ALBUQUERQUE, N.M. (KRQE) – The New Mexico Supreme Court is being asked to look at the constitutionality of a powerful anti-corruption law New Mexico’s Attorney General has been using to attempt to prosecute several high-profile public officials.
The question of constitutionality surrounds the state’s “Governmental Conduct Act,” and whether the law is too vague or was ever intended to be used for the purpose of filing criminal charges.
Over the last few years, the New Mexico Attorney General has appealed four different district court cases involving the Governmental Conduct Act and alleged violations of a section titled “ethical principles of public service.”
In short, the act makes it illegal for public employees to use their position or office for their own benefit.
In 2016, former Doña Ana County Treasurer David Gutierrez was charged with violating the act for allegedly pursuing an unwanted sexual relationship with one of his employees during the course of his work as a treasurer.
In 2017, Sixth Judicial District (Grant, Luna, Hidalgo counties) District Attorney Francesca Estevez was charged after allegedly using her position to intimidate, manipulate, or harass police officers who were investigating allegations that she improperly operated a state-owned vehicle.
In another case, former San Juan County Magistrate Judge Connie Lee Johnston was charged under the Governmental Conduct Act for allegedly recording communications of her colleagues and coworkers in secure areas in the Aztec Magistrate Court building.
Most recently, former Tax & Revenue Department Secretary Demesia Padilla was charged with violating the Governmental Conduct Act for allegedly using the state’s tax record system to view records of former clients and others.
In each case, district court judges dismissed the Governmental Conduct Act charges for varying reasons. Meanwhile, the New Mexico Attorney General’s Office has appealed or filed notice to appeal in each of the cases.
In reviewing the cases, the New Mexico Courts of Appeals has now deferred a decision over the Governmental Conduct Act to the New Mexico Supreme Court.
“It’s a serious question,” said Peter Kierst, a former lawyer and expert in U.S. and New Mexico Constitution Law.
Kierst, who now teaches at UNM, says there are a lot of questions surrounding the Governmental Conduct Act and its constitutionality.
“As soon as the read the statute I said, ‘you know, I know what they’re… what’s troubling them here,’” said Kierst of prior decisions to dismiss by district court judges.
Previously, judges have dismissed the charges tied to the act, claiming in part that the law is “too vague.” Another district court judge found that the law was not intended to carry legal requirements, but rather “ethical considerations” that public employees should strive to follow.
“A vague statute opens up the door to selective enforcement and an unequal application of the law, which goes right at one of the fundamental principles of our law, which is the law ought to equally apply to everybody,” said Kierst.
In its review of the Governmental Conduct Act, the New Mexico Court of Appeals wrote, “ethics in government is rightfully of the utmost concern for our citizenry.”
However, the appellate judges also wrote, “Conversely, however, the criminalization of wide-ranging conduct by all public employees, public officials, and legislators could have the unintended consequence of negatively impacting public servants ability to serve our citizenry.”
The New Mexico Court of Appeals is now asking the state Supreme Court to make a decision on if the law is constitutional.
The decision, Kierst says, could carry a large impact on how aggressively the state can prosecute corruption-related crimes.
“The Attorney General’s Office is quite understandably looking at this statute as an important tool, in the fight against public corruption, which is one of his most important jobs,” said Kierst.
New Mexico Attorney General Hector Balderas’ office sent KRQE News 13 a statement about the case Thursday, saying it intends to fight for the law in the Supreme Court.
“Recent court rulings have weakened New Mexico’s government corruption laws, and the Office of the Attorney General looks forward to arguing for increased protections in the Supreme Court.”–Matt Baca, spokesman for New Mexico Attorney General’s Office.
The state Supreme Court has yet to decide if it will take the case.
A spokesman for the New Mexico Administrative Office of the Courts tells KRQE News 13 the New Mexico Supreme Court is not required to accept certifications from the Court of Appeals, and it’s unclear when the court may make a decision on whether to accept the case.
“If the case is accepted, the Supreme Court would determine whether and when any hearing (or hearings) would be held and whether additional briefing (written arguments) must be submitted by the parties,” said Barry Massey, communications officer for the NM Administrative Office of the Courts.