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Judge Grants Los Alamos County Motions To Dismiss Lawsuit Brought By Local Sheriff Candidate Greg White

on August 10, 2018 - 10:54am

Greg White, candidate for Los Alamos County Sheriff, appears pro se Friday in First Judicial Court in Santa Fe. Photo by Maire O'Neill/ladailypost.com

First Judicial District Judge Greg Shafer announces his ruling Thursday afternoon in Santa Fe. Photo by Maire O'Neill/ladailypost.com

 

By MAIRE O’NEILL
Los Alamos Daily Post

First Judicial District Judge Greg Shafer Thursday afternoon dismissed all but one element of a case filed against Los Alamos County officials by local sheriff candidate Greg White. The case is mostly related to the County’s handling of the issue of the duties of the Office of Sheriff.

Judge Shafer began the two-hour hearing by denying White’s request that Shafer recuse himself noting that White had brought forth no evidence of any actual bias in the case and had raised no allegation of any conduct that violated the Code of Judicial Conduct in particular with regard to campaign donations. He said the recusal motion itself suggests there might have been an attempt to manipulate.

“Specifically, (White) went searching to find potentially disqualifying information and then brought that information to my attention including information that I did not previously know consistent to the Code of Judicial Conduct relative to the identity of public supporters and campaign contributors,” Shafer said.

Before hearing from White and the County’s attorney Don DeCandia, Judge Shafer told White the key for him would be to demonstrate to the Court why White in particular is harmed as opposed to any other member of the County of Los Alamos such that he is the proper party to bring the lawsuit. Judge Shafer noted that Judge Francis Mathew recently found that the current sheriff is bound by an earlier determination made against a previous sheriff and that there has been no change in the County Charter.

“So if the sheriff who holds the office can’t get another bite at the apple, how is it that a candidate has any greater right to litigate some of those issues?” he asked White.

After hearing from White and DeCandia on the issues of White’s standing in the case, res judicata in relation to previous decisions on the issues of the sheriff’s duties and White’s allegations of Open Meeting Act violations in his suit, Judge Shafer retired from the courtroom briefly to prepare his ruling.

On return he announced that he was granting the County’s motions to dismiss on the basis of White’s lack of standing and res judicata. He ordered that White be given leave to file an amended complaint setting forth “specific alleged violations of the Open Meetings Act for which the statutory prerequisites to him bringing a private cause of action have been met”.

Judge Shafer said White has failed to show an injury in fact sufficient to establish standing. He said the Supreme Court recognized as long ago as 1926 that something more than harm to the community is necessary to support a plaintiff’s standing and that in the 1926 case the Supreme Court held that an injunction is not a remedy invoked by the citizen for the purpose of controlling public officers or tribunals in the exercise of their functions.

Judge Shafer indicated that White would have to show that he has a special interest in respect to which he will suffer special injury.

“It is not enough that the community in which he resides will be injuriously affected by some governmental or legislative action,” he said, adding that with the exception of the OMA White is not within the zone of interest of the statutes he complains have been violated and that those statutes do not create private rights of action.

“With the exception of the Open Meetings Act, the Court finds that the statutes of which plaintiff complains do not create private rights of action. Among other reasons, they were not enacted for the benefit of a special class of which (White) is a member. Rather, again, they are general statutes concerning government and public officer duties enacted to benefit the public and society or community generally,” Judge Shafer said.

He also found that the statutory violations and issues raised in White’s petition do not rise to the level of a clear threat to the essential nature of state government guaranteed to New Mexico citizens under their constitution such that standing under the great public importance doctrine would be justified.

“Relatedly, with regard to the claims about the sheriff’s budget and responsibilities, the fact that the duly-elected sheriff of the County of Los Alamos has twice sought to litigate those issues, would seemingly weigh on the issue of whether the Court ought to or needs to confer standing on a private citizen in order for those issues to be addressed. In other words, the fact that two separate sitting sheriffs have brought lawsuits demonstrates to me that the Court need not stretch to confer standing on ordinary citizens in order for those issues to be litigated,” Judge Shafer said.

He said with regard to White’s claims related to the sheriff’s budget, responsibilities and staffing, even if he was to find standing for White as a candidate for the office of sheriff, he  would find that White would be a successor in interest to the holders of the office who have previously brought lawsuits on those issues.

“In other words, Mr. White would have no greater rights to another bite at the apple on those issues than would the next sheriff in office,” judge Shafer said, adding that consequently, White’s claims would be barred by a res judicata based upon Judge Mathew’s decision in the case of Sheriff Marco Lucero and the Vaughn case.

“Accordingly I’m going to give Mr. White 20 days after entry of the Court’s order on the motions to dismiss to file an amended complaint concerning specific alleged violations of the Open Meetings Act. That amended complaint, should he choose to file one, must specifically the facts that show the prerequisite to a cause of action under 10-15-3b have been met. If Mr. White fails to file an amended complaint, then this action will be concluded and dismissed in its entirety with prejudice,” Judge Shafer said.

White said he was confused about Shafer’s dismissing a number of counts where he was alleging doing or not doing for which he understood the Court could issue an injunction. He said when it comes to the Open Meetings Act, he wants the County Council to follow the OMA at all times just like any other statute but consider the nature of it, that it’s “a constantly changing set of agenda items and stuff”. He asked what the court could actually do to force the council to obey the OMA.

Judge Shafer responded that OMA by its terms authorizes a district court to enforce it through a variety of remedies including an award of costs and reasonable attorney’s fees to a person who is successful in bringing a court action to enforce its provisions of the OMA. He said many violations can be cured by a governing body and suggested consulting the law or an attorney and suggest remedies.

White asked the Court for 30 days instead of 20 because if there was any curable action, a Council meeting would have to be held within 15 days. He told the Court that while he considers his options as far as being able to appeal the dismissal, that “being pro se, disabled and on a limited income” he was asking the Court to state that each party would bear their own expenses.

“I really have no way to reimburse the County attorney fees or anything,” he said.

Judge Shafer noted that the case is still ongoing and that the determination would be made at the conclusion of the case.

A motion by White for sanctions was denied by Judge Shafer who said he didn’t find any conduct by counsel for the County to warrant imposition of sanctions. He told White sanctions aren’t something that at least his court does lightly and that if White was going to request sanctions against a party in the future, it needs to be “extremely well-founded in the facts and in the law for the Court to entertain a motion.

“I would just caution you to think carefully before you file such a motion, not that I will not impose sanctions in an appropriate case, I certainly will, but again those are significant allegations to bring against another party to say nothing against a member of the bar. Keep that in mind before you file more such motions in the future,” he said.

White said Thursday evening that he applauds Judge Mathews and will abide by the judge’s decision in the case filed by Sheriff Marco Lucero on the sheriff’s duties.

“I await the Council to abide in it. I’m stunned, bewildered and disappointed in Judge David K. Thomson. If recalls were a federal case, Council members are easily in violation of the Federal RICO Act. I think Judge Shafer got the issue of standing wrong. In light of recent New Mexico Supreme Court case law (the 2017 decision in Phoenix Funding) as well as the previous decision in DeVargus, they clearly provide for the mechanism for ordinary citizens to force their government to follow the law. Also decisions by California's Superior Court and the U.S. District Court of Northern California back this up. I will appeal the dismissal based on this error,” he said.

Los Alamos County Attorney Alvin Leaphart declined to comment at this time on the dismissals.


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