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Judges seek ruling on NM ethics law

David Gutierrez, Demesia Padilla, Francesca Estevez

Copyright © 2019 Albuquerque Journal

SANTA FE – The state Court of Appeals is asking New Mexico’s highest court to determine whether the state’s anti-corruption law is too vague to be enforced.

The move comes after a series of lower-court rulings poked holes in the prosecution of public officials accused of violating the Governmental Conduct Act.

A three-judge panel of the state Court of Appeals agreed this month to ask the Supreme Court to step in and consider the legality of the law. Among their questions: Are some of the ethical standards outlined in the act merely aspirational? Or is it a crime to violate them?

They also want to know whether the law is so vague that it invites arbitrary enforcement and violates defendants’ constitutional rights.

The Governmental Conduct Act, adopted in 1993 and amended in 2011, prohibits legislators and other public officers from using their powers to “obtain personal benefits or pursue private interests,” among other standards of ethical conduct.

Current or former public officials charged under the act have been accused of unwanted sexual advances, interfering with a police investigation and improperly accessing tax records.

At least four criminal cases are at stake after dismissals by district judges.

Now the state Court of Appeals is taking the unusual step of sending three of the cases to the Supreme Court – using a “certification” procedure intended to resolve important public policy questions quickly.

Appellate judges Julie Vargas, Jennifer Attrep and Jacqueline Medina signed the order sending the cases on. They said the lower-court decisions had created significant constitutional questions and issues of public interest.

“Final resolution of these cases is of paramount importance,” the judges said, “given the uncertainty that will persist in criminal prosecutions throughout the state until such resolution.”

It’s up to the Supreme Court to decide whether to accept the cases or send them back to the Court of Appeals.

The appellate judges highlighted a few criminal prosecutions involving the Governmental Conduct Act, including charges against:

• Former Doña Ana County Treasurer David Gutierrez, who was accused of pursuing an unwanted sexual relationship with one of his employees. A district judge dismissed charges, finding that certain parts of the Governmental Conduct Act weren’t meant to be crimes, but merely “ethical considerations.”

• Sixth Judicial District Attorney Francesca Estevez, who was accused of using her position to intimidate, manipulate or harass police officers investigating whether she had improperly operated a state-owned vehicle. A judge ruled that the provisions of the Governmental Conduct Act cited to support her charges weren’t meant to be crimes.

• A former San Juan County magistrate judge, Connie Lee Johnston, accused of improperly recording the communications of her co-workers and colleagues. A judge said the provisions of the act used to charge the magistrate were too vague to be constitutional.

The appellate judges also noted that parts of the case against former Taxation and Revenue Secretary Demesia Padilla hinge on the Governmental Conduct Act. In May, a lower court tossed out some of the charges against her.

Prosecutors accused Padilla of using her appointed position to push for favorable tax treatment for a former client and of improperly accessing tax records.

Matt Baca, senior counsel under Attorney General Hector Balderas, whose office is prosecuting most of the cases, said the Governmental Conduct Act was meant to be mandatory. Furthermore, he said, it isn’t too vague to be enforced.

“Recent court rulings have weakened New Mexico’s government corruption laws,” Baca said, “and the Office of the Attorney General looks forward to arguing for increased protections in the Supreme Court.”