Supreme Court justice speaks out in DWI case

March 24, 2012 • State News

SANTA FE, N.M. (AP) — The state Supreme Court has unanimously upheld a decision by former Gov. Bill Richardson’s administration to fire a prison guard arrested for drunken driving, but the court’s longest serving member describes the outcome as “unjust” although legally correct.

In an unusual display of personal views in a court ruling, Justice Patricio Serna wrote, “I cannot remain silent about something that matters and seems unfair to me.”

A state Corrections Department policy, adopted in 2005 during the Richardson administration but still in place, calls for workers to submit written reports if they are arrested or convicted of drunken driving. They lose their jobs after a second offense and are suspended for at least five days for a first offense.

Rudy Sais, a guard at a prison in Los Lunas, lost his job in 2008 although his DWI charges were dismissed — after his first arrest in 2006 as well as his second arrest in March 2008.

During an administrative hearing to appeal his firing, Sais offered evidence of other workers who weren’t fired despite [auth] multiple DWIs. One guard never reported his arrests — potentially as many as four — and kept his job.

Serna said it was unfair that Sais was fired after following the rules. However, the full court ruled Thursday that the department had properly justified its action and why there might be differences in the treatment of some employees with drunken driving arrests or convictions.

The court acknowledged “the problems inherent in a policy that rewards those who disregard its requirements, while punishing those who comply. Such a policy can easily be abused which could lead to arbitrary enforcement.” The court said the state agency “should be mindful of that potential for abuse.”

Serna concurred in the court’s decision, saying “it is the duty and responsibility of a judge to adhere to the rule of law and apply it free of any personal beliefs.”

But Serna wrote a one-page opinion “to express my discomfort in that my conscience tells me the result is unjust.”

He included a quote from civil rights leader Martin Luther King, “Our lives begin to end the day we become silent about things that matter.” And he used a statement from the late U.S. Supreme Court Justice Potter Stewart, “Fairness is what justice really is.”

Serna has served on the state’s highest court since 1996, and before that was a district court judge in Santa Fe for 11 years.

At issue in the legal challenge was how the department carried out its disciplinary policy — not the merits of the policy against drunken driving.

Sais’ lawyer, Paul Melendres, of Albuquerque, said Friday he agreed with Serna that the outcome of the case was unjust. He and his client are considering whether to ask the U.S. Supreme Court to review the case.

“One of the concerns we have is that a governmental entity may attempt to claim that a policy is under review and treat employees differently and then decide, ‘No, the policy is no longer under review,’ and have been able to in essence side step law where you cannot treat individuals differently for the same offense,” said Melendres.

Sais cited in his appeal that the department suspended, rather than fire, a guard after a second drunken driving arrest in 2007. The department justified its decision, saying the second arrest came when the agency was considering whether it was appropriate to fire workers based only on DWI arrests rather than convictions.

The court emphasized that the “defense against irregular applications of a policy on the basis that the policy is under review is limited in scope” and couldn’t be used repeatedly to treat workers differently.

A state district court judge had ruled in favor of Sais, overturning the firing because he was treated differently than other employees in a similar situation. The judge decided that Sais should be reinstated in his job with back pay — potentially $60,000 to $80,000, according to Melendres.

But the Supreme Court reversed the decision of former District Judge John Pope, who resigned earlier this month after failing a random alcohol test. He had been on judicial probation for alcohol-related problems since 2006 after getting drunk during a trial.

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