LCS to produce both the 202 file relating to HIR 8 and the records related to the interim legislative ethics committee's investigation. Altenatively, the Cour simply order disclosure of all material, relevant evidence pursuant to the State requests subpoena ‘The State atempred 1 contact opposing counsel, Thomas M. Clark, for hs poston on this Mation by e-mail on 05/13/16 and by phone the moming of 03/14/16 and was unable to reach prior to filing however, opposition to this Motion is presumed.March 14, 216 Date i Fino, Deputy Atonuey Ocul Clara Moran, Assistant Attomey General Zach Jones, Assistant Attorney General | certify that on March 14%, 2016, I emailed a copy of. this Motion to defense counsel, Thomas M. Clark (tmclark/@eiplawst-com), and LCS counsel, Thomea M. Hnasko (dhnasko@hinklslawfimm.com) ie General uFIFTY-SECOND LEGISLATURE FIRST SESSION, 2015 BEFORE THE SENATE HEARING SUBCOMMITTEE of the INTERIM LEGISLATIVE ETHICS COMMITTEE STIPULATED FACTS AND ETHICAL VIOLATIONS. INTHE MATTER OF AN ETHICS COMPLAINT ‘AGAINST ‘SENATOR PHIL A. GRIEGO Stipulated Facts 1, Senator Pil A. Griego has been a member ofthe New Mexico Senate since 1997 and is curently serving a four-year term that began in 2013. 2, Inte months before the Second Session ofthe Ffty-First Legislature convened, ‘Senator Griego areed to assist Galisteo Street Inc. ina proposed purchase of certain improved property owned bythe State of New Mexico through the Energy, Minerals end Natural Resources| Department (EMNRD), with a physical address of 139-141 East DeVargas Steet in Santa Fe, New Mexico, 87501 3. The propery is designated ase historic “contributing” property under the ity of Santa Fe’ historic presewation standards. It is adjacent toa hotel ovmed by Galisteo Stet Inc. and, all material times, was leased by Galisteo Stet Inc. from the State of New Mexico, Exhibit A, Appraisal of 139-141 East DeVargas Street, March 21, 2014. 4. The lease agreement conferred upon Galisteo Stet Inc. the absolute and ‘unconditional first right to purchase the property at fair market value based upon an appraisal if the EMNRD everoffered the property forsale. Exhibit B, Lease Agreement. 5. The sale of any state-owned property witha value of more than $100,000 requires legislative approval through the passage ofa joint resolution. See Section 13-6-3 NMSA 1978, 6, Senator Grego initiated the legislative approval process by obtaining the agreement of a member ofthe house of representatives to introduce the joint resolution as House Joint ‘Resolution 8 (HIR8). Senator Griego monitored the progress of HIR 8 throughout the legislative process. Exhibit C, Enrolled and Engrossed Copy of HIR 8. 1. The hose of representatives passed HUR 8 on February 14, 2014. Exhibit D, Journal Aof the House of Representatives, Fify-Fitst Legislature, Second Session, page 278 8, On February 18, 2014, with fewer than 48 hours remaining in the legislative session, the Senate Rules Committe reported favorably on HR 8, the resolution was withdrawn fom the final committee to which it was refered and it was placed on the senate calendar for final consideration. Exhibit E, Journal ofthe Senate, Fify-Firs Legislature, Second Session, page 516. '9. When Senator Griego was recognized to present TUR 8 tothe senate on February 19, 2014, he deferred to senate colleague to present the measure. Exhibit, Video ofSenate Floor Proceedings, February 19, 2014, htpLimedia-12.granicus com:443ondemand/governar= sun/gavernor-nm 97070ce4-bdde-41a-bfta-}20732867891. mpd. 10, Senator Griego remained on the floor ofthe senate during the debate on HUR 8, and, consistent with the requirement of Senate Rule 7-5 that senator vote on each question “unless he has a direct personal or pecuniary interest inthe... question", Senator Griego exited the floor immediately prior othe vote and did not return tothe floor until the vote was announced. Exhibit. 11. Senator Griego did not publily disclose any director indiret interest inthe mater that was before the senate 12, The senate approved FUR 8. Exhibit G, Journal ofthe Senate, Fify-First Legislature, Second Session, page 543. 13, On March 24,2014, Galisto Steet Inc. as buyer, executed an agreement entitled "Buyers Agency Agreement” with Excalibur Asset Management LLC "acting by and trough 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 arse prior to closing”. Exhibit . 15, After the 2014 legislative session ended, Senator Griego continued to moniter be required review ofthe proposed sale by the Capitol Buildings Planing Commission and did not Aisclove his inerest inthe transction. 16, Galisteo Steet Inc. pid the agreed-upon flat fee of $50,000, pls the applicable‘ross receipts tx, to Excalibur Asset Management LLC on or about June 26,2014. Exhibit I, Settlement Statement. 17, The fee equaled 8.8 percent ofthe final purchase pice, which was in excess ofthe ‘customary percentage charged by eal estate agents forthe 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 protibition in Atle 4, Section 28 of the Constitution of New Mexico against a legislator having an interest ina contract with the state that was authorized by any law passed during the legislator’ term. 19, Senator Griego now understands the force and effect ofthat constitutional prohibition and that it applied to is interest inthe purchase ofthe propery. 20. Senator Griego understands the seriousness of his conduc and willingly submits himself to the disciplinary decision ofthe senate. Senator Griego wishes to make clear tothe body that he has been a duly elected member ofthe senate for 18 year, tat prior to that time he ‘served as an elected member ofthe Santa Fe City Council and, unt this instance, he has never ‘been aceused of any ethical impropriety with espect to his elective duties, ‘Stipulated Ethical Violations 21, Senator Grego’ receipt ofa commission from Galiseo Steet Inc. fllowing the sale ofthe property violated Antce 4, Section 28 of the Constitution of New Mexico, which proibits "anymember of the legislature during the term for which he was elected nor within one year ‘thereafter, befing] interested directly or indirectly in any contract with the state. which was authorized by any law passed during such term". ‘22. Senator Grieg violated Senate Rule 26-1, which requires him to treat is cfice asa publi trust, conduct himself in a manner that justifies the confidence placed in him bythe people: and maintain the integrity and discharge ethically the hioh responsibilities of his office. 23, Senator Griego violated the Senate Oath of Ethical Conduct in which he afimed that he would ethically and with integrity discharge the high responsibilities placed upon" im,"abide by the spirit as well asthe letter ofthe senate rules pertaining to ethical conduct” and "scrupulously avoid any act of impropriety or any act that gives the appearance of impropriety". Exhibit, Jounal ofthe Senate, Fify-First Legislature, First Session, page 5. 24, Senator Griego, therefore, submits himself othe discipline ofthe senate. Accepted by the Senate Hearing Subcommittee of the Interim Legislative Ethics Commitee ‘Linda M. Lopez, Chair March__, 2015From Woods, Bet EMNRD Sent: Wiecnetdsy, December 28, 2013 1212 PM te Branca il, HRD Subject: Fd sale of de Vargas bung ‘Sent from my Verizon Wireless 4G LTE DROID =~ Original Message — ‘Subject: sale of de Vargas building From: "Metks, Gordon" ‘To: "Woods, Bret F, EMNRD" ce: ret, Pil rego came bya few minutes got appears tat the statutory author is contained in Section 13-62 NMSA 1978 and the NMAC Section 15.23.8501 rat pursuan to 13-63 we would probably need the termsof the sale to put in 2 Joint resolution. Check with il rancad to velour understanding of ths ‘Gordon