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Supreme Court of New Mexico

June 8, 2010

INQUIRY CONCERNING A JUDGE NO. 2009-025 IN THE MATTER OF JAVIER LOZANO, Municipal Court Judge, Village of Columbus, New Mexico

          Randall D. Roybal Elizabeth A. Garcia Robin S. Hammer Albuquerque, NM for Judicial Standards Commission

          Javier Lozano Columbus, NM for Respondent

          FORMAL REPRIMAND

          PER CURIAM.

         {¶1} This matter came before the Court on a petition for discipline filed by the Judicial Standards Commission (Commission) concerning the Honorable Javier Lozano (Respondent), the municipal judge in Columbus, New Mexico. In a stipulation and consent to discipline, the parties agreed that Respondent's conduct violated several provisions of the Code of Judicial Conduct and constituted willful misconduct in office. Having heard oral argument, we accepted the findings and conclusions concerning Counts I and II of the stipulated petition; we rejected, with the consent of the parties, the conclusions regarding Count III; and we ordered, among other stipulated sanctions, this formal public reprimand.

         BACKGROUND

         {¶2} The petition addresses three separate matters that form the basis of the Commission's recommendation for discipline. The first matter involves Respondent's acceptance of per diem expenses for a training session that never took place. In November 2008, Respondent contacted Judge Barbara Aldaz-Mills, the municipal judge for the City of Aztec, New Mexico, about setting up a class for him on code enforcement training. Judge Aldaz-Mills offered to try to set up a meeting on code enforcement issues with several municipal judges. Judge Aldaz-Mills was unable to set up the meeting on the dates Respondent proposed, during the week of December 22 through December 25, because of the holiday season, but she agreed to coordinate a meeting with the City of Aztec compliance officer during that period. At Respondent's request, on December 17, 2008, Judge Aldaz-Mills sent a fax to Respondent in Columbus regarding this proposed meeting. Respondent then certified and submitted a travel voucher to the Village of Columbus claiming reimbursement for per diem expenses in the amount of $260.00 for code enforcement training in Aztec from December 22 through December 25, 2008. Neither the training nor the meeting ultimately occurred. At some point, Judge Aldaz-Mills informed Respondent that this meeting would not be possible, given the court's schedule during the holiday week. Respondent told Judge Aldaz-Mills he would be traveling to Aztec anyway, and Judge Aldaz-Mills left a small packet of code enforcement materials for Respondent to pick up.

         {¶3} Respondent left Columbus in the morning of December 23, 2008, and arrived in Aztec late that same day. After picking up the packet in Aztec, Respondent drove to Durango, where he spent two days before returning to Columbus on December 26, 2008. On December 26, 2008, Respondent told the treasurer for the Village of Columbus that the training had been cancelled because of the unforeseen circumstance of bad weather. Respondent was reimbursed by the Village of Columbus for $260.00 in per diem expenses.

         {¶4} The second matter arose in the context of a hearing presided over by Respondent in a case regarding a building permit. At the hearing, held on February 18, 2009, were a code enforcement officer and the defendant, both of whom were women. The code enforcement officer had previously filed a claim against Respondent with the Equal Opportunity Employment Commission (EEOC) based on improper touching, and as part of the resulting settlement agreement, the EEOC had advised the Mayor of Columbus to enforce the village's sexual harassment policy. Consequently, the Mayor had met with Respondent in January of 2009 to discuss the EEOC claim and Respondent's conduct. Despite this earlier discussion, during the hearing on the building permit, Respondent kept moving his chair closer to the two women, kept moving his hands around, and touched the defendant. Both women felt uncomfortable and moved away from Respondent.

         {¶5} The stipulated facts in the third matter state that Respondent failed to conduct the trial in the case involving the building permit within the 182-day period required under Rule 8-506 NMRA. Although the period within which to try the defendant had expired, Respondent explained to the defendant that the citation had never been logged into the court's computer. The defendant pleaded guilty to a charge of not having a building permit and was fined by the court.

         {¶6} The parties agreed that Respondent's conduct in these three matters violated the New Mexico Code of Judicial Conduct and constituted willful misconduct in office. They also agreed that Respondent should be suspended without pay for ninety days, receive a formal reprimand, participate in a twelve-month formal mentorship and supervised probation, reimburse the Village of Columbus for improperly received per diem expenses, and undergo training in financial practices and procedures and in the matter of sexual harassment.

         DISCUSSION

         {¶7} Under Article VI, Section 32 of the New Mexico Constitution, in order to discipline judges, "we must be satisfied by clear and convincing evidence that there is willful judicial misconduct." In re Castellano, 119 N.M. 140, 149, 889 P.2d 175, 184 (1995) (per curiam). "[W]ilful misconduct in office is improper and wrong conduct of a judge acting in his official capacity done intentionally, knowingly, and, generally, in bad faith. It is more than a mere error of judgment or an act of negligence." In re Locatelli, 2007-NMSC-029, ¶ 8, 141 N.M. 755, 161 P.3d 252 (per curiam) (internal quotation marks and citation omitted). Clear and convincing evidence is evidence that "instantly tilt[s] the scales in the affirmative when weighed against the evidence in opposition and the fact finder's mind is left with an abiding conviction that the evidence is true." State ex rel. Children, Youth & Families Dep't v. Joseph M., 2006-NMCA-029, ¶ 15, 139 N.M. 137, 130 P.3d 198 (internal quotation marks and citation omitted).

         {¶8} This case comes before us on stipulated facts and unchallenged findings that are binding on the parties on appeal. See Stueber v. Pickard, 112 N.M. 489, 491, 816 P.2d 1111, 1113 (1991). However, we review conclusions of law and recommendations for discipline de novo. See In re Bristol, 2006-NMSC-041, ¶¶ 16-18, 140 N.M. 317, 142 P.3d 905 (per curiam). In reviewing the conclusions of law, we determine whether the law was correctly applied to the facts. See Golden Cone Concepts, Inc. v. Villa Linda Mall, Ltd., 113 N.M. 9, 12, 820 P.2d 1323, 1326 (1991) (citation omitted). We first address the conclusions of law about each matter in turn and then address the recommendations for discipline.

         Conclusions ...


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