In the Matter of Locatelli

• Decision Date: 14 June 2007
• Docket Number: No. 29,508.,29,508.
• Citation: 2007 NMSC 029,161 P.3d 252
• Parties: Inquiry Concerning A Judge, No. 2004-134. In the Matter of James T. LOCATELLI, City of Las Cruces Municipal Court.
• Court: New Mexico Supreme Court

161 P.3d 252

2007 NMSC 029

Inquiry Concerning A Judge, No. 2004-134 In the Matter of James T. LOCATELLI, City of Las Cruces Municipal Court.

No. 29,508.

Supreme Court of New Mexico.

June 14, 2007.

James A. Noel, Elizabeth A. Garcia, Albuquerque, NM, for Judicial Standards Commission.

Rodey, Dickason, Sloan, Akin & Robb, P.A., John M. Brant, Albuquerque, NM, for respondent.

OPINION

PER CURIAM.

{1} This matter comes before the Court on a petition for discipline filed by the Judicial Standards Commission (the Commission). As grounds for recommending discipline, the Commission states that a majority of the Commissioners determined that: (1) Judge Locatelli (Respondent) improperly issued criminal contempt complaints to two attorneys, Marcia Milner and Richard Jacquez, for their role in an appeal from his court; and (2) he improperly failed to recuse himself from the contempt proceedings. We deny the petition for discipline because the Commission has failed to prove willful misconduct by clear and convincing evidence. However, we write to clarify the preferred procedure for judges to follow if they believe attorneys are acting unethically in appealing from a judgment.

BACKGROUND

{2} This is the second time that the Commission has initiated proceedings against Respondent. In February 2006, this Court dismissed an earlier petition for discipline which alleged that Respondent had violated the Code of Judicial Conduct by criticizing the Las Cruces City Attorney's office for failing to prosecute DUI cases. This present petition also arises out of proceedings involving the City Attorney's office. On April 14, 2004, Respondent accepted an uncounseled guilty plea from an eighteen-year-old defendant for stealing a box of tampons. Respondent then sentenced the defendant to ninety days in jail, eighty-eight of which were suspended, and imposed a $500 fine, $300 of which was suspended. Subsequently, Marcia Milner, an attorney from Las Cruces, filed an appeal on behalf of the defendant for a trial de novo. When Respondent received notice of this appeal, he forwarded the record to the district court with a cover sheet informing the district judge that the defendant had entered a guilty plea. Respondent testified before the Commission that when a defendant appealed from a guilty plea, the City Attorney's office would routinely file a motion to dismiss because the defendant was not an aggrieved party under NMSA 1978, § 35-13-1 (1975), and the appeals were routinely dismissed. Nevertheless, in this case, a trial de novo was set for August 10, 2004, and on that date, Richard Jacquez, the assistant city attorney assigned to the case, made an oral motion to dismiss on the basis that the defendant was not entitled to an appeal because she had entered a guilty plea and, thus, was not aggrieved. See State v. Ball, 104 N.M. 176, 183, 718 P.2d 686, 692 (1986) (holding that a defendant who enters into an informed guilty plea is not an aggrieved party and cannot appeal to the district court for a trial de novo). The district court judge denied the motion to dismiss, based on Ms. Milner's argument that her client's plea was uninformed, allowed the defendant to enter another guilty plea, and sentenced her to a six-month deferred sentence with six months unsupervised probation.

{3} Respondent received a copy of the district court judgment in early September 2004. When he received the judgment and sentence, Respondent was concerned that the district judge had been misinformed about how the case had come before him. He then discovered that no written motion to dismiss had been filed by the assistant city attorney, who had not entered an appearance or filed a witness list until eight days before the hearing. Respondent suspected that the assistant city attorney had been unprepared and may not have asked the court to dismiss the case. He subsequently researched the "novel question of what [he] as an inferior court judge could do if [he] believed [his] decisions were being nullified by inaction of the City Attorney." Specifically, Respondent testified at the hearing before the Commission that he consulted with the Municipal League and the Attorney General's office. He also looked into the difference between direct and indirect contempt. Shortly before the sentencing hearing, Respondent was told that the assistant city attorney did not challenge the district court judge's assumption that the defendant had not been informed of her rights or the defense attorney's representation that the defendant was not aware of the consequences of her decision to enter a guilty plea. He acknowledged that he became angry and decided to have both Mr. Jacquez and Ms. Milner "charged with indirect contempt for deliberately misrepresenting procedures employed in the municipal court."

{4} At the sentencing hearing on October 25, 2004, Respondent served both Ms. Milner and Mr. Jacquez with criminal complaints charging them with contempt. The basis of the contempt charge against Ms. Milner was that she filed a notice of appeal in district court knowing that the defendant had entered a guilty plea. The basis of the contempt charge against Mr. Jacquez was that he signed the district court judgment knowing that the appeal from municipal court was contrary to law. Respondent acknowledged, however, that he charged the attorneys with contempt without actually reviewing the transcript of the district court hearing. He also admitted that he believed he would need to recuse himself from contempt proceedings because his anger at the sentencing hearing had created an appearance of impropriety.

{5} After reviewing the transcript of the district court proceedings on November 4, 2004, however, Respondent decided to dismiss the charges against the attorneys. He informed the City Attorney's office of his decision, but neglected to inform Ms. Milner. Before Respondent dismissed the charges on December 8, 2004, Ms. Milner appeared for a scheduled pre-trial conference and a trial, only to discover nothing was happening. Respondent held no further hearings in the case from the date he charged the attorneys with criminal contempt to the date those charges were dismissed. The Commission concluded that by improperly issuing the criminal contempt complaints and by improperly failing to recuse himself in the contempt proceedings, Respondent had violated the Code of Judicial Conduct and had committed willful misconduct in office. In its petition to this Court, the Commission recommended that we issue a formal public reprimand, and order Respondent to take a judicial ethics course, complete a twelve month mentorship with a district judge and pay the costs of these proceedings. The Commission also recommended that we order that the records of the contempt cases be purged from the district court.

DISCUSSION

{6} Respondent challenges the Commission's conclusion that he engaged in willful misconduct. He first argues that he did not engage in misconduct at all because the contempt complaints had a sufficient legal and factual basis and that he had jurisdiction to charge the attorneys with indirect contempt. He then argues, alternatively, that even if he did commit legal error in charging the attorneys with contempt, such an action should not expose him to discipline because such an issue is a legal question for the appellate courts, and not the Commission, to decide. Finally, he argues that he did not commit willful misconduct when he remained assigned to the contempt cases.

{7} The New Mexico Code of Judicial Conduct has its origins in the principle that "[a]n independent and honorable judiciary is indispensable to justice in our society." Code of Judicial Conduct, Rules 21-100 to -901 NMRA pmbl. And, as this Court wrote in construing an earlier version of the Code, "[t]he conduct prescribed for judges and justices is more stringent than conduct generally imposed on other public officials." In re Romero, 100 N.M. 180, 183, 668 P.2d 296, 299 (1983). Thus, "any justice, judge or magistrate of any court may be disciplined or removed for willful misconduct in office." N.M. Const., art. VI, § 32. In order to discipline judges, "we must be satisfied by clear and convincing evidence that there is willful judicial misconduct." In re Castellano, 119 N.M. 140, 149, 889 P.2d 175, 184 (1995) (per curiam). Clear and convincing evidence is evidence that "instantly tilt[s] the scales in the affirmative when weighed against the evidence in opposition and the fact finder's mind is left with an abiding conviction that the evidence is true." State ex rel. Children, Youth & Families Dep't v. Joseph M., 2006-NMCA-029, ¶ 15, 139 N.M. 137, 130 P.3d 198 (quoted authority omitted).

{8} In In re Martinez, 99 N.M. 198, 203, 656 P.2d 861, 866 (1982), this Court discussed what constituted willful misconduct. We cited with approval the Supreme Court of North Carolina's definition in In re Edens, 290 N.C. 299, 226 S.E.2d 5, 9 (1976), that "[w]ilful misconduct in office is improper and wrong conduct of a judge acting in his official capacity done intentionally, knowingly, and, generally, in bad faith. It is more than a mere error of judgment or an act of negligence." Thus, negligent violations of the Code of Judicial Conduct do not justify discipline or removal. As we stated in In re Martinez, violations of the Code "furnish some proof of what constitutes appropriate judicial conduct," but they do not control the issue of whether discipline should be imposed. In re Martinez, 99 N.M. at 204, 656 P.2d at 867. We therefore address whether the facts as found by the Commission demonstrate willful violations of the Code of Judicial Conduct and willful misconduct in office. First, we discuss whether charging the attorneys with criminal contempt constituted willful misconduct and, second, whether failing to recuse constituted willful misconduct.

The criminal contempt charges

{9} The Commission concluded that Respondent...