Wednesday, March 15, 2023

Criticism Of Judge Draws Lengthy Suspension

The New Mexico Supreme Court has ordered a suspension of at least 18 months for criticism of a judge in a recusal motion

This disciplinary proceeding arose out of statements Marshall made in pleadings on appeal from an adjudication regarding water rights in the San Juan River. The adjudication was initiated in 1975 and concerned rights asserted by the Navajo Nation, the United States, and the State of New Mexico, in addition to individual water users and water-user associations. Beginning in 2006, Marshall represented the San Juan Agricultural Water Users Association and other groups and individuals interested in the adjudication. Three years later, in 2009, Judge James J. Wechsler, retired, was appointed to preside over the adjudication as judge pro tempore. The Navajo Nation, the United States, and the State of New Mexico had reached a settlement agreement regarding the Navajo Nation’s water rights. See State ex rel. State Engineer v. United States2018-NMCA-053, ¶¶ 4-5, 425 P.3d 723. In 2013 Judge Wechsler entered an order approving the settlement over objection from Marshall’s clients. Marshall appealed the order to the Court of Appeals. See id. ¶¶ 8-9.

While the case was pending in the Court of Appeals, Marshall filed an emergency motion with the Court of Appeals to disqualify Judge Wechsler from the adjudication. The motion and supportive brief were replete with attacks on Judge Wechsler’s integrity and candor. Marshall began his pleading by asserting that, in early 2018, “disquieting rumors about Judge Wechsler [had circulated] in the New Mexico Legislature, prompting some legislators to ask whether or not the rumors could be substantiated.” Marshall then alleged that Judge Wechsler had violated Rule 21-211 NMRA by not disclosing that he “previously worked as a lawyer for the Navajo Nation” and by exhibiting bias in favor of his “former clients.” According to Marshall, because Judge Wechsler had worked for DNA People’s Legal Services (DNA) as an attorney and had lived on the Navajo Reservation during the early 1970s, he possessed “extrajudicial knowledge about the Navajo Nation” from which he could draw in order “to award water to the Navajo people—the people he represented as an attorney.” Marshall claimed that DNA was “an agency and instrumentality of the Navajo Nation” and, as a result, Judge Wechsler had “a one-way bias” in favor of the Navajo Nation. Marshall also alleged that Judge Wechsler had not “act[ed] with independence, integrity, and impartiality, to avoid impropriety or even the appearance of impropriety, and to promote public confidence in the judiciary.” Marshall claimed “the record provides ample evidence of bias and favoritism during these proceedings.” He specifically stated that Judge Wechsler “favored his former client” through his substantive and procedural decisions in the adjudication. Finally, Marshall concluded his brief by asserting that “the public might reasonably wonder whether the judge fixed this case for his former client.”

The Court of Appeals denied Marshall’s motion to disqualify Judge Wechsler from the case and, based on Marshall’s statements impugning Judge Wechsler’s integrity, imposed sanctions against him and awarded attorney’s fees to the Navajo Nation and the United States. The Court found that Marshall’s allegations were “void of any factual foundation” and that “[b]asic inquiry and simple investigation would or should have informed [Marshall] that the motion was without factual foundation.” The Court concluded that Marshall had filed “a frivolous motion” that “needlessly caused [the] Court and the parties to expend resources,” had “violated the Rules of Professional Conduct,” and had “attempted to discredit a judge with absolutely no basis for doing so.” It referred the matter to the Disciplinary Board of the Supreme Court of the State of New Mexico (Disciplinary Board).

Marshall responded by filing a motion for rehearing. Now on notice that his conduct before the Court likely violated the Rules of Professional Conduct, he nonetheless repeated his claim that Judge Wechsler worked for the Navajo Nation because he once served as counsel for DNA, and again asserted that DNA was an “agency or instrumentality” of the Navajo Nation. Marshall complained that the Court of Appeals panel had been misled by counsel for the Navajo Nation and claimed that “new evidence” offered support for “the legitimate questions which the acequias raised under Rule 21-211.” He attached a 1971 New Mexico Law Review article and a 1969 DNA newsletter as the purported evidence.

The court rejected the application of defamation law as a standard and found ethics violations

Substantial evidence supports the hearing panel’s conclusion that Marshall violated Rules 16-301, 16-802(A), and 16-804(D) of the Rules of Professional Conduct. Based on these violations, Marshall is suspended for an indefinite period of no less than eighteen months from the date of our January 13, 2022, order. He may petition for reinstatement after at least eighteen months under the procedure outlined in Rule 17-214 NMRA. As conditions of his reinstatement, Marshall must complete a minimum of four hours of Minimum Continuing Legal Education ethics credits, take the Multistate Professional Responsibility Examination and receive a score of at least eighty, and pay the costs of the disciplinary proceeding.

(Mike Frisch)

Bar Discipline & Process | Permalink


The words of the judges of the New Mexico Supreme Court should apply with equal force to them as to attorneys they purport to “discipline.” The words and conduct of New Mexico Supreme Court judges was the epitome of what the Court contended constituted “reckless disregard,” i.e., conduct “[c]haracterized by the creation of a substantial and unjustifiable risk of harm to others and by a conscious (and sometimes deliberate) disregard for or indifference to that risk.” In re Marshall (N.M. 2023) para. 15 quoting Black’s Law Dictionary.

Every officer of every court in this country, should “challeng[e] the integrity or qualifications of” any judge of any state’s highest court when such judge purports to “conclude that the public’s interest is best served by ensuring that an attorney has an objectively reasonable basis for challenging the integrity or qualifications of a judicial officer.” Marshall para. 20. No one should have any confidence in any judge who would knowingly violate the U.S. Constitution as it was construed and applied by the U.S. Supreme Court to protect “the freedom of speech” and “press” in America, specifically to emphasize the right of all Americans (including lawyers and litigants) to criticize any official conduct of any public official (including judges). U.S. Const. Amend. I.

Everyone should especially doubt the “integrity or qualifications of” any judge of a state’s highest court in 2023 who flouts the U.S. Supreme Court (applying the U.S. Constitution) by dismissing the U.S. Supreme Court’s standard as “subjective” while touting state courts’ so-called “objective standard.” Id. para. 18. They should especially doubt the frivolous falsehood that the “basic principle is that” state court judges are free to punish “statements made by an attorney” criticizing a judge’s official conduct if such statements are either “false or reckless” because such statements “can unfairly undermine public confidence in the administration of justice.” Id. para. 1. Such judicial statements, themselves, do and definitely should egregiously “undermine public confidence in the administration of justice.” Id. How can anyone have any confidence in a judge who would actually put something like that in writing in the 21st Century?

Three of the most important statements of (truly) the basic principle at work here (the core meaning of “the freedom of speech” and “press”) were by Congress in 1774 and the U.S. Supreme Court in 1940. “Congress” declared that “the freedom of the press” was one of Americans’ “five great rights” precisely because it serves “diffusion of liberal sentiments on the administration of Government” so that “oppressive officers” (including judges) “are ashamed or intimidated, into more honourable and just modes of conducting [public] affairs.” Thornhill v. Alabama, 310 U.S. 88, 102 (1940) quoting First Continental Congress, Letter to the Inhabitants of Quebec (Oct. 26, 1774).

Congress made the foregoing declaration to elaborate on the following declaration. Less than two weeks earlier, that same illustrious Congress said the same in a more formal declaration. On October 14, 1774, Congress (including John Dickinson, John Adams, John Jay, George Washington, Patrick Henry, Samuel Adams), declared Americans’ rights and colonial America’s constitution. Congress declared the peoples’ “right peaceably to assemble,” and specifically to discuss “grievances,” and Congress further emphasized that “all prosecutions, prohibit[ions]” and “commitments for the same, are illegal.” Declaration of Rights and Grievances of 1774 ¶14. Thirteen years before the Constitution was written, Congress spoke for the 13 states, so the 1774 declarations clearly bound and bind all states. The First Amendment really was merely a reminder.

Subsequently, the U.S. Supreme Court plainly and expressly confirmed that the U.S. Constitution requires states to prove both “falsehood” and “actual malice” before punishing any criticism of any public official’s official conduct. New York Times Co. v. Sullivan, 376 U.S. 254, 279-80 (1964). The “constitutional guarantees” in the First, Fifth and Fourteenth Amendments “require” a nationwide “rule that prohibits” any “public official from” precluding, penalizing or punishing any criticism for content “relating to” any “official conduct” except a “falsehood” asserted with “actual malice” (“with knowledge that it was false or with reckless disregard” for its falsity). Id.

A statement about a judge’s lack of integrity can be punished only if it is either a lie or reckless falsehood. It defies common sense and flies in the face of the Constitution to pretend that lawyers or litigants may be punished for true statements about a judge’s lack of integrity or qualifications.

The rulings and analysis in New York Times clearly and emphatically were not limited (as many state courts frivolously imply) to mere “defamation.” Marshall para. 17. This point was made especially clear in New York Times, as well as in repeated related precedent.

“Truth may not be the subject of” any type of content-based “sanctions” (“civil or criminal”) “where discussion of public affairs is concerned.” Garrison v. Louisiana, 379 U.S. 64, 74 (1964) (protecting government attorney’s criticism of eight judges, including implying they were criminally corrupt). The Constitution “absolutely prohibits” any type of content-based “punishment of truthful criticism” of any public official’s official conduct. Id. at 78. See also Pickering v. Board of Ed., 391 U.S. 563, 574 (1968) (precluding discharge of government employee without satisfying the standards in New York Times).

It also is frivolous to contend or pretend that lawyers or litigants can be made to bear the burden of proving that their criticism is true. See, e.g., Marshall para. 2 (“We hold that a lawyer makes a statement with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge when the lawyer makes the statement in the absence of an objectively reasonable factual basis.”). The “First Amendment mandates a ‘clear and convincing’ standard” of proof of each material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986).

“When First Amendment compliance is the point to be proved, the risk of non-persuasion” always “must rest with the Government, not with the citizen.” United States v. Playboy Entertainment Group, Inc., 529 U. S. 803, 818 (2000). “When” any “Government restricts [any] speech, the Government” always “bears the burden of proving the constitutionality of its actions.” Id. at 816. “When the Government seeks to restrict [any] speech based on its content,” any potential “presumption of constitutionality” must be “reversed. Content-based regulations are presumptively invalid, and the Government bears the burden to rebut that presumption.” Id. at 817 (cleaned up).

Posted by: Jack Jordan | Mar 15, 2023 11:25:29 AM

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