Inquiry Concerning a Judge No. 2009-081

2011 NMSC 019, 149 N.M. 721
CourtNew Mexico Supreme Court
DecidedMay 31, 2011
DocketNo. 32,422
StatusPublished
Cited by7 cases

This text of 2011 NMSC 019 (Inquiry Concerning a Judge No. 2009-081) is published on Counsel Stack Legal Research, covering New Mexico Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Inquiry Concerning a Judge No. 2009-081, 2011 NMSC 019, 149 N.M. 721 (N.M. 2011).

Opinion

OPINION

PER CURIAM.

{1} This case comes before us on a petition for discipline filed by the Judicial Standards Commission (Commission). After briefing and at the conclusion of oral argument, we announced our decision from the bench to adopt the Commission’s recommendations that Judge Robert M. Schwartz receive a formal public reprimand for committing willful judicial misconduct in violation of our Code of Judicial Conduct, complete a course regarding sexual harassment, and take appropriate leave from work during all future medical transitions. We rejected the Commission’s recommendation that Judge Schwartz be suspended for sixty days without pay and announced that Judge Schwartz would be required to pay a fine of $6,000. We subsequently entered an order memorializing our decision, and we now issue this Opinion to further explain our decision and provide guidance for future cases.

BACKGROUND

{2} The willful judicial misconduct at issue in this case arose by Judge Schwartz’s untimely recusal after initiating a romantic relationship with an assistant public defender who had cases pending before him and making dishonest statements from the bench concerning his reasons for recusing. We adopt the following findings of fact made by the Commission. Judge Schwartz was appointed to the bench in the Second Judicial District in March 2008. He was subsequently elected to the position in a contested election in the same year, and he serves in the Criminal Division where he routinely handles a caseload of over 1,000 criminal cases. Before being elected to the court, Judge Schwartz held several prominent positions, including District Attorney for the Second Judicial District, legal correspondent for television news, newspaper columnist, Commissioner for the Public Utility Commission, and Senior Criminal Justice Policy Advisor to former Governor Richardson. In addition, Judge Schwartz performed stand-up comedy and hosted various charity banquets and dinners.

{3} Judge Schwartz has had a collegial relationship with attorneys who have practiced before him, and after completing business for the day he often engaged in brief friendly conversations, which sometimes included jokes. In the spring of 2009, Judge Schwartz changed medications for a serious medical condition, which resulted in a difficult time in his life. He testified, however, that he was physically and mentally capable of performing his judicial duties. During this period, a female assistant public defender, who was relatively new to the practice of law, regularly appeared in his courtroom. Judge Schwartz thought this assistant public defender had a quick wit, and he believed she shared his interest in comedy and humor. This assistant public defender was not employed or supervised by Judge Schwartz, but as a judge, he was in a position of authority over her in his courtroom and decided if she won or lost cases. On Thursday, July 9, 2009, Judge Schwartz invited her to lunch the following day.

{4} On Friday, July 10, 2009, Judge Schwartz drove the assistant public defender to a local take-out restaurant and they ate lunch together in a public park across the street. Judge Schwartz did not believe he had to recuse in the assistant public defender’s cases before having lunch with her because, as long as they did not discuss cases, judges and lawyers may have lunch together. Judge Schwartz did not extend a lunch invitation to any other attorney scheduled to appear before him the next week. Furthermore, the lunch with the assistant public defender was not a professional lunch. Although Judge Schwartz doubted that a romantic relationship would develop, given the difference in their ages, he was open to the possibility. Judge Schwartz testified that they “just clicked” and had made each other laugh.

{5} At some point during the lunch Judge Schwartz gave the assistant public defender a gift of a pair of purple latex gloves and a book written by an author with the same name as Judge Schwartz, entitled, “The One Hour Orgasm.” The gift was intended by Judge Schwartz and understood by the assistant public defender to be a self-deprecating joke because the author and Judge Schwartz shared the same name. Before he became a judge, Judge Schwartz had given this book to others, whose common reaction was to burst out laughing. When the assistant public defender returned to work, she showed her supervisor the joke gift. During the afternoon following the lunch, Judge Schwartz and the assistant public defender spoke on the phone, and Judge Schwartz obtained the assistant public defender’s personal phone number so he could contact her outside the office. He did not, however, recuse from her cases, even though he had the opportunity to do so.

{6} The following day, a Saturday, the assistant public defender called Judge Schwartz and offered to cook a meal for him at his house. Judge Schwartz suggested that they instead attend a concert in Santa Fe. At the concert, the assistant public defender drank two glasses of wine; Judge Schwartz did not drink any alcoholic beverages. During the drive back to Albuquerque, the assistant public defender asked Judge Schwartz if he thought he could be fair and impartial in her cases, and he replied that he did not think he could be and would recuse from her cases. Believing that Judge Schwartz would recuse on all her cases, the assistant public defender then called her supervisor, leaving a phone message regarding the Judge’s planned recusal from her cases. Upon returning to Albuquerque, they stopped at the Albuquerque Press Club. They then drove to the assistant public defender’s apartment, where Judge Schwartz parked his car before they walked to a local bar. After spending about an hour and a half at the bar, an acquaintance of Judge Schwartz gave them a ride back to the assistant public defender’s apartment. With her permission, Judge Schwartz kissed the assistant public defender goodnight and left. He admitted that he had begun a personal relationship with the assistant public defender, although he was not sure of its future. Judge Schwartz spoke to her the following day about the time they had spent together on Friday and Saturday.

{7} On Monday, July 13, 2009, Judge Schwartz called his office to report that he was sick and asked his administrative assistant to move his cases scheduled for that day to the following day. He could not remember which of the assistant public defender’s cases were scheduled for that day. He did not, however, tell his assistant that he would be recusing from the assistant public defender’s cases or ask his assistant to prepare notices of recusal. In the evening, he met with the assistant public defender at a nearby park, told her he intended to recuse from her cases, and they discussed the effects of recusal on her work, including her reassignment to a different trial team.

{8} When Judge Schwartz returned to work the next day, Tuesday, July 14, 2009, the assistant public defender remained listed as counsel for two of the rescheduled cases on his docket, and he again failed to recuse from those cases prior to the docket call. In one of those cases, the assistant public defender’s supervisor substituted for her. During the hearing on the matter argued by the supervisor, Judge Schwartz announced, without providing reasons, that he would be recusing from that ease and the other case in which the assistant public defender was involved.

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Bluebook (online)
2011 NMSC 019, 149 N.M. 721, Counsel Stack Legal Research, https://law.counselstack.com/opinion/inquiry-concerning-a-judge-no-2009-081-nm-2011.