'Land of Enchantment' in 'Hellhole': Part 2-New Mexico appellate judges failing to curb liability, report says

Kelly Holleran Mar. 9, 2010, 10:55am


Most of the judges on the New Mexico Court of Appeals get a failing grade when it comes to the "expansion of liability," according to a judicial evaluation report.

Prepared by the Judicial Evaluation Institute for Economic Issues in Washington, D.C., and by Sequoyah Information Systems in Oklahoma, the 2009 New Mexico Court of Appeals Judicial Evaluation ranked judges on the effect their rulings have had on restraining the spread of liability. Of the 10 appellate justices, the highest score was a D.

"The 'expansion of liability' means that all of us are more and more vulnerable to being sued for an even greater array of causes," authors of the report wrote. "Judge-made law has made employers, school teachers, other professionals, school boards, towns and counties, churches and voluntary associations, our colleges and universities, neighbors and schoolmates, caregivers, physicians and pharmacists more likely to have their activities and decisions second-guessed by lawyers and to be dragged into litigation."

JEI ranked each member of the New Mexico Court of Appeals and evaluated them based on their decisions in six broad areas of law – employment, insurance, medical malpractice, other liability lawsuits, product liability and workers' compensation.

Each judge was then given an overall cumulative score. A higher score indicates a judge's opinions have restrained the spread of liability.

To rate judges, the JEI chooses cases that it believes will have an effect of either slowing the spread of liability in the law or accelerating it. It picks cases spanning a number of years.

"Among the questions we ask are whether a decision further expands liability, tends to affect the availability of beneficial services, creates certainty or uncertainty in the law, tends to encourage or discourage business expansion in New Mexico, and fosters or discourages job creation in the state."

Of the 10 judges who sit on the court, Judge Roderick Kennedy received the highest grade at 65 percent – a D-ranking. The lowest-scoring is Judge Jonathan Sutin -- who scored 41 percent. Both have retained their seats since 1999.

Every election year, the Judicial Performance Evaluation Commission -- which was set up by the New Mexico Supreme Court in 1997 to "improve the performance of New Mexico's judges" -- issues its opinion on which judges should be retained.Its judicial evaluations are highly publicized throughout New Mexico, appearing in newspaper articles and paid advertisements. Yet, since 2002, the commission has never recommended voters reject an appellate judge up for election.

Judicial Watch-New Mexico criticized JPEC for intimidating judges, claiming the judges work to impress the JPEC more than they attempt to deliver fair, unbiased rulings, the Web site says. Judicial Watch-New Mexico is not affliated with Judicial Watch Inc., a national, conservative, non-partisan educational foundation based in Washington, D.C.

Judicial Watch-New Mexico, which describes itself as an organization dedicated to exposing corruption in New Mexico's judiciary, also says JPEC is a politically appointed action group that causes judges to become worthless in their jobs.

Now, the Judicial Evaluation Institute (JEI)hopes its biennial evaluations provide better and more meaningful information for New Mexico's voters.

"Up until now, citizens have had little in the way of information against which to assess the performance of their judges," T. Greg Merrion, chairman of the New Mexico Prosperity Project, said of the evaluations in a July press release. "Now we have reliable, empirical ratings based on issues of civil liability that are meaningful to families, employers and communities while also being fair to the judges."

Initially, judges are appointed to the Court of Appeals. The state's governor, currently Bill Richardson, listens to an Appellate Judges Nominating Commission, then decides who to appoint when a vacancy occurs. But, at the next partisan election, voters decide to either retain or reject the judges, who serve eight-year terms if retained.

This year, two judges are up for retention – Linda Vanzi and Robert Robles. Vanzi and Robles have served since being appointed by Richardson in 2008 and, along with Judge Timothy L. Garcia who took office in 2009, are the newest members to the Court of Appeals.

None of the three received scores in the judicial evaluation because they did not participate in a sufficient number of cases during the time period evaluated in the study.

The longest serving members, Judges James J. Wechsler and Michael D. Bustamante, began their work as appellate judges in 1994. Wechsler received the third-highest score – 56 percent – in the judicial evaluations while Bustamante received the second-lowest score at 43 percent.

Of the remaining judges, Celia Foy Castillo, who has served since 2000, scored the second-highest at 64 percent; Cynthia A. Fry, who has served since 2000, scored in the middle at 48 percent; and Michael E. Vigil, who has served since 2003, scored the third-lowest at 46 percent.

"Higher scoring judges have fostered a legal climate in which voluntary associations and families concentrate more on their essential purposes and less on avoiding lawyers and litigation," the judicial evaluation report states.

The spread of liability in recent decades has harmed American institutional life, the report says, and by restraining liability, judges can ensure an increased likelihood that business are attracted to and more likely to expand in New Mexico.

"A small business can plan its growth better when the body of law that governs its activities and responsibilities is steady, clear and predictable," the report says. "Towns and colleges and not-for-profits will have lower litigation budgets. The price of automobile insurance, malpractice insurance, and homeowners' and renters' insurance will be lower in a New Mexico where people have a clear sense of what the court will do if there is an accident or unfortunate event."

The New Mexico Court of Appeals serves as the state's only intermediate appellate court. It hears appeals over all cases except criminal cases involving sentences of death or life imprisonment, appeals from the State Regulation Commission and cases involving habeas corpus. Each year, judges hear about 900 cases, according to the Court of Appeals' Web site.

The 10 judges on New Mexico's Court of Appeals act in panels of three on appellate opinions and agreement of three judges is required. Six of the judges are located in the state capital, Santa Fe, and the remaining four are in the state's largest city, Albuquerque.

The court of appeals in the state of New Mexico was given a negative rating recently when the American Tort Reform Association ranked it No. 5 in its foundation's 2009-2010 "Judicial Hellhole Report." The report ranks courts it considers to be dispensing uneven justice.

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