Commission ordered to appear in court

By Eric Maddy
The SCORE

What started as a Placitas zoning dispute could land the entire Sandoval County Commission in jail as soon as Wednesday.

Judge George Eichwald has ordered the entire commission to appear in his court at 1:30 p.m. on Wednesday under an “order to show cause” because “there is probable cause to believe the Board of Count Commissioners of the County of Sandoval has violated or intends to violate the final order on appeal of this court entered on November 20, 2007.”

Eichwald’s order goes on to specify the date, starting time and time allotted (30 minutes) “then and there to show cause, if any they have, why this court’s order of Nov. 20, 2007 should not be enforced and why sanctions should not be entered for he failure of the county to comply with this court’s order.”

As if there was a chance someone might miss the significance of the writing, the next statement, all in capital letters, drives it home:

“IF YOU FAIL TO APPEAR BEFORE THIS COURT IN PERSOSN ON THE ABOVE DATE AND IME, A WARRANT FOR YORU ARRET COULD BE ISSUED.

“If you are found to be in criminal contempt of court for one ore more violations of his court’s order, you may be fined and/or imprisoned up to six months for each violation. If you are found to be in civil contempt of court for one ore more violations of this court’s order, you may be find and/or imprisoned until such time as you purge yourself of contempt by obeying and complying with the order of the court. You may also be ordered o pay costs and attorney’s fees to the other party.”

While all five commissioners are expected to appear and thus any jail time is likely, preliminary research indicates it is the first time in the state’s 96-year history that a judge has summoned an entire governing body, such as the Sandoval County commission, to appear in court together under the threat of imprisonment.

The commissioners and county attorney David Mathews declined to comment, citing pending litigation. The case, however, was the topic of conversation at a closed session after Thursday’s commission meeting, sources told The SCORE.

The case, which dates back to 2001, has taken several twists and turns since High Mesa General Partnership, which was formed by Jon S. McCallister and Dave Harper, first sought to rezone the property for residential development under the title of the Wild Horse Mesa Subdivision.

 The most recent chain of events was triggered when the plaintiff, William J. Patterson III, appealed the county’s decision to court o Dec. 4, 2006. After several steps of legal wrangling throughout most of the 2007, Eichwald ruled on Nov. 20 that the commission “aced arbitrarily or capriciously when it approved” the preliminary plat for Wild Horse because it:

•Did so “without considering the common promotional plan and related subdivisions of the applicant.”

•“Ignored its responsibilities to ensure that the overall combined development by the applicants and its partners conformed to the requirements of the subdivision regulations.”

•Used published notices that “were incomplete and misled the public in violation of the subdivision regulations.”

At that point Eichwald remanded the case back to the commission for further hearings, which were conducted at a commission meeting on Feb. 7. At that point the commission voted 3-2 to send the case back to the county’s development and legal staffs for further review.

When the case came back to the commission on Feb. 21 with the same recommendations, only having given additional time for public notice, the commission voted unanimously to affirm its decision. Due to miscommunication between attorneys on when the commission would actually meet, Patterson’s attorney, James Lawrence Sanchez, actually filed the motion for an order to show cause on Feb. 14. Eichwald issued the order on Feb. 29.

In the mean time, the attorney for High Mesa, Orville C. McCallister, filed a motion for recusal on Feb. 19 seeking to have Eichwald removed from the case. In the motion, McCallister wrote “Applicants have heard rumors that Judge Eichwald and James Lawrence Sanchez, attorney for appellant, are former colleagues and personal friends. Appellants have also heard rumors that James Lawrence Sanchez was a substantial contributor to Judge Eichwald’s election campaign.

“When this matter was under advisement, Judge Eichwald lost the Record Proper. Judge Eichwald contacted James Lawrence Sanchez and obtained from him what purported to be a copy of the Record Proper. The request for and the receipt of the copy were done without notice to or approval of opposing counsel. Neither David Mathews, attorney for Sandoval County, nor Orville C. McCallister, attorney for High Mesa Partnership, were given an opportunity to determine if the record used by Judge Eichwald was, in fact, a true copy of the Record Proper.

“The actions of Judge Eichwald are in violation of Section 21-300(B) of the Code of Judicial Conduct. The actions of Judge Eichwald give the appearance of partiality and impropriety as prohibited by Section 21-200 of the Code of Judicial Conduct.”

Eichwald denied the motion for recusal, saying in the unique language of the law, “The Court having examined the pleadings and heard arguments of council finds the motion not well taken.”

Observers at that hearing said there was emotion behind those words.

“He didn’t take it well at all,” one observer told The SCORE. “He stormed in and of court. He was really ticked off at the motion for recusal.”

Perhaps that’s one reason why High Mesa has retained additional counsel for Wednesday’s hearing.