By an investigator’s account, Judge Mike Murphy in 2007 brazenly explained to other judges the way he thought judicial appointments worked under then Gov. Bill Richardson. It was simple. You pay to play.

To believe otherwise was “old fashion,” Murphy reportedly told another judge who thought it improper that political contributions would have anything to do with the selection of new judges. A review of campaign-finance records confirms at least part of the claim. Campaign contributions have been the fashion among some judges recently enrobed in New Mexico.

When an investigator earlier this year interviewed another 3rd District judge, the judge pronounced a counterpoint that resonates with the brazen pay-to-play refrain. Investigator Dan Blair, working for the 9th Judicial District Attorney’s office, quoted 3rd Judicial District Judge Jim Martin as saying Richardson picked judicial candidates who were active in a political party.

The 9th District office, led by unsuccessful 2010 Republican Attorney General candidate Matt Chandler, took over the case after then District Attorney Susanna Martinez’s office stepped aside from the investigation to avoid a conflict of interest that might arise from prosecuting a judge in a court where they bring other cases.

“A way to show you are active in the party is to make donations to the party, participate in events, go to fundraisers, help a particular campaign, be a good democrat or republican. That’s kind of the nature of politics you have to be actively involved in the game,” Martin reportedly told the investigator in a now widely circulated investigative report.

A Watchdog review of campaign contributions among New Mexico’s current district, appellate and supreme court judiciary indicates that a most-popular theme in the judicial branch these days is a tune about politics. Among the current judiciary, Richardson-era judges on average contributed far more to political campaigns in recent years than did judges enrobed during previous administrations.

The Watchdog didn’t have to look far to find prominent figures in the legal community who recognize that a politics-in-the-judiciary tune ranks near the top of the charts these days. And one would need to avoid national media not to find references to politics in selection of federal judges. Yet not all who recognize the familiar chorus believe its the best tune for a judicial branch that is expected to ignore all concerns other than facts of a case and relevant laws.

An Open Secret: The Players Paid

One need look no further than online state and federal campaign-finance reporting sites to discover that recently appointed judges in New Mexico are “actively involved in the game,” as Martin put it. Members of the Richardson-era judiciary on average paid more than four times as much in political donations during recent years, compared to the recent political donations of long-time judges who remained through the Richardson era.

A review of 677 political contributions from the state’s judges found that those appointed during the Richardson era gave twice as often and in each contribution gave four times as much as those who remained on the bench from an earlier era. The difference follows partisan lines.

Of the 103 judges and justices the Watchdog examined, three out of four have made political contributions during years reflected in state and federal campaign-finance sites. Regardless of their political affiliation, most New Mexico judges have made campaign contributions in recent years, either before or after they were appointed to the bench. That 3-to-1 ratio of judges who contributed to political campaigns in recent years is consistent across party lines, among 88 Democrats and 15 Republican members of the judiciary alike. That’s where similarity ends.

Altogether, New Mexico’s Democratic judiciary has contributed 20 times as much to political causes in recent years as did their Republican counterparts. Democrat judges and justices gave a total of $221,111, compared to $10,325 in Republican contributions. The average Democrat contributor gave a total of $4.072 during the years reviewed, compared to the average Republican contributor’s total of $988.

Democrat judges who contributed on average have gave twice as often and in each contribution gave 60 percent more, compared to Republican contributors currently on the bench. Richardson-era Democrats donated three times as often and in each donation give 25 percent more than pre-Richardson Democrat judges.

Among Republican judges who contribute, the pace of contributions among Richardson era judges increased slightly – by 37 percent, but they give less in each donation than long-time Republican judges who contribute to political campaigns.

The highest concentration of campaign contributors can be found in the state’s highest courts. Chief Justice Charles Daniels’ $23,060 in contributions make him the number three campaign contributor among New Mexico’s current judiciary. Supreme Court Justice Edward Chavez ranks number four. Daniels has firmly denied that his contributions to Richardson’s campaign were the reason he was appointed to the Supreme Court in 2007.

The Watchdog identified campaign or party contributions from each of New Mexico’s appellate and supreme court justices during the same year or after they were appointed to the bench. Only three currently seated appellate justices and one Supreme Court justice failed to make a contribution during the year they were appointed.

A More Political Game

In the New York Times’ account of Murphy’s indictment, Richardson called the suggestion that his administration sold judicial appointments in exchange for campaign contributions “outrageous and defamatory.” In a Wall Street Journal account, Kevin Washburn, dean of the University of New Mexico law school decried the notion that the judicial selection committee would choose candidates who tried to buy appointments with campaign contributions. Washburn chaired a judicial nomination committee that selected judicial candidates for Richardson’s consideration.

Although Washburn dismissed the notion that judges routinely paid for appointments with campaign contributions, his reaction to the suggestion that recently appointed judges are more involved in politics was circumspect. When told of the more frequent campaign contributions among recently selected judges, Washburn agreed that the significant increase was not likely a matter of chance. Yet he didn’t think the trend was necessarily related to Richardson-era practices in judicial selection. He had a different theory to explain the trend.

“It is called the ‘Welcome to politics in the 21st Century’ theory!” Washburn wrote in an e-mail dialogue with the Watchdog. “Call me crazy, but my sense is that money and politics in the judicial arena is a rapidly increasing phenomenon (and yes, problem), not a static one.”

Some data suggests Washburn’s theory has merit. An upward trend in average recent campaign donations starts with judges appointed in 2000, before Richardson was governor. The largest single contribution the Watchdog found was a $5,000 contribution from Supreme Court Justice Richard Bosson to the Democrat Party of New Mexico in 2002 – the year he was appointed to the Supreme Court and before Bill Richardson won the gubernatorial election that same year.

Murphy’s alleged explanation of the Richardson-era judicial-selection process mirrors widespread pay-to-play allegations that contributed to a rightward shift in last year’s statewide elections. The chorus of patronage allegations define the contrast between the former governor’s tarnished legacy at home and his apparently pristine world-wide reputation as a citizen diplomat.

While the upward trend in New Mexico judges’ campaign-finance contributions starts before Richardson took office, suggesting a wider trend not specific to the Richardson era, other data suggests something particular happened during those years. Average total giving among Democrats contributors seated during the Richardson administration quadrupled. Average total donations from Republican contributors seated during those year increased by only about 30 percent.

Biggest Givers

Contributions from judges enrobed in 2000 and in 2002, before the Richardson era, are close to the amount contributed by those enrobed during 2006 and in 2008 when Richardson picked judicial appointees. Yet some of the most recent alumnus of the Richardson-era judicial selection process far out gave pre-Richardson judges. Average contributions among all judges enrobed during the Richardson administration were driven upwards primarily by the significantly greater donations from 17 of 66 judges enrobed during those years who still serve in the state’s district, appellate and supreme courts.

1st Judicial District Judge Sarah Singleton tops the list of campaign contributors. With $47,517 in contributions, Singleton’s tally of campaign giving nearly doubles that of the runner-up, 2nd Judicial District Judge Alan Malott, who was a prolific contributor before he was appointed to the bench.

Selected in 2009, Singleton was enrobed in early 2010 upon the retirement of Judge Jim Hall. The month before her selection was announced, Singleton donated $500 each to the election campaigns of appeals court justices Tim Garcia, Linda Vanzi and Robert Robles. Each of those justices might be someday be called to hear appeals in cases Singleton decides in the district court. (Robles retired June 1 after he pleaded guilty in March to a charge of drunken driving, a charge which had led to his suspension from the court.)

Singleton donated a total of $5,520 to Democrat candidates in the year she was under consideration for a judicial appointment. The prior year – an election year – she contributed even more heavily, giving a total of $18,500 to national Democrat candidates and party funds. In 2007, she gave $750 to Richardson’s presidential campaign.

Since taking the bench, Singleton has continued to make campaign donations – $250 to then Lt. Gov. Dianne Denish’s unsuccessful gubernatorial campaign in 2010, $250 to Attorney General Gary King’s congressional campaign, $400 to the state Democratic Party and $250 to 2nd Judicial District Judge Shannon Bacon’s campaign.

Last year, while serving as a district judge, Singleton donated $250 to Santa Fe County Sheriff Robert Garcia’s election funds. Singleton has so far heard civil and family cases which more often than not don’t tend to involve testimony from sheriff’s deputies.

Her 2009 appointment was not Singleton’s first time at bat in the judicial selection process. Richardson earlier that year appointed Judge Sheri Raphaelson when he could’ve chosen Singleton. The District Nominating Commission first forwarded only Raphaelson’s name to the governor’s office, but Richardson wanted more choices. The commission came back with three names, including Singleton’s. Singleton won her appointment later that year.

The second runner up among most-generous campaign donors stopped making contributions after he was appointed to the bench in 2009. 2nd Judicial District Judge Alan Malott’s for several years was a regular contributor to the Committee on Individual Responsibility, a trial lawyers PAC. His 32 contributions to the PAC in 2006 through January, 2009 totaled $4,000. In 2010, the trial lawyers’ PAC gave $50,000 to Denish’s campaign, and $50,000 to the campaign of since-defrocked appellate justice Robles.

Family Tradition

Malott’s brother, Bruce Malott is embroiled as a defendant in a whistle-blowers lawsuit at the center of pay-to-play allegations that tarnished the Richardson administration’s legacy in New Mexico. The lawsuit alleges Bruce Malott helped Richardson supporters get investments from the state’s education retirement fund while he was head of the board that managed those funds. Bruce Malott’s accounting firm also won several lucrative auditing accounts under Richardson.

The two brothers followed separate tracks into public life, Judge Alan Malott said in an interview, each inspired by family principles that promoted public service. When Richardson was considering Malott as a judicial appointee, his brother “did not lobby the governor.”

“He talked to others. He contacted other lawyers and asked ‘would they support my brother’ … asked them to send e-mails to the governor. There’s nothing wrong with that,” Judge Malott said.

Malott is among14 New Mexico judges and justices, including Supreme Court Chief Justice Charles Daniels, who contributed to Richardson’s 2007 bid for the Democratic presidential nomination. With the exception of contributions to various Democrat Party campaign funds. Richardson’s presidential bid netted contributions from more members of the New Mexico judiciary than any other campaign fund. Other top recipients of judges’ contributions include Denish, and congressmen Jeff Bingaman and Tom Udall, each of whom received contributions from 12 various judges or justices.

In every phase of his interviews during the judicial selection process, Malott said, he was asked questions about his readiness to stand for election. For a governor or selection committee to ignore questions about a judge’s electability would be “problematic,” he said. To select judges who would be voted out of office a few months later would be “wasting everybody’s time.”

“There are certain considerations of electability – being active on one side or the other. The idea that being active translates to having bought a seat doesn’t make sense. The idea of having played politics, welcome to the real world,” Malott said.

In that regard, one indicator of increased political activity among recently enrobed judges crosses partisan lines. The campaign finance data indicates five of six Republican judges enrobed during the Richardson era contributed to campaign funds, compared to slightly more half – five of nine – pre-Richardson-era Republican judges who recently contributed. By most measures, recently appointed judges in New Mexico have been more involved in financing partisan political campaigns.

How the system measures up

Malott said New Mexico’s hybrid system of judicial selection, which lets voters choose among other candidates in a general election after a new judge is appointed by the governor, comprises “one of the better systems.” Others have a different view. What is more certain is that New Mexico is one of 15 states where voters participate in partisan elections for some or all judicial seats, according to the executive director of the American Judicature Society.

“The hybrid system in NM, under which judges are initially appointed but then subject to a contestable partisan election, invites many opportunities for political and financial considerations to come into play — opportunities that are generally not available in states that use a pure appointive or merit selection system,” AJS executive director Seth Andersen wrote in an e-mail reply.

“In any state where judges are initially appointed (through a merit selection commission or not) and then must face a contestable election, ‘electability’ is a factor that appointing authorities may naturally consider. In the view of AJS, electability should be based on professional legal skills, qualifications, and fitness for the bench (ability to be a fair and impartial judge). It should not involve political affiliation, campaign contributions, or other factors that are extraneous or contrary to the unique job we ask judges to do: serve as highly proficient, nonpolitical, neutral arbiters of all manner of disputes.”

Washburn said campaign contributions from those seeking judicial appointments show loyalty, and he doubts that many elected officials entirely disregard loyalty when they consider prospective appointees. Over-reliance on campaign contributions, and by inference on loyalty, might not point to the most competent prospects for judicial appointment.

“Moreover,” Washburn wrote, “We certainly would not want to privilege wealth in the judicial selection process, and over-reliance on political contributions would benefit people of means more than people who lack means.”

By Andersen’s account New Mexico is also among a minority of states that allow judges to continue making campaign contributions once they’ve been appointed to the bench. The American Bar Association’s model code of judicial conduct prohibits most such contributions, except during years when a judge is standing for retention or election. Those contributions, Washburn said, can contribute to another type of problem, also related to loyalty.

Attorneys tend to expect judges who own stock in a corporation to decline to hear cases that involve the corporations in which they hold even trivial ownership interests. Washburn said judges’ recusal from such cases prevents “any appearance of impropriety in the courts,”.

“Contributing to a political campaign is not exactly the same kind of investment as an investment in a company, but it has some of the same features in that it shows the same kind of bias,” he wrote.

What’s next?

It’s too early to tell what trends will emerge in the new administration’s judicial appointments. So far, each of two judges Gov. Martinez has appointed are among the 75 percent of the current district, appellate and supreme court judiciary with a history of recent campaign contributions.

Jacinto Palimino, Martinez’s pick for 3rd Judicial District Judge, contributed $600 to her gubernatorial campaign and smaller amounts to her 2004 campaign for district attorney. Palamino had previously worked in the 3rd District Attorney’s office. Likewise, 2011 Martinez’s 3rd Judicial District appointee Susan Reidel was a contributor to Martinez’s 2004 campaign for the DA’s office.

Politics also comes into play in the commission that investigates judicial misconduct. One of Martinez’s appointees to the Judicial Standards Commission, Michael Castor, contributed $5,000 to Martinez’s gubernatorial campaign. That is the commission that examines allegations of misconduct among judges. Castro previously had given smaller amounts to Democrat candidates.

Perceptions of political bias on the commission that reviews allegations of judicial misconduct have frightened even a veteran judge from reporting suspected misconduct. 3rd Judicial District Judge Lisa Schultz, who was the first judge who reportedly heard Murphy’s alleged claims about the role of campaign contributions in judicial selection, told investigators she was reluctant to report Murphy to the standards commission because the commission’s majority was appointed by Richardson.

Weeding out candidates who have made donations presents a conundrum for governors and selection committees. To know for certain that they aren’t favoring those most loyal to the appointing governor, a committee might need to examine the campaign contribution history of prospective appointees. Peeking into that history would introduce an opportunity for the very bias such a review would be intended to prevent. What’s more, attorneys tend to be politically active. A history of campaign contributions does not necessarily indicate an attorney is not the most qualified candidate for a judicial appointment.

In comments related to a proposed rule change for New Mexico judges, 2nd Judicial District Judge Nan Nash asked “How can the code of judicial conduct prohibit a judge from engaging in political speech such as privately contributing to a political organization or candidate, or attending a fundraiser of any candidate, including a fellow judge? Why is it necessary to have this prohibition? This code provision prohibits judges from supporting any political candidate and seems to infringe on a judge’s rights as a citizen.”

The proposed restriction against campaign contributions by judges provides an exception for judges during the year when they are scheduled to face elections for their own seats. The provision, however, would not be the only restriction on the otherwise private lives of judges. The current and proposed codes require judges to place their official obligations ahead of their private lives, including family obligations.

The proposed change on which Nash commented would bring New Mexico’s rules for judges more in line with the American Bar Association’s rules. Other comments in response to the proposed revisions ask the Supreme court to go further.

The Supreme Court set a May 18 deadline for comments regarding the proposed rule but Randall Roybal, Executive Director and General Counsel for the Judicial Standards Commission, asked the court to extend its deadline and accept his June 7 letter. In those comments, Roybal asked the state’s highest court to consider extending the prohibition against judge’s campaign contributions to limit endorsements by lawyers who may appear in a judge’s court.

“Endorsements carry the same problems, conflicts and other appearance problems as financial contributions,” Roybal wrote.

More information:

• Interactive chart of recent campaign contributions by New Mexico judges and justices.
• New Mexico judges’ and justices’ campaign contributions in list format.
• Current New Mexico Code of Judicial Conduct
• Proposed changes to the Code of Judicial Conduct
• American Bar Association Model Code of Judicial Conduct
• Other states’ codes of judicial conduct

Contact David Collins at nmwatchdog@gmail.com