On Thursday, August 29, 2019, the Albuquerque Journal published a front-page story that Santa Fe State District Judge Bryan Biedscheid ruled that New Mexico must allow non-residents to participate in its medical cannabis program despite concerns raised by Governor Michelle Lujan Grisham and the Department of Health. Matthew Garcia, general counsel for the Governor’s Office and Thomas Bird, the Health Department’s attorney, argued the change was aimed at providing reciprocity to residents of other states who have valid medical marijuana cards. It was also argued by the state’s attorneys that such a shift would encourage the transport of marijuana across state lines, which is illegal under both federal and state laws.
In announcing his ruling, the Judge said the language of the amended medical cannabis statute is clear, and that it does not allow the Department of Health to withhold identification cards to qualifying patients who live outside of New Mexico. According to Judge Bryan Biedscheid ruling, the language of the amended medical cannabis statute is clear:
“It does not allow the Department of Health to withhold identification cards to qualifying patients who live outside of New Mexico. … This statute, plainly and unambiguously, does away with the requirement of residence of the state of New Mexico … Continuing to insist on a showing of residence for eligibility in the program, when that has been taken out by the Legislature, is not appropriate.”
You can read the full Journal article entitled ‘Judge Opens Up Medical Pot Program To Out Of State Residents’ at the below link:
In announcing that the State will appeal the court ruling, Governor Michelle Lujan Grisham strongly criticized the ruling by issuing the following statement:
“We remain of the opinion that New Mexico’s medical cannabis program should not be bulldozed by an out-of-state litigant operating with his own financial interests at heart rather than those of the state’s medical program or of the many New Mexicans who depend upon it … [The ruling] contradicts both the intent of the legislative sponsor and the interpretation of the New Mexico Department of Health, and the state plans to appeal the decision.”
NM SPEAKER AS A PRIVATE ATTORNEY SUES STATE REPRESENTING PLAINTIFF
The Plaintiffs’ attorney suing the state over the medical pot program’s patient registration is Speaker of the House Brian Egolf. According to the Journal story, Attorney Egolf argued that there was “no clear evidence” that the NM Legislature intended to require New Mexico residency. Egolf argued there is nothing to back up the concern that the change would impede the state’s ability to maintain regulatory control and he argued before the court:
“There is no evidence offered to support this theory [that] … anyone who’s driving through the state of New Mexico will be able to pull over to the side of the road to get a registry identification card like it’s a Snickers bar … That’s completely wrong.”
Egolf noted that the federal law prohibits U.S. government resources being used for the prosecution or dismantling of any medical cannabis program and New Mexico’s program will not be in jeopardy.
ALBUQUERQUE JOURNAL EDITORIAL
On October 1, 2019, the Albuquerque Journal published an editorial relating to Speaker of the House Brian Egolf’s involvement with the court challenge of New Mexico’s Medical Cannibis program. Below is the editorial with a link to the article:
EDITORIAL HEADLINE: “Did Brian Egolf Miss The Day In Law School Where They Cover Conflicts Of Interest?”
The Santa Fe Democrat currently serves as New Mexico’s Speaker of the House. Egolf, like many of his fellow unpaid New Mexico lawmakers, also has a day job as an attorney. That’s normal for our citizen Legislature and not a problem in and of itself.
Well, not unless a situation arises wherein Egolf’s role as a high-ranking legislator allows him to grease the skids for legislation that ultimately enriches him in his private law practice.
And if Egolf isn’t quite fully immersed in that sticky terrain, he’s at least ankle deep in it.
Consider: Egolf is currently representing medical marijuana magnate Duke Rodriguez in an ongoing lawsuit against the state of New Mexico.
While Rodriguez’s Ultra Health LLC has all but cornered New Mexico’s medical marijuana market, Rodriguez – himself a medical marijuana user – lives in Arizona. He is one of three people who live out of state who sued the state to be allowed to participate in New Mexico’s medical cannabis program.
As Journal reporter Dan Boyd reported Sept. 24, the case took its most recent turn on Sept. 23, when a judge ordered the New Mexico Department of Health to start issuing medical marijuana cards to out-of-state residents. The matter remains in limbo as the state Department of Health plans to ask the judge to reconsider, but it was still a clear, albeit not yet final, victory for Rodriguez’s bottom line – and, presumably, for his high-powered lawyer Egolf.
And therein lies the rub.
Egolf is clearly working his hardest to obtain a certain outcome for his client in the politically fraught world of medical marijuana. He also clearly wields tremendous influence over legislative matters, including laws around medical marijuana. Despite this apparent clash of interests, Egolf hasn’t included Rodriguez’s company on a list of potential conflicts of interest, nor has he recused himself in medical marijuana-related legislative matters.
When Republicans raised the issue back in 2017, Egolf said his work with the medical marijuana industry would not influence his work as a lawmaker. He also pointed out it would be tough to find clients who don’t interact with legislation in some way – a fair point – and, according to a 2017 Journal story, noted that, like other state legislators who are lawyers, he disclosed the law firm he works for and the state agencies he’s represented.
On Egolf’s side of the ledger, New Mexico Ethics Watch backed up his stance that he didn’t need to disclose medical marijuana clients as potential conflicts of interest. And perhaps that’s in line with the letter of the law.
But is that really what’s best for New Mexico? Why should only state agencies be included in lawyers’ disclosures and not private industry?
Perhaps it’s a good topic for New Mexico’s newly minted Ethics Commission to cut its teeth on. Because disclosure norms notwithstanding, having the guy who helps make the rules for an industry also represent that industry in court should raise some eyebrows.
SPEAKER OF NEW MEXICO HOUSE BRIAN EGOLF RESPONDS TO JOURNAL
On Sunday, October 6, the Albuquerque Journal Published Speaker of the House Brian Egolf’s response to its editorial as follows:
Headline: EDITORIAL ALL (MEDICAL POT) SMOKE, NO FIRE
BY REP. BRIAN EGOLF / SPEAKER OF THE HOUSE, SANTA FE DEMOCRAT
Did the Albuquerque Journal Editorial Board miss the day in journalism school where they cover accuracy in reporting, especially in editorials?
The Journal’s Editorial Board should not allow these pages to be weaponized for politically-motivated and unfounded attacks. Yet a recent editorial (Oct. 1) regarding my work as a private lawyer representing a medical cannabis producer did just that. The outrageous nature of the attack against me and my character demands a response.
Political opponents have long muddied the waters in an attempt to discredit me and the entire medical cannabis compassionate-use program. Their arguments are false and have been repeatedly debunked.
At issue is how legislators maintain high ethical standards, prevent conflicts of interest, and ensure that our service does not give us a leg up in our everyday lives. I have studied and scrupulously followed the standards of ethical behavior for legislators during my 11 years of service in the Legislature and have championed the creation of the Ethics Commission to bring true transparency and clear ethical guidance to all public offices. I am confident that my legal work and my legislative service do not present a conflict of interest.
This paper’s Editorial Board takes the position that lawyers cannot serve in the Legislature without creating conflict with every vote, floor speech or bill introduction. This newspaper ignores, however, the law and the rules of ethical conduct for lawyers. It is absurd to think that a lawyer should recuse from a vote every time a client may be affected. For example, if that were the standard, no lawyer-legislator could vote on funding for roads because every client who uses our roadways would be affected.
As legislators, we must hold ourselves to the highest standard of ethics. For attorneys who are also legislators, the Rules of Professional Conduct for attorneys provide additional rules and requirements to ensure that our actions in the courtroom are kept strictly separate from our legislative service. Legislator-lawyers may not refer to our legislative service in the courtroom or take any action that gives the impression that we are using our legislative offices to gain an advantage for a client. I go to great lengths to abide by the spirit and the letter of the law in my courtroom conduct, as witnessed by judges, colleagues and clients.
The legislative process benefits from having people with diverse personal and professional backgrounds as lawmakers. As noted in a recent legal case, attorneys have unique experience to bring to public service. In a 2015 court order, a district court judge explicitly ruled that preventing a legislator from representing their clients in adversarial proceedings would “contravene clear statutory language and create serious disincentives for those most schooled in the law from taking up public service as state representatives.”
As citizen legislators, we must ensure that our behavior is not influenced by the promise of a specific benefit for ourselves or our families. We also must separate our professional lives from our legislative service. It is clear from the record that the medical cannabis legislation in question went through the regular legislative process and was not expedited in any manner. The bill was introduced and modified several times in the Senate and made its way through the process in the House with no particular speed. This record is available plainly on the legislative website, and I invite the public to examine the record for themselves. Unfortunately, the Albuquerque Journal “greased the skids” in its editorial process and thereby ignored facts, the clear record and the law to produce a political hit-job.”
COMMENTARY AND ANALYSIS
It did not come as any surprise to Round House observers nor to political pundits that the Albuquerque Journal published a highly negative editorial criticizing Speaker of the House Brian Egolf for his involvement in the medical cannabis case and suing the state. Many wondered why it took so long given the Albuquerque Journal’s past history of such editorials against New Mexico legislators, especially Democrats in power. This is not the first time the Journal published an editorial criticizing Speaker Egolf.
What did come as a surprise is that Egolf felt it was necessary to respond to the Albuquerque Journal. Ostensibly, the state had no problem with Egolf representing the plaintiff in that Matthew Garcia, general counsel for the Governor and Thomas Bird, the Health Department’s attorney, did not object to Egolf representing the Plaintiffs. The Governor’s Office and the Department of Health did not ask the Court to remove Egolf from the case for any sort of perceived conflict, but the Governor did decide to appeal the ruling.
The problem Speaker Egolf has is that in politics, public perception by voters is often viewed as a reality. The public perception Speaker Egolf is dealing with is the perception that gives New Mexico politicians a very bad name and reputation.
Speaker Egolf in his letter argues in part as follows:
“… At issue is how legislators maintain high ethical standards, prevent conflicts of interest, and ensure that our service does not give us a leg up in our everyday lives. … Legislator-lawyers may not refer to our legislative service in the courtroom or take any action that gives the impression that we are using our legislative offices to gain an advantage for a client. … As legislators, we must hold ourselves to the highest standard of ethics. For attorneys who are also legislators, the Rules of Professional Conduct for attorneys provide additional rules and requirements to ensure that our actions in the courtroom are kept strictly separate from our legislative service. … As citizen legislators, we must ensure that our behavior is not influenced by the promise of a specific benefit for ourselves or our families. We also must separate our professional lives from our legislative service.”
The highest standard of ethics for any attorney and for that matter any elected official includes avoiding any and all conflicts of interest, appearance of a conflict and avoiding the appearance of impropriety. There is no doubt that private attorney Brian Egolf is a highly respected, accomplished and successful New Mexico trial attorney who honors the New Mexico Code of Professional Responsibility and Canons of ethics prescribing the standards of ethical conduct for attorneys. However, that is not enough when it comes to also being an elected official at the same time and the public perception that goes with it.
Egolf is still Speaker of the House and he cannot separate that fact from his professional work as an attorney in a courtroom setting, especially when he argues against legislation he supported and voted for and turns around and then represents a client and paid by a client that is against that legislation, hence the perception of a conflict of interest by the public. It is true as Mr. Speaker argues that legislator-lawyers may not refer to legislative service in the courtroom or take any action that gives the impression that they are using their legislative offices to gain an advantage for a client. But it really does not matter. When you are an attorney and elected official, especially Speaker of the House, and you walk into a courtroom to challenge a law where you have legislative authority over, the impression of a conflict to many exists without a word having to be said. No introductory comments, assurances, disclaimers or disclosures before the hearing begins will eliminate the doubt and perception in the public’s mind.
Separating “professional lives from legislative service”, and for that matter personal lives, is virtually impossible when it comes to elected officials in the public eye, especially when you are the Speaker of the House, a position many feel is the second most powerful position in state government. Many voters no doubt agree with the Speaker’s comments “… At issue is how legislators maintain high ethical standards, prevent conflicts of interest, and ensure that our service does not give us a leg up in our everyday lives” and “ legislators must hold ourselves to the highest standard of ethics”. The problem is all too often is legislators do not uphold even minimum requirements of ethical conduct.
Least anyone forget, last fall former Democrat State Senator Phil Griego was convicted of fraud, bribery and other public corruption charges, and sentenced to 18 months in prison and more than $47,000 in fines. Griego was a licensed realtor by profession and as a State Senator voted for funding on a state property purchase and then represented the purchaser and Greigo was paid a $50,000 real estate commission. Then there is former tough-on-crime Republican State Representative Monica Youngblood who after arrested pressured police not to charge her because she always supported law enforcement issues and she was convicted of aggravated drunken driving and she lost her reelection bid. Now we have long time Democrat State Senator and retired magistrate Judge Richard Martinez, who presided over many DWI cases, is awaiting trial on aggravated DWI charges who refuses to resign and saying he is running for another term. Martinez refuses to step down as chairman of the Senate Judiciary committee that deals with DWI legislation and Senate leadership are reluctant to remove him as chair. Then you have the granddaddy of all unethical conduct when powerful Democratic State Senate President Pro Temp Manny Aragon, who was also a prominent trial attorney, went to Federal Prison for being paid millions in kickbacks for his role in the Bernalillo County Metropolitan Court Construction Project.
I totally understand Speaker Igolf’s arguments regarding the need to make a living as a private attorney, being bound by the canons of ethics for attorneys and at the same time being and elected official and held to a higher standard. I did it for 4 years as an Albuquerque City Councilor and as a practicing attorney with my own law firm. I can even sympathize with him when he is on the receiving end of negative Albuquerque Journal editorials seeing as I have had more than my own fair share of such editorials over my public service career and have endured the Journal’s insulting editorial wrath. I have never received an Albuquerque Journal endorsement the three times I ran for public office, and as a Democrat that did not surprise me in the least. Notwithstanding, media first amendment rights are a very critical part of the process and politicians all too often forget that point and we see that today on the national level with the worn out “fake news” comment used by so many.
Legendary New Mexico criminal defense lawyer Billy Marchiondo once said that you never to get into a “pissing match with anyone who buys ink by the barrel”. Marchiando made the remark after he sued the Albuquerque Journal for libel and slander when the paper accused him of having organized crime connections, and he lost the case. This is exactly what Mr. Speaker did when he went “tit for tat” with the editorial and wrote “Did the Albuquerque Journal Editorial Board miss the day in journalism school where they cover accuracy in reporting, especially in editorials?” and concluded with “… the Albuquerque Journal greased the skids in its editorial process and thereby ignored facts, the clear record and the law to produce a political hit-job.” Speaker Egolf may believe the editorial was 100% unfair or inaccurate to him, but the front page report was 100% accurate. Front page newspaper stories are read far more than newspaper editorials.
Making the excuse that the New Mexico Legislature is a “citizen legislature” where elected officials are not paid full time and they need to make a living is as hollow as it gets. All elected officials know what they are getting themselves into, including the the pay and the scrutiny, before they run for office. You do not enter into public service to become rich presuming your honest and not a crook. It’s the public service career they have chosen. That public service career includes the media and public’s scrutiny on ethics. If your work or your profession are affected or harmed being an elected official, you probably have no business running, need to get out of politics or at least get a thicker skin.
With his arguments before the court as a private attorney being paid by a client to oppose enacted legislation he supported, Mr. Speaker Egolf apparently does not understand or have any appreciation of what the public perceives, even if there is no violation of professional ethics or rules of conduct for attorneys. It’s the appearance that undermines credibility of elected officials. Egolf should have declined the medical marijuana patient registration case or at the very minimum had an associate argue the case for his firm before the court to avoid the public perception that Speaker Egolf had a conflict.
The newly created ethics commission needs to formulate specific rules of conduct or a “legislative code of ethics” for legislators and specifically define what a “conflict of interest” is for legislators, what a Speaker of the House can and cannot do when it comes to potential conflicts of interests, when they need to disclose and to recuse themselves from voting and disclose the identity of clients who pay them for a living. Otherwise, this is an issue our citizen legislators will continue to deal with.
Egolf has now created a major headache for himself in the event the Governor and the legislature seek to amend the law once again to include a residency requirement. Egolf will be forced to decide does he vote to amend the statute to include residency or as Speaker of the House does he do whatever he can to derail the legislation and take the position of his client and oppose it? And if the residency requirement passes, will Egolf turn around and then sue the state once again on behalf of his client? The House Democratic caucus who elected Speaker Egolf need to have a discussion of the matter.
Given the Speakers strong response to the Albuquerque Journal, it is apparent he feels he has done absolutely nothing wrong and it is doubtful he will change his opinion. One thing for sure, he needs to proceed with great caution knowing the media is watching his every move.