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There have been a few threads recently about the judicial retention races. I am an attorney here in town and have been practicing here for 25 years. I had posted my thoughts on the Judicial Performance Evaluation Commission’s (JPEC) recommendations as to the judicial retention races in a previous thread which were then referenced by another poster who had done extensive research into the local judges as well and shared those results https://www.reddit.com/Albuquerque/comments/jbfvta/voting_research_on_retaining_judges/?utm_source=share&utm_medium=ios_app&utm_name=iossmf
- thank you! I wanted to expand on my original thoughts on JPEC since I deeply appreciate how thoughtful everyone has been and how seriously you are all taking these retention elections. I think the judiciary has a very deep and real impact on the everyday lives of all New Mexicans which is often underestimated and can be overly simplified by media coverage. It’s really hard for people who aren’t involved in the judicial system to try and figure out if judges should be retained and there are few resources to help them. That’s why JPEC was created, however, in my opinion JPEC is a political creation which cherry picks the sources they use to create their recommendations. Unfortunately, that means that their judgment cannot always be relied upon due to their flawed processes. Because of the interest that previous threads have generated, I have done more research into JPEC and wanted to share it with everyone. This will be a long post, so I apologize in advance but I wanted to provide sources so people can go look things up for themselves if they are interested.
JPEC is governed by New Mexico Court Rules set 28-101 to 28-401. It’s made up of 15 people, of which 7 are lawyers and 8 are non lawyers. The Supreme Court justices appoint the members from lists of people nominated by the governor, the Chief Justice, the speaker of the House, the president pro team of the Senate, the minority leader of the House, the minority leader of the Senate, and the president of the State Bar. So these are clearly going to be political nominations. Each member of the commission can serve up to 12 years. So that’s a long period of influence. My reading of the rules does not reveal any method of oversight for the Commission, not even by the Supreme Court. Since JPEC also reviews the Supreme Court Justices, it seems to be a clear conflict of interest to have the Supreme Court justices appoint the very members of the commission that will be making the recommendation as to whether or not those justices should be retained. There is no mechanism in the rules whereby a commissioner who was appointed by a particular justice would recuse themselves from making such a recommendation nor by which a justice could excuse that commissioner.
The rules provide that JPEC is staffed by the Administrative Office of the Courts, which means they are staffed by government salaried employees. In terms of getting the information on which JPEC is supposed to rely to provide the public with recommendations, the commission can request lists of names from that staff to include:
Jurors, lawyers, litigants, law enforcement, court staff, other judges on the same court or in the same district as the judge being reviewed, quasi judicial officers (this means hearing officers or similar), probation officers, social workers, CASA volunteers, other resources individuals, appellate judges who have reviewed rulings and decisions of the judge being reviewed, law professors, and parties who have appeared before the judge (this would include defendants and victims).
Under the rules, JPEC may distribute surveys for the judges to “such persons as the commission determines to be appropriate who have had sufficient experience with a judge to form an opinion as to the performance of a judge,” from the list of people above. They can then use the survey results, combined with in person interviews with the judge, to make a recommendation as to retention. At their discretion, they may also use court room observations, in person interviews of people who have appeared in front of the judge, and statistics as to a judge’s excusal rate or types of cases they hear.
Here is where I’m going to repeat myself a little bit from my previous post to show why JPEC does not follow the rules as referenced above. JPEC tries to get people to buy into their recommendations by publishing them in the paper and then simply saying that they based them on surveys that are distributed to parties that appear in front of the judges. But it’s not that simple. For example, for most of the judges here in ABQ, here’s how it works - JPEC sends out roughly 400 surveys of which about 100 go to attorneys, about 60 go to jurors, about 40 go to court staff, and about 200 go to law enforcement, which are going to be police officers and probation officers. [Please note, these numbers may be off by +/- 10 or so each way, depending on the judge but are generally in this area]. The surveys are totally voluntary, so people can choose to return them or not. So that’s already a problem, right? Human nature being what it is, people are far more apt to take time out of their day to complain than to praise. Anyway, out of those ~400 surveys, they’ll get about 120-125 back, about 40-45 from attorneys, about 40-45 from jurors and court staff, and usually only about 20-25 from law enforcements. So about a 25-27% return rate. So the sample size is extremely small. Just to explain how small, in Bernalillo County, there are 3,013 active attorney according to the NM State Bar. But surveys are only sent to about 100 of them and only about 45 of those attorneys even respond. So now we’re down to a sample size of about 1.4% of the active attorneys in Albuquerque. I’m not sure how many police officers there would be in total since it would cover APD, BCSO, NMSP, and probation officers.
But it gets better. Compare the list of who actually gets surveys to who JPEC could actually send surveys to per the rules. Notice who’s missing? Other judges on the same court or in the same district, quasi judicial officers, social workers, CASA volunteers, other resource individuals, appellate judges who have reviewed a particular judge, law professors, and perhaps, most importantly, parties who have appeared before a judge, such as defendants and victims. Why don’t they send surveys to those people? Hmm. Is it because they aren’t all that concerned with the folks who are actually personally impacted by what the court does?
But it continues (!) to get better. When JPEC publishes their recommendation as to whether a judge should be retained or not, they then throw out what the jurors have to say and they only include what the attorneys, law enforcement and court staff think. So remember when I said that out of the 400 surveys they send out, they’ll get back maybe 120-125? Now we’re down to maybe 100 surveys once the jurors returned surveys are thrown out. For most of the judges who got a “Do Not Retain” recommendation from JPEC, that was based on an average of less than 30 of those surveys that then recommended that a judge not be retained. So, to repeat, out of an average of 400 surveys that they send out, an average of less than 30 can recommend “Do Not Retain” and then that can result in the recommendation that JPEC publishes on their website and in the paper, etc.
Just for comparison’s sake, other states that have bodies similar to our JPEC send surveys, for example, to all members of the bar rather than picking and choosing select attorneys to fill them out. And thus have far more representative samples before publishing recommendations. Any decent pollster can tell you their method of soliciting input is terrible and allows massive manipulation by very small numbers of people. Just look at the rules themselves, which allow JPEC alone to determine who THEY think is appropriate and who THEY think has sufficient experience with a judge to fill out a survey.
I’m not arguing at all that there is no place for this type of organization to assist voters, I am just appalled at how ours functions. They have a budget of hundreds of thousands of dollars and there are commission members who have been on it for years and years with no oversight. And because it is called the Judicial Performance Evaluation Commission, most people think it has the imprimatur of the judiciary or has validity beyond reproach. They do not. They will argue that they send surveys to participants who regularly appear in front of the judges. They do not. I get surveys every year for judges I have not appeared in front of for years while not receiving surveys for judges I appear in front of every week. It needs to be overhauled before anyone can take their recommendations seriously.
Also of note - according to the Bernalillo County Clerk’s office, there are 437,000 people registered to vote in Albuquerque. The JPEC Do Not Retain recommendation is generally based on less than 30 people. It is also worth noting that 75% of the statewide Do Not Retain recommendations that JPEC has issued during the years that it has existed have gone to female judges although they comprise less than 40% of the statewide bench.
I was inspired to write this updated post today by a letter to the editor that I saw in the Journal this morning regarding one of the judges that received a “do not retain” from JPEC. I don’t know this person and, as I previously stated on another thread, I have no particular axe to grind with any of these judges. But when I saw this letter today, I thought it was a good example of how JPEC fails the public in how in carries out it’s ostensible mission and so I am also going to post the letter below. These are the people that JPEC does not count in their surveys. Thank you for reading this!
From the Albuquerque Journal today, October 28, 2020, a guest letter to the editor by Albuquerque resident David Peercy:
“I was a juror in Judge Flores’ court; I say retain her
Despite the New Mexico Judicial Performance Evaluation Commission recommendation to not retain Judge Jacqueline Dolores Flores, I strongly disagree based on my one and only interaction with this judge. A few years ago I was selected to be on a jury before Judge Flores. The case involved charges against an elderly Hispanic male for interfering with a police investigation involving his son and putting police officers in danger.
The incident occurred late at night at the defendant’s home while police were investigating the possible involvement by the defendant’s son in a criminal activity earlier in the evening. The conditions were clearly dangerous for all involved, and several police officers arrived at the defendant’s home with spotlights and loudspeakers announcing their presence and demanding that occupants come out of the home.
It took awhile, but the defendant exited the home and raised his hands and asked what was the problem. The police officers asked if the son was home and for him to come out. The defendant reentered the home and brought the son out, also with hands raised. During the ensuing encounter the police officers decided to handcuff the son and threw him to the ground, breaking his shoulder. The defendant tried to step in and was handcuffed and dragged through several yards of gravel to a police car, sustaining significant injuries. All this was captured on the police video.
Judge Flores carefully explained the case to the jury, was very polite and professional in handling both plaintiff and defendant lawyers, police officer witnesses as well as jury questions. When the jury retired to deliberate, I was selected as foreman. The jury reviewed all evidence carefully, reviewed the video of the incident several times and came to the conclusion that there was no evidence that either the defendant or his son were confrontational with the police at any time. In fact, although the circumstances were potentially very dangerous for the police officers, it appeared that there was clear opportunity to de-escalate the situation while still completing an arrest of the son. The defendant had not made any physical effort to confront the officers. Hence, the jury voted unanimously to acquit the defendant.
After I made the jury announcement of acquittal, the jury returned to the deliberation room and Judge Flores came in to thank the jury. Amazingly, she asked if the jury would be willing to debrief our decision with the lawyers of both sides. The jury agreed and proceeded to explain to both lawyers and the involved police officers why we had arrived at our verdict.
The jury was very complimentary of the danger to the police officers and recommended that the problem was not necessarily with the officers, but with the lack of training in how to de-escalate such situations. A police counselor who was present agreed that this was a systemic issue that needed to be addressed.
This was a very innovative and proactive result of the trial that resulted in both sides complimenting Judge Flores and the jury. Incidentally, the jury was also informed that the son was absolved from any involvement in the earlier criminal investigation.
So, if this one personal incident helps voters decide, I hope they vote to retain Judge Flores.”