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Women could change face of court

October 13, 2018

A tsunami of four female Democratic challengers could wash over the New Mexico Court of Appeals in November, replacing four male Republican judges appointed by Gov. Susana Martinez since the last election cycle.

As it stands now, the court, which hears disputed decisions from lower courts around the state, has six men and four women and is equally split between Democrats and Republicans.

Judges can be elected or appointed to the court, but if appointed, they must defend their seat in the next contested election to remain on the bench. At the end of each eight-year term, the judges must participate in retention elections that require affirmation by 57 percent of the voters in order to remain on the bench.

Next month’s election has the potential to change the makeup of the court drastically, a little bit or not at all. There are five open seats — one appointee has not drawn a challenger. Meanwhile, Judge J. Miles Hanisee must stand for retention and Judge Michael Vigil is seeking a position on the state Supreme Court.

If all the challengers win, Hanisee is not retained and Vigil leaves for a seat on the Supreme Court, the 10-member panel would have an unprecedented eight spots filled by women and two vacant positions to which the state’s next governor could appoint new judges.

Judicial candidates often say their appeals to the voters should be nonpartisan and void of identity politics because judges are sworn to apply the law objectively to the cases that come before them regardless of the characteristics of the parties or their personal views.

But in light of a surge of Democratic women running for elected offices countrywide and a growing national discussion about gender roles, it’s possible gender could play some role in the election.

Candidates have varying views on the issue.

“The question of gender split has come up, and I think the question is, ‘Is it somehow more difficult because I’ve got a woman running against me?’ ” said Henry “Hank” Bohnhoff, who was appointed to the Court of Appeals in January 2017 and must defend his seat against challenger Jacqueline R. Medina.

“I think the premise of that question is that women would vote for my opponent simply because she’s a woman,” Bohnhoff said. “Frankly, I think that’s a condescending or cynical view about how women make decisions on how to vote. It’s certainly not the experience I’ve had going out around the state and talking to women. Women have asked very thoughtful and probing questions about my background, my experience, my qualifications, the values I bring to the court. I don’t have the sense that women are going to decide to vote for somebody … simply because that person is or is not a woman.”

Stephen G. French who is defending his position on the court against a female challenger for the second time — having lost a previous seat to Judge Julie Vargas, who is now his colleague on the court — had a different take.

Asked if he thought this was a tough year to be running for the Court of Appeals as a man with an “R” next to his name, he chuckled.

“Yes, I do,” he said. “Yes, I do.”

Emil Kiehne, an appointee to the court who is defending his seat against challenger Briana H. Zamora, said gender doesn’t matter because “you can be a good judge or lawyer regardless of gender so, to me, that’s not really an issue or shouldn’t be an issue.”

Challenger Medina said being a “woman of color” in the election is an asset because it’s important that the state courts reflect the diversity of New Mexico’s population.

The female candidates say they didn’t time their runs to coincide with the others’ or a national movement. Judge Jennifer Attrep — Martinez’s sole female appointee to the court — is the only appointee who did not draw an opponent, but she is also the only Democrat appointee.

Megan Duffy, who hopes to unseat Martinez appointee Daniel Gallegos, said she is excited to be part of what feels like a historic moment.

“This is an incredible year with all of the change that has happened on the court, all of the women that are running,” Duffy said. “I’m so exited about all of them. They are incredible. It’s a historic moment in our state, not only because I don’t know that we’ve ever had this many retirements on the court happen in one year but also because of the women running here, locally and nationally. It’s a really beautiful moment, for lack of a better word.”

Gender and party affiliations aren’t the only fault lines on the Court of Appeals ballot. The candidates are also united or divided by their choice of political advisers.

All four of the incumbent Republican appointees have hired media strategist Jay McCleskey, Martinez’s controversial go-to political adviser. Meanwhile, three of the four women challenging them are graduates of Emerge, a six-month program intended to train Democratic women nationwide to run for and win elected office.

Zamora, the only female candidate who did not go through the Emerge program, said she was too busy being a District Court judge in Albuquerque and raising two children to do so. She added that she already had election experience, having campaigned for and won her position on the District Court bench.

All the candidates are using public financing to fund their campaigns.

The state Court of Appeals reviews about 900 appeals per year from parties contesting rulings made in state District Court, Children’s Court and by workers compensation judges.

Court of Appeals judges — who earn about $120,000 per year— don’t retry each disputed case that comes before them. They simply review the records in the appealed cases to determine whether the law was correctly applied.

Unlike the state Supreme Court — which picks and chooses which cases it will hear — the Court of Appeals must consider every appeal that falls under its jurisdiction. That means judges consider cases dealing with a vast range of topics, including violent and property crimes, drunken driving, personal injury, government corruption and product liability.

The state judiciary’s annual report says 40 percent of the cases the court heard in fiscal year 2017 were criminal and 34 percent were civil, with the balance a combination of Children’s Court, domestic and workers compensation cases.

Though criminal cases filed by people convicted of crimes make up a significant portion of the workload, only five of the eight candidates have experience handling criminal cases as an attorney; of those, only two, French and Zamora have defended criminals.

All but one of this year’s candidates have been vetted — in some cases, multiple times — by the Judicial Nominating Commission, which reviews applicants for appointment to the bench and sends the names of the top picks to the governor for consideration as appointees to the court.

Duffy, who at 39 is the youngest of the candidates and just barely meets the requirement of having practiced law for 10 years before sitting on the bench, has never gone through that process.

Court of Appeals cases are decided by a panel of three judges, one of whom writes the opinion.

Candidates whose experience is heavily weighted in either the civil or the criminal sector — which is most of them — say this arrangement ensures a diversity of viewpoints and skill sets are applied to each case regardless of the the makeup of the court.

Court of Appeals judges often end up serving for several decades, so selections made by voters this year could determine the makeup of the court for some time.

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