On November 28, 2018, the Albuquerque Journal published on page A-13 my 650-word guest commentary entitled “JPEC is really just a ‘political hit squad; No recourse for poor evaluation by Judicial Performance Evaluation Commission”.
Following is the article in full with a POSTSCRIPT:
The New Mexico Judicial Performance Evaluation Commission (JPEC) is a state taxpayer-funded commission created by the New Mexico Supreme Court supposedly to improve the performance of elected judges “to provide useful, credible information to voters on judges standing for retention.”
JPEC sends out confidential surveys to licensed attorneys, court jurors and others who interact with the courts, and then publishes its recommendations to “retain” or “not retain.”
JPEC evaluates judges in five major areas: legal ability, fairness, communication skills, preparation and temperament, and control over proceedings.
“No retention” recommendations usually result in about 12 percent fewer votes. There is virtually no recourse for any judge to dispute a “no retention” recommendation given to them.
Six weeks before the midterms, the JPEC issued “no retention” recommendations on four Metropolitan Court judges. Because of the exceptionally small fraction of the surveys returned, it was misleading and useless. JPEC also spent at least $160,000 to do the survey and published the results without allowing the judges to comment or dispute the results.
Presiding Metropolitan Judge Edward Benavidez and Metro Judge Kenny Montoya, a former New Mexico National Guard adjutant general, failed to secure the 57 percent retention vote to keep their jobs.
During my 40-plus years as an attorney, including seven years as a workers’ compensation judge, I have seen how lawyers and parties can react and carry a grudge when they disagree with a ruling.
All too often, certain segments of the New Mexico Bar, court personnel or police officers who appear before Metro judges have a strong dislike for them, and target and disparage the judges with the JPEC.
All state judges are strictly prohibited by the Code of Judicial Conduct from holding any elected or appointed positions in political parties. All state judges are strictly prohibited from endorsing any candidate for office and cannot solicit donations for elections. Candidates running for judge must have a confidential finance committee set up to raise money for them. Names of donors and amounts are not disclosed to judges to prevent them from knowing who donated to their campaigns to avoid the appearance and accusation of giving preferential treatment in decisions rendered. A judge is also prevented by the Code of Judicial Conduct from making “extrajudicial comments” that may reflect on his or her fairness and impartiality to the media or public. Judges are prohibited from defending their decisions and sentencings, and their job performance in a public forum outside of their courtrooms, so criticizing judges is like shooting fish in a barrel.
The JPEC does not give “equal time” on its web page to the judges who are rated, as would be the case during debates on an incumbent candidate’s job performance.
It is doubtful that confidential surveys from those who may have a personal axe to grind against any judge are of much use to give a complete and accurate picture of any judge’s job performance every day they are on the bench.
The JPEC wants voters to accept as gospel without challenge the recommendations it makes on retention. It is totally inappropriate for a government agency, funded with taxpayer money, to be spending and advertising to tell people who to vote for. Elected officials working in other branches of government are not subjected to similar evaluations. That is what political elections are all about.
There has to be a better way for JPEC to seek removal of judges for poor job performance than to go to voters with recommendations. If there is indeed a problem with the job performance of any judge that would justify removal, the appropriate remedy would be an investigation by the Judicial Standards Commission that results in the judge’s removal by the New Mexico Supreme Court.
The JPEC is a clear threat to judiciary independence on many levels. It has become nothing more than a “political hit squad” that uses taxpayer money to actively campaign against judges, and it should be abolished.
I do hope the New Mexico Supreme Court follows my recommendation and abolishes the Judicial Performance Evaluation Commission.
The New Mexico Bar needs to recognize that no government entity should use taxpayer money to campaign against any elected judge.
If any judge is so bad in the areas of legal ability, fairness, communication skills, preparation and temperament, and control over proceedings to the extent that they should be removed, the bar or public should seek removal with the filing of complaints by licensed attorneys and with the Judicial Standards Commission and let the New Mexico Supreme Court make the removal.