Politicking is part of the process for becoming a judge

Campaign donors often get appointments. The line between politicking and bribery is crossed when the donation buys the appointment or is intended to influence the process. Did indicted District Judge Mike Murphy cross that line?

Indicted District Judge Mike Murphy allegedly told one judicial hopeful she had to give money to the local Democratic Party if she wanted the party’s support for her candidacy.

That and similar statements attributed to Murphy – such as claims that he paid $4,000 for his job, and that candidates had to give money to local politico Edgar Lopez, who would pass it on to then-Gov. Bill Richardson and the Democratic Party – are at the center of the bribery case against Murphy.

Finance reports reveal that Murphy, who was appointed in 2006, gave several donations to the Democratic Party of Doña Ana County totaling $1,600 between 2005 and 2010. Almost every judge appointed by Richardson in Doña Ana County has also donated to the party. Some of them remain annual contributors.

And Lopez is one of the biggest donors, having given $8,606.71 in cash and in-kind contributions from himself and his business between 2005 and 2010.

But there’s a difference between supporting a cause and paying a bribe. There are many other contributors on the party’s donor list, including activists, politicians, and three witnesses upon whose testimony the case against Murphy is based – District Judge Lisa Schultz, former Court of Appeals Judge Beverly Singleman, and Third Judicial District Court staff attorney Norm Osborn.

That’s hardly surprising. This is politics. Think there’s no politicking in the judicial appointment process? Think again. The fact that Republican governors appoint mostly Republican judges and Democratic governors appoint mostly Democratic judges proves the point.

The line between politics and bribery

Richardson, a Democrat, appointed many people to judgeships and other positions who donated to his campaigns. That’s also true of some people appointed by the current governor, Republican Susana Martinez, to various positions.

There’s nothing illegal about appointing a campaign contributor to a government position. The line between politicking and bribery is crossed when there’s quid pro quo – a deal is made, an appointment is given in exchange for a campaign contribution. Or, at the very least, there has to be intent to make such a deal.

“Bribery is giving something of value, directly or even indirectly, with the intent to influence an official action,” said Doña Ana County District Attorney Amy Orlando, whose office has handed the bribery case against Murphy to a special prosecutor to avoid a conflict. “The value is irrelevant and could be a number of things, including a campaign contribution, cash under the table, or something else that has value.”

“Simply making or soliciting campaign contributions to support a candidate or party, without attempting to influence an official action in exchange for that contribution, is protected by the First Amendment,” said Orlando, who was speaking generally, not specifically about the Murphy case. “It’s the intention to influence an official process – looking for the play in exchange for the pay – that makes it bribery and why it is against the law in every state in this country.”

According to witness statements, Murphy claimed that he paid, possibly through campaign contributions, for his position. He allegedly said others had to do the same.

Murphy has pleaded not guilty and has yet to face a jury. The case against him has received national attention and created another scandal for Richardson. It’s also led to a debate about what’s appropriate in the game of politics and whether reform is needed.

Political activity is ‘an important part of the process’

State Rep. Joseph Cervantes, D-Las Cruces and an attorney, is a regular contributor to the local Democratic Party and was involved in the politicking surrounding judicial appointments during Richardson’s tenure. He said he met several times with judicial applicants who wanted advice on how to increase their chances of being appointed.

Cervantes said he advised them to get politically active if they weren’t already.

“It’s an important part of the process that they get active within their respective parties,” he said. “Any person seeking elective office who’s unknown has to correct that immediately.”

Making campaign contributions is certainly part of becoming politically active, but there’s a difference between hoping for an official act and actually expecting an official act or even making a deal in exchange for that act, Cervantes said.

“Any person who gives a contribution expecting something specifically in return is either corrupt or extremely naïve,” Cervantes said. “And any person who solicits a contribution offering or promising something in return is equally corrupt.”

Reducing, but not eliminating, politics

New Mexico’s system for appointing district, appellate and Supreme Court judges is designed to reduce, but not eliminate, politics. When a position is vacant, a bipartisan commission of attorneys and others considers applications, interviews candidates, and recommends finalists to the governor. That process is almost entirely public.

The governor then makes an appointment from among the candidates recommended. In some instances, the governor can reject the finalists and ask the commission to go back to the drawing board.

The appointed judge’s first election is a partisan one and open to challengers. If he or she wins, future elections are for retention. There are no challengers.

Cervantes said New Mexico has done more than most states to take politics out of the process. He said there’s “not a lot of opportunity for political collusion” during the commission process.

In addition, Cervantes pointed to public financing for Court of Appeals and Supreme Court races, and contribution limits for all races, including governor, saying those recent reforms help reduce the influence of money on the system.

Retired federal prosecutor Peter Ossorio, a Democrat who lives in Las Cruces and regularly donates to the local party, said New Mexico’s judicial appointment system mirrors a process put in place decades ago in Missouri, where he worked.

“Like most procedures, it is not perfect,” he said. “However, it has several features that I believe make for a far more independent judiciary than in Texas and many other states where judges have to raise money and run in partisan elections in perpetuity if they want to keep their seats.”

“I much prefer this type of process to the one that resulted in the egregious situation in West Virginia where the head of Massey Coal contributed over $1 million to the campaign of a state supreme court ‘justice’ who refused to recuse himself from a high profile case involving – you guessed it – the same party that contributed to his election,” Ossorio said.

In New Mexico, Cervantes said even when politics takes over with the gubernatorial appointment, “There’s no star chamber. There’s no secret meetings. Applicants and candidates for the office make phone calls and they enlist supporters and they ask for people to support them, no differently than any other candidate for elective office.”

Cervantes’ description of the process echoes what District Judge Jim T. Martin told investigators when they questioned him about the situation that led to Murphy’s indictment. From a law enforcement incident report detailing the interview with Martin:

“…he indicated that to be nominated for a judgeship, a person has to get on the list, and the governor appoints from that list. Judge Martin said the governor picks someone who is active in the party. ‘A way to show that you’re active in the party is to make donations to the party, participate in events, go to fundraisers, help a particular campaign, be a good democrat or republican. That’s kind of the nature of politics, you have to be actively involved in the game.’”

Murphy case is based on his own statements

That doesn’t mean there’s never a promise of an official act in exchange for a campaign contribution in a system that’s political. But proving bribery is often difficult.

The case against Murphy is largely based on statements witnesses say he made. Among them, from the incident report:

• He allegedly told Singleman, who was considering applying for a judgeship, that she should “write a check to the Democratic Party every week in whatever amount she could afford and deliver it to Edgar Lopez.”
• Murphy allegedly told Schultz, “Look, I’m not joking. You tell Beverly she had better make weekly payments to Edgar Lopez if she wants the next judgeship.” He said payments should be given as cash in envelopes, and said Lopez “was close friends with the governor and would hand-deliver the envelopes to him.”
• Now-retired District Judge Stephen Bridgforth says Murphy told him a judicial applicant had to make a “significant donation” to be appointed by Richardson, and that he gave $4,000 to Richardson. When Bridgforth said it sounded like Murphy was “paying for the position,” Murphy allegedly said, “That’s how business is done nowadays.”
• Osborn says Murphy told him he gave money to Lopez every month “to influence his appointment process,” and that those who want a judicial appointment must give a “substantial amount” in an envelope to Lopez every month.

Is it possible that there was a widespread conspiracy involving Richardson, or at least Lopez, to get money from judicial applicants, as prosecutors have hinted they suspect? Maybe.

It may also be possible that there is no conspiracy, but that Murphy believed there was. If that’s the case, he may still be in legal trouble. If he believed he was paying a bribe, rather than just giving campaign contributions to make himself known, that likely meets the standard for criminal bribery, sources told NMPolitics.net.

Some say there’s another possibility: That Murphy has a big mouth, and regardless of what he said, he didn’t actually pay a bribe or even believe he was paying one.

“I don’t think we’re going to be criminalizing braggadocio, and right now that’s what this seems to be,” Cervantes said. “This seems to be about a couple of individuals having a private lunch, and probably not intending their puffing and their gossiping to be taken literally.”

Even so, Cervantes said the comments attributed to Murphy cross a line.

“There’s no doubt that the comments that are attributed and probably even admitted are not what we would expect from our judiciary,” he said. “But it’s an enormous leap to begin criminalizing gossip and bragging.”

A political prosecution?

Ossorio shared the same sentiment expressed by the local Democratic Party: that the prosecution of Murphy is politically motivated. Schultz, a Democrat, first took her complaint against Murphy and others to then-District Attorney Martinez,who is now governor.

The case, Ossorio said, is a way for Martinez to “settle scores with certain judges” and enhance the reputation of Matt Chandler, the Clovis-area district attorney who took the case because of the conflict Martinez’s office had in investigating a judge in the court in which her office prosecutes cases.

Chandler ran unsuccessfully for attorney general last year and is a rising star in the Republican Party.

Ossorio bases his beliefs in part of the pre-indictment leaks of information about the case to the media. NMPolitics.net was the first to report on the investigation of Murphy in March, and cited an unnamed source for the report. After that, other media outlets cited their own unnamed sources.

Ossorio said he’s “especially disturbed” at such “pre-trial publication of hearsay and double hearsay about judges who have not been charged with any offense,” such as Martin, a former federal prosecutor who has hired a criminal defense attorney because investigators are considering whether he was involved.

“I worked closely with Judge Martin for about six years in the U.S. Attorney’s Office and never saw him step over the very clear line imposed on us by the Hatch Act and even more stringent internal Department of Justice policies,” Ossorio said. “One of the primary reasons why grand juries are supposed to do their work in secret is to prevent tarnishing the reputations of innocent parties.”

Ideas for reform

Regardless of whether Murphy or any judge committed a crime, some say the situation points to a need for reform. Cervantes said the way to “correct and minimize the distaste for money in politics is to enact comprehensive and meaningful campaign finance reform.”

Contribution limits now in place in gubernatorial elections are significant in ensuring the integrity of the judiciary, Cervantes said, because the governor appoints judges.

“We have states where contributions are unlimited, and you have a judiciary that is, as a result, of questionable integrity,” he said.

Cervantes said additional reform should include expanding public financing to district judge races and taking steps to stop people from giving money “behind shell organizations, so that you can’t draw the link between an official act and the contribution itself.”

C.J. McElhinney, a criminal defense attorney who lives in Las Cruces, wants judges to be chosen through nonpartisan elections. As a registered independent, McElhinney said he’s seen Richardson and Martinez appoint judges who “were not the most qualified or best suited to be a judge.”

“I can only assume that politics or personal relationships played a role in those candidates receiving those positions,” McElhinney said.

The fact that Democrats or Republicans always “dominate the process… almost certainly guarantees that the candidates not in that party will be at an extreme disadvantage,” he said. There are no district judges in the state who aren’t affiliated with one of the two major parties, which he said is “evidence that there is a problem with our system.”

“We are basically eliminating a third of all possible candidates who, like myself, refuse to play party politics because we disagree with either the personalities or the platforms of the two major parties,” McElhinney said.

This article has been updated for clarity.