Judge Responds To White’s Request For Recusal

By MAIRE O’NEILL
Los Alamos Daily Post

First Judicial District Judge Greg Shaffer has responded to a request from Los Alamos resident and candidate for sheriff Greg White to voluntarily recuse himself from an ongoing case White filed Jan. 12 against Los Alamos County officials related to the duties and budget of the sheriff’s office.

The suit names the Los Alamos County Council, County Manager Harry Burgess, County Attorney Alvin Leaphart, Assistant County Attorney Katie Thwaits and Police Chief Dino Sgambellone.

Judge Shaffer’s response noted that he was an unsuccessful candidate for Division II of the Court in the June Democratic primary election. He said he was asked to recuse himself based on public endorsement of him during his candidacy by a single Los Alamos County councilor, a conversation between him and Burgess on unrelated topics, a campaign contribution to his campaign committee before the case was assigned to him and a campaign contribution to his campaign by an assistant Los Alamos County attorney who is not a defendant in the case.

“Finally, (White) alleges generally I have ‘attended various social functions in Los Alamos where defendants were present’, which I presume is a reference to political events and campaigns prior to the June 5 primary election,” Judge Shaffer said.

He said prior to reading White’s motion, he doesn’t remember ever being made aware that Council Vice Chair Christine Chandler or her husband George Chandler had publicly endorsed him or that Assistant County Attorney Kevin Powers had contributed to his campaign. He said in reviewing the motion, he noticed that Thwaits is named as a defendant in her official capacity as an attorney for the County and stated that Thwaits had submitted a letter of recommendation in 2017 to the governor in support of his appointment as district judge, months before he took office and the case was filed.

Judge Shaffer said the endorsement by the Chandlers, the contribution by Powers and the letter of recommendation by Thwaits will not, whether considered individually or collectively, affect his ability to impartially preside over the matter.

“The only person that I recall ever attempting to engage me in conversation concerning this case was (White) at a judicial candidate’s forum in Los Alamos County. Specifically, I recall (White) attempting to me about scheduling a hearing in the case. I recall generally telling him I could not speak to him about the case,” Judge Shaffer said.

Judge Shaffer also noted that neither Chandler or any other councilors are named as individual defendants in the case either in their official or individual capacities. He noted that unlike judicial candidates in partisan elections, a candidate for appointment to judicial office may seek support or endorsement from organizations and individuals to the extent requested by the appointing authority and the nominating commission.

In establishing his briefing schedule, Judge Shaffer said he considered that White’s motion requires prompt consideration so as not to unduly delay resolution of the case and the fact that he has a lengthy jury trial, which commences Aug. 13, and wanted to decide the motion and other issues pending in the case before the trial begins. He said while all the facts relied upon by White in his motion were seemingly in the public domain no later than May 30, White did not file his motion until July 17, “a mere 16 days before the Aug. 2 hearing date”, adding that some of the facts were in the public domain well before May 30, such as the January conversation with Burgess and his presence at campaign and political events beginning in the fall of 2017. 

Judge Shafer said regarding the scheduling of a hearing for Aug. 2, the notice of hearing was filed July 3. He said the timing of the notice of the hearing and the timing of the hearing were unrelated to the election or White’s apparent candidacy for sheriff. He gave White until July 27 to respond and the County until Aug. 3. Judge Shafer also vacated the Aug. 2 hearing and rescheduled it for Aug. 9 in his courtroom in Santa Fe.

White told the Los Alamos Daily Post Tuesday evening that Judge Shafer “concentrates a defense on individual issues, which taken by themselves may be innocuousness”.

“What I’m looking at is what the preponderance of the evidence is. And while most of the issues may have been before my case was assigned to him, he had and still has two other active cases before him during all occurrences in question,” White said. “Rather than get mad at me, he and all judges should use my concerns as a basis to change the rules of the Court, or in the alternative the Legislature should pre-empt the courts. What’s legal and ‘proper’ is not necessarily right.”

White said judges and sheriffs have a duty to the public in their official positions that is far above any other elected official.

“That is why I am not accepting donations to my campaign from any residents of Los Alamos. Other elected officials hopefully are honest, but when they’re not, it is law enforcement and judges that the public look to for relief. As such judges and sheriffs should be and must be held to a higher standard not just in their official actions but also in their campaign actions,” White said. “The question isn’t whether Judge Shaffer knew attorneys donated to his campaign or even that it is perfectly legal for them to do so, it’s what does it look like to the public.”

White went on to say that he fails to see how it is possible that Judge Shaffer does not know, and worse, apparently would not bother to find out who the Los Alamos County Councilors are.

“It’s completely irrelevant that they are not individually named in my injunction,” White said. “He quotes rules to defend himself. Those same rules define what is permissible and what is not permissible ex parte communications. Telling a judge that a matter before him needs to have hearings scheduled is permissible. Only discussions of a material matter in the case are impermissible.”

White concluded by saying he would have accepted if Judge Shaffer simply stated he may have made some errors in judgement but felt he could make an unbiased decision.

“But from the tone of his unnecessary defense I have far more concern now about his impartiality than I had before,” White said. “I will have to explore what steps to take if he does not recuse himself.”

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