STATE OF NEW MEXICO Borer Covi WY FIRST JUDICIAL DISTRICT TOV 10 FH S803 NO. D-0101-CR-2016-00109 STATE OF NEW MEXICO, Plaintiff, vs. PHIL A. GRIEGO, Defendant. OBJECTIONS OF LEGISLATIVE COUNCIL SERVICE TO SUBPOENA DATED MARCH 3, 2016 Pursuant to Rule 5-511(C)@\() NMRA of the New Mexico Rules of Criminal Procedure, the Legislative Council Service hereby objects to the Subpoena dated March 3, 2016, served upon non-party Ratil E. Burciaga, Director, Legislative Couneil Service (“LCS”), by the New Mexico Office of the Attorney General. As grounds for its objections, the LCS states as follows: A. Preliminary Statement Regarding Specific Objections. The referenced subpoena is directed to Rail E. Burciaga, in his capacity as director of the LCS. The LCS, a nonpartisan agency whose employees are hired without regard to political affiliation, is “a part of the legislative branch of the government, and shall conduct itself with strict regard to the division of powers among the legislative, executive and judicial branches of the government of this state.” Section 2-3-2 NMSA 1978. In discharging its responsibilities, the LCS is commanded to assist the Legislature “in the proper performance of its constitutional functions by providing its members with impartial and accurate information and reports. . . .”Section 2-3-8(A) NMSA 1978. These responsibilities include assisting the members of the Legislature with the preparation of legislation for introduction, see Section 2-3-8(C) NMSA 1978, and providing expert assistance for the Legislature's performance of its required functions. Section 2-3-8(E) NMSA 1978. In performing the LCS’s duties, Mr. Bureiaga and his staff are statutorily commanded to protect the confidential nature of “the contents or nature of any request or statement for service. . . -” Section 2-3-13 NMSA 1978. Accordingly, the objections submitted to the subpoena, as detailed below, are presented by the LCS as part of the independent legislative branch of government and to honor its statutorily-mandated responsibility to maintain and protect the confidential nature of the contents or nature of any request or statement for service. B. Specific Objections. lL Request for the “202 File.” Pursuant to Section 2-3-13 NMSA 1978, “[nleither the director [of the LCS} nor any employee of the council service shall reveal to any person outside of the the consent of service the contents or nature of any request or statement for service, except the person making such request or statement.” While Representative Trujillo has consented that matters related to his “request or statement” may be relieved of the confidentiality requirements set forth in Section 2-3-13, other materials in the file are not covered by that waiver. Consequently, the remainder of the “202 file” is subject to the confidentiality requirements of Section 2-3-13 and may not be disclosed by the LCS. in addition to The statutory privilege set forth in Section 2-3-13 i the constitutional privilege established by N.M. Const. Art. IV, §13, which provides, in pertinent part, that “[m]embers of the Legislature . . . shall not be questioned in any other place for anyspeech or debate or for any vote cast in either house.” This privilege is substantially identical to the federal speech and debate clause protecting communications of members of Congress, as set forth in Art. I, §6 of the United States Constitution. The United States Supreme Court has ruled that the privilege extends to all activities that are “legislative in nature,” i.e., all matters that relate “to the consideration and passage or rejection of proposed legislation. Gravel v. United States, 408 U.S. 606, 625 (1972). The statutory privilege set forth in Section 2-3-13 is a particularized example of a “legislative act” that is absolutely privileged within the meaning of the speech and debate privilege in our Constitution. Consequently, this privilege prohibits disclosure of the remaining information in the “202 file.” 2. Request for “{alll records relating to the Senate Hearing Subcommittee of the Interim Legislative Ethics Committee” regarding investigation of Senator Phil Griego.! a As noted above with respect to the documents in the LCS’s 202 file, pursuant to Section 2-3-13 NMSA 1978, “[nJeither the director [of the LCS] nor any employee of the council service shall reveal to any person outside of the service the contents or nature of any request or statement for service, except with the consent of the person making such request or statement.” The work done for the Senate Investigative Subcommittee was a request for service within the meaning of Section 2-3-13. Accordingly, the work for the Senate Investigative Subcommittee is subject to the confidentiality mandate of the statute. b. Additionally, Section 2-15-9(E) NMSA 1978 provides that the Interim Legislative Ethics Committee “shall maintain rules of confidentiality, unless the s filed waives the rules or any part of them in writin legislator against whom a comp Section 2-15-9(E)(1) NMSA 1978 specifically prohibits the committee and its staff from ' The Senate Hearing Subcommittee never convened on the matter. The only subcommittee to convene was the Senate Investigative Subcommittee, which the LCS assumes is the subcommittee to which the Office of the Attorney General referred under this requestdisclosing any information relating to the inves jon of a complaint until after the committee makes a finding of probable cause that a violation has occurred. Senator Griego resigned from the Senate on March 14, 2015, thereby removing himself from the jurisdiction of the Senate and effectively terminating any further work by the Senate Investigative Subcommittee on the matter. However, on that same day, Senator Griego’s counsel publicly released the stipulation affirming certain violations, together with the exhibits attached to the stipulation. The LCS subsequently made public the same information, and those documents have been provided to the Attorney General's investigative team, Pursuant to Section 2-15-9(E), the LCS is prohibited from releasing any other information, c. To the extent the second request purports to include materials that involve communications and discussions among committee members and their staff, those documents are not subject to disclosure pursuant to the speech and debate privilege of the members of the committee. The Supreme Court has emphasized that the speech and debate privilege extends to communications between legislators and their aides because “it is literally impossible . . . for Members . . . to perform their legislative tasks without the help of aides and assistants; . . . .” Gravel, 408 U.S. at 616. The privilege extends beyond purely legislative matters to other activities within the jurisdiction of either house. Jd. at 625. Because the New Mexico Constitution vests each house with the power to punish its members for contempt and disorderly behavior, and to expel a member, see NM Const. Art. IV, §11, the records of the committee are also protected from disclosure by the speech and debate privilege. The second request also seeks disclosure of information that is subject to the attorney-client privilege because the information memorializes communications ients, the LCS and the Senate Investigative Subeommitt between counsel and its‘Alternatively, the second request seeks the disclosure of attomey-work product because it seeks information developed by counsel in anticipation of formal quasi-adjudicative proceedings. A summary of withheld documents will be provided to counsel in accordance with Rule 5-511(D) NMRA. WHEREFORE, the LCS respectfully objects to the subpoena and will not produce the requested documents absent compliance with the provisions set forth in Rule 5-511(C)(2) (b) NMRA. Respectfully submitted, HINKLE SHANOR LLP ‘Thomas M. Hnasko P.O. Box 2068 Santa Fe, NM 87504 (505) 982-4554 thnasko@hinklelawfirm.com Michael B. Browde 1117 Stanford, NE MSC 11 6070 Albuquerque, NM 87131-0001 (505) 277-5326 browde@law.unm.edu Attorneys for New Mexico Legislative Council ServiceCERTIFICATE O1 ERVICE I hereby certify that on March 10, 2016, I caused a copy of the foregoing Notice of Unavailability to be served via electronic communication to the following counsel of recor Zack Jones, Assistant Attorney General New Mexico Attorney General’s Office 111 Lomas Boulevard, NW, Suite 300 Albuquerque, NM 87102 zjones@nmag. gov Bact tr Thomas M, Hnasko