Judging the judges
Complaints against judges and — in most cases — the outcomes are confidential

McKinley County prosecuter John Bernitz gestures during the opening arguments in a murder trial in this Dec. 1 file photo taken at the McKinley County Courthouse. — © 2009 Gallup Independent / Brian Leddy

Copyright © 2009
Gallup Independent
By Phil Stake
Staff writer

GALLUP — Elected McKinley County Magistrate Kenneth Howard appeared before the state’s judicial oversight body last week, but nobody will tell you why. That’s all you get to know about the complaint(s) against elected Magistrate Howard. The substance of the complaint(s) could be valid.

It could also be entirely unfounded and Howard may well have done nothing wrong at all.

That, in essence, is the reason the commission keeps every complaint confidential until after it has been investigated, according to Judicial Standards Commission Executive Director Jim Noel.

The complaint may have come from a litigant — a defendant or victim who was unhappy with Howard’s judgment and wanted to retaliate. It may have come from a disgruntled colleague.

The Judicial Standards Commission investigates “willful misconduct in office, persistent failure or inability to perform a judge’s duties or habitual intemperance,” according to Article 6, Section 32 of the New Mexico Constitution.

Between July 1, 2007, and June 30, 2008, the commission received 144 complaints, the majority of which it dismissed, according to the Judicial Standards Commission 2008 annual report.

Among cases reviewed by the commission, 73 proved appellate in nature, meaning a litigant complained about the judge’s verdict and instead should have directed the complaint to the court of appeals; 32 cases proved to have no merit, substance or evidence. In all, the commission took action in response to 23 complaints; it eventually dismissed 11 complaints because they were outside the realm of the commission’s jurisdiction, which left another 23 pending review at the end of the year.

Even though Howard holds a public office, a job wholly at the mercy of voters, the 1968 amendment to the New Mexico Constitution that created the Judicial Standards Commission protects him from potential defamation.

According to Article 6, Section 32 of the New Mexico Constitution, however, if the commission finds merit in the allegation(s) during its investigation — and refers the case to the Supreme Court — everything turns transparent. The substance of the allegation(s) becomes public record, which is protected by statute.

So the people who put Howard in office — McKinley County voters — may never know anything else about Howard’s alleged misconduct. Opponents of the statute say that it violates voters’ fundamental right to know about incompetence and corruption when it exists in a public office. Proponents say it ensures that only accusations supported by evidence and testimony ever undergo voter scrutiny.

After all, if every accusation were made public, a political opponent could rob credibility from an honest judge by filing a malicious and erroneous complaint.

Meanwhile, other elected officials do not enjoy the same protection. Gross misconduct by an elected sheriff, for example, when reported, is usually reported to another law-enforcement agency because a sheriff’s position of authority makes his or her misconduct a criminal act. The report may be filed with another sheriff’s department, a local police department or with state police; but in any case, the report is available to the public as soon as it is signed and approved.

But the judicial canon is also more stringent. Noel said judges are held to a higher standard than other elected officials, that the judiciary itself must maintain objective independence. Consequently judges are not even allowed to publicly support a political candidate. San Juan County Magistrate William Vincent Jr. received a formal reprimand in 2006 after he placed an ad in the local newspaper supporting a political candidate.

“When you ascend to the bench, you surrender certain parts of your right to free speech,” Noel said. “The institution needs to be seen as objective and independent.”

The juxtaposition of two simultaneous ideals — exposing every accusation on the one hand, and exposing only selected accusations on the other — presents a paradox: voters can’t make a fully-informed decision if they don’t know about a judge’s misconduct; conversely, if each complaint was made public — regardless of its veracity — voters could be blinded by a flurry of intentional or unintentional slander.

Gallup illustrated the paradox four years ago when complaints were filed against two judges. The details in one case were not made public at the time because former Magistrate Rhoda Hunt resigned before she could be formally disciplined. And in another case, details of an unfounded complaint against Municipal Judge Linda Gasparich-Padilla did come under public scrutiny, only to be resolved without discipline.

Hunt resigned before the commission could complete its investigation into a 2005 complaint, which alleged that she accepted bribes from attorneys who appeared before her, and that she forged legal documents in order to illegally marry a Palestinian immigrant, according to a Nov. 28, 2005, Associated Press news article.

“During the investigation, there was enough material to file for temporary suspension,” Noel said. “But she resigned before it went to a formal hearing.”

The charges made their way to the FBI, which later dropped the investigation. Hunt was eventually indicted, however, on fraud charges in Bernalillo County for her allegedly illegal marriage papers, according to court records. The bribery accusations were never substantiated.

Because Hunt resigned before a formal hearing, the details of complaints against her never made it onto public record. Voters may never know the whole truth.

At the same time, the commission petitioned the supreme court to temporarily suspend current, elected Municipal Court Judge Linda Gasparich-Padilla. The commission alleged Gasparich-Padilla threw away a stack of citations that Hunt wanted dismissed, according to the AP article.

The allegations were never substantiated and Gasparich-Padilla is still on the bench

Which direction the complaint against Howard will take remains to be seen; then again, it may never be seen.

Reporter Phil Stake can be reached at philip.stake@gmail.com, or by calling (505) 863-6811 x223.