Guardianship Study Commission Message #16

Dear Guardianship Study Commission Members, News Media Professionals, and others:

Today is the 3rd in a series of weekly posts, covering statistical analysis of New Mexico’s courts’ administration of the guardianship cases that come before their judges. The last two weeks posts can be found here (July 27, 2017, Post #14) and here (Aug 2, 2017, Post #15) This week’s post continues our analysis of the newly-available case dockets made available to the public, as per legal requirements of New Mexico statutes (NMSA 45-5-303 (I); NMSA 45-5-407(M)) and Rules of Court Procedure (NMRA 1-079(D)(7),(9); NMRA 12- 314(C)(9),(12)) which require public access to:

  1. docket entries;
  2. date of the proceeding, appointment and termination;
  3. duration of the guardianship; and
  4. the name and other information necessary to identify the alleged incapacitated person.

Limited Data set examined:

Due to our volunteer time constraints, as well as our ability to do the Administrative Office of the Court’s (AOC) work, in tracking and monitoring guardian and conservatorship cases, we chose four District Courts divisions out of New Mexico’s 13 Judicial Districts, to focus on:

  1. Santa Fe – 1st Judicial District – Code ‘101’
  2. Albuquerque – 2nd Judicial District – Code ‘202’
  3. Las Cruses – 3rd Judicial District – Code ‘307’
  4. Bernalillo – 13th Judicial District – Code ‘1329’

We further limited the years examined in these 4 District Courts to January 1, 2010 to June 30, 2017.

Because of our analysis of only these four district courts, for only these given dates, the numbers presented do not represent state-wide statistics and therefore will not represent a person or corporation’s complete statistics.

Given the restrictions shown above, the total number of cases examined in this report is 2,705.

 

Judges’ power in guardianship and conservatorship cases.

In New Mexico, Judges have the power to void your Durable Power of Attorney, as well as effectively to void your Will and Trust(s), too. So it really doesn’t matter what you write in those documents – that you pay thousands of dollars to attorneys to create. Either when you die, and these documents come into legal ‘play,’ or when you are declared incapacitated by a judge (whether you are, or are not, medically-determined to be incapacitated) all of your previously existing legal documents that you carefully prepared to determine what would (and legally-speaking should) happen to you, can be rendered useless without even a hearing in front of a Judge, if that’s the way the attorneys play it.

We point this out as an introduction to our statistical review of Judges’ and their roles in guardianship and conservatorship. Judges have a lot more power to affect the future course of your personal life events than your attorney may have told you (or that we have space to discuss in these articles.) And therein comes the problem: the close and career-long interaction between judges and attorneys.

Judges and attorneys talk all the time behind the ‘parties’ backs. Constantly. Judges and attorneys are ‘in tune’ with one another as to how general matters should be handled, such as guardianship and conservatorship cases. They deal with these cases all their careers, whereas you, typically might have only one, or two, cases of probate to deal with your entire life.

 

What the facts show:

You decide for yourself what the facts show. Here is a table of data, showing the number of cases held before each judge, the judge’s tenure in office (as determined by Ballotpedia, IF the judge’s years of ‘service’ could be determined.)

 

There appears to be a pattern of misconduct whereby judges with long-standing ‘service’ to the courts are awarded many cases of guardianship, while newer judges are shunted aside quickly, if they do not prove themselves.

Again, we are lead to ponder: Why do certain judges allow themselves to preside over guardianship cases that last years, while other judges are quickly set aside after so few cases?

Who owns the facilities – be they nursing homes, boarding houses, half-way houses, or other facilities to which human beings are ‘consigned’ by judges?

Why is there no movement away from guardianship into “less restrictive means” of keeping track of the elderly – especially the wealthy elderly? Or the elderly that have guaranteed monthly income derived from private pensions, VA benefits (which are tax-free), and social security checks?

 

How does an attorney become a judge in New Mexico?

There are various methods that are used by attorneys to become judges. A few attorneys stand for election but the most common method – as well as the most direct route – used to fill an approximate 70%+ of judicial vacancies is by Gubernatorial appointment. Simply put, the Governor appoints whichever attorney they wish to fill an empty judicial seat, for all District Courts, Appeals Court, and the Supreme Court. There is a modicum of checks and balances over this process, but effectively, if the Governor selects an attorney for a judgeship, that attorney is “In Like Flynn.”

Given the never-ending “Pay to Play” scandal that engulfed and eventually consumed the 8 year tenure of former Governor Bill Richardson– including the indictment and prosecution of disgraced Judge John Murphy of Las Cruses 3rd Judicial District for soliciting bribes payable to Governor Richardson from attorneys seeking to be awarded with judgeships – we feel it beneficial to ask if Judges are not making money off the existing system of guardianship, in an entrenched, “trickle-down” effect of the established “Pay-to-Play” mentality that so infects New Mexico politics at all levels.

It’s a fair question given today’s revelations in the Albuquerque Journal that a Holocaust survivor, Peter Grotte-Higley, has been conscripted into guardianship and put under control of indicted and now defunct Ayudando Guardians. The Judge that put him into guardianship – Judge Denise Barela-Shepard – a Republican who was appointed to her judgeship by Democrat Bill Richardson – is apparently not at all concerned about Mr Grotte-Higley, evidently cares little about what happens to her Wards that she has given over to Ayudando Guardians, and is doing nothing to release Mr Grotte-Higley from his effective imprisonment.

Why? Why is Judge Denise Barela-Shepard so callous and/or oblivious to the effects of her judicial rulings? Could it be that Judge Barela-Shepard has a quota to make each year, in order to earn her ‘keep’ through whatever means she used to obtain her judgeship from a former Governor who was known to have solicited bribes from attorneys wanting to become judges?

We are aware that former Gov. Richardson was never prosecuted for his alleged crimes but that’s what always happens in New Mexico – the well-placed get away with corruption all the time. Just look at Desert Trust and its owner Paul Donisthorpe – who was also a Richardson appointee for a brief while.

 

Is Pay-to-Play for judgeships continuing in New Mexico?

While Bill Richardson has been out of office since January 2011, it is important to examine Susana Martinez’s track record as the sitting governor who replaced him.

When former, disgraced Judge Murphy of Las Cruses was originally indicted in 2007 – by then District Attorney Susana Martinez – the prosecution was stalled, and never completed. Instead of prosecuting Murphy for soliciting bribes for the governor, Martinez ran for governor instead. Perhaps she realized there was a lot more money in being governor than she had previously thought, before spending time investigating then-governor Richardson.

When Murphy was re-indicted in 2011 – after Martinez was elected Governor – much was made that there was a “new governor” in Santa Fe and that things had changed. Really? What if nothing had changed in the system, and the governor was still appointing attorneys who had helped her politically, and possibly paid her money, to become judges?

Isn’t it time to investigate the bank accounts of every single judge who has handled guardian and conservatorship cases? What if they all paid bribes to the sitting governor to receive their judgeship? People don’t just pay a bribe to get a position and then stop their unethical and illegal behavior – they continue it, and frequently, once awarded with a plum position, the illegality increases.

We have to ask these hard questions of our Governors (past and present) as well as every single Judge appointed to their judgeship (as opposed to winning it outright, in an election) since obviously Judges have so abused their power in guardianship and conservatorship cases across the state, rendering life miserable and penniless for the very people they are charged with protecting.

It’s time New Mexico cleaned its house – beginning with an investigation into the financial accounts of every single sitting judge who achieved their position by appointment, not election. Decency and humanity demand the Judges’ depravity cease, and cease NOW, not tomorrow.

____

WillPowerNM has been formed to support and inform each Member of the Commission in their work over the coming weeks and months by preparing and releasing regular email information in a format similar to this weekly message and by establishing and maintaining a publicly accessible and widely promoted web site on the Commission’s important study effort.

1 comment for “Guardianship Study Commission Message #16

Comments are closed.