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Judicial attack ad draws fire from both sides

Copyright © 2018 Albuquerque Journal

For nearly three decades, judicial campaigns in New Mexico have been largely free of the nasty partisan politics common in an election year.

The races have been generally collegial, with candidates focusing on their own qualifications and almost never attacking each other. Outside groups typically have stayed on the sidelines, respecting the system.

“This is nothing less than an attack on the integrity and independence of the judiciary.”
– Court of Appeals Judge Emil Kiehne, one of the targets of the ad

But this fall, a political action committee funded in large part by trial lawyers has unleashed a social media and television advertising attack on five Republican judicial candidates appointed by Gov. Susana Martinez, claiming they are her puppets.

The attack by “Safety and Justice for All” comes after decades of work by judges and legislators to remove the state judiciary from partisan politics, including a system in which a nonpartisan judicial nominating commission screens applicants and forwards the names of qualified candidates to the governor.

The ad has caused widespread consternation in the judiciary and has drawn condemnation and disavowal – including from the Democratic judicial candidates it would help.

The ad calls Supreme Court Justice Gary Clingman, and Court of Appeals Judges Stephen G. French, Hank Bohnhoff, Emil J. Kiehne and Daniel Jose Gallegos “The Susana Five,” dancing like marionettes with Martinez holding the strings.

“We do not condone these type of ads and believe they have no place in judicial races.”
— District Judge Briana H. Zamora, who is challenging Court of Appeals Judge Emil Kiehne

The ads don’t mention Court of Appeals Judge Jennifer L. Attrep, a Santa Fe Democrat, who also was appointed by Martinez and is running unopposed to retain her seat on the appellate bench.

Safety and Justice for All raised almost $300,000 from attorneys and law firms, including $50,000 from the Trial Attorneys’ Association PAC called Committee on Individual Responsibility.

In an email response, Safety and Justice for All said it “stands by its 100 percent factual advertisement.”

“We are certainly not breaking new ground when it comes to advertising in the judicial races,” the statement said.

The group also pointed out two mail advertisements, one an attack ad from a previous election, and another supporting Kiehne but not attacking his opponent.

Retired Court of Appeals Judge Roderick Kennedy said the ad was “no less false than others run by independent interest groups” in judicial races in other states.

He said he found it ironic that anyone would think Martinez pulls the strings of judges.

“Having had Gov. Martinez criticize a Court of Appeals opinion that she didn’t like to me in Macy’s one Saturday morning, and given her frequent dissatisfaction with the judiciary, it seems ironic,” said Kennedy, a Republican.

Widespread criticism

The campaigns for the four Democratic candidates for the Court of Appeals in contested races said they were unhappy with the attack ad.

District Judge Briana H. Zamora, an Albuquerque Democrat running against Kiehne, said through her campaign chairman, Paul Melendres, “We were disappointed to recently learn that there was an attack ad being run in the judicial races. We do not condone these type of ads and believe they have no place in judicial races.”

Judge Kiehne said, “The suggestion that my fellow judges and I are puppets on a string, that we take orders from someone else on how to decide cases, is an outrageous lie. This is nothing less than an attack on the integrity and independence of the judiciary.”

One of the targets of the ad, appellate Judge Hank Bohnhoff, published a response on his campaign website that said, in part, “Sadly, the biggest casualty of this attack ad could be our State’s judiciary. The public’s confidence in our judiciary’s independence from influence by other branches of our government is crucial to the administration of justice.”

His response goes on to say the ad “insinuates without a shred of evidence that, contrary to the oath of office that each judge takes to uphold the Constitution of the United States and the Constitution and laws of New Mexico, five members of our State’s two highest courts are not independent and instead are beholden to the Governor.

“If such lies are accepted as true by some portion of the public, trust in the judiciary will suffer.”

Democrat Jacqueline Medina, who is running against Bohnhoff, said through a campaign spokesman that she was “disappointed” in the ad campaign.

“New Mexico has worked hard to create a system that includes public financing and a strong Judicial Code of Conduct, to give its residents confidence in the judiciary and reinforce the impartiality of its judges,” Medina said.

Court of Appeals Judge Daniel Gallegos, one of the Republicans attacked in the ad, said, “This overt and rancorous appeal to partisanship is antithetical to the concept of judicial independence and the rule of law, and is an end-run around the Judicial Code of Conduct, which prohibits judicial candidates from making these sorts of attacks.”

Megan Duffy, who is running against Gallegos, said the advertisement was “unfortunate,” adding that the campaign had been friendly and collegial.

Democratic candidate Kristina Bogardus said through her campaign that she was “dismayed” to learn about the negative ad. Her opponent, appellate Judge Stephen G. French, declined to comment, citing the rules governing judicial conduct.

Judicial nominations

Over the past few decades, the Legislature and the Supreme Court have sought to remove judges from the worst aspects of political campaigns.

At the urging of many in the judiciary, New Mexico voters in 1988 amended the state Constitution to create a judicial nomination commission to screen applicants for vacancies on the Supreme Court, Court of Appeals, district courts and metropolitan courts.

The commission screens applicants and forwards to the governor the names of applicants it deems qualified.

The sitting governor then appoints a judge from the list to fill the position. The four Republican judges on the Court of Appeals went through this process.

A judge appointed by the governor must run in the next partisan election and if elected then is subject to retention election on a non-partisan ballot in the following elections. Standing for a partisan election was a compromise to get the amendment on the ballot, as some key lawmakers fought to keep the judiciary as part of the political process.

Many judges, including retired Court of Appeals Judge Kennedy, said the initial partisan election “devalues merit selection.”

The Supreme Court has issued rules governing the conduct of candidates in judicial races restricting how they raise money, what they can and can’t say in campaign literature and on the campaign trail, even the conduct of family members. Unless they are on the ballot in a partisan election, their participation in politics and political events is severely restricted. But the Supreme Court can’t regulate the free speech of groups like Safety and Justice for All PAC.

The Legislature also approved public financing for judicial candidates. All the candidates in the Court of Appeals election, Democrats and Republicans, chose this option instead of having their campaigns raise money from private donations.

The well-funded attack ads being aired during this campaign could make public financing a much less attractive option for judicial candidates in the future.

It also opens the door to out-of-state interests that could dump big money into New Mexico in 2020, when a majority of the state Supreme Court could be on the ballot.

Not along party lines

The 10-member Court of Appeals and five-member Supreme Court are not intended to operate on party lines.

For example, the Supreme Court was unanimous in its decision refusing to uphold a string of vetoes by Gov. Martinez in a lawsuit brought by a group of legislators.

In another recent case, Republican Clingman wrote the majority opinion joined by the court’s three Democrats – Charles Daniels, Petra Jimenez Maes and Barbara Vigil. The lone dissent: Chief Justice Judith Nakamura, the court’s other Republican.

And Republican Bohnhoff wrote a recent Court of Appeals opinion joined by Democratic Judges Linda M. Vanzi, the chief judge, and Monica Zamora.