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During his 47-year career as a New Mexico lawyer, former state lawmaker Victor Marshall called a state attorney general on alleged conflict of interest, filed a whistleblower complaint aimed at exposing state investment programs and advocated for legislative ethics and campaign reform.
But his attempt to brand a respected pro tem judge biased and unethical in presiding over a major water rights case may lead to the indefinite suspension of Marshall’s legal practice.
The state’s Supreme Court is expected to hear oral arguments on whether Marshall should face punishment on Wednesday for arguing that retired Court of Appeals Judge James J. Wechsler was biased in favor of the Navajo Nation by approving a major water rights bylaw in 2013.
Marshall, who represented non-Indian water users, wanted a new judge appointed for the case when he alleged Wechsler had an undisclosed conflict of interest because he had previously worked for the Navajo Nation. as a lawyer. Marshall also said in a court record that “the public might reasonably wonder if the judge settled this case for his former client.”
A state disciplinary council hearing panel concluded that these claims were false and had been made with a “reckless disregard” for the truth.
Wechsler, who served 22 years on the state court of appeals before retiring in 2017, was appointed a pro tem judge on the water case in 2009.
He worked for Navajos decades earlier when he was a lawyer for a private, non-profit legal group, DNA Legal Services.
But the judge claimed he had nothing to do with the water rights case while he was there in the early 1970s and was unaware that the organization had given legal advice to the nation. Navajo on its water claims. The disciplinary panel found no evidence that Wechsler was personally involved in the water case as a DNA lawyer.
Wechsler’s decision in 2013 recognized the right of the Navajo Nation to divert 635,729 acre-feet of water per year from the San Juan River. The state-Navajo Nation settlement, approved by Wechsler, increased New Mexico’s national water share from 6 percent to 10 percent, according to an analysis in the Journal.
In opposing the settlement, Marshall represented the San Juan Agricultural Water Users Association, which includes small farmers. After losing appeals in state court, Marshall brought the long legal battle over the adjudication of water rights in northwestern New Mexico to the United States District Court as part of ‘a lawsuit filed in November.
The decision of Marshall, 74, to prosecute this case and others, rests with the state Supreme Court, to which a state discipline committee asks to suspend Marshall’s license to practice law for a indefinite period. A disciplinary board committee wrote in 2019 that it had a “significant concern” that Marshall might engage in similar behavior in the future, given that he continues to deny having done anything wrong and does displays no remorse.
A counsel for the council recommended a lesser sanction – public censorship – while harshly criticizing Marshall’s actions.
âThe reality is that the evidence is not only substantial that (Marshall) made false, derogatory and frivolous allegations against a sitting judge; the evidence is overwhelming, âwrote Jane GagnÃ©, Assistant Disciplinary Advisor.
In court records, Marshall’s attorney Jeff Baker said the suspension “is a drastic recommendation.”
Baker argues that Marshall should not face any discipline because he raised a legitimate question as to whether Wechsler should have recused himself.
“If this Court sanctions Mr. Marshall for questioning the impartiality of a judge, it will have a serious chilling effect on all lawyers practicing in the courts of this state,” Baker wrote in a motion, noting ‘impact on “any lawyer considering filing a motion based on concerns about the appearance of impropriety or lack of disclosure.
Marshall’s attorney noted that the Navajo Nation asked Wechsler to sanction Marshall for making the conflict of interest allegations, but Wechsler decided not to.
“The suspension of Mr. Marshall’s law license is contrary to the rules governing judicial disclosure and recusal,” Baker wrote in a court filing.
Wechsler did not mention his previous DNA work before approving the settlement, leaving Marshall without an opportunity to seek his challenge in advance, Baker added.
Wechsler responded to a challenge request in early 2020, but in a 26-page ruling, the retired judge explained that his less than three-year job with DNA “does not disqualify me from this proceeding.”
Another former DNA lawyer, Robert N. Hilgendorf, said in testimony he wondered if he could be fair as a judge in a Navajo water rights case.
But Wechsler noted that Hilgendorf worked for DNA for over seven years and researched Navajo water rights and spoke publicly about it. Wechsler noted that his stint was shorter and that he “did not do any work regarding water rights.”
Interest in transparency
Since filing his initial emergency motion to overturn Wechsler’s rulings in the case, Marshall has argued that he has found what he sees as other evidence that he says strengthens his argument. But the disciplinary panel chose not to consider this information.
Marshall also applied to the Supreme Court for leave to file an amicus curiae brief by Alan B. Morrison of George Washington University Law School. But the Supreme Court refused to consider it.
Morrison wrote that “the real losers if the discipline is maintained will be the clients, not just those of Mr. Marshall who will lose nearly 15 years of his efforts in the underlying case that precipitated the proposed discipline, but also clients of other lawyers. in other cases. “
These other clients will be harmed because their lawyers “will be reluctant to seek recusal from a judge or take other unpopular action, lest they, like Mr. Marshall, not only suffer a substantive defeat, but eventually lose their lawyer’s license. for diligently representing their clients, âMorrison wrote.
The New Mexico Foundation for Open Government, citing the Disciplinary Committee’s reference that Marshall issued a press release alleging Wechsler had a conflict, issued a letter urging the Supreme Court to “resolve this matter in a way which does not discourage lawyers from communicating with the media for fear of professional discipline.
âThe public has an interest in the transparency of legal proceedings, and limitations on the ability of lawyers to handle cases in the media undermine this interest,â wrote Shannon E. Kunkel, Executive Director of FOG. A separate letter of support for Marshall was filed in court by the Santa Fe New Mexican newspaper, which Marshall represented.
Marshall, a Republican who graduated from Princeton University and Harvard Law School, served in the state Senate for eight years, where he co-sponsored the 1988 Constitutional Amendment on Merit Selection of Judges. He also sponsored a comprehensive campaign reform program backed by the government of the day. Garrey Carruthers and lobbied for lawmakers to ban soliciting or accepting campaign contributions from lobbyists during annual legislative sessions.
As a lawyer, he represented anti-gambling interests opposed to Indian casino gambling. In 2011, he claimed that then New Mexico Attorney General Gary King received campaign contributions of nearly $ 55,000 from former Governor Bill Richardson, creating a conflict of interest that should prevent King from pursuing a profitable corruption case involving the Democratic administration. King has denied any conflict.
Marshall was at the time representing former state investment adviser Frank Foy in a long-standing whistleblower lawsuit over huge state investment losses. Most of Foy’s claims were dismissed after the king’s office took over the case. Foy’s subsequent legal challenge to the $ 24 million settlement was dismissed by the state Supreme Court in 2020.