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Over his 47-year career as a New Mexico attorney, former state legislator Victor Marshall has called out a state attorney general for alleged conflict of interest, filed a whistleblower lawsuit aimed at exposing state investment schemes and advocated for legislative ethics and campaign reform.
But his attempt to brand a respected pro tem judge as biased and unethical in presiding over a major water rights case may lead to the suspension of Marshall’s legal practice indefinitely.
The state Supreme Court on Wednesday is set to hear oral arguments as to whether Marshall should be disciplined for contending that now-retired Court of Appeals Judge James J. Wechsler was biased in favor of the Navajo Nation in approving a major water rights settlement in 2013.
Marshall, who represented non-Indian water users, wanted a new judge to be appointed to the case when he alleged that Wechsler had an undisclosed conflict of interest because he once worked for the Navajo Nation as a lawyer. Marshall also claimed in a court record that “the public might reasonably wonder whether the judge fixed this case for his former client.”
A state disciplinary board hearing committee found those assertions were false and were made with “reckless disregard” as to the truth.
Wechsler, who served 22 years on the state Court of Appeals before retiring in 2017, was appointed as a pro tem judge on the water case in 2009.
He worked on behalf of individual Navajos decades earlier when he was an attorney with a private nonprofit legal group, DNA Legal Services.
But the judge contended he had nothing to do with the water rights case during his time there in the early 1970s and didn’t know the organization gave legal advice to the Navajo Nation on its water claims. The disciplinary panel found no evidence Wechsler personally participated in the water case as a DNA attorney.
Wechsler’s ruling in 2013 recognized the Navajo Nation’s right to divert 635,729 acre-feet of water per year from the San Juan River. The settlement between the state and the Navajo Nation, approved by Wechsler, increased the nation’s share of New Mexico’s water from 6% to 10%, according to a Journal analysis.
In opposing the settlement, Marshall represented the San Juan Agricultural Water Users Association, which includes small farmers. After losing appeals in state court, Marshall took the long-running legal battle over water rights adjudication in northwest New Mexico to U.S. District Court in a lawsuit filed in November.
Whether Marshall, 74, will be allowed to pursue that case and others is up to the state Supreme Court, which is being asked by a state disciplinary board panel to suspend Marshall’s license to practice law for an indefinite time. A disciplinary board panel wrote in 2019 that it had a “substantial concern” Marshall could engage in similar conduct in the future, given that he continues to deny he did anything improper and displays no remorse.
An attorney for the board recommended a lesser sanction – a public censure – while harshly criticizing Marshall’s actions.
“The reality is, the evidence is not just substantial that (Marshall) made false, derogatory, and frivolous allegations against a sitting Judge; the evidence is overwhelming,” wrote Jane Gagne, assistant disciplinary counsel.
‘Chilling effect’
In court filings, Marshall’s attorney Jeff Baker, said that suspension “is a draconian recommendation.”
Baker contends Marshall should face no discipline because he raised a legitimate question about 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 who practice before courts of this state,” Baker wrote in one motion, noting the impact on “any attorney who contemplates the filing of 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.
“Suspension of Mr. Marshall’s law license is antithetical to the rules governing judicial disclosure and recusal,” Baker wrote in a court filing.
Wechsler did not mention his previous work for DNA before approving the settlement, leaving Marshall without ability to seek his recusal in advance, Baker added.
Wechsler did address a recusal request in early 2020, but in a 26-page ruling, the retired judge explained that his employment for less than three years with DNA “does not disqualify me from these proceedings.”
Another former DNA attorney, Robert N. Hilgendorf, said in a deposition that he questioned whether he could be fair as a judge on a Navajo water rights case.
But Wechsler noted Hilgendorf worked for DNA for more than seven years and performed research regarding, and spoke publicly about, Navajo water rights. Wechsler noted his stint was shorter and he “did not perform any work whatsoever regarding water rights.”
Interest in transparency
Since filing his initial emergency motion seeking to vacate Wechsler’s rulings in the case, Marshall contends he found what he considers other evidence he says bolsters his argument. But the disciplinary panel opted against considering that information.
Marshall also asked the Supreme Court for permission to file an amicus curiae brief from Alan B. Morrison, of George Washington University Law School. But the Supreme Court declined to consider it.
Morrison wrote that “the real losers if the discipline is upheld will be clients, and not just those of Mr. Marshall who will lose almost 15 years of his efforts in the underlying case that precipitated the proposed discipline, but also the clients of other lawyers in other cases.”
Those other clients will be harmed because their lawyers “will hesitate to move to recuse a judge, or take other unpopular actions, for fear that they, like Mr. Marshall, will not only suffer defeat on the merits, but possibly lose their law licenses for zealously representing their clients,” Morrison wrote.
The New Mexico Foundation for Open Government, citing the disciplinary panel’s mention that Marshall issued a press release alleging Wechsler had a conflict, has issued a letter urging the Supreme Court to “resolve this matter in a way that does not discourage attorneys from communicating with the media for fear of professional discipline.”
“The public has an interest in transparency of judicial proceedings, and limitations on the ability of attorneys to address cases in the media undermine that interest,” wrote Shannon E. Kunkel, executive director of FOG. A separate letter of support for Marshall was filed with the court by the Santa Fe New Mexican newspaper, which Marshall has represented.
Legal background
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 the merit selection of judges. He also sponsored a comprehensive campaign reform package supported by then-Gov. Garrey Carruthers and pushed for a ban on lawmakers soliciting or accepting campaign contributions from lobbyists during annual legislative sessions.
As an attorney, he represented anti-gambling interests opposed to Indian casino gambling. In 2011, he contended then-New Mexico Attorney General Gary King received campaign contributions of nearly $55,000 from former Gov. Bill Richardson, creating a conflict of interest that should disqualify King from pursuing a pay-to-play corruption case involving the Democrat’s administration. King denied any conflict.
Marshall at the time represented former state investment adviser Frank Foy in a long-running whistleblower suit over huge state investment losses. Most of Foy’s claims were dismissed after King’s office took over the case. Foy’s subsequent legal challenge to the $24 million settlement was rejected by the state Supreme Court in 2020.
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