SANTA FE – A state judge on Friday dismissed five of the eight criminal counts against the former head of New Mexico’s tax agency, saying Attorney General Hector Balderas’ office had filed some misdemeanor charges against Demesia Padilla under parts of the state’s Governmental Conduct Act that are not supposed to be used as a weapon by prosecutors.
However, Balderas immediately said he would appeal the dismissal of the ethics charges to a higher court, while forging ahead with the remaining charges against Padilla, who was ex-Gov. Susana Martinez’s initial pick in 2011 to lead the state Taxation and Revenue Department.
“Government officials must be held accountable to the same standards as all other New Mexicans,” the two-term Democratic attorney general said in a statement.
Padilla’s attorney, Paul Kennedy, had filed a motion seeking to have the five counts in question dismissed, arguing that the laws they were based on are vague, unenforceable and not intended to be used in criminal cases.
“There have to be objective, identifiable standards to a crime, and you don’t have them in this case,” Kennedy, a former state Supreme Court justice, said during Friday’s hearing in a Santa Fe courthouse.
The ruling by District Judge Mary Marlowe Sommer ultimately upheld that argument, saying prosecutors cannot use broad language within the Governmental Conduct Act as a “kitchen-sink” approach to filing charges.
Specifically, the dismissed charges were five separate counts of violating the ethical principles of public service, including alleged conflicts of interest and lack of integrity.
Barring a successful appeal, the judge’s ruling could set a precedent in cases involving New Mexico public officials. It also means Padilla will face only three charges – embezzlement, engaging in an official act for personal financial gain and computer access with intent to defraud or embezzle – when she goes to trial this summer.
However, all three of those charges are felonies, and if convicted, Padilla could still face up to 19½ years in prison and as much as $25,000 in fines.
After a lengthy investigation, Padilla was charged by the AG’s Office in June 2018 with embezzling more than $25,000 from a Bernalillo-based company, Harold’s Grading & Trucking, and using her appointed position to push for favorable tax treatment.
She had previously resigned from the Taxation and Revenue Department in December 2016, shortly after state investigators raided the agency’s office in Santa Fe in search of tax documents connected to Padilla and her husband.
Padilla has pleaded not guilty to the criminal charges and has filed several procedural motions in mounting her defense. She could be heard exclaiming, “Oh, my God!” under her breath after the judge’s ruling was announced Friday.