What To Do When A Litigant Calls

Two ex parte communications have resulted in a censure of a magistrate court judge by the New Mexico Supreme Court

It is understandable that Respondent might receive an ex parte phone call from a litigant or the representative of a litigant from time to time. New Mexico is a sparsely populated state with many close-knit communities within its counties and judicial districts. New Mexico judges face additional challenges when working in these close-knit communities, including in avoiding individuals who attempt ex parte communications.

Here

In this matter, Respondent received the first ex parte phone call on his personal cell phone on Friday, April 3, 2020. Respondent should have interrupted the caller, should have told the caller it was improper to call the judge about this matter, and then should have redirected the caller to consult with an attorney and/or to have the defendant file a motion. Essentially, once it was apparent the call concerned Respondent’s upcoming review of Danielle Gallegos’ conditions of release, after being charged and arrested on serious felony charges, Respondent should have ended the call, and then promptly notified the District Attorney’s Office and the defendant of the ex parte phone call and what was discussed.

The next day, Saturday, April 4, 2020, Respondent received and engaged in a second ex parte phone call on his personal cell phone from the defendant’s father,Fernando Gallegos--the same individual that called him the night before. Upon recognizing the telephone number, Respondent should have ignored the second phone call. When Respondent answered the call, however, he should have advised Mr. Gallegos that he could not speak about the case without the prosecutor present, and then should have ended the phone call and notified the prosecutor of it. Respondent should not have taken any judicial action in Danielle Gallegos’ pending matter without notifying the prosecutor of the two separate ex parte phone calls and affording the prosecutor the right to be heard.

As a result

After the second ex parte phone conversation with the defendant’s father, Respondent entered an order setting conditions of release for Danielle Gallegos, pending her trial for violent offenses. Respondent’s issuance of the release order following the ex parte communications from defendant’s father violated an established Santa Fe County Magistrate Court protocol requiring the judge on call for weekend arrest determinations to not set conditions of release for alleged violent offenders until the next business day. The specific stated purpose of the protocol is to afford the District Attorney’s Office an opportunity to review the charges and determine if a motion for pretrial detention is needed in the case.

Sanction

We...accept the stipulation agreement presented by the Commission and Respondent and issue this public censure to Respondent as an assurance to the public we serve and as a clear reminder to all judges under our supervisory authority that improper judicial behavior will not be tolerated. Furthermore, this censure affirms the steadfast commitments of our judiciary to all persons lawfully coming before our courts that they shall receive fair and impartial justice under the law.

(Mike Frisch)