Rabern Amicus Brief in Reese Final

7/29/2019 Rabern Amicus Brief in Reese Final

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NO.39,950

_________________________________________

SUPREME COURT OF THE STATE OFNEWMEXICO_________________________________________

UNITED STATES OFAMERICA,Plaintiff-Appellee,

v.

JAMES OLIVERREESE,Defendant Appellant._________________________________________

ON CERTIFIED QUESTION FROM THE UNITED STATES

TENTH CIRCUIT COURT OFAPPEALS

CASE NO.09-CR-02982-JEC

_________________________________________

AMICUS BRIEF

OFNEWMEXICO CRIMINALDEFENSE LAWYERS

ASSOCIATION_________________________________________

TRACE L.RABERN,ESQ.Attorney for Amici

1626 Ben Hur Dr.

Santa Fe, New Mexico 87501

505-690-7969


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Table of Contents

Certified Question:...............................................................................................1

Answer: .................................................................................................................1

Statement of the Case:..........................................................................................2

I. NEWMEXICO CONSTITUTIONALPROVISIONS..............................................3

A. The New Mexico Constitutional Provisions On The Right to Vote

and Hold Elective Office. ........................................................................3

B. Article VII of The New Mexico Constitution Clearly Provides That

the Constitution, Alone, Sets Qualifications for Elective Public Office

(While the Legislature Is Delegated to Power To Set theQualifications for Appointed Public Office and Employees). .............5

C. Article VII of The New Mexico Constitution Provides Otherwise-

Qualified Electors A Substantive Right To Be Qualified To Hold

Elective Public Office.............................................................................6

D. Extra-constitutional Burdens on the Right to Seek and Hold

Elective Public Office Would Violate Constitutional Rights by: (1)

Denying Other Voters Opportunity To Vote Candidate of Their

Choice, and (2) Denying And Individual Voters Right to Participate

in Political Process. .................................................................................8

1. Voters' Rights to Vote for Candidate of Choice .....................8

2. Individual Right to Participate in Political Process .................9

E. The New Mexico Constitution Requires Separation Of Powers. .11

F. It Is Clear from the New Mexico Constitution That IFthe

Legislature Purports to Add Any Qualifications or Barriers To HoldingElected Office, Such Statute Would Violate Article VII and Article III.

................................................................................................................11

II. NEWMEXICO STATUTES ...........................................................................12

A. Section 10-1-2, unchanged from 1912, does not Conflict with

Constitution...........................................................................................12


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B. NMSA 1978, 31-13-1. Felony conviction; restoration of

citizenship. .............................................................................................14

C. Operation of 31-13-1 on Mr. Reese..............................................16

D. Sub-section 31-13-1(E) Is Unconstitutional If It Applies To ElectedOffice or Any Qualified Elector Under Article VII...........................17

II. EXPLAINING THE EXISTENCE OF (E): THE LANGUAGE THAT IS 31-13-1(E)IS

AHISTORICALVESTIGE THAT BECAME IRRECONCILABLE WITHARTICLEVIIAND

WAS RENDERED USELESS BY2001FELONYDISENFRANCHISEMENT REFORMS IN

SUB-SECTIONS 31-13-1(A) -(D). The Language That Became (E) Was Never

Originally Intended To Be An Obstacle To Restoration of Rights...................19

A. Why (E) Gives Way: Legislatures Choice of Policy ........................20

B. New Mexico Legislature Reforms Felon Disenfranchisement Laws 21

1. 2001 Reforms.........................................................................21

2. 2005 Expanded Reforms .......................................................26

C. Reforming Tarnished Felon Disenfranchisement Laws, As New

Mexico Has Done, Is Sound Criminal Justice and Democratic

Government Policy. ...............................................................................27

1. Felony Disenfranchisement Beyond End of Sentence Does

not Advance Law Enforcement Goals. .......................................28

2. Felony Disenfranchisement Beyond End of Sentence Does

not Advance Goals of Suffrage and Democratic Participation. .29

D. The Legislature Did Not Originally Enact the Language that

Became 31-13-1(E) to Restrict Political Rights, But To Facilitate Them.

................................................................................................................31

1. Old Regime Before 2001 Reforms. .......................................33

2. The Certification of Completion to the Governor for a

Certificate Restoring Rights Language of 31-13-1(E) Referred to

Pre-2001 Path for Restoration after a Suspended Sentence.......35

31-13-1(E) .................................................................Error! Bookmark not defined.


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Suspended Sentence Statute ......................................Error! Bookmark not defined.

E. Even Ignoring This Legislative History, The Two Possible Ways To

Read Sub-section 31-13-1(E) To Make It Constitutional, However

Untenable, Both Mean Sub-section 31-13-1(E) Cannot Apply To Limit

the Civil Rights of People Like Mr. Reese.............................................39


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TABLE OFAUTHORITIES

New Mexico Cases

Charley v. Johnson, 2010- NMSC-024, 148 N.M. 246, 233 P.2d 775..........................11

Ex parte Bates, 20 N.M. 542 (1915).............................................................................20

Gunaji v. Macias, 2001-NMSC-028, 130 N.M. 734, 31 P.2d 1008 ............................11

Mowrer v. Rusk, 95 N.M. 48, 618 P.2d 886 (1980) ....................................................21

Ruiz v. Vigil-Giron, 2008-NMSC-063, 145 N.M. 280, 196 P.3d 1286 ........................10

Shankle v. Woodruff, 324 P.2d 1017, 64 N.M. 88 (1958) ............................................21

State ex rel. King v. Sloan, 2011-NMSC-020, 149 N.M. 620, 253 P.3d 33(per curiam)

.................................................................................................................................41

State ex rel. Sofeico v. Heffernan, 41 N.M. 219, 67 P.2d 240 (1936).............................20

State ex. Rel. Taylor v. Johnson, 1998-NMSC-015, 125 N.M. 343, 961 P.2d 768.........11

State v. Armstrong, 31 N.M. 220, 243 P. 333, 347 (1924) ...........................................20

State v. Gutierrez, 116 N.M. 431, 441, 863 P.2d 1052 (1993) ....................................13

Torres v. State, 119 N.M. 609, 894 P.2d 386 (1995) ...................................................21

New MexicoStatutes2001 New Mexico Laws Ch. 89 (S.B. 272) (amending NMSA 1978 30-7-16(C)(2) ..26

2005 New Mexico Laws Ch. 116 (H.B. 64)................................................................23

NMSA 1978 31-13-1(A)(1) and (B)...............................................................................1

NMSA 1978 31-13-1(E).........................................................................................passim

NMSA 1978, 31-13-1(A) (2001 before 2005 amendments) ...................................24

NMSA 1978, 10-1-2 (1912)......................................................................................13

NMSA 1978, 1427.1(A).......................................................................................22


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NMSA 1978, 31-13-1 (2005)..............................................................................passim

NMSA 1978, 31-13-1(C) (2001 before 2005 amendments)............................. 25, 37

NMSA 1978, 31-20-8 (1977)....................................................................... 32, 33, 34

NMSA 1978, 31-20-9 (1977)....................................................................................34

Other Authorities

N.M. Attorney General Advisory Letter 85-29, 1983-86 N.M. Op. Atty. Gen. 483,

N.M. A.G. Op. No. 85-29, 1985 WL 204891................................................. 33, 35

N.M. Attorney General Advisory Letter 88-03, N.M. A.G. Op. No. 88-03, 1988 WL

407410 ....................................................................................................................35

Other Jurisdictions' Cases

Bullock v. Carter, 405 U.S. 134 (1972) ..........................................................................9

Dunn v. Blumstein, 405 U.S. 330 (1971)........................................................................9

Gregory v. Ashcroft, 501 U.S. 452 (1991) .....................................................................11

Harper v. Virginia State Bd. of Elections, 383 U.S. 663 (1966)......................................10

Kramer v. Union Free School District, 395 U.S. 621 (1969).............................................9

Powell v. McCormack, 395 U.S. 486 (1969) ...................................................................8

Reynolds v. Sims, 377 U.S. 553 (1964). ....................................................................8, 28

United States v. Texas, 252 F.Supp. 234 (W.D. Tex. 1966) ...........................................9

Wesberry v. Sanders, 376 U.S. 1 (1964).....................................................................9, 27

Treatises, Books, and Scholary Works

Anthony M. Kennedy, Associate Justice, Supreme Court of the United States,

Address at the American Bar Association Annual Meeting (Aug. 9, 2003), in 16 FED.

SENTG. REP. 126 (2004). ....................................................................................30

anza, Jeff; Uggen, Chris Locked Out: Felon Disenfranchisement and American Democracy

(2006 Oxford. ISBN 0-19-514932-7). .....................................................................28

Nicole D. Porter, The Sentencing Project, Expanding the Vote: State Felony


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Disenfranchisement Reform, 1997-2010 (October 2010) ...........................................22

Proceedings of the Constitutional Convention of the Proposed State of New Mexico (1910) 13

Robert W. Larson, New Mexico's Quest for Statehood 18461912 272304 (1968) ....13

Ryan S. King, THE SENTENCING PROJECT, A DECADE OF REFORM: FELONY

DISENFRANCHISEMENT POLICY IN THE UNITED STATES (2006) ....................... 22, 31

THE SENTENCING PROJECT AND HUMAN RIGHTS WATCH, LOSING THE

VOTE: THE IMPACT OF FELONY DISENFRANCHISEMENT LAWS IN THE

UNITED STATES (1998)........................................................................................31

Constitutional Provisions

N.M. Const. Art. III 1 .............................................................................................11

N.M. Const. Art. IV 3........................................................................................5, 6, 7

N.M. Const. Art. V 1.................................................................................................5

N.M. Const. Art. V 3..............................................................................................5,7

N.M. Const. Art. V 6...............................................................................................20

N.M. Const. Art. VII 1 ................................................................................. 3, 13, 21

N.M. Const. Art. VII 2 ........................................................................... 4, 10, 17, 18

CERTIFICATE OF COMPLIANCE WITH RULE

Amici certify that this conforms to the type-volume limitations of Rule 12-213

NMRA 2012, and state the total word count of the body of this brief is 9,098

words. To count the words I relied on MS Word 2008 for the Mac.


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CERTIFIED QUESTION:

If an otherwise-qualified person has completed a deferred sentence for a

felony offense, is that person barred from holding public office without a pardon or

certificate from the governor, as required by N.M. Stat. Ann. 31-13-1(E), or is thatpersons right to hold office automatically restored by Article VII, 1, 2 of the New

Mexico Constitution and N.M. Stat. Ann. 31-13-1(A)(1)?

(The Tenth Circuit Order added: Our statement of this question is not

intended to limit the New Mexico Supreme Courts scope of inquiry we

acknowledge the Court may reformulate our question and invite it to do so in any

way it finds helpful.)

ANSWER

:The latter, to the exclusion of the former.

An otherwise-qualified person who has completed a deferred sentence for a

felony offense has the right to hold elective public office automatically restored by

function of law by Article VII, Sections 1 and 2 of the New Mexico Constitution

and Sections 31-13-1(A)(1) and (B) of New Mexico Statutes. A persons right to vote

is restored by operation of law upon successful completing of a deferred sentence by

Section 31-13-1(A)(1) and (B). Article VII of the New Mexico Constitution provides

a substantive right to qualified electors (people with the right to vote) to hold any

elective public office they qualify for, and makes clear that the only qualifications for

elective public office are those contained in the New Mexico Constitution.

Therefore, the pardon requirement in Subsection 31-13-1(E) is unconstitutional

to the extent that it functions as the Government contends it does: as a barrier to or

sets a qualification for a voter to seek and hold elective public office.

The Legislature may not place barriers on who may seek and hold elective

public office because to do so would violate Article VII which sets the stateconstitution as the exclusive source of qualifications, violates separation or powers,

infringes on the rights of qualified voters to seek and hold public office, and the

right of the voting public to choose a constitutionally-qualified candidate of their

choice.


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STATEMENT OF THE CASE:

Was Mr. Reese required by 31-13-1(E) to obtain an executive pardon to

qualify to hold public elective office? The answer is clearly no. New Mexico law (

31-13-1(A)(1), (B)) automatically restored Mr. Reeses right to vote when he

successfully completed his deferred sentence. The New Mexico Constitution (Art.

VII 2(A)) automatically made Mr. Reese, a resident with the right to vote, qualified

to hold any elective public office for which he meets the constitutional

qualifications. To the extent that 31-13-1(E) burdensMr. Reese and people like him

to obtain an executive pardon to gain the right to hold elective public office, 31-13-

1(E) is unconstitutional.

Subsection 31-13-1(E) cannot affect Mr. Reeses qualification to hold elective

public office without violating the New Mexico Constitution in four ways: (1) It

violates Article VII Section 2 of the New Mexico Constitution, which makes clear

that the Constitution is the exclusive source of qualifications for elective public

office, by purporting to add a qualification not in the Constitution. (2) Moreover, it

infringes on the Article VII substantive right of qualified electors (voters) to seek and

hold elective public office by placing a burden on exercise of that right. (3) It

infringes on the Article VII rights of all voters to elect a constitutionally-qualified

candidate of their choice. And: (4) It violates the separation of powers proscription

in Article III by (a) the legislative branch asserting authority (setting qualifications)


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reserved by the Constitution; and (b) the legislative branch invoking the unbounded

discretion of the administrative branch to do so.

At the end of the day 31-13-1(E) cannot affect Mr. Reeses qualification to

hold elective public office without 31-13-1(E) being unconstitutional.

I.

NEWMEXICO CONSTITUTIONALPROVISIONS

A. THENEWMEXICO CONSTITUTIONALPROVISIONS ON THERIGHT TOVOTE AND HOLD ELECTIVE OFFICE.

Article VII of the New Mexico Constitution provides rights relating to the

elective franchise. Article VII, Section 1 of the New Mexico Constitution (Voter

eligibility) provides a substantive right to vote to qualified electors:

Every citizen of the United States, who is over the age of

twenty-one years1, and has resided in New Mexico twelve

months, in the county ninety days, and in the precinct in

which he offers to vote thirty days, next preceding the

election, except idiots, insane persons and persons

convicted of a felonious or infamous crime unless restored to

political rights, shall be qualified to vote at all elections for

public officers

N.M. Const. Art. VII 1 (emphasis added). That section also provides that the

Legislature shall have the power to regulate the manner, time and places of voting,

1 The 26th Amendment to the United States Constitution granted the elective

franchise to persons eighteen years or older and superseded the minimum age

requirements for voter registration in the New Mexico Constitution.


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require registration, and pass laws to enforce the secure secrecy of the ballot and

purity of election sand guard agains the abuse of the elective franchise. N.M. Const.

Art. VII 1. This section was last amended in 1967.

Article VII Section II describes Public officer qualifications; discrimination

and provides:

A. Every citizen of the United States who is a legal

resident of the state and is a qualified elector therein,

shall be qualified to hold any elective public office except

as otherwise provided in this constitution.

B. The legislature may provide by law for such

qualifications and standards as may be necessary for

holding an appointive position by any public officer or

employee.

C. The right to hold public office in New Mexico shall not

be denied or abridged on account of sex, and wherever the

masculine gender is used in this constitution, in defining

the qualifications for specific offices, it shall be construedto include the feminine gender. The payment of public

road poll tax, school poll tax or service on juries shall not

be made a prerequisite to the right of a person to vote or

hold office.

N.M. Const. Art. VII 2 (emphasis added). This provision was last amended in

1973 (to reflect New Mexicos passage of the Equal Rights Amendment).


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B. ARTICLEVII OF THENEWMEXICO CONSTITUTION CLEARLY

PROVIDES THAT THE CONSTITUTION,ALONE,SETS

QUALIFICATIONS FORELECTIVE PUBLIC OFFICE (WHILE THE

LEGISLATURE IS DELEGATED TO POWERTO SET THE

QUALIFICATIONS FORAPPOINTED PUBLIC OFFICE AND

EMPLOYEES).

Article VII Section 2 (A) is very clear: every citizen resident who is a qualified

elector is qualified to hold any elective public office except as otherwise provided

in this constitution. N.M. Const. Art. VII 2(A). This makes the Constitution the

sole authority on qualification for elective public office. There is no room in this

provision for the Legislature, or any branch of government, to place any additional

limits on who is qualified to hold any elective public office. See id.

Examples of additional qualifications otherwise provided in this

constitution include, by way of illustration, the requirement that the Governor and

Lieutenant Governor be at least 30 years old and have resided in New Mexico

continuously for five years. N.M. Const. Art. VI 3. Two other additional

qualifications provided in this constitution include that the Attorney General be a

licensed attorney in good standing, and that the superintendent of public

instruction be a trained and experienced educator. N.M. Const. Art. V 3.

Another additional qualification is that executive branch elected officials are

ineligible to run for re-election for a third consecutive term. N.M. Const. Art. V 1.

Another additional qualification is that Justices of the Supreme Court be at least 35


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years old and have been in actual practice of law for at least ten years and resided in-

state for at least three years. N.M. Const. Art. VI 8. Two other additional

qualifications are that senators be not less than 25 years of age and representatives

not less than 21, and both must maintain residence in their respective districts.

N.M. Const. Art. IV 3.

C. ARTICLEVII OF THENEWMEXICO CONSTITUTION

PROVIDES OTHERWISE-QUALIFIED ELECTORSASUBSTANTIVE

RIGHT TO BE QUALIFIED TO HOLD ELECTIVE PUBLIC

OFFICE.

Not only does Article VII Section 2 of New Mexico Constitution clearly state

that this constitution, exclusively, sets qualifications of elected officials in New

Mexico, but it also provides qualified New Mexico voters with a substantive right to be

qualified to hold any elective public office provided they are qualified to vote and

meet the constitutional qualifications for a given office. Article VII Section 2 is not

worded as the qualifications shall be.; it is emphatically worded as an individual

right: Every citizen...who is a legal resident of the state and is a qualified elector

therein, shall be qualified to hold any elective public office except as otherwise

provided in this constitution. Thus any legislation (or any agency action) that

imposed additional qualifications on or barriers to holding elective public office

would infringe on this substantive state constitutional right.


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Article VII does more than just make it clear that the Constitution was the

exclusive source of qualifications for elected office--it also makes perfectly clear that

the only way to restrict the to vote any further than the constitution provides is by

formal constitutional amendment:

The right of any citizen of the state to vote, hold office, or

sit upon juries, shall never be restricted, abridged, or

impaired on account of religion, race, language or color or

inability to speak, read, or write the English or Spanish

languages except as may otherwise be provided in this

constitution; and the provisions of this section and ofSection One of this article shall never be amended except

upon a vote of the people of this state in an election at

which at least three-fourths of the electors voting in the

whole state, and at least two-thirds of those voting in each

county of the state, shall vote for such amendment.

Art. VII 3.

In contrast, Article VII section 2(B) clearly delegates to to the Legislature the

question of the qualifications and standards necessary for holding an appointive

position by any public officer or employee. N.M. Const. Art. VII 2(B) (emphasis

added). This delegation or authority to the Legislature to set qualifications for

appointed positions comes with limits, however: Article VII Section 2(C) makes clear

that [t]he right to hold public office in New Mexico shall not be denied or abridged

on account of sex and Article VII Section 3 makes clear that the right to hold office

shall never be restricted, abridged, or impaired on account of religion, race,


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language or color, or inability to speak, read or write the English or Spanish

languages except as otherwise provided in this constitution. Art. VII 2(C), 3.

D. EXTRA-CONSTITUTIONAL BURDENS ON THE RIGHT TO

SEEK AND HOLD ELECTIVE PUBLIC OFFICE WOULD

VIOLATE CONSTITUTIONALRIGHTS BY:(1)DENYING OTHER

VOTERS OPPORTUNITY TO VOTE CANDIDATE OF THEIR

CHOICE, AND (2) DENYING AND INDIVIDUAL VOTERS

RIGHT TO PARTICIPATE IN POLITICALPROCESS.

An extra-constitutional burden on the right to seek and hold public elective

office violates constitutional rights in two ways. First, these burdens impinge voters'

participation rights by denying them the opportunity to cast their votes freely for the

candidates of their choice. Second, these burdens violate the ex-felons' political

participation rights by permanently barring them from serving the public by holding

elective office.

1.VOTERS'RIGHTS TOVOTE FORCANDIDATE OF CHOICE

A fundamental principle of our representative democracy is, in Hamilton's

words, that the People should choose whom they please to govern them. Powell v.

McCormack, 395 U.S. 486, 547 (1969). The right to vote freely for the candidate of

one's choice is of the essence in a democratic society, and any restrictions on that

right strike at the heart of representative government. Reynolds v. Sims, 377 U.S.

553, 555 (1964).


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No right is more precious in a free country than that of having a voice in the

election of those who make the laws under which, as good citizens, we must live.

Wesberry v. Sanders, 376 U.S. 1, 17 (1964). It cannot be doubted that the right to

vote is one of the fundamental personal rights included within the concept of liberty

as protected by the due process clause. United States v. Texas, 252 F.Supp. 234

(W.D. Tex. 1966).

Disqualification of a constitutionally-qualified ex-felon candidate deprives the

voters of the opportunity to support the candidate of their choice. See Reynolds v.

Sims, 377 U.S. at 555. Laws that limit the candidates limit the choices of voters. See

Bullock v. Carter, 405 U.S. 134, 143 (1972).

2. INDIVIDUAL RIGHT TO PARTICIPATE IN POLITICAL

PROCESS

The right to political participation in a democracy is not limited to voting.

When the Supreme Court has referred to the right, its language has suggested a right

to active participation in government through the political process. In Kramer v.

Union Free School District, 395 U.S. 621 (1969), the Supreme Court stated that [a]ny

unjustified discrimination in determining who may participate in political affairs or

in the selection of public officials undermines the legitimacy of representative

government. Id. at 629. In Dunn v. Blumstein, 405 U.S. 330, 336 (1971), the high

court noted that [i]n decision after decision this Court has made clear that a citizen


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has a constitutional right to participate in elections on an equal basis with other

citizens in the jurisdiction. This Court has said: [W]e are committed to examine

most carefully, and rather unsympathically any challenge to a voter's right to

participate in any election, and will not deny that right absent bad faith, fraud or

reasonable opportunity for fraud. Ruiz v. Vigil-Giron, 2008-NMSC-063, 5, 145

N.M. 280, 196 P.3d 1286 (internal quotation marks and citations omitted).

Obviously in our democratic form of government participation and

involvement in the political process is not equal basis if a citizen cannot be involved

as an elected leader, which is exactly that the New Mexico Constitution provides in

Article VII Section 2(A): Every citizen of the United States who is a legal resident of

the state and is a qualified elector therein, shall be qualified to hold any elective

public office except as otherwise provided in this constitution. N.M. Const. Art.

VII 2(A). Because of the fundamental importance of a fully representative

democracy, the freedom of individuals to participate fully in the political process

should be closely guarded. See Harper v. Virginia State Bd. of Elections, 383 U.S. 663,

670 (1966) (holding a poll tax to be unconstitutional on the grounds that wealth or

fee paying has...no relation to voting qualifications; the right to vote is too precious,

too fundamental to be so burdened or conditioned). Laws regulating elections

implicate citizens' fundamental right to nominate and vote for candidates of their

choice. See generally Charley v. Johnson, 2010- NMSC-024, 5, 10, 148 N.M. 246,


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233 P.2d 775 (recognizing right); Gunaji v. Macias, 2001-NMSC-028, 5, 26, 130

N.M. 734, 31 P.2d 1008 (same).

E. THENEWMEXICO CONSTITUTION REQUIRES SEPARATIONOF POWERS.

The New Mexico Constitution contains an explicit separation of powers

requirement:

1. Separation of powers

The powers of the government of this state are divided

into three distinct departments, the legislative, executive

and judicial, and no person or collection of persons charged with

the exercise of powers properly belonging to one of these

departments, shall exercise any powers properly belonging to either

of the others, except as in this constitution otherwise

expressly directed or permitted.

N.M. Const. Art. III 1 (1986) (emphasis added). This provision [of the State

Constitution] articulates one of the cornerstones of democratic government: that the

accumulation of too much power within one branch poses a threat to liberty. State

ex. Rel. Taylor v. Johnson, 1998-NMSC-015, 1, 125 N.M. 343, 961 P.2d 768 (citing

Gregory v. Ashcroft, 501 U.S. 452, 458-59 (1991)).

F. IT IS CLEAR FROM THENEWMEXICO CONSTITUTION THAT

IF THE LEGISLATURE PURPORTS TO ADD ANY QUALIFICATIONSOR BARRIERS TO HOLDING ELECTED OFFICE, SUCH STATUTE

WOULDVIOLATEARTICLEVII ANDARTICLE III.

Before one even gets to the relevant statutes, it is clear as a matter of New

Mexico constitutional law that the Constitution, alone, sets the qualifications for


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elective office, while the Legislature is delegated authority to set the qualifications for

appointed office. If the Legislature purports to add qualifications for elective public

office, it is doing the job the Constitution reserved for itself, and violating

separation of powers. Moreover, the Constitution has provided a substantive right

for citizens that meet its qualifications to hold elective public office, and imposing

any further qualifications for or barriers would infringe on that right.

Accordingly, it is clear from the New Mexico constitution that if the New

Mexico Legislature has purported to add or set any qualifications for elected public

office to those in the Constitution, such statutes would conflict with the New

Mexico Constitution, violate state constitutional rights of citizens, and be

unconstitutional.

II.

NEWMEXICO STATUTES

A. SECTION 10-1-2, UNCHANGED FROM 1912, DOES NOT

CONFLICT WITH CONSTITUTION.

New Mexico Statutes Section 10-1-2 provides:

10-1-2. Person convicted of crime; ineligibility for office;

exception

No person convicted of a felonious or infamous crime,

unless such person has been pardoned or restored to


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political rights, shall be qualified to be elected or

appointed to any public office in this state.

NMSA 1978, 10-1-2 (1912). This statute dates to the same year New Mexico

became a State, and the New Mexico Constitution became effective. See State v.

Gutierrez, 116 N.M. 431, 441, 863 P.2d 1052, 1062 (1993) (New Mexico

Constitution was drafted 1910, approved by the voters on January 21, 1911, and

became effective January 6, 1912, upon New Mexico's admission as a state, citing

Robert W. Larson, New Mexico's Quest for Statehood 18461912 272304 (1968);

Proceedings of the Constitutional Convention of the Proposed State of New Mexico (1910)).

This 1912 statute does not conflict with Article VII of the New Mexico

Constitution because it does not add any qualifications or barriers to serving in

elected office beyond those in the Constitution, nor does it place any burdens or

restrictions on those with the right to serve elective public office under the

Constitution. The language excluding felons unless.restored to political rights in

10-1-2 mirrors the language from Article VII Section 1 defining qualified elector as

excluding felons unless restored to political rights. See N.M. Const. Art. VII 1.

As noted above, Article VII Section 2 then gives a right to all such qualified

electors to hold elective office (as long as they meet any additional qualifications

contained in the Constitution for a particular office). The universe of citizens given

the right to hold elective public office by Article VII, then, is exactly the same


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universe of citizens Section 10-1-2 qualifies for elective or appointed office. Section

10-1-2 places no additional qualifications on who may hold elective office than

Article VII.

B. NMSA 1978, 31-13-1. FELONY CONVICTION; RESTORATION

OF CITIZENSHIP.

Section 31-13-1 is chiefly a statute that functions to restore political rights

after completion of a felony sentences. It is actually entitled Felony conviction;

restoration of citizenship. NMSA 1978, 31-13-1 (2005). In Sub-sections (A), (B),

(C) and (D), 31-13-1 provides the mechanism for people convicted of felony

offenses to have restoration of their right to vote upon completion of their sentence

and debt to society.

As currently in effect (after 2005 amendments) the statute 31-13-1 provides as

a whole (with emphasis on the portions of concern to the Tenth Circuit in Mr.

Reeses case):

31-13-1. Felony conviction; restoration of citizenship

A. A person who has been convicted of a felony shall not

be permitted to vote in any statewide, county, municipalor district election held pursuant to the provisions of the

Election Code, unless the person:

(1) has completed the terms of a suspended or deferred

sentence imposed by a court;


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(2) was unconditionally discharged from a correctional

facility under the jurisdiction of the corrections

department or was conditionally discharged from a

correctional facility under the jurisdiction of the

corrections department and has completed all conditionsof probation or parole;

(3) was unconditionally discharged from a correctional

facility under the jurisdiction of a federal corrections

agency or was conditionally discharged from a correctional

facility under the jurisdiction of a federal corrections

agency and has completed all conditions of probation or

parole; or

(4) has presented the governor with a certificate verifyingthe completion of the sentence and was granted a pardon

or a certificate by the governor restoring the persons full

rights of citizenship.

B. When a person has completed the terms of a

suspended or deferred sentence imposed by a court for a

felony conviction, the clerk of the district court shall

notify the secretary of state. The secretary of state shall

notify all county clerks that the person is eligible forregistration.

C. A person who has served the entirety of a sentence

imposed for a felony conviction, including a term of

probation or parole shall be issued a certificate of

completion by the corrections department. Upon

issuance, the corrections department shall inform the

person that the person is entitled to register to vote. The

certificate of completion shall state that the persons

voting rights are restored.

D. When the corrections department issues a person a

certificate of completion, the corrections department shall

notify the secretary of state that the person is entitled to

register to vote. The secretary of state shall notify all

county clerks that the person is eligible for registration.

Additionally, a county clerk shall accept the following


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documents as proof that a person has served the entirety

of the sentence for a felony conviction and is eligible for

registration:

(1) a judgment and sentence from a court of this state,

another state or the federal government, which shows on

its face that the person has completed the entirety of the

sentence;

(2) a certificate of completion from the corrections

department; or

(3) a certificate of completion from another state or the

federal government.

E. A person who has been convicted of a felony shall not

be permitted to hold an office of public trust for the

state, a county, a municipality or a district, unless the

person has presented the governor with a certificate

verifying the completion of the sentence and was granted

a pardon or a certificate by the governor restoring the

persons full rights of citizenship.

NMSA 1978, 31-13-1 (2005).

C. OPERATION OF 31-13-1 ON MR.REESE.

Mr. Reese indisputably falls under sub-section 31-13-1(A)(1): He has

completed the terms of a suspended sentence imposed by a court. So, Mr. Reese

had his right to vote restored automatically, by operation of (A)(1) and (B): When a

person has completed the terms of a suspended or deferred sentence imposed by a

court for a felony conviction, the clerk of the district court shall notify the secretary

of state. The secretary of state shall notify all county clerks that the person is eligible

for registration. NMSA 1978, 31-13-1(B) (2005).


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At this point in 2005 (and, for that matter, 2001 and before) Mr. Reese was

clearly a qualified elector under the New Mexico Constitution Article VII Section

1. Despite being a felon, he had been restored to political rights by operation of

law under 31-13-1(A)(1) and (B) after completing his deferred sentence successfully.

Because Mr. Reese was a qualified elector, Article VII Section 2(A)--every citizen

resident who is a qualified elector is qualified to hold any elective public office

except as otherwise provided in this constitution--provided that he was qualified,

and had a right, to hold public elected office. N.M. Const. Art. VII 2(A).

Moreover, if the Legislature (or any branch) required additional

qualifications, or erected barriers to holding elected public office besides those in

the Constitution, such requirements would violate Article VII and Article III of the

New Mexico Constitution, as described above.

D.SUB-SECTION 31-13-1(E) IS UNCONSTITUTIONALIF ITAPPLIES

TO ELECTED OFFICE OR ANY QUALIFIED ELECTOR UNDER

ARTICLEVII.

If Subsection (E) functions as any kind of qualification or barrier at all, it does

not pass constitutional muster. As noted above, Article VII makes very clear that

there is no authority for the Legislature to place any additional limits on who is

qualified to hold any elective public office. See id. (emphasis added). The universe

of citizens qualified to hold elective office consists of qualified electors who

meedtany additional qualifications for any specific office contained in the state


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constitution itself. In contrast, the Legislature was clearly given the authority to

establish qualifications for holding an appointive position by any public officer or

employee. N.M. Const. Art. VII 2(B) (emphasis added).

Article VII further makes clear that constitutional amendment is required to

add any additional qualifications, so the Legislature utterly lacks authority to require

any qualifications beyond those in the Constitution. See N.M. Const. Art. VII

2(A); Art. VII 3. So, to the extent that 31-13-1(E) can be interpreted as a legislative

limit on Mr. Reeses right to hold public elective office, it runs afoul of the state

constitution.

To the extent it functions as a precondition or a burden on the individual

right to seek hold elective public office in New Mexico, Subsection (E) also conflicts

with the Article VII substantive right for otherwise-qualified people with the right to

vote to seek and hold elective public office. And finally, to the extent it burdens the

right to seek and hold elective public office, Subsection (E) impinges on the

substantive rights of voters to elect officers of their choice. So to the extent that 31-

13-1(E) can be read to require a felon to seek and obtain an executive act of

clemency before serving in elective office, it unconstitutionally burdens that right

and violates Article VII.


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II. EXPLAINING THE EXISTENCE OF (E):

THE LANGUAGE THAT IS 31-13-1(E) IS A

HISTORICAL VESTIGE THAT BECAME

IRRECONCILABLE WITH ARTICLE VII AND WASRENDERED USELESS BY 2001 FELONY

DISENFRANCHISEMENT REFORMS IN SUB-SECTIONS

31-13-1(A)-(D). THE LANGUAGE THAT BECAME (E)

WAS NEVER ORIGINALLY INTENDED TO BE AN

OBSTACLE TO RESTORATION OF RIGHTS.

We are here because in the Tenth Circuit in Mr. Reeses case, the United

States Government maintained 31-13-1(E) is an additional qualification,

requirement or burden that a former felon must complete to hold public office. As

per the analysis above, to the extent that this describes 31-13-1(E), it is

unconstitutional. And that probably ends the question.

However declaring a piece of New Mexico law unconstitutional is no small

matter. Whenever this Court is faced with a situation where a legislative enactment

is unconstitutional as applied, it will prefer to construe the statute in a way that

avoids the constitutional fault. And, for example, this Court will undoubtedly

consider the larger question of: If (E) is made unconstitutional by the function of

31-13-1(A) through (D) together with Article VII, why does Subsection (E) give way,

and not Subsections (A) through (D)? We answer these concerns here.


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A. Why (E) Gives Way: Legislatures Choice of Policy

The answer to why 31-13-1(E) must give way and not 31-13-1(A) through (D)

is both constitutional and a function of legislative history. Nothing in the New

Mexico Constitution constrains the Legislature and Judiciary from determining

when and how a person is restored to political rights. Article V Section 6 provides

the executive with the right to pardon, which is broad and unfettered, but nothing

indicates the power to restore political rights is exclusive to the executive. See N.M.

Const. Art. V 6; see generallyEx parte Bates, 20 N.M. 542 (1915) (statute allowing

courts in their discretion to suspend any sentence imposed does not encroach on the

constitutional power of the executive to grant reprieves and pardons). It is entirely

consistent with the Constitution that the Legislature also determine as a matter of

public policy who is entitled to restoration of political rights. This Court has said

that only the legislative branch is constitutionally established to create substantive

law. See State ex rel. Sofeico v. Heffernan, 41 N.M. 219, 23031, 67 P.2d 240, 246

(1936) (stating that the Legislature, rather than the State Game Commission, has the

power to define what constitutes a game animal, because only the Legislature

constitutionally can create substantive law); State v. Armstrong, 31 N.M. 220, 255,

243 P. 333, 347 (1924) (stating that the Legislature possesses the sole power of

creating law). This Court has recognized the unique position of the Legislature in

creating and developing public policy. [I]t is the particular domain of the


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legislature, as the voice of the people, to make public policy. Elected executive

officials and executive agencies also make policy, [but] to a lesser extent, [and only] as

authorized by the constitution or legislature. Torres v. State, 119 N.M. 609, 612, 894

P.2d 386, 389 (1995) (discussing the judiciary's role in determining the existence of

a tort duty).

The power to restore political rights is a quintessential policy question that

overlaps all three branches. SeeMowrer v. Rusk, 95 N.M. 48, 53, 618 P.2d 886, 891

(1980) (The constitutional doctrine of separation of powers permits some overlap of

governmental functions.); Shankle v. Woodruff, 324 P.2d 1017, 64 N.M. 88 (1958)

(notwithstanding prior executive clemency, courts and legislature could impose

habitual offender penalty on offender who subsequent to clemency committed

another crime). For example, language in Article VII Section 1 defines qualified

elector as excluding felons unless restored to political rights, not unless

pardoned by the governor. See N.M. Const. Art. VII 1.

B. New Mexico Legislature Reforms Its Felon

Disenfranchisement Laws

1. 2001 Reforms

In 2001 the New Mexico Legislature undertook several reforms to ensure and

facilitate the return of civil rights to all people convicted of felonies who had fulfilled


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their debt to society. See Ryan S. King, THE SENTENCING PROJECT,A DECADE OF

REFORM:FELONYDISENFRANCHISEMENT POLICY IN THE UNITED STATES (2006).2

2001 Senate Bill 204 (2001 New Mexico Laws Chapter 46) was enacted,

which both drastically re-wrote the Statute 31-13-1 and added a new section to the

Election Code, both of which provided for the automatic restoration of the franchise

to felons who had received various sentences and successfully completed them. This

law did away with lifetime disenfranchisement in New Mexico for the first time. See

Nicole D. Porter, The Sentencing Project, Expanding the Vote: State Felony

Disenfranchisement Reform, 1997-2010 (October 2010) at 20.3 According to The

Sentencing Project data, this returned the right to vote to nearly 69,000 residents.

Id.

The new 2001 law enacted a new section of the Elections Code describing the

mechanics of disenfranchisement upon a felony, see NMSA 1978, 1427.1(A)

and (B), and providing the mechanics for the automatic restoration of the franchise

2 Avail. online at

http://www.sentencingproject.org/pdfs/FVR_Decade_Reform.pdf.3 Avail. online at

http://www.sentencingproject.org/doc/publications/publications/vr_Expandingthe

VoteFinalAddendum.pdf


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after completion of the sentence. The automatic restoration of the franchise was to

occur in one of three ways4:

I. Successful completion of a deferred or suspendedsentence automatically triggers the clerk of court to restore

the right to vote; NMSA 1978, 1427.1(D)

II. Service of a state prison sentence served in full

(including parole and probation) automatically triggers the

department of corrections to restore the right to vote;

NMSA 1978, 1427.1(E)

III. Service of a federal prison sentence in full (including

parole) automatically triggers the federal government torestore the right to vote; NMSA 1978, 1427.1(F).

See NMSA 1978, 1427.1(D)-(F), (B).

The new law in 2001 Senate Bill 204 also substantially re-wrote Section 31-13-

1, entitling it Felony conviction; restoration of citizenship. New Sub-sections (A)

and (B), paralleling the Elections Act language, provided the mechanics for

automatic restoration of civil rights of felons, upon their completing of sentence,

providing four alternative paths to restoration of the right to vote:

4 Originally the 2001 law provided that the clerk of court, department of

corrections, or federal agency restore the franchise by notification to the voters

county clerk that they were again eligible to register. But in 2005 the Legislature

automated the process even further. Now the clerk of court or correction

department is to notify the Secretary of State, who in turn is to notifyall the county

clerks, that the voter is qualified to register to vote. See 2005 New Mexico Laws Ch.

116 (H.B. 64).


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(1) automatically by law when the felon has completed

the terms of a suspended or deferred sentence imposed

by a court;

(2) automatically by law when the felon was

unconditionally discharged from a correctional facility

under the jurisdiction of the corrections department or

was conditionally discharged from a correctional facility

under the jurisdiction of the corrections department and

has completed all conditions of probation or parole;

(3) automatically by law when the felon was

unconditionally discharged from a correctional facility

under the jurisdiction of a federal corrections agency or

was conditionally discharged from a correctional facilityunder the jurisdiction of a federal corrections agency and

has completed all conditions of probation or parole; or

(4) when the felon has presented the governor with a

certificate verifying the completion of his sentence and

was granted a pardon or a certificate by the governor

restoring his full rights of citizenship.

See NMSA 1978, 31-13-1(A) (2001 before 2005 amendments).

Path number (1) deliberately broke from prior law described above, by

treating completion of both suspended sentences and deferred sentences the same:

Completion of either one triggers the automatic restoration of the franchise. See id.

Paths (2) and (3), for the first time, abolished lifetime disenfranchisement, and

restored the franchise to any felon who has completed her entire sentence


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obligations.5 Path (4) set out the already-existing alternative to any felon, to seek

pardon from the governor. (Note the language of Path (4) mirrors the language in

todays Sub-section (E).) These four paths were independent alternative paths to

restoration of civil rights, not cumulative requirements.

Sub-section (C) of that amended statute in 2001 retained the language what

now is 31-13-1(E):

C. A person who has been convicted of a felony shall not

be permitted to hold an office of public trust for the state,a county, a municipality or a district, unless the person has

presented the governor with a certificate verifying the

completion of his sentence and was granted a pardon or a

certificate by the governor restoring his full rights of

citizenship.

NMSA 1978, 31-13-1(C) (2001 before 2005 amendments). However, given that

the Legislature had just provided restored the right to vote, automatically as a

function of law, to all felons who had completed their sentences, and Article VII

5 The new 2001 law in Senate Bill 204 laid out, for the first time, the mechanics of

how the franchise would be restored to a felon who served her entire sentence. Such

a person shall, upon his request be granted a certificate of completion by the

corrections department, and then presenting that certificate of completion to the

county clerk shall entitle a person to register to vote. NMSA 1978, 31-13-1(B)(2001 before 2005 amendments).

Thus the 2001 reforms made restoration of suffrage at the completing of

sentence a matter of law, but not self-executing--the felon had to request the

certification from the prison, and had to present it to the county clerk. The felon

could not be denied suffrage, but the process of returning to the voter roles was

cumbersome. As detailed infra, in 2005 the Legislature changed the process to make

it both automatic as a matter of law and self-executing.


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grants the right to hold elective public office to otherwise-qualified people with the

right to vote, as of 2001 this section ceased to language that facilitated restoration of

civil rights, and began to be an unconstitutional burden on the path to same.

That same year Senate Bill 272 (2001 New Mexico Laws Chapter 89) was also

enacted, amending the New Mexico criminal law for felon in possession to define

felon to exclude (1) anyone who received a deferred sentence, (2) anyone more than

ten years beyond completion of sentence, and (3) anyone pardoned by the proper

authority. 2001 New Mexico Laws Ch. 89 (S.B. 272) (amending NMSA 1978 30-7-

16(C)(2), definition of felon).

2. 2005 Expanded Reforms

In 2005 the Legislature undertook even greater felon disenfranchisement

reforms. Section 31-13-1 was amended to its present form. The changes in 2005

further facilitated the automatic restoration of the franchise and ensured that the

right statewide databases would reflect the right to vote6: In 2005, in order to make

6 Four changes were made to ensure the automatic return of the franchise right to all

felons: (1) the clerk of court is now required to notify the Secretary of State

automatically when a suspended or deferred sentence is completed, and the Secretaryof State is to notifyall the county clerks that the former felon is eligible to register to

vote; (2) The Department of Corrections is required to automatically issue a

certificate of completion to any felon competing her sentence (no longer requiring

the prison to request it) and this certificate of completion is to state that the

persons voting rights are restored; (3) The Department of Corrections is required

to automatically and affirmatively advise the prisoner she is now entitled to register to vote,

and notify the Secretary of State of same; (4) Finally, any county clerk is required to


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the restoration procedure easier, the New Mexico legislature implemented a

notification process by which the Department of Corrections is required to issue a

certificate of completion of sentence to an individual upon satisfaction of all

obligations. The Department of Corrections is also required to notify the Secretary

of State when such persons become eligible to vote. See Nicole D. Porter, The

Sentencing Project at 20.7

Obviously the intent of the 2001 re-write and 2005 amendments was to

restore the right to vote to more people who had been convicted of felonies and to have

the right to vote restored as automatically as possiblewith asfew obstacles to suffrage as

possible.

C. Reforming Tarnished Felon Disenfranchisement Laws, As New

Mexico Has Done, Is Sound Criminal Justice and Democratic

Government Policy.

No right is more precious in a free country than that of having a voice in the

election of those who make the laws under which, as good citizens, we must live.

Wesberry v. Sanders, 376 U.S. 1, 17 (1964). "[S]ince the right to exercise the franchise

accept as proof that a person has served the entirety of the sentence for a felonyconviction and is eligible for registration a certificate of completion from any

jurisdictions corrections department or a judgement and sentence from any court

which clearly shows on its face the person has completed the sentence. NMSA

1978, 31-13-1(B)-(D) (2005).7 Avail. online at

http://www.sentencingproject.org/doc/publications/publications/vr_Expandingthe

VoteFinalAddendum.pdf


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in a free and unimpaired manner is preservative of other basic civil and political

rights, any alleged infringement of the right of citizens to vote must be carefully and

meticulously scrutinized." Reynolds v. Sims, 377 US 533, 562 (1964). As the New

Mexico Legislature recognized in enacting felony disenfranchisement reforms in

2001 and expanding them in 2005, felon disenfranchisement beyond the end of an

offenders sentence does not serve either criminal justice policy ends, nor democratic

participation policy ends.

1. Felony Disenfranchisement Beyond End of Sentence Does not

Advance Law Enforcement Goals.

Felon disenfranchisement that extends beyond a criminal sentence does

not advance the goals of the criminal justice system. Manza, Jeff; Uggen, Chris

Locked Out: Felon Disenfranchisement and American Democracy (2006 Oxford. ISBN 0-

19-514932-7). Jeff Manza, Professor of Sociology New York University, and

Christopher Uggen, Distinguished McKnight Professor of Sociology,

comprehensively surveyed and summarized cases, statutes, and legislative history of

felon disenfranchisement. Rather than being a natural, inevitable feature of any

mature system of criminal justice, they concluded that denying large numbers of

citizens with felony convictions the right to vote is virtually unique to the United

States. (Manza & Uggen, pp. 3839, 235.) They also concluded it was a Jim-Crow

era instrument of vote suppression and political hegemony. They conclude that


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despite its remarkably wide acceptance in codes across the country, it stands without

well-articulated justification or rationale, particularly as it applies to people who have

fully completed their of sentence. Id.

Manza and Uggen present the case that felony disenfranchisement actually leads

to more crime. Someone who has a stake in making the laws is less likely to break

them, data shows: For those with criminal records and without, voting reduced

future criminal involvement. (Manza & Uggen, pp. 13233, 256.) Which is, of

course, a central virtue of representative democracy: those who feel like they are part

of society and its decision-making are be more likely to follow its rules, while

individuals labeled outsiders and adversaries to the system find less reason to

comport themselves with its rules. See id. Political disengagement or exclusion

breeds crime. If those who vote are actually less likely to commit new crimes,

extending the franchise may facilitate reintegration efforts and perhaps even improve

public safety. (Manza & Uggen, p. 129.)

2. Felony Disenfranchisement Beyond End of Sentence Does not

Advance Goals of Suffrage and Democratic Participation.

Nor does felony disenfranchisement beyond incarceration advance the goals of

universal suffrage and democratic participation. See id. It is a profound decision to

hold that those convicted of crime, even relatively minor crimes a long time ago, can

never regain their places as full and equal members of society. As Justice Anthony


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Kennedy said in his remarkable speech to the American Bar Association in 2003, in

which he criticized mass incarceration, mandatory minimum sentences, and the

absence of discretion:

To be sure the prisoner has violated the social contract; to

be sure he must be punished to vindicate the law, to

acknowledge the suffering of the victim, and to deter

future crimes. Still, the prisoner is a person; still, he or she

is part of the family of humankind.

Anthony M. Kennedy, Associate Justice, Supreme Court of the United States,

Address at the American Bar Association Annual Meeting (Aug. 9, 2003), in 16 FED.

SENTG. REP. 126, 127 (2004).

When only white men property owners enjoyed the franchise, felon

disenfranchisement was entirely consistent with this elite franchise, restricted as well

by race, sex and wealth. Now, however, voting is a civil right enjoyed by all adults,

and restrictions on the franchise based on land ownership, race, ethnic origin,

language, education, gender and similar classifications are constitutionally taboo. In

the present, disenfranchising a substantial portion of the population for relatively

trivial or long-ago offenses is potentially inconsistent with the idea of representative

government. Uggen and Manza conclude that felon disenfranchisement beyond

completing of sentence is not only unjustifiable, but might well be affirmatively

harmful measured against relatively uncontroversial policy goals.


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In 1998, Marc Mauer of The Sentencing Project published a careful survey of

American felon disenfranchisement laws. See THE SENTENCING PROJECT AND

HUMAN RIGHTS WATCH, LOSING THE VOTE: THE IMPACT OF FELONY

DISENFRANCHISEMENT LAWS IN THE UNITED STATES (1998).8 In 2006 Ryan

King of the Sentencing Project published a report on states' (including New

Mexico's) efforts at felony disenfranchisement reform. See RYAN S. KING, THE

SENTENCING PROJECT, A DECADE OF REFORM: FELONY

DISENFRANCHISEMENT POLICY IN THE UNITED STATES (2006).9 Both

provide numbers and studies showing that reducing felony disenfranchisement

improves the democratic process.

D. The Legislature Did Not Originally Enact the Language that

Became 31-13-1(E) to Restrict Political Rights, But To Facilitate

Them.

The only cognizable explanation for sub-section (E)s existence is that it is left-

over language that originally addressed how to regain suffrage and civil rights after

completion of a felony suspended sentence. (This language never applied to a

deferred sentence.) The language in 31-13-1(E) is directly parroting the language in

the suspended sentence statute, NMSA 1978, 31-20-8:

31-20-8. Effect of termination of period of suspension

without revocation of order

8Available at http://www.sentencingproject.org/pdfs/9080.pdf

9Available at http://www.sentencingproject.org/pdfs/FVR_Decade_Reform.pdf


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Whenever the period of suspension expires without

revocation of the order, the defendant is relieved of any

obligations imposed on him by the order of the court and

has satisfied his criminal liability for the crime. He shall

thereupon be entitled to a certificate from the court soreciting such facts, and upon presenting the same to the

governor, the defendant may, in the discretion of the

governor, be granted a pardon or a certificate restoring

such person to full rights of citizenship.

NMSA 1978, 31-20-8 (1977).

Before the 2001 reforms, this language in the suspended sentence statute

provided the only way to regain the civil rights of suffrage (and concomitant right of

service in elective office) after a suspended sentence. Felons completing a suspended

sentence were required to take a certification of completion to the Governor to ask

for a discretionary act of clemency to restore rights.

After the 2001 reforms, however, this was no longer necessary. The 2001

amendments made the restoration of the (concomitant) rights to vote and hold

elective office automatic by function of law upon completion of either a suspended

sentence or a deferred sentence. The 2001 and 2005 amendments essentially did

away with the old legal distinction between the effects of a suspended sentence or a

deferred sentence, and treated both the same: upon successful completion of a

suspended or deferred sentence, the franchise is automatically restored under Section

31-13-1(A)(1) and (B) (2005). The language in the suspended sentence statute,

Section 31-20-8, has been rendered unnecessary and meaningless by Section 31-13-


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1(A)(1) and (B). The language in 31-13-1(E) that comes directly from the old

suspended sentence statute has been rendered just as unnecessary and meaningless.

1. Old Regime Before 2001 Reforms.

A person convicted of a felony in New Mexico is sentenced either to prison,

or to a suspended sentence, or a deferred sentence.

Before the 2001 reforms, if a person was sentenced to prison, he was

disenfranchised for life. His only recourse was to cause the governor to exercise her

absolute Article V, Section 6 power of pardon and reprieve.

If he sentenced to a suspended sentence, he avoided prison in favor of

probation, but was also disenfranchised for life. Except, there was one way out: The

suspended sentence statute10 provided that upon successful completion of the

10 Before 2001 reforms to felon disenfranchisement, a suspended sentence required

clemency action by the Governor to restore civil rights:

31-20-8. Effect of termination of period of suspension

without revocation of order

Whenever the period of suspension expires without

revocation of the order, the defendant is relieved of any

obligations imposed on him by the order of the court and

has satisfied his criminal liability for the crime. He shall

thereupon be entitled to a certificate from the court so

reciting such facts, and upon presenting the same to the

governor, the defendant may, in the discretion of the

governor, be granted a pardon or a certificate restoring

such person to full rights of citizenship. (History: L. 1963,

Ch. 303, 29-21; L. 1977, Ch. 216, 16.)


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probationary conditions that replaced the suspended sentence, he was thereupon

be entitled to a certificate of completion which he could take to the governor to

seek pardon or a certificate restoring such person to full rights of citizenship, in

her discretion. NMSA 1978, 31-20-8 (1977). While this was not a separate path

from executive clemency, is was, in effect, a small leg up toward obtaining it. The

statute it required the court to provide the predicate paperwork, and a formalized

procedure to follow. (Restoration of rights was, however, still entirely a matter of the

governors discretion.)

However if our pre-2001 felon were sentenced to a deferred sentence, he not

only avoided prison in favor of probation, but also upon successful completion he

was almost-magically returned his civil rights by the legal fiction of dismissal of the

charges before sentencing. NMSA 1978, 31-20-9 (1977). In New Mexico we used

this dismissal fiction to effect a restoration of civil rights, by function of law,

NMSA 1978, 31-20-8 (1977); N.M. Attorney General Advisory Letter 85-29, 1983-

86 N.M. Op. Atty. Gen. 483, N.M. A.G. Op. No. 85-29, 1985 WL 204891.

Adeferred sentence did not--restoration of civil rights was self-executing:

31-20-9. Completion of total term of deferment

Whenever the period of deferment expires, the defendant

is relieved of any obligations imposed on him by the order

of the court and has satisfied his criminal liability for the

crime, the court shall enter a dismissal of the criminal

charges. (History: L. 1963, Ch. 303, 29-22; L. 1977, Ch.

216, 16.)

NMSA 1978, 31-20-9 (1977).


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without invoking executive clemency. In Attorney General Opinion No. 7344 this

provision was interpreted to mean that a person successfully completing his

deferment was restored to his rights to vote and to hold office automatically, without

having to seek the governors pardon. N.M. Attorney General Advisory Letter 85-

29, 1983-86 N.M. Op. Atty. Gen. 483, N.M. A.G. Op. No. 85-29, 1985 WL 204891;

see also N.M. Attorney General Advisory Letter 88-03, N.M. A.G. Op. No. 88-03,

1988 WL 407410 (This section [deferred sentence statute] has been interpreted to

mean that the right to vote is automatically restored upon successful completion of

the period of deferment. Thus, successful completion of a deferred sentence under

New Mexico law would not be considered a conviction for purposes of 18 U.S.C.

922.).

2. The Certification of Completion to the Governor for a

Certificate Restoring Rights Language of 31-13-1(E) Referred to

Pre-2001 Path for Restoration after a Suspended Sentence.

The pardon process language that is now 31-13-1(E) appears to have been

written to refer directly to the parallel language the suspended sentence statute,

NMSA 1978, 31-20-8 (1977). Compare the two:

31-13-1(E) Suspended Sentence Statute

31-20-8. Effect of termination of period

suspension without revocation of order

Whenever the period of suspension

expires without revocation of the order,


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E. A person who has been convicted of a

felony shall not be permitted to hold an

office of public trust for the state, a

county, a municipality or a district,

unless the person has presented the

governor with a certificate verifying the

completion of the sentence and was

granted a pardon or a certificate by the

governor restoring the persons full

rights of citizenship.

the defendant is relieved of any

obligations imposed on him by the order

of the court and has satisfied his criminal

liability for the crime. He shall

thereupon be entitled to a certificatefrom the court so reciting such facts,

and upon presenting the same to the

governor, the defendant may, in the

discretion of the governor, be granted a

pardon or a certificate restoring such

person to full rights of citizenship.

So in historical context that language entitling a person to a certificate of

completion and instructing the felon to use it to seek executive pardon or certificate

of restoration of civil rights was not written to restrict who could vote or hold office,

but to facilitate and provide a leg up on the only path to restoration of civil rights

available to people who had completed a suspended sentence.

The roots of the language that became 31-13-1(E) was not intended as to

impose an obstacle to civil rights, but to facilitate them. Thus the Legislature could

not have intended the language in (E) to undermine the effectiveness of Subsections

(A) through (D), embodying the 2001 and 2005 reforms. This entire old regime

was made moot in 2001: It deliberately broke from prior law described above, by

treating completion of both suspended sentences and deferred sentences the same:

Completion of either one triggers the automatic restoration of the franchise. See id. It

also, for the first time, abolished lifetime disenfranchisement for felons, and restored


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the franchise to any felon who has completed her entire sentence obligations.

Moreover, the reforms in Sub-sections (A) through (D) also kept the option for any

felon to seek pardon from the governor.

Sub-section (C) of that amended statute in 2001 retained the language what

now is 31-13-1(E):

C. A person who has been convicted of a felony shall not

be permitted to hold an office of public trust for the state,

a county, a municipality or a district, unless the person has

presented the governor with a certificate verifying thecompletion of his sentence and was granted a pardon or a

certificate by the governor restoring his full rights of

citizenship.

NMSA 1978, 31-13-1(C) (2001 before 2005 amendments). However, given that

the Legislature had just provided restored the right to vote, automatically as a

function of law, to all felons who had completed their sentences, and Article VII

grants the right to hold elective public office to otherwise-qualified people with the

right to vote, as of 2001 this section ceased to language that facilitated restoration of

civil rights, and began to be an unconstitutional burden on the path to same.

In 2005 the Legislature amended 31-13-1 to its present form, enacting

measure that further facilitated the automatic restoration of the franchise and

ensured that that statewide voter databases would accurately reflect the automatic

restoration of the right to vote.


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After the 2005 amendments former Sub-section (C) became current Sub-

section (E) but was otherwise unchanged. NMSA 1978, 31-13-1(E).

3. Subsection (E) Language Rendered A Nullity After2001 and 2005 Amendments.

As detailed above, sub-section 31-13-1(E) language reflected what was the the

sole path to suffrage for felons coming off a suspended sentence before the 2001

reforms, but that path was made obsolete in 2001.11 New sub-sections (A) through

(D) have provided for a restoration of the right to vote through operation of law for

every felon completing a sentence, and specifically for those who served a suspended

or deferred sentence. Seeking executive clemency remains one of the options of a

path (31-13-1(A)(4)) to restoration of civil rights, but not a precondition. Article VII

of the New Mexico Constitution provides those qualified electors are qualified to

hold public elective office. Given that, there is simply no one who will ever need

avail themselves of 31-13-1(E).

11 In the interests of completeness,, the pardon requirement in 31-13-1(E) has never

historically applied to Mr. Reese. Mr. Reese completed a deferred (not suspended)sentence under the old regime and his case was dismissed, which invoked the legal

fiction of the time that Mr. Reese enjoyed his civil rights again. In 2001, the

Legislature codified that process (retroactively applying to Mr. Reese), making the

automatic restoration of his franchise effective as a matter of law under 31-13-1(A),

which in turn invoked Article VIIs right that he might seek and hold public elective

office. At no point in history, either before 2001 or since, did the language in (E)

apply to Mr. Reese.


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So at best 31-13-1(E) is vestigial, absurd, and meaningless.It require felons to

present the Governor with a certificate of completion, and obtain from the

Governor a pardon or certificate restoring his full rights of citizenship. But the

2005 Amendments to 31-13-1(C) and (D), however, provide for the automatic

issuance of a certificate of completion that states on its face that the persons voting

rights are restored.And Article VII of the New Mexico constitution provides that

the right to vote brings the right to seek and hold public elective office. Taking such

a certificate to the governor to request a duplicitous act of executive clemency is

absurd as it is fruitless. (As Mr. Reese points out in his merits brief, at the time he

completed his obligations, the then-Governor would not entertain any such requests

because there was no need.)

At best (E) is gratuitous; at worst, it is unconstitutional, and this is because

the Legislature itself has expanded the franchise.

E. Even Ignoring This Legislative History, The Two Possible Ways To

Read Sub-section 31-13-1(E) To Make It Constitutional, However

Untenable, Both Mean Sub-section 31-13-1(E) Cannot Apply To

Limit the Civil Rights of People Like Mr. Reese.

There are two possible ways to read 31-13-1(E) that, however strained, cause it

to not conflict with the state constitution. One is to read into 31-13-1(E) the words

appointed public officials or employees, but not elective offices. Article VII clearly

authorized the Legislature to set qualifications for appointed public officials and


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employees, and just as clearly as it forbid the Legislature from adding qualifications

for elective offices. Sub-section 31-13-1(E) would be a valid Legislative

pronouncement if it hewed the same limits.

However there are reasons to seriously doubt this is what the legislature was

up to with 31-13-1(E). For one, the Legislature did not use any such words.

Secondly, Subsection (E) amounts to the Legislature requiring people to go to the

Executive to plead for permission to meet the qualifications the Legislature is

charged by Article VII to set. Surely the complete abdication of authority to the

executive branchs unbounded discretion does not comport with Article III. Third,

in the context of the other sub-sections of 31-13-1, Sub-section (E) makes no sense.

The Legislature in the previous four sub-sections, (A) through (D), clearly facilitated

restoration of the right to vote, in most cases automatically and by operation of law,

to these same people (felons who had completed their sentences). Why would the

Legislature, after facilitating the restoration of rights, impose a nearly-impossible

redundant12 burden on only people seeking to serve as appointed officers and

employees? Surely the only possible purpose of the (E) pardon requirement, if it

were to apply to appointments, would be to greatly annoy the Governor.

12 Indeed it is difficult to see why 31-13-1(E) is needed at all, given it is somewhat

redundant with one of the options for restoration of rights in Sub-section (A). 31-

13-1(A)(4) (providing that one of four ways former felons can restore the right to

vote is executive pardon or clemency).


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The second way to read 31-13-1(E) as constitutional is to limit it to only

applicable to duly elected or appointed sitting officers who, while serving in office,

incur a felony, as happened in this Courts recent case of State ex rel. King v. Sloan,

2011-NMSC-020, 149 N.M. 620, 253 P.3d 33 (per curiam). When a sittingpublic

official is newly disenfranchised by a felony conviction, the conviction removes the

right to hold any elective public office under Article VII Sections 1 and 2(A), and

causes any such sitting official to be not qualified to hold any elective public office

under Article VII Section 2(A). Thus the Legislatures (E) requirement that such an

officer obtain executive clemency to restore civil rights in this situation does not

offend or infringe on the state constitution.

Alas, while (E) would not offend the constitution if read this way, it would

also be uselessly redundant, as this Court made clear in its Sloan analysis. See State ex

rel. King v. Sloan, 2011-NMSC-020, 2-3, 7, 14. Sloan was duly elected

commissioner on the New Mexico Public Regulation Commission, but during her

term she was convicted of two felonies and the Attorney General sought her removal

because she was no longer qualified to serve under Article VII and 31-13-1(E). This

Court reasoned she should be removed, automatically, under Article VII:

{ 2} The office of PRC Commissioner is a constitutionally

created elective public office. See N.M. Const. art. XI, 1.

The qualifications for holding elective public office are set

forth in Article VII, Section 2(A) of the New Mexico

Constitution, which provides that [e]very citizen of the


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United States who is a legal resident of the state and is a

qualified elector therein, shall be qualified to hold any

elective public office except as otherwise provided in this

constitution. Of relevance to this case is who is

considered a qualified elector under our stateconstitution, or, more specifically, who is not.

{ 3} If Ms. Sloan is not a qualified elector, she is not

qualified to hold the office of PRC Commissioner. Article

VII, Section 1 provides that anyone convicted of a

felonious or infamous crime is not a qualified elector

unless restored to political rights.

King v. Sloan, 2011-NMSC-020, 2-3. Granted this Court then went on to also cite

Sub-section (E) as additional support, but by all appearances it had no need to. This

Court reasoned that Sloan had forfeited the office she once lawfully held by losing

her status as as qualified elector under Article VII Section 1, a status required to

hold any elective public office under Article VII Section 2(A). Id. 6-7. Because

Ms. Sloan is a convicted felon she is no longer a qualified elector and cannot

continue to hold public office. Id. 7. So, while cited, it is difficult to see that 31-

13-1(E) added anything to this Courts analysis at all.

In either case, 31-13-1(E) construed in these ways would not apply to Mr.

Reese or people in his situation. Mr. Reese had his status as a qualified elector

restored by action of law under 31-13-1(A)(1) and (B). He has had his political

rights restored under Section 10-1-2, and Article VII Section 2(A) provides he has

the right to hold public elected office. So he is neither Ms. Sloan, nor is he required

to annoy the Governor with an unnecessary clemency request. At the end of the


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day, each of these constitutional constructions of Sub-section (E) is strained and

unsatisfying, suggesting perhaps 31-13-1(E) is not salvageable.

CONCLUSION

This origin story does not change the answer to the certified question--- if31-

13-1(E) is an obstacle to elective office, is it unconstitutional, regardless of how it

began. But the history of how the language that is now 31-13-1(E) went from path to

civil rights to burden on civil rights is of the history of felon disenfranchisement

reform in New Mexico, and it is important. It is important because it shows that the

federal circuit cases like Valerio and Molina were incorrect interpretations of New

Mexico law, even granting that neither case presented the constitutional question

presented here.

___________________

TRACE L.RABERN,ESQ.Attorney for AmiciNew Mexico Criminal Defense

Lawyers Association

1626 Ben Hur Dr.


505-690-7969


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Certificate of Service

I hereby certify that (1) on Wednesday March 13 I caused to be deposited in

the United States mail, with First Class Postage prepaid, a true and correct copy of

the foregoing Brief together with a copy of this Certificate of Service, addressed to

Louis Valencia and Jennifer Rozzoni, Assistant United States Attorneys, and

Kenneth J. Gonzalez, United States Attorney, , Post Office Box 607, Albuquerque,

New Mexico 87103; (2) Parties in interest including Jason Bowles, B.J. Crow and

Monnica L. Garcia, Bowles and Crow, PO Box 25186, Albuquerque, N.M. 87125,

and William Marchiando, Marchiondo Law Offices, PC, 315 5th Street NW

Albuquerque, N.M. 87102-2105; (3) all required privacy redactions have been

made, and, with the exception of those redactions, this document is an exact copy of

the written document filed with the Clerk; and (4) this submission has been scanned

for viruses with the most recent version of OS X disk utility (Ver. 10.5), and,

according to that utility, this digital submission is free of viruses.

TRACE L.RABERN,ESQ.Attorney for Amici


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New Mexico Criminal Defense

Lawyers Association

1626 Ben Hur Dr.


505-690-7969

Documents

Rabern Amicus Brief in Reese Final