Lawmakers need to fix Governmental Conduct Act

The New Mexico Supreme Court on Wednesday overturned the 2003 rape and bribery conviction of a former Española judge because judges are exempt from the statute under which he was convicted.

We’ve known in Doña Ana County for more than a year that Charles Maestas’ convictions on at least the charges of bribery – under a statute known as “official acts prohibited” – were likely to be overturned. That’s because former Doña Ana County Magistrate Judge Reuben Galvan, who also faced rape and bribery charges, had a charge of official acts prohibited dismissed in September 2005 because the statute specifically exempts judges.

I wrote at the time for the Las Cruces Sun-News that the situation revealed a major flaw in state law. The overturning of Maestas’ conviction furthers that argument and should prompt legislators to act.

Galvan resigned from the bench in May 2005 while battling charges that he raped and solicited a bribe from a woman in August 2004. After two hung juries, prosecutors dropped the charges.

After the first trial on rape and bribery charges ended, special prosecutor Kathleen Wright of Albuquerque modeled her second case in part after the case against Maestas. She added the official acts prohibited charge, which has a few technical differences than the other bribery statute in state law.

Wright said at the time that charge “more accurately reflects what happened to the victim.”

But District Judge Stephen Bridgforth tossed the charge after Galvan’s attorney discovered that the statute specifically exempts judges. That happened days before the trail began and gave Wright little time to adapt.

The Governmental Conduct Act that includes the official acts prohibited statute criminalizes using public office to obtain favors. But judges are excluded from the act’s definition of public officers and employees.

Bridgforth’s dismissal brought the issue to the attention of the Attorney General’s office. The AG, not Maestas’ attorney, raised the issue with the high court. Though the AG argued that the statute should apply to judges, it raised the issue to get clarification on the statute’s meaning.

Now it’s crystal clear.

What’s never been apparent is why the Legislature exempted judges. I asked Legislative Council Services in 2005 to research the issue, and it came up empty handed.

The attorney general’s office argued before the high court last year that the exemption must have been a mistake on the part of lawmakers.

In their Wednesday ruling in the Maestas case, according to the Albuquerque Journal, justices wrote that they “are not aware of the Legislature’s reasoning in choosing to exclude judges from the Governmental Conduct Act.” They did note, however, that the act was passed in 1967, the same year the Judicial Standards Commission was created, which supports the argument that the Legislature knew what it was doing.

The problem with the Maestas case caused the high court to toss out not only his convictions on five counts of official acts prohibited, but also five counts of rape, according to the Journal, because the case had a “fundamental error.”

Maestas has already served his prison sentence, but for the time being is no longer a felon. The court didn’t address whether Maestas can be retried under a different statute, and the AG’s office didn’t say whether it would seek to retry him.

Regardless of whether the Legislature intentionally excluded judges, the fact that no one can presently come up with a good reason for their exclusion has meaning. There are now two examples of why judges should not be excluded.

But magistrates are a powerful political force in New Mexico. Will lawmakers have the courage to act?