Larry “Lead” Marker of Roswell said his business was devastated by state policies enacted under the administration of Gov. Michelle Lujan Grisham to limit emissions of methane and other pollutants by the oil and gas industry.
His once lucrative independent oil production company Marker Oil struggled with the costs of compliance with New Mexico’s new rules on emissions, Marker said, leading him to a deeper interest in public policy and to take a stance against the Democrat-led executive branch.
Marker led a petition to assemble a grand jury to investigate Lujan Grisham’s COVID-19 health orders, which he said were illegal and outside the governor’s authority.
Since COVID-19 was first reported in New Mexico in March 2020, Lujan Grisham and her administration aggressively enacted restrictions on nonessential business operations and public gatherings. Public health orders required the use of face masks in public places and state government buildings.
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Most recently, the State required healthcare workers be vaccinated and required public school workers either do so as well or submit to regular COVID-19 testing.
These actions drew almost immediate backlash from New Mexico’s rural populations, particularly in the heavily conservative southeast corner, who argued the State infringed on their rights and acted outside the governor’s authority in imposing the mandates.
The movement to convene a grand jury, which requires signatures from at least 2 percent of a county’s registered voters, started in Marker’s Chaves County home and spread throughout the deep-red southeast region where other petitions began circulating in other nearby counties.
A grand jury in the State of New Mexico can be called by a judge or by petition and can hear allegations to find probable cause and potentially issue an indictment for criminal charges to then be tried in court.
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Is it possible?
Section 14 of the New Mexico Constitution states that citizens may petition a judge to convene a grand jury, which could then deliver an indictment on a criminal charge.
After reviewing the petitions, University of New Mexico Law Professor Peter Kierst said he didn’t see anything in the filing that implied a crime was committed.
That meant, he said, that convening a grand jury in this case was “not legally proper.”
Kierst practiced law in the Albuquerque area for 30 years and said he’s never seen such a petition that lacked criminal accusations succeed in New Mexico.
“I think it’s going to be difficult for people who are opposed to the governor’s orders to attack them in this way,” Kierst said. “The New Mexico Constitution does provide for a citizen’s petition to convene a grand jury. But the purpose of a grand jury is to investigate crimes.”
Instead, Kierst said the petition merely contained complaints about the governor’s job performance.
Those issues, he said, have been and will be addressed during elections and not criminal proceedings like a grand jury.
“The petition doesn’t allege that she has committed any crime,” Kierst said. “They say she has abused her authority or acted outside of it. If that’s true, there’s still no crime being committed.
“What they’re asking the grand jury to do is a political act. That’s not what grand juries are set up for.”
A grand jury could be used against a governor, Kierst said, if there was a crime alleged such as a misappropriation of funds.
He said district courts and the New Mexico Supreme Court already upheld that the governor acted within her authority in enacting and extending the public health orders and that even with the signatures, district courts would still have to agree to convene the grand jury.
Kierst said he would expect the governor’s office to successfully challenge that act, due to a lack of accusations of an actual crime in the petition.
“I don’t think it’s going to happen. My guess would be is that a district court judge who is handed this petition is going to give the same analysis that I have,” Kierst said. “I don’t think it’s going to go that far. If it did, her (Lujan Grisham’s) lawyers would take the appropriate steps to stop it and say this isn’t legally proper.
“If people are unhappy with the governor, they’ve got other outlets and avenues without convening a grand jury. Grand juries are not to be used to investigate something people are just pissed off about.”
Petitions circulating in southeast New Mexico
The Republican Party of New Mexico reported Sept. 9 the petitions had garnered enough signatures and were filed in District Court in Eddy, Lea, Chaves and Roosevelt counties.
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Marker said the goal of the petition was to have Lujan Grisham and her administration defend the restrictions in court.
Past attempts to bring various complaints against the health orders before district judges were thrown out, Marker said, for “lack of standing,” and the grand jury petition, he hoped would prove a viable alternative.
“This is an extreme remedy, there’s no doubt. These are unprecedented times,” Marker said. “District courts have jurisdiction to grant standing based on great public importance. How somebody could say an invasion of every substantive right throughout the state of New Mexico is not of great public importance is beyond me.”
Marker hoped that if the grand jury found evidence she abused her authority and a court later convicted the governor, impeachment proceeding could begin or Lujan Grisham could be removed from the office.
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Since the pandemic began, multiple district judges and the New Mexico Supreme Court upheld Lujan Grisham’s authority to enact and extend the public health orders.
“We’ve gone so far on emergency authority that we’ve got the governor and her branch of the government granting themselves unlimited authority every 29 days,” Marker said. “In reality, no one individual or branch of the government has unlimited authority and especially not the power the grant themselves unlimited authority.”
‘Divorced from reality?’
Lujan Grisham Press Secretary Nora Meyers Sackett said the governor’s office had not received a copy of or any communication about the petitions.
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After the petition was described to her by a Current-Argus reporter, Meyers Sackett said it was “divorced from reality” and defended the governor’s right to enact the protocols.
“We haven’t seen any such petition but based on your description it sounds entirely divorced from the reality in which we all live,” she said.
“As I’m sure you will report, given that it is a fact, the state’s ability to protect the health and safety of the public by implementing public health policies is explicitly delineated in state law and has been upheld again and again in the courts.”
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Meyers Sackett urged New Mexicans to follow the health orders, wear protective face masks and get vaccinated against the virus to avoid its continued spread, infections and death.
Health officials nationwide including at the Centers for Disease Control and Prevention and Director of the National Institute of Allergy and Infectious Diseases Anthony Fauci who also serves as chief medical adviser to the President supported mask mandates and vaccines throughout the pandemic.
Numerous other states in the U.S. enacted similar requirements as New Mexico’s on schools, medical facilities and public places.
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“The facts and science regarding COVID-19 and the efficacy of both masks and vaccines are very clear — please remind your readers that they can and should schedule their vaccinations, which are safe and effective and important to the health and economic well-being of our state, at VaccineNM.org today,” Sackett said.
New Mexico Republicans support grand jury petition, criticize COVID-19 orders
Getting the vaccine and choosing to mask up are choices New Mexicans should be free to decide to do or not do, said New Mexico Rep. Jim Townsend (R-54) of Artesia who also serves as the New Mexico House minority leader.
He said the petition was the result of widespread unrest resulting from the governor’s orders, and that he supported efforts to call a grand jury and investigate the governor’s actions.
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“When people believe they are not listened to and their thoughts and concerns and values are not listened to, they start looking for methods to be able to effectively react. That’s exactly what this is. That’s where we’re at,” Townsend said.
“I think every New Mexican has the right to use the law of the land to represent themselves and I support them for doing it.”
New Mexico Sen. David Gallegos (R-41) of Eunice helped collect signatures recently at the Lea County Fair.
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He said the goal was to have arguments for and against the orders heard before a court, and that it would be up to the counties themselves to decide “how far to take it.”
Removing Lujan Grisham from office was a possibility Gallegos said he would support based on the evidence and conclusions drawn by the court.
“I’d love to pull back the governor’s authority. I don’t know that we’ll get her fired but I hope that going forward governors will have an obligation to listen to the people,” Gallegos said. “If we as elected people overreach our authority, we should be held accountable.
“If that comes out in the proceedings, I’d be okay with it (removing Lujan Grisham). I think the lieutenant governor (Howie Morales) would be in a very good position.”
Read the citizens petition to convene a grand jury from Eddy County.
Adrian Hedden can be reached at 575-618-7631, [email protected] or @AdrianHedden on Twitter.