This is the fourth in a series of articles running this week that will examine whether the judicial discipline process is fair to judges accused of misconduct. For additional articles and more information, visit the home page for this special report by clicking here.
Two attorneys and a judge criticized the judicial discipline process and suggested changes to improve the system during a candid legislative committee hearing Thursday in Las Cruces.
Several members of the Courts, Corrections and Justice Committee expressed concern about aspects of the process for disciplining misbehaving judges, and said the discussion was productive and would help improve the system.
The discussion included more than two hours of blunt and, at times, tense debate about the current system and the Judicial Standards Commission, the state body charged with holding judges accountable to the Code of Judicial Conduct.
State Supreme Court Chief Justice Richard Bosson opened the hearing by sharing some history of the 38-year-old commission and addressing the recent increase in its activity, which was sought by the high court in response to several high-profile incidents of judicial misconduct in 2004.
“Their work is more intense and they work at a more frenetic pace and they accomplish more,” Bosson said. “We appreciate that. … I really think they’ve done a fine job and they play a very, very important role.”
At the same time, Bosson acknowledged, there has been scrutiny of several aspects of the commission’s work, including its confidentiality.
“I know that’s been the subject of discussion, and it should be,” he said, adding that the commission is not “perfect.”
Commission Chair David Smoak said the system works well.
“We are not broken, if that’s the concern,” he said.
Two Las Cruces attorneys who have defended judges in their dealings with the commission disagreed. Attorney Lawrence White, who represented former Doña Ana County Magistrate Judge Susana Chaparro, said the problem isn’t with commission’s members or staff, but rather with the process.
“They have to work with what they have, but what they have is broken, ladies and gentlemen,” he said.
Attorney Joleen Youngers, who represented former District Judge Larry Ramirez, agreed. She said she has spoken to many judges and attorneys who have dealt with the commission and believe it “is intruding and second-guessing,” has involved itself in “administrative matters” more properly dealt with by the Administrative Office of the Courts, and “has unduly expanded its view of what should merit its attention.”
White said he believes the system is set up so that accused judges are “guilty until proven innocent.” He said a commission hearing is a “quasi criminal proceeding,” and said it takes the votes six of 11 commission members “to find the judge at guilt.”
“The commission charges and the commission convicts,” White said.
Commission Director Jim Noel pointed out that the commission does not have the authority to discipline judges and its findings aren’t rulings of guilt. Its staff attorneys conduct investigations and the commission decides, following hearings, whether to ask the high court to discipline judges.
The high court, not the commission, is the judge of guilt, several at the hearing said.
Concern about treatment of local judges
White and Youngers expressed concern over the filing by the commission of public requests that the high court temporarily suspend judges while it investigates allegations against them. Such a filing in the current case of suspended Doña Ana County Magistrate Judge Carlos Garza included affidavits detailing alleged drug use and other charges. Youngers said because of that “it’s hard to image that, regardless of the outcome, he will ever enjoy good reputation or success as a judge ever again.”
State Rep. Joseph Cervantes, D-Las Cruces, agreed.
“That, to me, is the end of a judge’s career,” he said.
A week after those allegations became public, the high court sealed Garza’s file. Bosson told the legislative committee that, since then, the court has issued a ruling requiring that all requests for temporary suspension remain under seal. That will mean no allegations become public unless the commission, after it completes its investigation, initiates formal proceedings against a judge.
Youngers and White also expressed concern about the cost of defense against an ethical complaint, which Youngers said can cost $50,000 or more.
“Even if unjustly accused, even if none of the violations stand, they have to foot that bill,” she said.
Such was the case with Las Cruces Municipal Judges Melissa Miller-Byrnes and James T. Locatelli, who spent more than $100,000 defending themselves against an ethical complaint. All but one of the charges against Miller-Byrnes were later dismissed by the high court, and all of the charges against Locatelli were dismissed.
Locatelli was in attendance at Thursday’s hearing and addressed the committee.
“I now have a legal debt of over $60,000. My reputation has suffered. My family has suffered. I have suffered,” he said. “In short, justice was not done.”
Unlike White, Locatelli said the commission and Noel are to blame.
“The commission abuses its own processes,” he said. “Something is wrong with the system. Something needs to be done.”
He said there was “a naked attempt by Mr. Noel to muscle us” into admitting to misconduct, and that Noel only offered a deal that would resolve the complaint after the judges learned that he and one of the men who filed the complaint against them went to law school together and are both active in the Democratic Party.
The implication was clear. Noel did not address Locatelli’s comments during the hearing, but responded afterward.
“That’s the most ridiculous, ludicrous, absurd thing I’ve ever heard,” he said, adding that a provision in the New Mexico Constitution prohibits him from discussing the specifics of any deals discussed with Locatelli and Miller-Byrnes.
“It’s very easy to fabricate things because I can’t answer with all of the facts,” Noel said.
Youngers said she believes the recent actions of the commission have resulted in the judiciary losing “talented judges” and discouraged good attorneys from seeking judgeships.
“I fear that we’re also tainting the reputation of the judiciary,” she said.
State Rep. Al Park, D-Albuquerque, said he didn’t agree that good applicants are discouraged by the commission’s actions. He pointed out that there have been a number of applicants for recent judicial vacancies.
“I’m not buying your argument,” he said. “If the vacancies were going unfilled, I’d probably be more receptive to that.”
Youngers countered by pointing out that Locatelli ran unopposed in the last election. Park said that might be because Locatelli is a good judge, but Cervantes said Youngers is right.
“I’m concerned about the chilling effect,” Cervantes said. “I’ll be honest with you. I disagree with those who say there has not been a chilling effect.”
Suggestions for change
White suggested that the commission needs “independent advice,” and said it’s unfair that the attorneys who argue cases before the commission also provide it with legal advice.
Under the current system, one or two of the commission’s three attorneys will argue a case before the commission, and another attorney not involved in the case will serve as an adviser to the commission on that case; however, the next case could be argued by the attorney who advised the commission on that one. All three staff attorneys fill both roles at different times.
White and Youngers suggested the creation of a panel separate from the commission that would review incoming complaints.
Noel said some state’s commissions have a two-tier process: A smaller panel evaluates allegations and decides which cases should be sent to a larger commission, and that body decides whether to seek discipline. Such a system can work, Noel said, but he also believes the current system works.
“I don’t think it’s broken. I know that there is concern that the process does not provide adequate due process,” Noel said, adding that the process is not criminal or civil and those standards of due process do not apply. “Judges are entitled to the amount of process that is due in an administrative hearing.”
White and Youngers suggested that there should be some mechanism for reimbursing the legal costs incurred by judges who are later cleared of charges. Bosson said he believes “there is some fairness to that” but added that the state would have to pay for such an expense.
There was also debate about whether judges are actually resigning because of the cost of defense. Ramirez claimed that is why he quit.
Noel said it’s hard to know what is actually in a judge’s mind when he or she resigns. He acknowledged that some have said they were resigning because they could not afford the cost of defending themselves, but also said, “on the other hand, maybe that’s an excuse. Maybe they know their conduct was so egregious that they’re going to lose.”
Smoak said that has been the case with some judges.
“We’ve seen them resign to avoid any of (the allegations) becoming public,” he said.
Noel said the only way for the public to know for certain that judges aren’t resigning solely because of the cost of legal defense would be to “open up the process” and get rid of the constitutional duty of the commission to keep most of its work secret.
There is no timetable for legislative or other action to change the commission’s procedures or structure. Noel and his staff will be drafting proposed changes to the commission’s rules in the near future.
For additional articles and more information, visit the home page for this special report by clicking here.
This article, like all posted on Heath Haussamen on New Mexico Politics, is copyrighted (© 2006) by Haussamen Publications, Inc., and is not to be republished without permission.
