While Councilors Susan O’Leary, Rick Reiss and Antonio Maggiore have all filed their responses with the Court to White’s petitions, White, who is representing himself in the cases, appears to be struggling with serving papers to the three Councilors, the Los Alamos County Clerk, Secretary of State Maggie Toulouse-Oliver and Attorney General Hector Balderas, as ordered by Judge Thomson, in a timely manner.
A trial court administrative assistant wrote to White May 25 telling him that any correspondence sent to the Court must be prepared in proper pleading format and filed with the Court Clerk’s Office. She told White that any documents sent in letter format or emails is “considered an ex parte communication” and that any other correspondence sent in that manner will be “discarded or blocked from Judge Thomson’s email in order to avoid continued misuse”. She said several times the Court has filed in open court the emails from White out of deference to his pro se status.
White filed a motion for clarification May 29 with the Court telling Judge Thomson he has no idea what the Court expects of him, that he has given Judge Thomson leave to decide when he would “fit the recall hearings in”, expecting that dates would be selected within a reasonable timeframe to fit the Supreme Court requirement of a decision within 10 days.
White’s motion states that he alerted the Court after three weeks that two of the recall petitions needed to have hearings scheduled so as not to run into a lack of time to have a recall election. He tells the Court he believes none of his emails meet the standard of “ex parte communication of an improper nature”.
“For all the formality, your honor is only deciding if the people get to exercise their elective franchise to end an elected official’s term early,” White states. He complains about the cost to him in time and money in proportion to the three Councilors, such as money for paper and ink, gasoline, postage, private service of process by friends and acquaintances to cover their time and gas, none of which he says are recoverable by law.
Reiss and Maggiore filed their responses May 29 through their mutual attorney Jack Hardwick. Both responses state that the Court requires the proponent of a recall petition to present evidence sufficient to demonstrate that a public official has engaged in acts of malfeasance of violation of the oath of office.
“When a public officer has a right to perform an act which is discretionary, the manner in which the discretion is exercised does not rise to the level of misfeasance unless the discretion is exercised with an improper of corrupt motive,” the responses state. “Applying those standards White has not even stated a claim.”
The responses say that White’s complaint consists of “conclusory allegations, hearsay statements and unauthenticated exhibits”. They state that of 29 counts, 18 are related to Council’s actions regarding the duties of the sheriff and that the actions of Reiss and Maggiore were in accordance with the law. The responses state that the question of whether the County can limit the duties of the sheriff and assign law enforcement responsibility to the Los Alamos Police Department involves complex issues of Constitutional and statutory construction and analysis about which reasonable lawyers can differ.
“Judge (Francis) Mathew had a hearing about these issues May 10 that squarely addresses these issues but he has not yet made a ruling,” the responses state. Reiss and Maggiore call White’s claims that they are advocating the overthrow of the State of New Mexico and causing the County to rebel against the State “frivolous in the extreme”.
“White’s self-amusing rhetoric is reckless and irresponsible. If White was a lawyer he would likely be sanctioned for violating his professional responsibilities,” the responses state.
Reiss responds to an allegation by White that he had “an unlawful interest in a public contract” by stating that White has failed to identify the alleged transaction involved. White’s petition had asked that District Attorney Marco Serna investigate Reiss for a fourth degree felony charge in connection with the alleged public contract.
“In any case, Councilor Reiss can not be found guilty of a felony without due process including the right to an impartial factfinder, cross examination of witnesses and right to a decision based on the record with a statement of reasons,” his response states.
O’Leary filed her own response with Judge Thomson in letter form. She first asked the Court to determine whether White circulated a petition for her recall at the Los Alamos Gun Show April 21-22 or at any other time without first receiving Court approval. White has since claimed that the petition he was circulating was the one for his sheriff candidacy that he needs to be placed on the ballot for the general election, and that he needs 237 signatures as an Independent candidate.
O’Leary told Judge Thomson she objected to White’s characterization of her as “a member of the Gang of Five – explicitly equated to a violent criminal gang” and said she is not a member of a gang of any kind and called that White’s casual disregard for the truth should color the Court’s review of his allegations. Her letter responds to each of White’s allegations by stating that she has absolutely no authority to act independently on behalf of Los Alamos County, has never done so and has never purported to do so, so there was never any individual action taken.
O’Leary said White’s complaints represent policy disagreements and that the remedy available to him is to run for office to replace her or to support and vote for others who share his views. She said his allegations reflect a combination of falsehoods and illogical conclusions painted from a fundamental misunderstanding of the authority and responsibility of individual members of a legislative body and that having a public policy that is disagreeable to another person is not malfeasance or misfeasance or a violation of the oath of office.
“It is an inescapable element of our democratic system. It is of course impossible to agree with everyone all of the time,” she stated. “Relying on the financial and legal staff of the County for factual information and advice is not malfeasance or misfeasance or a violation of the oath of office. It is what why the public pays for that expertise.”
Reacting to O’Leary’s response, White said first he guesses she needs a history lesson in who the “Gang of Five” were.
“To refresh, they were the top five communists ruling China in the 70s after Mao’s death. I see the Council as very communist, and that is why I call them a politburo all the time,” he said.
“Her whole response, which violates so many court rules, answers every one of my charges with, ‘As a councilor I have no fiduciary duty to research anything myself, I depend on the opinion of a person (the County Attorney) I have direct control over to fire, to tell me my wishes are legal. And as a councilor I have no blame for anything I vote for and likewise can take no credit because I have no individual voice.’ This is simply hogwash! And further proof of the ‘Gang of Five’ running the County like China,” White said. “If the citizens regain control of their council and tell the County Attorney to do an about face on the Sheriff he will comply and argue to the Court that everything he previously said was wrong. The job of the County Attorney is to back up the majority of the council no matter how wrong they are and publicly state they are 100 percent right.”
A hearing on the three petitions, which Judge Thomson consolidated, has been set for 3 p.m., June 11 in Santa Fe.