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Sunday, March 21, 2010
Judicial Candidate Faces Ethics Complaint
By Mike Gallagher
Copyright © 2010 Albuquerque Journal
Journal Investigative Reporter
Most appellate court election campaigns in New Mexico are understated and don't generate much buzz in the legal community or beyond, and it is rare for a judicial candidate to run while under the cloud of ethics charges and a malpractice lawsuit.
But that is the case with attorney Dennis W. Montoya, a lawyer with offices in Albuquerque and Rio Rancho who is seeking to unseat Appeals Court Judge Linda Vanzi in the Democratic primary election.
The election contest isn't their first confrontation.
Vanzi, while still a state District Court judge in Albuquerque, filed a complaint against Montoya with the board that investigates allegations of attorney misconduct.
She accused him of failing to represent the interests of a young boy whose father was killed in a one-car accident, questioned his fees and costs in the case, and accused him of lying to a guardian ad litem she appointed to protect the child's interests.
"This is a situation where a minor had no protection from his lawyers and lost virtually all the money due him as a result of the unfortunate death of his father," Vanzi wrote in a Jan. 31, 2008, letter to the Disciplinary Board of the state Supreme Court.
"Mr. Montoya has shown a disregard for the legal system, including the courts, other attorneys, and clients he supposedly represents," Vanzi wrote in her complaint, which is still being investigated.
Montoya campaign manager Santiago Juarez said, "Because these are pending matters, Mr. Montoya's position is he does not want to be seen as unduly influencing the court by commenting in the media."
The charges against Montoya are serious. If the disciplinary board finds they have merit, it could recommend disciplinary action to the Supreme Court, ranging from a reprimand or fine to being disbarred.
Montoya is a somewhat controversial figure who has been sanctioned by federal judges in Albuquerque on several occasions and recently got involved in a shouting match with a Metropolitan Court judge. His practice includes criminal defense, civil rights, employment and personal injury.
Vanzi practiced with an Albuquerque law firm before she was appointed to the District Court bench in 2004, and she teaches as an adjunct instructor at the University of New Mexico law school. She was appointed to the Court of Appeals in the fall 2008.
Vanzi became involved in the legal matters stemming from the death of Cody Utley when she was asked to approve a settlement of a lawsuit Montoya had filed in state District Court in Las Vegas, N.M.
She didn't like what she saw, and she appointed Kathleen Oakey a guardian ad litem to inquire further. Based on Oakey's findings, Vanzi wrote a 13-page letter accusing Montoya of misconduct.
That is still pending, along with a malpractice lawsuit Oakey filed against Montoya on behalf of Utley's son, Thomas.
Vanzi's ethics complaint — which would normally have been secret — became public when one of Montoya's lawyers in the malpractice case attached it to a court pleading.
The document has recently been making the rounds via e-mail.
The tempo picked up after Montoya announced that he had qualified for public financing for his campaign — about $85,000 — and last weekend had enough support at the state Democratic Party nominating convention to secure a spot on the ballot.
Montoya has issued a statement calling for a "clean campaign" and another pointing out that he is the only candidate who is using public financing.
"I am willing to win or lose this race on sunshine politics, because our courts are sacred and the people of New Mexico deserve nothing less," he said in a statement.
Attorney David Stout, who works on Vanzi's campaign, said, "As a sitting judge, the code of judicial conduct prohibits her from commenting on pending cases."
Vanzi and Montoya will face off in the Democratic primary June 1. There is no Republican in the race, so the winner of the primary wins the seat on the Appeals Court.
Vanzi's ethics complaint questions how Montoya and another attorney handled legal work and fees in insurance settlements that followed the 2002 death of Cody Utley in a car crash outside Tucumcari. A tire blew out, and Utley was killed in a rollover.
Utley was survived by Tresa Kosec, with whom he had a son, Thomas, who is now 12. Kosec also had a daughter from a previous relationship.
According to Vanzi's complaint, Montoya represented that Tresa Kosec was Utley's surviving spouse in dealings with life and workers' compensation insurance companies and in a lawsuit against the tire manufacturer.
But Vanzi said Kosec and Utley were never married, and their relationship didn't meet the standards for a common-law marriage.
That is disputed by Montoya's attorneys, but, in a sworn statement, Kosec said she and Utley were never married.
Vanzi said in her disciplinary complaint that "during the entire course of this litigation, as well as in various other legal matters involving Mr. Utley's death ... Montoya ... did virtually nothing to protect the interest of the minor child Thomas Utley, the only legal beneficiary to Mr. Utley's estate."
Montoya argued that the money from the settlements benefited the child and "went to put a roof over the boy's head."
The life insurance company asked for additional information to show that Kosec was entitled to the insurance money. In an affidavit prepared by a paralegal in Montoya's office, Kosec claimed to be Utley's "common-law wife" based on their living together in Utah before moving to Farmington.
"At no time was Tresa Kosec married to Cody Utley and her declaration that she was Cody Utley's wife and therefore an heir was patently false," Vanzi wrote in her complaint. She specifically said the couple had not met the test for common-law marriage in Utah.
The state of the Utley-Kosec marriage is key to the malpractice claims, but not to all of the issues raised by Vanzi in her complaint.
Vanzi found that none of the money was set aside for Utley's son, Thomas, and that Kosec had spent all the money she had received by the time it came to the court's attention.
The complaint and court records show that Montoya, in some cases, received more than 50 percent of the settlements in fees and costs.
According to disciplinary board rules, investigations of such complaints shouldn't be delayed by malpractice lawsuits. But, as a practical matter, investigations can be put on hold for a variety of reasons.
Virginia Ferrara, chief disciplinary counsel to the board, said she couldn't comment on the status of the complaint or whether the pending malpractice lawsuit has delayed the investigation.
The case also highlights an unusual aspect of New Mexico's merit selection system of judges.
Before her appointment to the district or appellate court positions, Vanzi submitted her name to a judicial nominating commission, which screens applicants, reviews credentials and recommends several nominees to the governor to consider for appointment. Questions include disciplinary complaints.
But legislators insisted that any appointed judge stand for election in one partisan contest after that appointment. Judges face only retention votes in subsequent elections.
As a candidate in the partisan race, Montoya has not gone through the same vetting process as Vanzi.
• The first claim involved Utley's life insurance, which paid Kosec more than $73,000, from which Montoya was paid $25,000 for "costs." He did not charge any fees in that claim, but got Kosec appointed personal representative for Utley's estate, based on the representation that they had been husband and wife.
• Then came the claim for workers' compensation benefits Montoya filed on behalf of Utley's estate, in which the claim was made that both Thomas Utley and Kosec's daughter were fathered by Utley.
A workers' compensation judge found that Kosec and the two children were the proper recipients of the money from the settlement.
A lump sum of $55,000 was paid, with Montoya receiving nearly $29,000 for fees and costs. Kosec received $26,200.
Vanzi found that none of the money was set aside for Utley's only legal heir, his son, Thomas.
She said both the life insurance and workers' compensation claims "involved a series of false statements and misrepresentations by Mr. Montoya and his client."
• Several months after those settlements, Montoya filed a lawsuit against two companies, including tire manufacturer Bridgestone/Firestone Inc.
There were two settlements: The salvage yard where the tire that blew out was purchased paid $97,500, and the tire manufacturer agreed to pay $550,000. Vanzi questioned how much went to Montoya's firm and said there was not a proper accounting of costs charged.
Again, in the salvage yard settlement, she found that no money was set aside for Utley's son.
Montoya proposed splitting the Bridgestone/Firestone settlement, with $303,910 going to his firm for fees and costs. Kosec would receive $146,000 and the son, $100,000.
Vanzi was having none of it.
She ruled that Kosec was not entitled to any of the settlement, because she received and spent more than she should have received from the prior settlements. Vanzi ordered that $246,000 be put into a trust account for Thomas Utley and directed that the remaining $303,000 in fees and costs be held in the court registry until a determination could be made on how the money should be disbursed.
The boy's guardian is seeking that money for the boy in a separate court case.
Vanzi took issue with two "particularly troublesome items on Mr. Montoya's cost log."
The first was a billing for $14,977 from BBC Legal Services Inc., which the complaint said turned out to be Montoya's paralegal. Montoya, in a letter, claimed to be unable to reach the former paralegal — who Oakley said was attending law school at the University of New Mexico.
A second billing for more than $40,000 was for a private investigator, but there was no itemized bill.