In Re Detsoi

argues that the Commission violated principles of fundamental fairness and 1 procedural due process by denying his motion to appoint masters to adjudicate the 2 charges against him. In Respondent's view, the Commission could not be fair and 3 impartial because, in accordance with its own rules, it had overseen the investigation 4 into the allegations of his misconduct and engaged in "secret, ex parte 5 communications" with the executive director of the Commission and investigative 6 trial counsel before issuing a notice of formal proceedings and adjudicating the 7 charges against him. See, e.g., Rule jsc-15(G)(1) NMRA ("[U]ntil issuance of a 8 notice of formal proceedings, investigative trial counsel shall report to the 9 Commission at each regular meeting on the progress of an investigation and the 10 response to a notice of investigation. The Commission may monitor reports, direct 11 the nature and extent of the investigation, or dispose of the complaint."). To be clear, 12 Respondent does not argue or offer evidence to support a finding that the 13 Commission was actually biased or prejudged the charges against him;¹rather, he 14 argues the Commission's dual roles of investigator and adjudicator create the 15

3

appearance of prejudgment bias and "a lack of impartiality inherent in the challenged 1 procedure." 2

{3} Second, Respondent challenges the validity of the Commission's disciplinary 3 recommendation on the ground that the charges against him are founded on nothing 4 more than accusations of simple legal error, which he asserts "[can]not constitute 5 willful misconduct in office . . . [and are not] a permissible basis upon which to 6 discipline a [j]udge." As Respondent sees it, reversal on appeal—not a judge's 7 discipline or removal—is the appropriate remedy for a judge's legal error. 8

{4} After oral argument, the Court ordered supplemental briefing on 9 Respondent's first argument, limited to the following question: "whether the 10 procedure provided by [the Commission] in this proceeding is constitutional under 11 the New Mexico Constitution." Amended Order, In re Detsoi, S-1-SC-40574 (N.M. 12 Nov. 3, 2025). Upon review of the briefing from the parties, we issued an order 13 granting the Commission's petition for discipline and imposing the recommended 14 sanction of removal. Order, In re Detsoi, S-1-SC-40574 (N.M. Feb. 25, 2026). At 15 the Commission's request, we now file this opinion to set out the reasoning behind 16 our prior order. Order, In re Detsoi, S-1-SC-40574 (N.M. Apr. 13, 2026). 17

4

I. DISCUSSION 1

A. Standard of Review 2

{5} In deciding whether to discipline a judge, this Court "undertake[s] an 3 independent evaluation of the record to determine whether clear and convincing 4 evidence supports the Commission's recommendation, but in so doing, . . . give[s] 5 weight to the evidentiary findings of those who were able to judge credibility." In re 6 Rodella, 2008-NMSC-050, ¶ 10, 144 N.M. 617, 190 P.3d 338 (per curiam) (internal 7 quotation marks and citation omitted). The meaning of clear and convincing 8 evidence is well established: the evidence "'instantly tilts the scales in the 9 affirmative when weighed against the evidence in opposition and the fact finder's 10 mind is left with an abiding conviction that the evidence is true.'" Id. (text only)²11 (quoting State ex rel. Child., Youth & Fams. Dep't v. Joseph M., 2006-NMCA-029, 12 ¶ 15, 139 N.M. 137, 130 P.3d 198). And "[t]here need not be clear and convincing 13 evidence to support each and every one of the Commission's evidentiary findings," 14 so long as there is "clear and convincing evidence that there is willful judicial 15 misconduct which merits discipline." In re Castellano, 1995-NMSC-007, ¶ 37, 119 16

5

N.M. 140, 889 P.2d 175 (per curiam). "[W]e review conclusions of law and 1 recommendations for discipline de novo." In re Griego, 2008-NMSC-020, ¶ 7, 143 2 N.M. 698, 181 P.3d 690 (per curiam). Applying our standard of review to this case, 3 we turn first to Respondent's arguments related to the constitutionality of the 4 Commission's procedures. Finding no merit in those arguments, we address his 5 argument about the viability of judicial discipline founded on legal error and 6 determine that he is not entitled to relief based on that theory. 7

B. The Commission Has Wide Discretion Under Article VI, Section 32 of the 8

New Mexico Constitution and as a Matter of Federal Due Process to 9

Decide Whether to Appoint Masters or Hear a Matter Itself Absent 10

Evidence of Unconstitutional Bias 11

{6} A body of binding and persuasive case law already exists to help navigate the 12 question of whether the procedures followed by the Commission in this disciplinary 13 proceeding pass muster under the New Mexico Constitution. As explained below, 14 this Court has repeatedly recognized the Commission's discretionary authority to 15 appoint masters absent evidence of actual or inherent bias under Article VI, Section 16 32 of the New Mexico Constitution and as a matter of federal due process. This 17 recognition reflects the rule in New Mexico for more than sixty years that, absent 18 evidence of actual or inherent bias, the combining of investigatory and adjudicatory 19 functions by an administrative body is permissible. See In re Rodella, 2008-NMSC-20 050, ¶¶ 5-8 (discussing the history of Article VII, Section 32). This is hardly a 21

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minority view, particularly in the context of judicial disciplinary proceedings; 1 indeed, courts have routinely dismissed and refused to consider arguments such as 2 those advanced by Respondent. 3

1. Role of the Commission 4

{7} From a historical perspective, the Commission was created by constitutional 5 amendment in 1967 for the purpose of "oversee[ing] and investigat[ing] the 6 performance, conduct and fitness of members of the judiciary." State ex rel. N.M. 7 Jud. Standards Comm'n v. Espinosa, 2003-NMSC-017, ¶ 2, 134 N.M. 59, 73 P.3d 8 197 (internal quotation marks and citation omitted). The provisions of Article VI, 9 Section 32 establish the framework of the Commission, define the Commission's 10 membership, and set out the procedure for disciplining or removing a "justice, judge 11 or magistrate of any court" for, inter alia, "willful misconduct in office." Article VI, 12 Section 32 authorizes the Commission to investigate potential misconduct and either 13 hold a hearing itself or appoint a panel of masters "to hear and take evidence." "[I]f 14 the commission finds good cause, it shall recommend to the supreme court the 15 discipline, removal or retirement of the justice, judge or magistrate." Id. The relevant 16 portion of Article VI, Section 32 provides as follows: 17

The commission may, after investigation it deems necessary, order 18 a hearing to be held before it concerning the discipline, removal 19 or retirement of a justice, judge or magistrate, or the commission 20 may appoint three masters who are justices or judges of courts of 21

7

record to hear and take evidence in the matter and to report their 1 findings to the commission. After hearing or after considering the 2 record and the findings and report of the masters, if the 3 commission finds good cause, it shall recommend to the supreme 4 court the discipline, removal or retirement of the justice, judge or 5 magistrate. 6

(Emphasis added.) 7

{8} The New Mexico Constitution assigns this Court an active—and ultimately 8 dispositive—role in those judicial disciplinary cases in which discipline is 9 recommended. Upon receiving a recommendation for discipline from the 10 Commission, the Court "shall review the record of the proceedings on the law and 11 facts" and order any discipline it deems "just and proper." Id. The Court also may 12

"wholly reject the recommendation." Id. Thus, Article VI, Section 32 creates a 13 scheme in which the Commission "acts as an advisory body, and makes 14 recommendations to this Court, which has the final decision[-]making authority." 15 Espinosa, 2003-NMSC-017, ¶ 13. 16

{9} Article VI, Section 32 says little about the procedures the Commission should 17 follow when investigating and adjudicating alleged judicial misconduct and instead 18 provides that "[t]he commission shall promulgate regulations establishing 19 procedures for hearings under this section." The constitutional provision provides: 20

"No justice, judge or magistrate who is a member of the commission or supreme 21 court shall participate in any proceeding involving the justice's, judge's or 22

8

magistrate's own discipline, removal or retirement." Id. But relevant here, the 1 constitutional provision explicitly states that the Commission may preside over the 2 adjudicatory hearing or appoint masters "to hear and take evidence," without 3 providing a standard to guide the Commission in exercising that discretion. Id. The 4 Legislature has clarified that masters shall be appointed "if the commission deems it 5 necessary or convenient," a broad and forgiving standard the Commission has also 6 adopted in its own rules. NMSA 1978, § 34-10-2.1(B)(3) (2023); Rule jsc-4(G)(1) 7 NMRA ("[A]t any time the Commission deems it necessary or convenient, it may 8 appoint three (3) masters . . . to hear testimony and receive other evidence."). 9 Plainly, the repeated use of the permissive term may together with the disjunctive 10 term or in these contexts affords wide discretion to the Commission in deciding 11 whether to hold a hearing itself or instead appoint a panel of masters to do so. 12

2. Our precedent supports the Commission's discretion to hear disciplinary 13

matters or appoint masters without violating due process 14

{10} Applying these ground rules, this Court held in In re Rodella that "the decision 15 whether to appoint special masters is left to the discretion of the Commission" and 16 is reviewed for "an abuse of that discretion." 2008-NMSC-050, ¶ 8; see also In re 17 Castellano, 1995-NMSC-007, ¶ 16 (declining to impose limitations on the 18 Commission's "flexibility in adopting procedures" for the appointment of masters). 19 The conclusion in In re Rodella came in response to and refuted an argument that 20

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the Commission was politically biased against the respondent judge and should have 1 referred the Commission's "investigation and fact finding . . . to special masters in 2 order to ensure objectivity." 2008-NMSC-050, ¶ 5. The In re Rodella Court was "not 3 persuaded that the Commission is either inherently biased or that there is evidence 4 that it was [actually] biased in its investigation or examination of [the judge in that 5 case]." Id. ¶ 6. With regard to inherent bias, the Court stated that "there are sufficient 6 checks on political influence, both in the form of confidentiality, and in this Court's 7 power to review the Commission's actions, to ensure the independence of the 8 Commission in fulfilling its role in overseeing judicial conduct." Id. ¶ 7. And 9 regarding actual bias, the Court concluded that the respondent judge had not 10 provided evidence to show that the Commission abused its discretion by refusing to 11 appoint masters in his case. Id. ¶ 8. 12

{11} In re Rodella is consistent with In re Castellano, an earlier case from this 13 Court, which rejected arguments that due process was violated when the 14 Commission appointed masters who were also members of the Commission.³See 15 1995-NMSC-007, ¶ 16. Before addressing the merits, the In re Castellano Court 16

10

acknowledged that the Commission proceedings "must be conducted to provide the 1 respondent with procedural due process." Id. ¶ 15; accord In re Rodella, 2008-2 NMSC-050, ¶¶ 5-8 (considering whether the Commission was unconstitutionally 3 biased against the respondent judge, an issue that sounds in due process). The In re 4 Castellano Court also announced a harmless error standard for procedural errors in 5 the Commission proceedings, holding errors will not affect the Court's review 6

"unless the errors actually prejudiced the respondent."⁴1995-NMSC-007, ¶ 15. 7

{12} Addressing the merits, the In re Castellano Court disagreed that the masters' 8 participation in multiple stages of the proceedings violated due process. Id. The 9 Court saw "no basis in the record for finding . . . conduct that could be viewed as 10 having predetermined the facts," even in circumstances where the masters had 11 presided over the respondent judge's hearings, issued findings of fact and 12 conclusions of law recommending his removal, and voted with the Commission to 13 recommend his removal by the Court. Id. ¶¶ 13, 15. The Court also disagreed that 14 the Commission had given "disproportionate influence" to its member-judges by 15

11

appointing them as masters. Id. ¶ 16. The Court readily acknowledged that 1

"[c]hoosing special masters who are not Commissioners might be a wise precaution 2 against an erroneous perception of even greater influence." Id. But because the 3 masters were "judges of courts of record" and therefore met the sole qualification 4 for appointment under Article VI, Section 32, their appointments nonetheless 5 satisfied due process. In re Castellano, 1995-NMSC-007, ¶ 16. 6

{13} A final aspect of the parallel reasoning of In re Rodella and In re Castellano 7 is noteworthy. In both cases, the Court emphasized the distinct roles assigned to the 8 Commission and the Court under Article VI, Section 32, recognizing that the 9 Commission's authority is limited to "recommend[ing discipline or] removal to this 10 Court," while this Court "independently review[s] the proceedings below to 11 determine, de novo, whether to accept the recommendation of the Commission." In 12 re Rodella, 2008-NMSC-050, ¶ 8; In re Castellano, 1995-NMSC-007, ¶ 15 (citing 13 In re O'Dea, 622 A.2d 507, 514 (Vt. 1993), as standing for the proposition that a 14

"due process violation [is] less likely when [an] administrative body is not [the] final 15 decision[-]making authority"). The Court's role as "the final decision[-]making 16 authority" thus serves as a significant safeguard against accusations of bias in a 17 particular case. Espinosa, 2003-NMSC-017, ¶ 13. 18

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{14} At bottom, In re Rodella and In re Castellano provide a ready framework for 1 determining whether the Commission's procedures in this case pass muster under 2 the New Mexico Constitution. Be it based on the explicit provisions of Article VI, 3 Section 32 or as a matter of basic fairness and due process, this Court has long 4 deferred to the Commission's discretion to appoint masters, absent evidence of 5 unconstitutional bias that "prejudiced the respondent [judge]." In re Castellano, 6 1995-NMSC-007, ¶ 15; see also In re Rodella, 2008-NMSC-050, ¶ 8. And 7 particularly in In re Castellano, the Court saw no cause for concern even though the 8 masters' participation throughout the Commission's proceedings was extensive. See 9 In re Castellano, 1995-NMSC-007, ¶¶ 13, 15. Absent any suggestion of 10 unconstitutional bias or resulting prejudice in this case—and indeed with no 11 challenge whatsoever to the Commission's factual findings overall—it is clear that, 12 under governing New Mexico case law, the Commission neither abused its 13 discretion under Article VI, Section 32 nor violated general principles of due process 14 when it opted not to appoint masters to adjudicate the charges against Respondent. 15

3. This Court's longstanding interpretation of federal due process in the 16

administrative context additionally undercuts Respondent's position 17

{15} Even beyond In re Rodella and In re Castellano, this Court has long adopted 18 the consensus—if not unanimous—view that, as a matter of federal due process, an 19 administrative agency's dual role as investigator and adjudicator does not, "in itself," 20

13

create an unconstitutional risk of bias. Seidenberg v. N.M. Bd. of Med. Exam'rs, 1 1969-NMSC-028, ¶ 24, 80 N.M. 135, 452 P.2d 469 ("The fact that charges are made 2 by the same body which tries the issues does not, in itself, operate as a 3 disqualification."). This approach is consistent with a long line of federal 4 jurisprudence on the issue. See Withrow v. Larkin, 421 U.S. 35, 54-55 (1975) 5 (holding there was no violation of due process where adjudicators presided over 6 hearings on charges they themselves investigated); Knapp v. U.S. Dep't of Agric., 7

796 F.3d 445, 468 (5th Cir. 2015) (recognizing that "an agency's dual role of 8 investigating and adjudicating disputes and complaints does not alone demonstrate 9 unconstitutional bias" (text only) (citation omitted)). In order to establish a due 10 process violation in the judicial disciplinary context, adherence to this approach 11 requires a showing "that the Commission [was] either inherently biased or that there 12 [was] evidence that it was [actually] biased in its investigation or examination of 13 [the respondent judge]." In re Rodella, 2008-NMSC-050, ¶ 6. The combined force 14 of the holdings in Seidenberg and Withrow undermine a determination that the 15 Commission was inherently biased as a structural matter, while Respondent's full 16 acceptance of the factual findings made by the Commission below all but preclude 17 a determination that the Commission was actually biased in this case. 18

14

4. Similar procedures have been unanimously upheld by state courts 1

nationwide under substantively identical challenges 2

{16} Looking to other state court jurisdictions for guidance, there seems to be near 3 unanimity that a judicial disciplinary body's combined investigatory and 4 adjudicatory functions do not violate due process. Because these cases are heavily 5 influenced by the United States Supreme Court's holding to that effect in Withrow, 6 we summarize Withrow's holding and rationale before discussing the uniform out-7 of-state authorities that cut against Respondent's position here. 8

{17} Similar to the approach taken by Respondent in this case, the physician in 9 Withrow objected to a licensing board's dual roles of investigator and adjudicator in 10 overseeing his disciplinary proceeding, arguing the arrangement would violate the 11 physician's right to a neutral, detached decisionmaker. See 421 U.S. at 38-39, 42. 12 The United States Supreme Court acknowledged that due process requires "a fair 13 trial in a fair tribunal," including in administrative agencies. Id. at 46 (internal 14 quotation marks and citation omitted). The Court also noted circumstances when 15

"the probability of actual bias . . . is too high to be constitutionally tolerable," such 16 as when a decisionmaker "has a pecuniary interest in the outcome . . . [or] has been 17 the target of personal abuse or criticism from the party before him." Id. at 47 18 (footnote omitted). But the Court remained unpersuaded that "conferring 19 investigative and adjudicative powers on the same individuals poses such a risk of 20

15

actual bias or prejudgment that the practice must be forbidden." Id. Rather, the Court 1 established "a presumption of honesty and integrity in those serving as adjudicators" 2 that may be overcome with contradictory evidence, on a case-by-case basis. Id. 3

"Without a showing to the contrary, state administrators are assumed to be [people] 4 of conscience and intellectual discipline, capable of judging a particular controversy 5 fairly on the basis of its own circumstances." Id. at 55 (internal quotation marks and 6 citation omitted). 7

{18} In the matter at hand, the Commission cites persuasive authority from other 8 jurisdictions citing and reaching the same conclusion as Withrow, specifically in the 9 context of judicial disciplinary proceedings. See Gentry v. Jud. Conduct Comm'n, 10

612 S.W.3d 832, 841 (Ky. 2020) (citing Withrow in concluding that the judge under 11 investigation "offer[ed] no persuasive evidence to overcome the presumption of lack 12 of bias" purportedly resulting from "the combined investigative and adjudicative 13 functions of the [c]ommission"); Adams v. Comm'n on Jud. Performance, 897 P.2d 14 544, 550 (Cal. 1995) (en banc) (discussing precedent that relied on Withrow to reject 15 the argument that "the [c]ommission did not provide a neutral forum, because the 16 accusatory, investigatory, and adjudicatory functions were combined so that the 17 adjudicatory process did not comport with generally accepted standards of due 18 process"); In re Zoarski, 632 A.2d 1114, 1121 (Conn. 1993) (citing Withrow and 19

16

other cases in rejecting the judge's argument that due process was violated when 1

"members of the council . . . conducted the investigatory hearing that led to a finding 2 of probable cause and thereafter . . . adjudicated the ultimate merits of the charges 3 against him"). 4

{19} Further, in a case cited by neither party, the Alaska Supreme Court explained 5 that as of 1975, twenty-four states, including New Mexico, had adopted procedures 6 allowing "the [c]ommission both to conduct a preliminary investigation and to 7 adjudicate facts and make a recommendation to the supreme court."⁵In re Hanson, 8

532 P.2d 303, 306 & n.9 (Alaska 1975). Disagreeing that this "combination of 9 judicial and investigative functions" violated due process "under [either] the federal 10 constitution or Alaska's constitution," the In re Hanson court observed that the 11

"argument has been rejected by all courts which have considered the question." Id. 12 at 306; see also In re Del Rio, 256 N.W.2d 727, 736 (Mich. 1977) (per curiam) 13 ("[T]he authority is legion in support of the proposition that combining the 14 investigative and adjudicative roles in a single agency does not necessarily violate 15 due process in administrative adjudications such as judicial fitness hearings."). Since 16

17

then, the trend of rejecting arguments similar to the one advanced by Respondent 1 herein has continued, most recently in 2022 by the Michigan Supreme Court. See In 2 re Morrow, 976 N.W.2d 644, 651 (Mich. 2022) (per curiam) (reaffirming under 3 Withrow that the Michigan commission's combined investigatory and adjudicative 4 functions do not violate due process). 5

{20} In re Hanson also presaged this Court's approach in In re Rodella on two 6 important points. First, in holding that the Alaska commission's dual functions "did 7 not result in a biased or partial tribunal," the Alaska Supreme Court emphasized its 8 own role in the disciplinary process, noting that it has "the ultimate authority in 9 disciplinary matters affecting the judiciary." In re Hanson, 532 P.2d at 306-07; 10 accord In re Rodella, 2008-NMSC-050, ¶ 8. Second, the Alaska high court rejected 11 an argument—identical to the one made by Respondent here—that due process was 12 violated by the Alaska commission's "option to hear the matter itself or to refer the 13 charges to a master for a hearing." In re Hanson, 532 P.2d at 307 & n.15. The In re 14 Hanson court found it "untenable" that "the [c]ommission must always appoint a 15 master," reasoning as follows: 16

The [c]ommission should have the option of referral to a master where 17 the particular matter requires extensive testimony or specialized fact-18 finding. On the other hand, where the [c]ommission wishes to handle 19 the matter without appointment of a master, we can discern no legal 20 impediment to proceeding in such a manner. 21

18

Id. at 307. Thus, as in New Mexico, the decision whether to appoint a master in In 1 re Hanson was properly entrusted to the commission's discretion. Accord In re 2 Rodella, 2008-NMSC-050, ¶ 8. 3

{21} The rule appears to be unanimous in New Mexico and elsewhere that the 4 Commission's combined investigatory and adjudicatory functions do not, of 5 themselves, violate generally accepted standards of due process, including in the 6 many states that employ judicial disciplinary structures and procedures substantially 7 identical to those in use in New Mexico. Effectively conceding as much, Respondent 8 urges this Court to "part company with Withrow" and its progeny by invalidating the 9 Commission's procedures through a broadening of the due process provisions of 10 Article II, Section 18 of the New Mexico Constitution. For reasons discussed below, 11 we decline Respondent's request. 12

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C. Respondent Has Offered No Persuasive Reason to Depart from Our 1

Existing Procedural Due Process Protections in the Judicial Disciplinary 2

Context in New Mexico 3

{22} In undertaking an interstitial analysis⁶in support of his state constitutional 4 claim, Respondent invokes two of the three grounds generally relied on to justify a 5 state constitutional departure from federal jurisprudence: first, that "the federal 6 analysis [in Withrow] is flawed," and second, that "distinctive state characteristics 7 exist that would support the departure." See State v. Crane, 2014-NMSC-026, ¶ 15, 8

329 P.3d 689 (citing State v. Gomez, 1997-NMSC-006, ¶ 19, 122 N.M. 777, 932 9 P.2d 1). As we explain, Respondent misses the mark on both points. 10

{23} To begin, Respondent likens the situation at bar to that presented to this Court 11 in State v. Martinez, 2021-NMSC-002, ¶¶ 36, 85, 478 P.3d 880, in which we agreed 12 to construe the due process provisions of Article II, Section 18 of our state 13 Constitution more broadly than its federal counterpart in assessing the admissibility 14 of eyewitness identification evidence. The chief inspiration underlying this doctrinal 15

20

sea change was "the substantial body of empirical scientific studies on human 1 memory and perception undertaken in the wake of [the, then outdated, governing 2 federal precedent] and the legal literature, decisional law, and statutory enactments 3 that have developed accordingly." Id. ¶ 38. Clearly, the "vast body of social science 4 research" and "[t]he legal literature . . . replete with discussions of the doctrinal and 5 scientific shortcomings of the [federal] reliability test" that were presented to the 6 Martinez Court, id. ¶¶ 40, 53 (internal quotation marks and citation omitted), are a 7 far cry from the sparse—three in all—and narrowly conceived psychological journal 8 and law review articles relied on by Respondent in this case. While this trio of 9 commentaries—primarily addressing a concept known in the scientific community 10 as confirmation bias⁷—may provide an articulable basis to question the rationale 11 supporting the Commission's joint investigative and adjudicatory framework, these 12 isolated writings are inadequate, standing alone, to warrant the complete 13 abandonment of a long-held administrative practice. 14

21

{24} And despite Respondent's protestations to the contrary, New Mexico case 1 authorities such as Reid v. New Mexico Board of Examiners in Optometry, 1979-2 NMSC-005, 92 N.M. 414, 589 P.2d 198, and New Mexico Board of Veterinary 3 Medicine v. Riegger, 2007-NMSC-044, 142 N.M. 248, 164 P.3d 947, provide no 4 persuasive basis to depart from the teachings of Seidenberg and Withrow in the 5 matter now before us. As explained below, neither Reid nor Riegger establishes any 6 distinct feature of New Mexico law that would afford Respondent an expanded right 7 to greater due process protections during disciplinary proceedings than Seidenberg 8 and Withrow now provide. 9

{25} As Respondent would have it, "Reid calls for heightened vigilance against 10 denials of due process in administrative settings," in contrast to Withrow's more 11 permissive approach in entertaining what the United States Supreme Court described 12 therein as a rebuttable "presumption of honesty and integrity in those serving as 13 adjudicators." Withrow, 421 U.S. at 47. Respondent further argues that since Reid 14 was decided, this Court has favored its requirement that there need be "the 15 appearance of complete fairness" in administrative proceedings, Reid, 1979-NMSC-16 005, ¶ 7, over Withrow's above-stated "presumption of honesty and integrity," 17 Withrow, 421 U.S. at 47. But the only support Respondent offers for these assertions 18 is Riegger, which held that allowing the Board of Veterinary Medicine's recovery 19

22

of costs for both the hearing officer who served the agency and the hearing room 1 used by the agency would violate the accused veterinarian's due process rights. See 2 2007-NMSC-044, ¶ 26. This Court in Riegger concluded that allowing the recovery 3 of a hearing officer's costs would create "a possibility that future licensees subject 4 to disciplinary proceedings may objectively believe that hearing officers will be 5 biased in order to be fully-compensated for their services." Id. ¶ 30. The Riegger 6 Court acknowledged that neither party had accused the hearing officer of bias and 7 that the record demonstrated a lack of actual bias on the hearing officer's part. Id. 8 Nonetheless, the Court held that the appearance of potential bias outweighed the 9 Withrow "presumption of honesty and integrity in those [who serve as] 10 adjudicators." Riegger, 2007-NMSC-044, ¶ 30 (internal quotation marks and 11 citation omitted). Thus, Respondent's argument goes, Riegger demonstrates the 12 Court's preference for a more protective rule than Seidenberg and Withrow presently 13 require. 14

{26} Respondent overstates the holdings in both Reid and Riegger in arguing that 15 they support a higher standard of neutrality in administrative proceedings under 16 Article II, Section 18. This Court's prior analysis in each of the two cited cases is 17 inapposite to the facts now before us and therefore is not binding here. Neither Reid 18 nor Riegger spoke directly to the core structural issue litigated in this matter: how 19

23

best to treat the combined investigative and adjudicative functions of the 1 Commission. Instead, Reid primarily serves to illustrate the general rule that due 2 process is violated when there is evidence that an adjudicator may have been biased, 3 demonstrated by "a prejudicial statement" made by one of the board members that 4 signaled "his bias and prejudgment of the issues." Reid, 1979-NMSC-005, ¶¶ 5, 9. 5 And Riegger, for its part, represents little more than a straightforward application of 6 the age-old prohibition against a judge presiding over a matter in which the judge 7 has a pecuniary interest in the outcome. See, e.g., State ex rel. Hannah v. Armijo, 8 1933-NMSC-087, ¶ 22, 38 N.M. 73, 28 P.2d 511 ("By the common law, the slightest 9 pecuniary interest would disqualify a judge."); see also Rule 21-211(A)(3) NMRA 10 (requiring a judge to disqualify themself "in any proceeding [when] . . . [t]he judge 11 knows that [they have] . . . an economic interest in the subject matter in 12 controversy"). 13

{27} Neither Reid nor Riegger can be read to stray from the core rule articulated in 14 Seidenberg and Withrow that, absent evidence of unconstitutional bias, the 15 combination of investigative and adjudicatory functions in the administrative realm 16 does not violate due process. We thus conclude that neither Reid nor Riegger is 17 imbued with any distinctive state characteristics relevant to this case that would 18

24

warrant an expansion of the due process provisions of Article II, Section 18 of our 1 state Constitution. 2

{28} Having rejected Respondent's constitutional challenges to the Commission's 3 disciplinary recommendation, we turn next to Respondent's alternative argument 4 that even if he committed legal error as alleged—which he steadfastly refuses to 5 concede—his actions did not rise to the level of willful misconduct subject to 6 discipline. As will be shown below, this contention too must fail. 7

D. The Commission Properly Relied on the Series of Improper Case 8

Dismissals Ordered by Respondent as a Basis for Discipline in This Case 9

{29} Respondent relies on the committee commentary to the "[i]mpartiality and 10 fairness" requirement of the Code of Judicial Conduct contained in Rule 21-202 11 NMRA, which provides: "When applying and interpreting the law, a judge 12 sometimes may make good-faith errors of fact or law. Errors of this kind do not 13 violate this rule." That guidance, in Respondent's view, is consistent with rulings 14 from other jurisdictions that emphasize the importance of judicial independence and 15 the freedom to make good-faith rulings, "free from extraneous considerations of 16 punishment or reward." In re Curda, 49 P.3d 255, 261 (Alaska 2002); see also, e.g., 17 Oberholzer v. Comm'n on Jud. Performance, 975 P.2d 663, 680 (Cal. 1999) ("[A] 18 judge must be free not only to make the correct ruling for proper reasons, but also to 19

25

make an incorrect ruling, believing it to be correct.").⁸Respondent insists that 1 reversal on appeal is the appropriate remedy for a judge's legal error, not judicial 2 discipline. 3

{30} The Commission, on the other hand, asserts in its petition seeking 4 Respondent's removal from office that its disciplinary recommendation is not based 5 on "mere legal mistakes." Instead, the Commission maintains that Respondent's 6 repeated dismissal of cases on jurisdictional grounds at the preliminary arraignment 7 stage of multiple proceedings and without a hearing, "despite repeated guidance 8 from mentors, peers, and higher courts" to refrain from such conduct, "reflects 9 intentional, repeated, and egregious legal error made in bad faith, clearly exceeding 10 the threshold established by this Court and consistent with standards adopted in other 11 jurisdictions." The Commission goes on to argue that discipline is warranted because 12

26

Respondent engaged in a "pattern of defiance—rooted in a personal and expansive 1 view of tribal boundaries rather than binding precedent—[that] demonstrates a 2 willful disregard for the judge's duty to apply the law as it exists." 3

{31} Respondent's contention is foreclosed by In re Locatelli, 2007-NMSC-029, ¶ 4 6, 141 N.M. 755, 161 P.3d 252 (per curiam), a case in which this Court considered 5 the respondent municipal judge's analogous argument that legal error presents a 6

"question for the appellate courts" and "should not expose [the respondent] to 7 discipline." The In re Locatelli Court disagreed, holding that legal error may support 8 discipline when there is clear and convincing evidence that the alleged error 9 amounted to "[w]illful misconduct in office[, which] is improper and wrong conduct 10 of a judge acting in his official capacity done intentionally, knowingly, and, 11 generally, in bad faith." Id. ¶¶ 7-8 (first alteration in original) (internal quotation 12 marks and citation omitted). This Court clarified, however, that to constitute willful 13 misconduct, the challenged conduct must be "more than a mere error of judgment or 14 an act of negligence." Id. ¶ 8 (internal quotation marks and citation omitted). 15 Applying that standard, the In re Locatelli Court rejected the recommendation for 16 discipline based on the Commission's findings that the judge had improperly held 17 two lawyers in contempt without a legal or factual basis. Id. ¶¶ 9, 11, 17. The Court 18 held that the Commission's disciplinary recommendation was not supported by clear 19

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and convincing evidence in circumstances where the judge was, in fact, bestowed 1 with the authority to hold the attorneys in contempt and the judge provided 2 uncontradicted testimony that he had "researched what action he could take" under 3 the circumstances and had "consulted with attorneys from the Municipal League and 4 the Attorney General's Office" before taking action in holding the attorneys in 5 contempt. Id. ¶¶ 13-16. That the judge charged the attorneys with contempt without 6 procuring or reviewing the transcript of the district court proceedings served only to 7 show that the judge had been negligent in his contempt rulings, a showing 8 insufficient—on its own—to support a finding of willful misconduct. Id. ¶ 17. 9

{32} The reasoning employed by the In re Locatelli Court, while reaching a 10 different result than that produced here, plainly endorses the Commission's ability 11 to recommend discipline based on "improper and wrong conduct," including legal 12 error, so long as the conduct rises to the level of willful misconduct. Id. ¶ 8 (internal 13 quotation marks and citation omitted). As this Court made clear in In re Rodella, 14 discipline is often imposed on judges based on their "patterns of behavior," 2008-15 NMSC-050, ¶ 35 (internal quotation marks and citation omitted), a conclusion 16 buttressed by commentators and courts alike. See, e.g., Cynthia Gray, The Line 17 Between Legal Error and Judicial Misconduct: Balancing Judicial Independence 18 and Accountability, 32 Hofstra L. Rev. 1245, 1263-64 & n.98 (2004) (recognizing 19

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that "most cases in which judicial error [is] elevated to the level of judicial 1 misconduct involve[] more than one example of legal error"; that "a pattern is one 2 of the identified exceptions to the 'mere legal error' rule"; and, citing In re Holien, 3

612 N.W.2d 789, 792-93 (Iowa 2000) (en banc), that "[j]udges have been sanctioned 4 for patterns of . . . violating procedural requirements when conducting 5 arraignments"). 6

{33} And considering Respondent's choice in this case to forego any challenge to 7 the Commission's factual findings, we are left with a record that establishes 8 Respondent's habitual practice—often at arraignments and without the benefit of a 9 hearing—of "routinely dismiss[ing] matters sua sponte . . . if he [determined that] 10 jurisdictional issues were present on the face of a complaint." He did this "despite 11 repeated guidance [to the contrary] from mentors, peers, and higher courts." 12

{34} We emphasize that, as a general matter, "[t]he burden [is on the] defendant to 13 demonstrate a lack of jurisdiction in the district court." State v. Cutnose, 1974-14 NMCA-130, ¶¶ 4-7, 87 N.M. 307, 532 P.2d 896; see also, e.g., State v. Verdugo, 15

901 P.2d 1165, 1168 (Ariz. Ct. App. 1995) ("The majority of other courts addressing 16 this issue have held that a defendant bears the burden to show facts that would 17 establish an exception to the state court's jurisdiction under the Indian Country 18 Crimes Act."). And such a determination demands an opportunity for the State to 19

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present evidence to support its case. See, e.g., State v. Gomez, 2003-NMSC-012, ¶ 1 7, 133 N.M. 763, 70 P.3d 753 ("[P]retrial dismissal under Rule 5-601(B) [NMRA] 2 is inappropriate if the State could reasonably assert the availability of additional 3 evidence."); cf. Rule 6-305(A)(2) NMRA ("It shall be unnecessary for a complaint 4 to contain the following allegations unless such allegations are necessary to give the 5 defendant notice of the crime charged: . . . place of the commission of the offense."). 6 Respondent's repeated practice of dismissing cases at arraignment and without 7 hearings constituted legal error that clearly and consistently rose to the level of 8 willful misconduct. Stern discipline was in order. We turn next—and finally—to the 9 question of the appropriate level of discipline warranted in this case, a question that 10 stands "separate from the question of whether the evidence supports a determination 11 that the judge's actions constituted willful judicial misconduct." In re Castellano, 12 1995-NMSC-007, ¶ 39. 13

E. Respondent's Pattern of Willful Misconduct Was More than Sufficient to 14

Warrant His Removal from Office 15

{35} Traditionally, this Court has "removed judges from the bench when their 16 conduct threatened the integrity and independence of the judiciary." In re Rodella, 17 2008-NMSC-050, ¶ 34, citing, inter alia, In re Castellano, 1995-NMSC-007, ¶ 40 18 (removing the judge because of a "pattern [of behavior that] adversely affected his 19 reputation for impartiality, independence, and integrity"). The impetus to remove a 20

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judge from office for engaging in such a pattern of behavior is only heightened 1 where, as the Commission found to be the case here, the judge wrongly shows not 2

"remorse but demonstrated defiance [by] insisting that his interpretation of the law 3 was correct" in offering "evasive" testimony determined not to be "credible." As the 4 In re Rodella Court reasoned: 5

In this case, we see a pattern of misconduct that was not corrected, but 6 which increased in its seriousness, despite training and mentoring. In 7 addition, we are deeply troubled by the Commission's determination, 8 which our independent review of the record supports, that Judge 9 Rodella's testimony lacked credibility. When a new judge, through lack 10 of knowledge, experience or judgment, acts in ways that are 11 inconsistent with [a judge's] new role, we hope that such conduct can 12 be corrected through discipline in the form of training, mentoring, and 13 supervision. However, when a judge denies making mistakes, [the 14 judge] cannot learn from the mistakes, and there is little that can be 15 done to correct the behavior. Under such circumstances, to allow a 16 judge who is not truthful to remain on the bench betrays the public trust 17 and threatens the integrity and independence of the judiciary as a whole. 18

. . . [W]e cannot allow a judge who lacks credibility to preside over 19 cases in which he is charged with weighing evidence and determining 20 the credibility of others. 21

2008-NMSC-050, ¶ 36 (internal quotation marks and citation omitted). The same 22 rationale applies here. 23

II. CONCLUSION 24

{36} For the foregoing reasons, we conclude that Respondent committed willful 25 misconduct in office and stand by our prior order directing his permanent removal 26 from the bench. 27

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{37} IT IS SO ORDERED. 1

2

JULIE J. VARGAS, Chief Justice 3

4

MICHAEL E. VIGIL, Justice 5

6

C. SHANNON BACON, Justice 7

8

DAVID K. THOMSON, Justice 9

10

BRIANA H. ZAMORA, Justice 11

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