The People’s Attorney

As Hector Balderas looks poised for a second term, SFR checks in on the highest-ranking law enforcement officer in the state

The prosecutorial style of New Mexico Attorney General Hector Balderas is on display during a recent news conference in his downtown Albuquerque office. A handful of journalists assemble in a room with folded chairs and posters depicting a motivational phrase about leadership and soft-filtered nature scenes. When the TV news crews are ready, Balderas and his staff arrive, flanked by mixed martial arts guru Greg Jackson and the family of Aaron Sieben, a 30-year-old Albuquerque man killed in 2017 outside a gas station during a confrontation with a stranger.

Balderas introduces his guests before announcing that over the course of nearly two years, they'd joined forces to promote personal safety in honor of Sieben.

"We as New Mexicans must be proactive about protecting families in New Mexico, especially our loved ones, and prevent future tragedies," Balderas intones.

He says "proactive" a lot, along with other words highlighted at the news conference, like "preventative" and "innovative." They set the framework for what Balderas describes as a "new model" for public safety in a city with the state's highest homicide rates—which are also some of the highest in the nation. Balderas took on the Sieben case when the local district attorney declared a conflict of interest, holding the news conference just two days after a judge sentenced the convicted killer to life in prison.

It's clear Balderas thinks like a prosecutor, and not just in centering the import and weight of a well-crafted narrative. As the state's highest-ranking law enforcement official and advocate for its best interests, he runs his office like a tightly wound clock. Image-maintenance staff churn out news releases heralding high-stakes battles against predators and violent offenders, big corporations and corrupt public officials, as well as protective measures for New Mexicans and natural resources at risk of exploitation.

Balderas knows that if a trail of compelling evidence is presented to people sitting in judgment, they're likely to align with the figure who guided them there. Four years into his first term and running for re-election, his campaign has maintained well-stuffed coffers and an apparent polling advantage. He's favored to win a second term over Republican candidate Michael Hendricks and Libertarian Aubrey Dunn.

Unvarnished measurements of how well Balderas has lived up to a raft of lofty, self-imposed goals during his first term aren't easy to come by. Many cases pursued by the AG over the past four years remain unresolved. And Balderas says he wants to do more.

He plans to ask lawmakers to extend his office's authority to automatic jurisdiction in criminal cases, so his attorneys don't wait for local district attorneys to fail or decline to act before they take over. He'll continue marshaling civil litigation resources in what Balderas calls "big, impactful" national cases, like those against Wells Fargo, Google, Volkswagen, as well as suits taking on the federal government under President Donald Trump.

There's plenty to do here at home. Title and payday lenders still dot New Mexico's neighborhoods despite known histories of predatory business practices. Climate change is sucking local watersheds dry. Citizens have to resort to legal proceedings to pry loose records from public agencies. Even trumpeted cases languish for years. The attorney general is silent on policies to back up his transparency rhetoric, including whether police agencies should be allowed to keep discipline records secret.

Republican candidate Hendricks, an Albuquerque immigration attorney with a master's degree in business administration, says he's motivated to unseat Balderas in part because he hasn't prioritized local concerns. "There's been way too much focus—not just by Hector but by Republican and Democratic AGs alike—on going after administrations in Washington. … New Mexico needs an attorney general who's willing to focus 100 percent on the needs of New Mexico."

Balderas' demeanor was calm yet firm in a phone interview with SFR last month.

His upbringing in the rural Northern New Mexico village of Wagon Mound set the foundation of his work in public office, Balderas says. Now 45 and married with three kids, Balderas is a graduate of the University of New Mexico School of Law. He's worked in public service almost continuously since election to the state House of Representatives in 2004. Two years later, he began his first of two terms as state auditor, followed by a failed run for US Senate in 2012.

Criminal prosecutions have been a focal point of Balderas' platform, and Doña Ana County District Attorney Mark D'Antonio, a longtime friend, told SFR that the AG's office provides valuable technical assistance on cases outside its jurisdiction. He added that its spokesmen have been devoted contacts, dropping by his Las Cruces office for debriefings about how work is going and gathering updates about local issues.

Balderas says his criminal unit was built to win cases with scant evidence—cases in which defense strategies try to discredit victims. He bemoaned the state's ongoing backlog of rape testing kits and emphasized the need for his office to take up cases for which other state and local resources are lacking.

Albuquerque attorney Brad Hall, who represents victims of Catholic Church clerical abuse with ties to New Mexico, says he and his clients met frequently with Balderas' office about pedophile priests and the hierarchy shielding them from accountability. Hall says he was pleased when the AG's office last month initiated its own investigation of personnel in the three Catholic dioceses following the release of a grand jury report in Pennsylvania that included details about clerics transferred to New Mexico after abuse allegations.

The extent of clerical abuse in New Mexico presented a public health issue long ago, Hall says. "I have no doubt Hector Balderas is conducting a thorough and independent evaluation, not based on whatever Pennsylvania did, but based on the work of his own team."

Consumer and environmental protections win over ‘busy work’

Other essential protections for New Mexicans' natural resources, environmental health and hard-earned personal income require systemic reforms of how industry conducts business, Balderas said.

Ona Porter, founder and CEO of consumer protection nonprofit Prosperity Works, expressed concern back in 2016 when Balderas' first years in office saw major staffing changes. Balderas describes those as shifts in operational approach and philosophy.

"We've tried to use our litigation to make the system better," he says. "I tell my staff that I don't want to do a bunch of fake busy work where we're processing paperwork. I want us to take on powerful interests, where normal New Mexico families can't take on these interest groups."

When asked about $60,300 in campaign contributions his re-election campaign has received from local car dealers, Balderas says his office's record of consumer advocacy sent them a signal. "I basically put a mandate to local dealers: You really will fix [consumer] complaints, or we will then take the case over."

Michael Barrio, director of advocacy at Prosperity Works, says the group is today confident Balderas' office takes unscrupulous lending seriously, having pushed for more transparency in the small-dollar lending industry and taken steps to strengthen regulation and enforcement of the state's Small Loan Act.

Yet ethically questionable companies find ways to work around the state's protective measures.

In 2012, during Attorney General Gary King's tenure, a District Court judge ordered payday lender FastBucks to pay New Mexicans millions of dollars in restitution for making illegal loans. Soon after, the company filed for bankruptcy. An even bigger judgment was leveled against FastBucks in 2016, yet the company hasn't paid up and is still conducting business in New Mexico.

Balderas sounds less primed for battle when asked what his office can do to make sure New Mexicans get what they're owed. "There are some things that corporate America still does very effectively to shield assets. … That's an issue we have to talk to our governor and our congressional delegation about," he says.

More arid problems looming

Balderas was unequivocal when asked whether his office aligns with the scientific consensus that climate change is manmade. "Absolutely. We also believe it's a public health crisis," he says.

His team pushes for solar and wind energy on the premise that in a state with high rates of poverty and poor health outcomes, such investments will have positive health impacts.

Steve Michel, deputy director of Western Resource Advocates' Clean Energy Program and a former assistant attorney general, says that as climate change threats ramp up, New Mexico has cut resources for adequate utility oversight.

"At the AG's office back in the '80s, we had three full-time attorneys and a full-time economist, as well as a consulting budget to handle utility cases for the three electric utilities and the gas company. That budget has been continually decreased."

The AG's office works with the Public Regulation Commission to oversee deals with some of the state's biggest companies in the utility industry. That work involves highly technical, specialized cases. "The AG has a very good attorney assigned to this work, but it's just one attorney," Michel says. "A lot of people with an eye toward the future would like to see more resources deployed."

The AG's environmental legal team tends to many fronts, including confrontations with the Trump administration. Balderas spokesman David Carl says the office joined multi-state litigation over the federal Clean Power Plan to compel the Washington DC Circuit Court to decide on the merits of the Obama-era rule. New Mexico's position: The Environmental Protection Agency should abandon the Trump administration's "Affordable Clean Energy" rule on the basis that it ignores the EPA's own research.

Camilla Feibelman, executive director of the Sierra Club's Rio Grande Chapter, says she was encouraged when Balderas and California's attorney general were the first to file suit against the Trump administration for suspending a federal rule that would have curbed methane pollution by oil and gas production on federal and tribal lands. The AG's active defense of the rule is crucial, because private companies waste natural gas through accidental leaking and purposeful venting and flaring, Feibelman says.

"It costs the state a significant amount of royalties," she says.

And health concerns are significant, with methane a powerful greenhouse gas that contributes to smog and exacerbates respiratory diseases. Rules limiting methane emissions were part of the United States' role in the Paris Agreement to blunt climate change progression.

While climate change propels what scientists predict will be further aridification of the greater Southwest, anxiety has surged over the state's ongoing work before the US Supreme Court in the landmark Texas v. New Mexico and Colorado case concerning distribution of water from the Rio Grande. As journalist Laura Paskus has reported for SFR, the case carries severe local implications. If the Supreme Court determines groundwater wells New Mexico farmers use to water crops are hydrologically linked to the Rio Grande, and that the state owes more water to Texas, farmers will be forced to cut groundwater pumping. New Mexico taxpayers could be liable for millions, even billions, of dollars in damages.

Balderas' update on the case is emphatic: He's confident in and takes full responsibility for the state's direction on the litigation and related technical investigations of hydrology tied to the case. The AG is also steadfast in explaining his office's selection of private counsel for the case—led by his friend from law school, Albuquerque attorney Marcus Rael, a relative newcomer in the world of water law.

"This was the first time I had ever been associated with hiring that firm. In over 10 years of public service … I'd never retained them," Balderas says. He'd briefly shared office space, not partnership, with Rael's firm, Robles, Rael and Anaya, PC, when Balderas conducted "a little bit of criminal defense work" prior to occupying the AG's office. He also took issue with any suggestion that Rael and his firm weren't qualified to defend New Mexico in a complex, cross-border water rights case.

But in weighing proposals from outside counsel, Balderas says that, compared to state solicitors general representing Colorado, Texas and the federal government, Rael's firm demonstrated more years representing local governments, plus water law experience in the Taos Valley. Balderas downplayed the role of Rael's firm, in the overall case, though Rael is the lawyer who argued on behalf of the state before the nation's highest court.

On a list of outside legal counsel contracted by the AG's office between January 2015 and September 2018, Robles, Rael & Anaya PC is named as counsel for "NM Rivers." However, Marcus Rael's professional biography says he "also represents the State of New Mexico against Volkswagen, Audi and Porsche as well as in numerous pharmaceutical cases and other consumer protection matters."

When asked for clarification about what Rael and his firm's roles are in legal representation outside of the water case, office spokesman Carl emailed that "[Rael] and his firm are one of SEVERAL firms and organizations and experts utilized on complex litigation cases that the state of New Mexico pursues in all areas."

It's not clear why the firm's claim to additional state work wasn't noted in the SFR's original request for information about outside counsel. Rael deferred comments to the attorney general.

Transparency and the uphill battle against corruption

Balderas says there was a big running joke when he entered New Mexico's political scene: The feds would have to step in to halt corruption here. He said he "took it to heart" that Democrats—his own party—had for so long turned a blind eye.

The way Balderas sees it, if New Mexico is serious about curing its "horrific problem with corruption," everyone has to take public records and government transparency seriously. His record on the topics is mixed. Among Balderas' duties as AG are enforcement of the state's Inspection of Public Records and Open Meetings Acts. He's also chair of the state Law Enforcement Academy Board, which effects training and hiring standards for all law enforcement officers.

Balderas says he's determined to investigate allegations of malfeasance by public officials, citing among other measures his office's work on former Albuquerque Police Chief Ray Schultz' suspect deal with Axon, formerly known as Taser International. However, the AG's office told New Mexico In Depth in March 2017 that after more than three years delving, "we anticipate a determination relatively soon" on the Schultz/Taser investigation. The wait continues.

The team in his office investigating police misconduct and malfeasance also investigates public corruption. If it uncovers something worthy of prosecution, Balderas says, "the public can rest assured, we're not afraid to take down leaders of law enforcement organizations." He says former state Taxation and Revenue Department chief Demesia Padilla, indicted by his office in June on embezzlement charges, qualifies as one.

Los Alamos resident Chris Mechels says watchdogging the Law Enforcement Academy Board wasn't on his agenda when he retired from the national labs. But when the police shooting of Santa Fe resident Jeanette Anaya came to his attention in 2013, he was so disturbed that he started studying the board's history and attending meetings. He's less than impressed by Balderas' record as attorney general, specifically his chairmanship of the LEAB.

"It is his obligation to guarantee the independence of the board, and he is failing," Mechels says. It also appeared to him unwise that Balderas hired former Department of Public Safety attorneys as legal counsel for his role as chairman.

Lack of transparency and policy uniformity when it comes to law enforcement conduct is an ongoing and statewide problem—one that Balderas' office has a pattern of deflecting. For more than a year, SFR has pursued records of disciplinary measures against Santa Fe police officers. The AG's office response is essentially: "We're looking into it."

Another news outlet asked for help when the University of New Mexico tried to charge too much for records, and Balderas came through with a letter of reprimand in early September.

Asked why under his chairmanship the LEAB has not functioned independently from the state Department of Public Safety, Balderas counters that it needs more state funding and its own full-time staff.

Balderas also argues the state should pay for a public records division and pass a law to modernize and professionalize the state's public records system. Balderas also plans to ask the Legislature to grant his office more power to fine non-compliant agencies without having to go through an overburdened court system. He also wants to create a public transparency officer who can impose fines.

Libertarian candidate Dunn, an attorney who won last year's New Mexico Foundation for Open Government Dixon Award for open government advocacy, says he voted for Balderas four years ago. He's since sued the AG's office, alleging IPRA violations. "He's supposed to be the attorney for the state, and part of that is making sure the state's following the law," says Dunn. "He hasn't really done that."

Dunn was also disappointed when Balderas declined to investigate allegations of improper in-kind donations to Albuquerque Mayor Tim Keller's campaign on grounds that Balderas had endorsed Keller rival (and Robles law firm partner) Brian Colón. "[The AG's] office shouldn't be impeded from doing an investigation and potentially prosecuting a crime because he's endorsing someone," says Dunn. "It destroys the credibility of that office."

While speaking about accountability for Catholic Church perpetrators of child sex abuse, Hall's phrasing took on broader relevance: "An attorney general can leave something behind: a historical accounting of the failures of institutions."

Balderas embraces that sense of duty. "The challenge for me, though, is that the reforms I've asked for in government and across the board have come too slow," he says. "There are not enough resources to go around to take on every important case. The urgency for me is much greater than the state has evolved in making the proper reforms to represent vulnerable populations. That's what I have found the biggest challenge in governing."

New Mexicans fervently wait to see how the next attorney general rises to that challenge.

Editor's Note: This story has been updated to correct original wording the reporter misunderstood to be Los Alamos resident Chris Mechels' view of actions taken by state Attorney General Hector Balderas in hiring legal counsel for his role as chairman of the state Law Enforcement Academy Board. Not a conflict of interest, he says, but "unwise." We apologize for the misunderstanding.

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