Joel Jacobsen

Every once in a while a news story comes along that makes the point without the necessity of interpretation.  Consider, for example, a law professor's published comment about the case of Charles Maestas.  Mr. Maestas was an elected magistrate judge in Espanola, New Mexico, an ancient town (founded 22 years before the seasick Pilgrims got their buckle shoes sandy) at the confluence of the beautiful Chama River with the Rio Grande, twenty-some miles from Santa Fe. 

(To give some idea of the economic divide those twenty-some miles represent, it's enough to observe that many state government employees commute to their jobs in Santa Fe from Espanola.)

Maestas' approach to his judicial duties can be gauged by the following excerpt from a Court of Appeals decision in his case:

On the first tape, Defendant and Victim discussed Victim's fines, potential jail time, and suspended driver's license. Defendant told Victim that if she would get her license cleared up, he would assess only $17 in fees on each charge for a total of $68. Defendant then commented on Victim's breasts and lips. He scheduled Victim's next court date and said, "We'll see if we can try and get together before that. . . . Give me a call when you're ready."

On the second tape, Victim stated that she was at Defendant's house, waiting for him. When Defendant arrived, Victim asked, "Okay what am I going to get out of this? . . . Will you lower my fines?" Defendant responded, "Oh yeah." A sex act then ensued, the two said goodbye, and Victim stated on the tape, "I just exchanged . . . giving head to the judge to change my[,] to lower my fines."

Other women testified to similar occurrences, but Maestas was only convicted on the charge supported by the surreptitious tape recording - a striking example of the prestige a judges continues to enjoy even among 12 people  who have determined beyond a reasonable doubt he doesn't deserve it.

Maestas was convicted under a statute that made it a felony for a "public officer or employee" to request or receive "any money, thing of value or promise thereof that is conditioned upon or given in exchange for promised performance of an official act."  That might seem to cover what Maestas was doing, but - as a colleague of mine in the Attorney General's Office pointed out to the state Supreme Court - a provision of another statute seems to exempt judges from the statute.  And the state Supreme Court vacated his convictions. 

Depressing all the way around, but what's really interesting is the comment attributed to a professor:

Michael Browde, a constitutional scholar and UNM School of Law professor, served as an adviser to the legislative committee that rewrote the act in 1993.

"I don't remember any discussions about judges," he said.

But, Browde added, "I think there's a serious separation of powers problem, which of course is taken care of by the Judicial Standards Commission and the Code of Judicial Conduct."

Now, I know Michael slightly, and my dealings with him have always been friendly, and I don't mean my words to reflect on him personally, but ...  separation of powers problem?

See?  No interpretation is necessary.  Here's a respected law professor seriously suggesting that judges are above the law.  They can take bribes, rape, presumably even rob and murder, and it's a constitutional crisis if anyone tries to hold them criminally responsible.   All that can happen to them is that, theoretically, they could be removed from office.  (But see post 60 and post 103.)

Would even the most recklessly critical blogger suggest judges are so swollen with self-importance - so contemptuous of the concept of democratic rule - so out of touch with reality - that they actually believe that? 

UPDATE: Upon reflection, it occurs to me that perhaps what Professor Browde meant was something more like Pinochet's senator-for-life immunity.  Under this view, a judge remains immune from criminal prosecution in the name of separation of powers only until he or she is removed from the bench.  By the same reasoning, it goes without saying, executive branch officers have an absolute privilege to withhold materials from the judiciary while in office, right?  Sauce for the co-equal goose and all that.  

And as for state legislators and Congress members videotaped taking bribes - well, all they have to do is survive in office and, needless to say, the judicial branch has no jurisdiction over them.  Right?  Not until they're expelled by their institution.  It's a separation of powers thing.

(Immunity is best, but almost is good is having your judge be a member of the same good ol' boy network as yourself, though the risk remains that an among-friends dismissal of an indictment could be reversed on appeal by some do-gooding Virginian - proving, once again, that Virginians are at least half-Yankee anyway.)