In the Matter of Salazar , 3 N.M. 655 ( 2013 )

I attest to the accuracy and
integrity of this document
New Mexico Compilation
Commission, Santa Fe, NM
'00'04- 09:48:08 2013.04.15
IN THE SUPREME COURT OF THE STATE OF NEW MEXICO
Opinion Number: 2013-NMSC-007
Filing Date: March 14, 2013
Docket No. 33,601
INQUIRY CONCERNING A JUDGE
NO. 2011-035
IN THE MATTER OF STEPHEN S. SALAZAR,
Municipal Court Judge, Española, New Mexico
Randall D. Roybal
Robin S. Hammer
Phyllis A. Dominguez
Albuquerque, NM
for Judicial Standards Commission
Dan Cron Law Firm, P.C.
Dan Cron
Santa Fe, NM
for Respondent
OPINION
MAES, Chief Justice
{1} This matter comes before this Court upon a petition for discipline filed by the
Judicial Standards Commission (Commission) concerning the Honorable Stephen S. Salazar
(Respondent), a municipal court judge in Española, New Mexico. On July 18, 2012, we
heard oral argument in this matter. On August 1, 2012, we issued an order accepting the
Commission’s recommendation for discipline suspending Respondent without pay for ninety
(90) days, placing Respondent on probation for the remainder of his current term of office,
requiring Respondent to pay restitution to the injured parties, requiring Respondent to pay
all costs associated with the disciplinary process, and ordering a public censure of
Respondent. The following will serve as Respondent’s public censure to be posted on the
New Mexico Compilation Commission web site and in the Bar Bulletin. See Rule 17-
206(D) NMRA.
FACTS
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{2} Respondent has admitted to the conduct leading to his discipline in this matter, which
arose in the context of a towed motorcycle. David Vigil, the son of a member of
Respondent’s church and an acquaintance of Respondent, manufactured a custom chopper
motorcycle which he allowed Mr. John Martinez to test ride. Mr. Vigil did not produce a
title to the vehicle prior to allowing Mr. Martinez to test ride it. Ohkay Owingeh police
towed the motorcycle during the course of a criminal case for domestic violence against Mr.
Martinez. Mr. Martinez’s case was filed in Rio Arriba County Magistrate Court. The seized
motorcycle was towed by George and David Luna d/b/a Aces Towing and Recovery, LLC.
{3} Following the motorcycle seizure, Mr. Vigil phoned Respondent and left messages
for him. On October 21, 2010, Mr. Vigil went to the Española Municipal Court and spoke
to Respondent in the lobby of the courthouse. Respondent directed Mr. Vigil to have his
attorney, Santiago Juarez, draft an ex parte order regarding the motorcycle. Respondent also
spoke on the phone ex parte with Mr. Juarez regarding the order. On October 22, 2010, Mr.
Vigil delivered the order to Respondent in the lobby of the courthouse and Respondent
signed the order. Respondent did not keep a copy of the order and gave the original signed
order to Mr. Vigil.
{4} In the order, Respondent directed George Luna and Aces Towing to return Mr.
Vigil’s motorcycle. The order falsely stated that Respondent had held a hearing on the
matter. Respondent did not give notice or an opportunity to be heard to the Lunas or their
company. In addition, Respondent embossed the official seal of the Española Municipal
Court upon the order even though there was no case pending or court file existing in that
court for the matter. Respondent also failed to inquire if Mr. Vigil’s matter was pending in
Rio Arriba County Magistrate Court or was part of any other action in any other court. On
October 22, 2010, Mr. Martinez’s case was, in fact, pending in Rio Arriba County Magistrate
Court.
{5} When Respondent signed the order, he was on probation with the Commission
following a trial before the Commission in November 2009 in Inquiry Nos. 2006-075, 2007-
033, and 2007-086. As a condition of his probation, Respondent was being mentored and
supervised by the Honorable Peggy Nelson, a retired judge from the Eighth Judicial District.
Respondent did not notify Judge Nelson prior to or after issuing the order.
{6} On November 17, 2010, George Luna and Aces Towing filed a Petition for Writ of
Prohibition and Superintending Control (writ petition) in the district court seeking to quash
Respondent’s order. Respondent did not notify Judge Nelson that he was the subject of the
writ petition. On June 30, 2011, the First Judicial District Court granted the writ petition and
quashed the order. Respondent never rescinded the order, stating that he did not do so on
the advice of counsel.
DISCUSSION
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{7} Our system of government is only as strong as the integrity of its members. The
judiciary, as a co-equal branch of government, must ensure that its members possess
integrity and maintain high standards of conduct. Our Constitution has vested this Court and
the Commission with the great responsibility of maintaining the integrity of the judiciary.
See N.M. Const. art. VI, § 32. When a member of the judiciary commits willful misconduct
in office, we must act to restore confidence in the judiciary by imposing strong and
appropriate discipline.
{8} Respondent has conceded that his conduct constituted willful misconduct in office.
Under Article VI, § 32 of the New Mexico Constitution, “any justice, judge or magistrate
of any court may be disciplined or removed for willful misconduct in office[.]” Respondent
admitted and the Commission concluded that Respondent violated several provisions of the
Code of Judicial Conduct. See Rules 21-100 NMRA (1995); 21-200(A) and (B) NMRA
(1995); 21-300(A), (B)(2), (B)(5), (B)(7), and (B)(8) NMRA (2009).1 The Commission
recommended that Respondent be suspended without pay for ninety days (90), receive a
formal public censure, be placed on probation for the remainder of his current term of office,
and pay the Commission’s costs and expenses incurred in this matter. Under Rule 27-
401(A)(1) NMRA (1996), we may accept, reject, or modify any or all of the
recommendations for discipline set forth in the Petition. It was with great reluctance that this
Court accepted the recommendation of the Commission in this matter because Respondent
came very close to being removed from office by this Court for the reasons we will explain
below.
Ex parte communications
{9} Respondent admitted that he engaged in ex parte communications with both Mr.
Vigil and Mr. Juarez. Respondent spoke with Mr. Vigil and Mr. Juarez outside the presence
of the Lunas or their company on October 21, 2010, at the Española Municipal Court,
directing Mr. Juarez to draft an order regarding the motorcycle. Respondent subsequently
spoke on the phone ex parte with Mr. Juarez regarding the release order. Finally,
Respondent spoke with Mr. Vigil outside the presence of the Lunas or their company in the
lobby of his courthouse when Mr. Vigil delivered the order to Respondent for his signature
on October 22, 2010. Respondent did not give notice to or otherwise attempt to include the
Lunas or their company in his communications with Mr. Vigil and his lawyer.
{10} “A judge shall accord to every person who has a legal interest in a proceeding, or that
person’s lawyer, the right to be heard according to law.” Rule 21-300(B)(7). Therefore, “[a]
judge shall not initiate, permit, or consider ex parte communications, or consider other
1
We have cited to the previous version of the Code of Judicial Conduct as
Respondent’s conduct occurred before the new Code became effective on January 1, 2012.
Please consult the table of corresponding rules contained in the NMRA to find which old
provision corresponds to a new provision.
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communications made to the judge outside the presence of the parties concerning a pending
or impending proceeding . . . .” Id. “[A]ll parties or their lawyers shall be included in
communications with a judge.” Id. cmt.
{11} Respondent’s conduct clearly violated Rule 21-300(B)(7). Under Rule 21-300(B)(7),
Respondent should not have initiated, permitted or considered any of the foregoing
communications. Notwithstanding the illegality of Respondent’s release order, Respondent
should have given notice and an opportunity to be heard to the Lunas and their company.
{12} Engaging in ex parte communications “demonstrates a lack of respect for the
principles of fairness on which our judicial system is constructed.” See In re Griego,
2008-NMSC-020, ¶ 19, 143 N.M. 698, 181 P.3d 690 (holding that a metropolitan court judge
violated the rule against ex parte communications by adjudicating traffic cases for family and
friends outside the presence of a representative of the state). Respondent’s conduct was
unfair to the Lunas and their company in many ways. The Lunas had no way of knowing
that their custody of the motorcycle was being challenged because Mr. Vigil did not file any
formal legal proceedings to regain custody of the motorcycle. Respondent could have given
notice to the Lunas after he was first approached by Mr. Vigil but failed to do so. In
addition, Respondent failed to check if there was a pending legal proceeding before signing
the release order. Had Respondent checked the magistrate court docket, he might have
discovered that the motorcycle was part of a pending case. From the beginning,
Respondent’s conduct was completely unfair to the Lunas.
Issuance of release order without jurisdiction
{13} The order signed by Respondent, directed George Luna and Aces Towing to return
Mr. Vigil’s motorcycle. Respondent did not have jurisdiction to issue the release order in
the first place. A municipal court judge only has jurisdiction over offenses and complaints
relating to ordinances of the municipality. NMSA 1978, § 35-14-2 (2011). The towed
motorcycle was the subject of a pending domestic violence matter in Rio Arriba Magistrate
Court, a different court. In any event, Aces Towing could not release the motorcycle,
because the Public Regulation Commission requires that all towing companies release
vehicles to persons who can provide proof of lawful ownership. See 18.3.12.24 NMAC
(10/31/2011). At no time prior to October 22, 2010, did Mr. Vigil produce legally adequate
proof of ownership of the motorcycle to Aces Towing or Respondent.
{14} “A judge shall respect and comply with the law and shall act at all times in a manner
that promotes public confidence in the integrity and impartiality of the judiciary.” Rule 21-
200(A). A judge must also “be faithful to the law and maintain professional competence in
it.” Rule 21-300(B)(2). Finally, a judge “shall not allow family, social, political or other
relationships to influence the judge’s judicial conduct or judgment.” Rule 21-200(B).
{15} Not only did Respondent violate the foregoing rules, his conduct demonstrated a
complete ignorance or indifference to his jurisdictional limitations. Respondent stated that
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he thought he had jurisdiction because the City of Española Police Department seized the
motorcycle, he believed there were no holds on the motorcycle, and the police department
had facilitated the release of vehicles in the past. We are not persuaded by Respondent’s
excuses. One of the primary responsibilities of a judge in adjudicating any matter is
determining whether the judge has jurisdiction over the matter. Cf. Grace v. Oil
Conservation Comm’n of N.M., 87 N.M. 205, 208 531P.2d 939, 942 (“A lack of jurisdiction
means an entire lack of power to hear or determine the case . . . .”). Respondent should not
have proceeded on the basis of a mere notion of jurisdiction. Part of maintaining a
professional competence in the law includes determining jurisdiction. See Rule 21-
300(A)(2). Respondent failed to even inquire if any matter relating to Mr. Vigil’s
motorcycle was pending in his court or magistrate court. In addition, Respondent had access
to an experienced and well-respected district judge as a mentor for guidance at the time.
Respondent inexplicably failed to call upon her wisdom and experience to navigate the
situation.
{16} Respondent’s failure to perform due diligence harmed not only the Lunas, but the
reputation of the judiciary. When a judge does not respect and comply with the law
“[p]ublic confidence in the judiciary is eroded.” Id. cmt. If judges who are called upon to
interpret and enforce the law do not comply with the law, it would be unreasonable to expect
ordinary citizens to do the same. See Rule 21-100 cmt. (“[V]iolation of this Code diminishes
public confidence in the judiciary and thereby does injury to the system of government under
law.”). In addition, Respondent’s conduct created the appearance that he bent the rules to
help an acquaintance. “[T]he integrity and independence of judges depends . . . upon their
acting without fear or favor.” Rule 21-100 cmt. In a recent public censure, we discussed the
recurring ethical problems judges in small communities face. See In Re Rael, S. Ct. No.
33,633 (Public Censure filed Oct. 3, 2012). We strongly suggest that Respondent take to
heart the lessons contained in that censure.
Willful misconduct while on probation
{17} Another troubling aspect of this case is that Respondent was on probation with the
Commission in another matter when he committed willful misconduct in office. Respondent
was placed on probation by the Commission for one year beginning in January 2010. This
disciplinary matter never reached this Court because the Commission is not required to bring
“non-disciplinary” dispositions to the Court. See Commission Rule 30 (requiring
“discipline” recommendations to be reported to the Court); Rule 33 (defining non-
disciplinary dispositions). Respondent was clearly within his probationary period when he
issued the release order on October 22, 2010.
{18} “[R]epetition of the very conduct that had been characterized by the Commission as
improper cannot be said to be anything other than willful judicial misconduct.” Matter of
Castellano, 119 N.M. 140, 149, 889 P.2d 175, 184 (1995). It matters not that the proper
discipline imposed by the Commission was informal in nature and not directly imposed by
this Court. When imposing discipline on judges, we consider “whether there have been
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previous violations, and the effect of the improper activity upon the judicial system or
others.” In Re Griego, 2008-NMSC-020, ¶ 13 (internal quotation marks and citation
omitted).
{19} In arguing for lesser punishment, Respondent stated that he had successfully
addressed issues from his previous case demonstrating a capacity to learn from his mistakes
and implement appropriate procedures suggested to him. Despite Respondent’s stated
progress through mentorship, the violation of his probation shows not only disrespect for the
Commission’s previous order, but disrespect for our system of judicial discipline.
Respondent had a retired district judge at his disposal for guidance. We are concerned that
Respondent did not notify his mentor regarding the release order situation, especially after
the filing of the subsequent writ petition. If Respondent is indeed making progress through
mentorship, his failure to report these matters to his mentor reveals a troublesome blind spot.
Respondent has been a judge for ten years and has had ample time to acquire the skills
necessary to perform his duties adequately, professionally and free from impropriety.
Unfortunately, his conduct in this matter reveals that he still has much to learn.
CONCLUSION
{20} As we already noted above and expressed at the hearing in this proceeding,
Respondent came very close to being removed from office. Although we accepted the
Commission’s recommended disciplinary measures as appropriate, we must warn
Respondent that this is his last chance to reform his conduct on the bench.
{21} By imposing discipline in this matter, this Court acts to reaffirm and restore public
confidence in the administration of justice and to preserve the integrity and independence
of the judiciary. The ninety-day suspension without pay, public censure, probation, and
required restitution to the injured parties are necessary to deter Respondent from repeating
such conduct while also reaffirming and restoring public confidence in the integrity of the
judiciary. This public censure should serve as a warning to all judges that the willful
misconduct that Respondent engaged in during his probationary period will not be tolerated.
{22} IT IS SO ORDERED.
____________________________________
PETRA JIMENEZ MAES, Chief Justice
WE CONCUR:
____________________________________
RICHARD C. BOSSON, Justice
____________________________________
EDWARD L. CHÁVEZ, Justice
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____________________________________
CHARLES W. DANIELS, Justice
BARBARA J. VIGIL, Justice, not participating
Topic Index for In the Matter of Salazar, No. 33,601
JUDGES
Code of Judicial Conduct
Propriety of Conduct
JUDGMENT
Ex Parte Order
JURISDICTION
Municipal Court
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