The New Mexico Judicial Performance Evaluation Commission (JPEC) is a taxpayer and State funded Commission created by the New Mexico Supreme Court supposedly to improve the performance of all state judges.
In the 1980’s, Judicial Reform was initiated to get politics out the Judiciary with an appointment, election and retention election system of judges and impose strict requirements on the campaigns for Judges and the fund-raising activities of judicial candidates.
In 1997, the JPEC was established after the New Mexico Judiciary went from a system of strict partisan elections to a “hybrid” system of one partisan election followed by retention elections.
Once a judge is appointed or where elected first in a partisan race by 50% plus one of the vote, that judge faces a retention vote for subsequent terms and must garner 57% of the vote to be retained.
Any Judge who does not secure a “YES” vote from 57% of those voting on their retention are removed from office and the Governor then appoints a judge to fill the vacancy.
To fill court vacancies, the Judicial Selection Commission interviews candidates and submits a list of names to the Governor for appointment of one of the finalists.
The appointed judge must run in the next general election in a partisan race.
The JPEC does far more than just evaluate judge performance.
The JPEC issues recommendations that it publishes to voters for retention.
2018 MIDTERM ELECTIONS OF METROPOLITAN COURT JUDGES
During the 2018 midterm election, all 18 Metropolitan Court Judges were up for retention.
The JPEC did its customary confidential surveys to licensed attorneys, court jurors and others who interact with the Metro court and then published its recommendations to retain or not retain.
A story also ran in the Albuquerque Journal on the JPEC results of the survey that make recommendations to vote “YES” to retain or vote “NO” on retention.
You can read the Albuquerque Journal story here:
What is not reported in the Albuquerque Journal article is that confidential sources have said that only 1,000 surveys were sent out on the Metro Judges and that only 60 surveys were actually returned to the JPEC calling into serious doubt the credibility of the survey.
Further, confidential sources report that the JPEC spent $300,000 in taxpayer money to hire a professional pollster, do the survey and publish the “results” and recommendation to the voting public.
The JPEC recommended to voters that of the 18 judges up for retention, people should vote “YES” to retain 14 of those judges and vote “NO” to not to retain 4 judges.
Of the Metro Judges that were up for retention, all the judges the JPEC recommended vote “YES” to retain easily received the required 57% of the vote to keep their jobs for another four-year term.
Of the four judges who received “do not retain” recommendations this year, Bernalillo County Metropolitan Court Chief Judge Edward Benavidez and Judge Kenny Montoya failed to garner the 57 percent of votes required to stay on the bench, while Judge Linda Rogers and Judge Michelle Castillo Dowler kept their jobs by very slim margins above the 57% mark.
Presiding Judge Edward Benavidez received 103,815 “YES” votes to be retained or 55.3% and 83,905 “NO” votes not to retain or 44.7%
Metro Judge Kenny Montoya received 103,519 “YES” votes to be retained or 55% and 82, 201 “NO” votes not to retain or 44.56%
When asked if the JPEC evaluation had an impact on his retention, Bernalillo County Metropolitan Court Chief Judge Edward Benavidez had this to say:
“They absolutely have an impact on retention elections … they admit it themselves. … There’s no questioning that when they come out with ‘do not retains’ for whoever the judge is, it has a direct impact on their voting numbers. … [the JPEC] meddled in, interfered with and absolutely affected [my retention] … JPEC uses state money to openly and actively campaign against those judges they subjectively decide to give a ‘do not retain’ recommendation to … Whenever judges have to go to their interviews [before the JPEC] everybody’s like on pins and needles because this has such an impact. … If you upset [the JPEC] … , things can go against you and it’s gonna cost you your job.”
Brian Sanderoff, president of Research & Polling Inc., said the JPEC evaluations do have an impact on retentions and that review of past elections show that a judge who is recommended for retention by JPEC on average receives 13% more YES votes than those whom the commission recommends a “NO” vote.
According to Sanderoff, those recommended for retention received an average of 69.5% “YES”votes.
THE JUDICIAL PERFORMANCE EVALUATION COMMISSION
In 1997, The New Mexico Judicial Performance Evaluation Commission (JPEC) was created by the Supreme Court of New Mexico to improve the performance of judges and provide useful, credible information to voters on judges standing for retention.
The JPEC is supposedly a nonpartisan volunteer commission.
The JPEC is made of up 15 individuals, 7 lawyers and 8 non-lawyers, who are appointed to staggered terms by the Supreme Court of New Mexico and who are from all over the State of New Mexico.
Commission members are selected from nominations by the Governor, Chief Justice of the Supreme Court, Speaker of the House, President Pro Tempore, House Minority Leader, Senate Minority Leader and President of the State Bar.
Members are appointed to represent divergent professions, backgrounds and geographical areas of the state.
Members go through an approval process and agree to donate a significant amount of time to evaluate judges midway through their terms in office as well as when they are standing for retention.
All New Mexico Court Judges at all levels are initially elected in partisan elections to full terms and then after serving the term, they must go before voters thereafter for retention to serve another term.
Every election cycle where Judges appear on the ballot, the JPEC evaluates judges by sending out a confidential survey to all licensed attorneys who grade the Judges and the Commission then rates the judges and recommends to voters who they should retain.
JPEC evaluates judges in five major areas:
1. Legal ability
3. Communication skills
4. Preparation and
5. Temperament and control over proceedings
To perform the evaluations, the JPEC distributes confidential surveys to licensed attorneys, court jurors and others who interact with the court.
The commission also interviews the judges, reviews statistics from the Administrative Office of the Courts and sends observers into the courtroom.
New Mexico judges who are up for retention must receive approval from 57% of voters to keep their seat on the bench and not the 50% plus one required in contested partisan.
The JPEC posts all their results and recommendations to vote “YES” to retain or vote “NO” to retain on its web site.
Historically, judges who JPEC recommends not be retained receive about 12% fewer votes than judges who are recommended for retention.
COMMENTARY AND ANALYSIS
The Bernalillo County Metropolitan Court is often referred to as the “people’s court” and it is a court of “limited jurisdiction.”
Without question, the Metropolitan Court is the busiest court in the State of New Mexico, literally handling hundreds of thousands of cases a year.
There are 18 Metropolitan Court Judges with each carrying crushing caseloads.
According to the JPEC evaluations, both Presiding Judge Edward Benavidez and Judge Kenny Montoya received relatively low retention recommendations from attorneys who were surveyed.
Both Judges received low ratings in categories including exercising sound legal reasoning and being knowledgeable regarding substantive law.
PRESIDING METRO JUDGE EDWARD BENAVIDEZ
Metro Judge Edward Benavidez has served on the Metro bench for 10 years and has been elected and then retained in the past.
Presiding Judge Benavidez has served as Metropolitan Court Chief Judge since May of 2017, overseeing the court’s $27 million budget and 300 employees.
Judge Benavidez has presided over DWI Recovery Court for the last four years.
Of the 335 offenders who graduated from the program, only 13 have re-offended, which is an astonishing success rate.
As Chief Presiding Judge, a target was put on Judge Benavides back for removal when he ran afoul of defense attorneys and JPEC because he set bonds for defendants, he felt are a danger or flight risk.
Judge Benavidez has a 94 percent affirmation rate on appeal while also maintaining the highest case clearance rate in Metro Court, all while juggling his duties as presiding Judge.
METRO JUDGE KENNY MONTOYA
Metro Judge Kenny Montoya is the former Adjutant General of the New Mexico National Guard, has been a Metro Court judge for four years.
Judge Kenny Montoya is also a former Bernalillo County Assistant District Attorney.
Judge Montoya presides over the Outreach Specialty Court, which tries to get homeless defendants on the right path, and he’s helping with the new substance use and treatment options program.
Of those surveyed about whether Montoya should be retained, 88 percent of court staff, more than 80 percent of police officers and resource staff and 63 percent of attorneys said he should.
Still, JPEC said the attorneys surveyed gave him lower ratings in exercising sound legal reasoning and being knowledgeable regarding law and rules of procedure and evidence.
Once again, a target was placed on Judge Montoya’s back for removal because defense attorneys were not happy with him because he made some defendants post bond, particularly when evidenced showed they are a danger.
EVALUATING THE EVALUATORS
When you review the names of all the members of the JPEC, it is not at all likely that anyone of them, or perhaps maybe one or two at the most, have ever even stepped into the Bernalillo County Metro Court.
All too often, certain segments of the New Mexico Bar, court personnel who work for them or police officers who appear before them, target and disparage Metro Judges because they do not like the Metro Judge’s rulings or personal treatment and want the Judicial Performance Evaluation Commission to make a negative recommendation at election time.
As practicing attorney for over 40 years, including 7 years as a Workers Compensation Judge, I have seen first hand how lawyers and parties can react and even carry a grudge when they disagree with a ruling.
During my 7 years as a Workers Compensation Judge, I had the lowest disqualification rate of the Judges and a 97% affirmance rate by the Court of Appeals.
The JPEC recommendation have a definite impact on any Metro Judge’s chances for retention.
All State of New Mexico 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, the committee is prevented from disclosing to the judicial candidate names of donors to prevent the Judges 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” to the media or groups that may reflect on their fairness and impartiality.
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.
What was not disclosed by the JPEC was that only 60 of the 1,000 surveys were returned and the JPEC and it spent $300,000 to do the survey and then publish the results without allowing the Judges to comment or dispute the results on the JPEC web page.
Once the Judicial Performance Evaluation Commission issues its ratings, there is virtually very little or no recourse for any Judge to dispute the no retention recommendation given to them by the JPEC.
The JPEC does not give “equal time” on their web page to the Judges who are rated as would be the case at a debate on an incumbent candidate’s job performance.
The New Mexico Judicial Performance Evaluation Commission’s is suppose “to provide useful, credible information to voters on judges standing for retention”, yet there is nothing in great detail on its web page.
It is doubtful that confidential surveys from those who may have a personal axe to grind against any judge are much of a use to give a complete and accurate picture of any judge’s job performance everyday they are on the bench.
The New Mexico Judicial Performance Evaluation Commission wants voters to accept as gospel without challenge the recommendations they make on retention.
All the current Metro Judges by and large are all highly dedicated public servants performing the best they can to discharge their duties in a fair and impartial manner.
It is totally inappropriate for a government agency, funded with taxpayer money, to be telling people how to vote.
Elected officials working in other branches of government aren’t subjected to similar evaluations and that is what political elections are all about.
New Mexico just passed the creation of an ethics commission, and you have to wonder if it will get into the act of using state money to do evaluations of elected officials.
There has to be a better way for JPEC to seek removal of Judges for poor job performance than to go to voters with recommendation and removal should be done by the Supreme Court.
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 and result in the Judge’s removal by the New Mexico Supreme Court.
Within 30 days, the Judicial Nominating Commission will select qualified candidates to recently Governor Michelle Lujan Grisham to be considered for appointment to fill the vacancies.
Both Judges Edward Benavidez and Kenny Montoya should apply for their jobs again and stand for election again in 2020 in a partisan race.
The JPEC is a threat to the independence of the Judiciary and the New Mexico Supreme Court should seek to abolish it.
At this point, the New Mexico Judicial Performance Evaluation Commission has become nothing more than a “political hit squad” that uses taxpayer money to actively campaign against Judges.