Judges want legal avenue to defend themselves against allegations

The Council of Judges had paid for attorneys to file motions on behalf of judges facing recusal until an October 2015 Special Court of Review opinion definitely declared the practice improper.

“There was a practice by the former administrative judges of the Council of Judges that anytime there was a motion (to recuse) filed and there was going to be a hearing, an ad-litem was appointed.” said Judge Alma Trejo, the current Administrative Judge for the El Paso County Council of Judges.

Litigants or attorneys can file a motion to recuse a Judge if they feel they can’t get a fair trial. Judges are required to remain impartial and either recuse themselves or ask a higher administrative judge to hear the motion within three days.

The Council of Judges this spring was admonished by the State Commission on Judicial Conduct for hiring attorneys to file motions on behalf of Judge Mike Herrera who was facing a recusal motion from his ex-wife’s attorney. The attorney was trying to remove her cases from Herrera’s court claiming he could not be impartial after a contentious divorce case that ultimately ended with Herrera’s wife settling without her attorney.

“Once you file a motion you can allege anything you want in that motion to recuse, you make it part of the case and then it becomes part of the record,” said Trejo who added that some lawyers accuse judges of very severe things. “Some of these allegations are pretty wild allegations, everything from he tried to steal one of my cases to somebody slept with somebody’s sister, I mean anything.

Concerning to the judges is that there is often no one vetting the allegations. In criminal cases, the District Attoney’s office can fight the motion to recuse or in civil cases, the other party can file counter motions as well. But that’s rare in El Paso, said Trejo. “The potential danger in a recusal hearing is that it becomes one sided. It’s just the person making the allegations and there’s no on there to cross examine them or seek the truth.”

The Council of Judges is looking into possibly trying to change state law so someone can check the evidence during a recusal proceeding. Trejo made it clear the independent party would not represent the judge at question. “Maybe to give the judge who is hearing the recusal some type of tool that way that person or someone can ascertain whether those allegations are indeed true.”

There’s a big difference between that and what happened with Judge Herrera. According to the state, in that case the council of judges actually paid for attorneys to file motions on behalf of the judge which is not allowed. Judge Trejo said it happened before Herrera too.

“It wasn’t through Council of Judge’s action. The procedure was that it went through the administrative judge. There was an opinion by the commission late 2015 basically stating we shouldn’t be doing that. That practice has seized and it hasn’t been done anymore,” said Trejo.

Judge Trejo has been the administrative judge for the Council of Judges for about a year so the issue with Judge Herrera, which happened in 2013 was before her time in leadership. The administrative judge then was Patrick Garcia. The Council of Judges can’t appeal or speak out against the state commission’s report.