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Judging the Judges

SFR queries this season’s contenders

May 12, 2010, 12:00 am

Mary L. Marlowe, 52 (Division 8)      


1. I am the Judge for Division VIII of the First Judicial District Court. I preside over domestic violence cases filed in Santa Fe, Rio Arriba and Los Alamos counties. All domestic violence cases in the three county area come to me. I expect to soon be assigned family law cases that have a domestic violence component, or those cases that have both a domestic relations case filed and a domestic violence case filed. This will provide consistency in each case and allow me to know all domestic issues related to a particular case.

My law career began in New Mexico 25 years ago. I worked at the New Mexico Attorney General’s Office in the Civil Division, under Attorney General Paul Bardacke. I was one of two attorneys that represented the State Board of Finance, and the NM General Services Department. I also represented other boards and commissions. After my first child was born in 1986, I resigned and opened a law practice with my former husband, called The Marlowe Law Firm. My work involved family law, juvenile law, civil law, appellate law, and criminal law. I saw first-hand the damage done by domestic violence to families and children. I also came to appreciate the confusion and frustration that many families face when introduced to the judicial system. My husband and I divorced and I since remarried attorney Eric Sommer.

After leaving private practice, I went to work for the First Judicial District Court as the Domestic Relations Hearing Officer/Child Support Hearing Officer. In that capacity I presided over child support matters which included conducting evidentiary hearings to set, enforce, and modify child support, and related matters. I also presided over domestic violence cases, reviewing petitions for orders of protection, issuing temporary orders of protection, and conducting evidentiary hearings on orders of protection. Additionally, I presided over debt and income allocation hearings pending final decrees of dissolution of marriage. In addition to these duties, the judges gave me the additional duty of conducting contempt hearings on orders to show cause related to child support.

I serve on the First District Court’s pro bono committee which addresses providing education and adequate representation to persons that cannot afford an attorney in family law matters. I had annual domestic violence training annually as a domestic relations hearing officer. In addition, while a hearing officer I had the benefit of attending the New Mexico Judicial Conclave, a three day training for all levels of judges, state-wide in New Mexico. The next Judicial Conclave is next month. Throughout my years as a practicing attorney, I have attended countless classes, seminars, and trainings for all areas of my former practice, including but not limited to domestic abuse and family law matters. I received my law degree from George Mason University School of Law in 1985.


2. I bring a strong work ethic, commitment to my work, a seriousness of purpose, fairness, empathy, compassion, decisiveness, and tenacity.


3. We are working in cramped quarters and I look forward to a new courthouse. We are also short judges, which I address later herein. The First District Court is made up of hard-working people. I can state unequivocally that all take pride in their jobs and work hard as a team. Judge Jim Hall upon his retirement, wrote an email to all employees thanking all of them for being the hard-working employees that they are. I have the benefit of operating at full-staff. My division was given an extra administrative assistant in light of my heavy caseload. All of the judges are provided a secretary, bailiff and court reporter. However, the Court recognizes the greater staffing need that the volume of domestic violence creates; hence the additional administrative assistance for my division, in addition to the secretary provided to all judges.


4. The ethical standards for New Mexico judges are high as set forth in the Code of Judicial Conduct. The Judicial Standards Commission, an independent state agency, is the only state agency with the responsibility to investigate, conduct hearings and recommend sanctions to the New Mexico Supreme Court.

There is a distinction between improving ethical standards and improving each judge’s adherence to these standards. Improving a judge’s adherence to these standards begins with each individual judge’s responsibility to do so. Providing mandatory training on ethics for judges, annually if not more often, would be an appropriate way to improve

each judge’s adherence to these standards. The Code regulates conduct on the bench and off the bench.


5. Impartially. By definition and by the Code of Judicial Conduct, a judge cannot consider his/her personal beliefs in deciding a case before him/her. I never get tired of hearing a judge likened to an umpire, calling it as he/she sees it.

If a judge cannot be fair or impartial for any reason, he/she must recuse themselves. I have recused myself as a hearing officer and as a judge, when I have represented one of the litigants in a case in years past, or when a lawyer is scheduled to appear before me with whom I have or have had a personal association. In both circumstances, my impartiality might reasonably be questioned by one of the parties before me, even if I would be fair despite the circumstances.


6. Pro se litigants are those litigants that do not have a licensed attorney in the courtroom on their behalf, and who go forward on their own behalf. I find that pro se litigants do a good job in representing themselves. My docket involves between 85-90 percent pro se litigants. I conduct formal evidentiary hearings with one party presenting his/her case and then the other party presenting his/her case. New Mexico cases uniformly hold that a self-represented litigant is held to the same standards as if an attorney were involved in the case. Evidence Rules 11-611A and 11-614B permit me to question witnesses where the evidence presented is insufficient to fully and fairly resolve all issues presented. I may also call additional witnesses under Rule 11-624A, and am able to explain procedures to litigants so that they may comply with the procedures. A decision based on incomplete evidence is not a fair decision.

When I was hearing officer, in response to the large percentage of pro se litigants coming before me, I implemented a discovery order that identified specifically what documents were needed for the upcoming hearing, and also instructed the parties to file a notice of non-compliance if they had not received the required documents. This allowed all parties to be educated and timely prepared for the upcoming hearing.

Notably, because 85-95 percent of domestic violence cases involve pro se litigants, this translates to the legal system meeting 10-15 percent of litigants’ needs in terms of providing representation. This is not the fault of the family law bar, which is small, but very active and involved in pro bono work. But, these statistics certainly encourage more attorneys to be involved in the process of representing domestic violence litigants. Pro se cases are increasing because hiring attorneys in hard economic times is less feasible than otherwise, and for some, there is disenchantment with the legal system.


7. The current arrangement is not merely adequate but of great benefit to the people of the community involved in domestic violence matters. Prior to this new judgeship, cases came before myself and the other hearing officer for the First District Court. (Barbara Michael was the last to serve in this capacity before the position expired.)  Judges were involved at a review level and did not have the opportunity to see the parties in person and to evaluate them and their demeanor and the nuanced circumstances of the case. Now, as the Judge for Domestic Violence cases, I am deeply involved in the process and it is a win-win for litigants and the Court, and therefore the community.

I know, first-hand, the problems we have with getting people served and I am working hard to eliminate this problem. Each case begins and proceeds not only to final order, but throughout compliance to the term of the order, with me. I am able to know the parties and the evidence presented first-hand. I receive counseling and program compliance information first-hand. And very importantly, I receive information on violations of the no contact portion of the order of protection first-hand. I am able to evaluate first-hand whether there is a legal basis for issuing an order of protection in the first place, since some petitions are not well-founded and should not result in an order of protection being issued. Because I know all aspects of a case that comes before me, I do not hesitate to exercise my contempt powers and take immediate action on violations. Orders of protection have no meaning without the power of enforcement. The domestic violence hearing officer position did not have this power. Incarceration for offenders is the most effective tool to stop domestic violence and it is my duty as judge to exercise this enforcement power. Educating victims that their recourse for violations is law enforcement and the Court is a necessary precedent to this enforcement tool. 

It is unrealistic to expect the Legislature to add a domestic violence hearing officer position back to the Court after a new judgeship was added, given the harsh economic climate we find ourselves in. It is much more cost effective in the long run to add another judge than a hearing officer. While a hearing officer’s salary is 80 percent of a district judge, a judge is able to hear a much broader array of cases than a hearing officer.


8. The shortage of judges. The First District Court has a “critical need” for a new judge, based on a 2007 study by the NM Sentencing Commission and the National Center for State Courts. The study indicated that the district needed 3.58 additional judges. With the latest addition of Division VIII, we are still short 2.58 additional judges. This is the first new judgeship added to the First District Court in thirteen years. Previously, a new judge had been added every six or seven years. Certainly, I will make myself available in my capacity as one of the judges of the First Judicial District, to answer any questions the Legislature or any one else may have regarding this shortage of judges, in order to reduce or eliminate this shortage. The Family Violence Protection Act has a built in time requirement for cases to be heard so I do not have a case backlog with respect to domestic violence cases but I do have what is referred to as a heavy docket. However, with the domestic relations component added to my caseload, my docket will be required to accommodate the statutory time line of domestic violence cases and the additional domestic relations cases. I will continue to address these cases as I have always done, and that is by setting and conducting as many hearings as possible each day, on a schedule that allows me to give each case my full attention.

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