How do lawyers rate Onuska?

(A: They bail out of his court by the hundreds.)

     Paul Onuska is one of six district court judges in the 11th District (McKinley and San Juan Counties). How does he compare to the other five judges?

     A strong indicator is the frequency courtroom attorneys "excuse" Onuska from hearing their cases. New Mexico is one of a handful of states that allows a party to a lawsuit to "excuse" a judge from hearing his case. When a case is filed with the district clerk, a computer assigns it to one of the courts. Each party in the suit has a limited amount of time to "excuse" the judge. If a party excuses the judge, the case is reassigned by the district clerk's computer to another court. A party can only exercise this right once. So if a case gets reassigned to a court the party likes even less, he's jumped from the frying pan into the fire.

     An excusal is a real vote of no confidence in a judge. Most attorneys are loath to exercise this right for fear of angering the judge they excuse. Sure, it may help the attorney with the case at hand, but what happens in the future if that attorney is brought in on a case in that judge's court, and the deadline for exercising an excusal has passed? There are only six district judges in the 11th District, and if you make your living in court, you don't want to needlessly antagonize any of them.

     Onuska has-by far-the highest excusal rate in the 11th District. We can infer from that that he has-by far-the least respect of any judge by those who know their work best: the attorneys who practice in their courts.

     The most recent judge to join the bench is Bill Birdsall, in 1999. San Juan County District Clerk's Office records (which includes statistics from McKinley County) show that from 1999 through June 30, 2002, Onuska was "excused" by attorneys from hearing their cases 266 times. His closest competitor for the dubious distinction of being the most excused judge is Judge Harrison, with 199 (Harrison is not standing for retention, however.) During that time Judge Caton had 96 excusals, Judge Birdsall had 93, Judge Rich had 83, and Judge Foutz had 38. The average number of excusals for that two and a half year period for the five judges excluding Onuska was 101.8. Onuska had over two and a half times as many excusals as the average!

     I asked an experienced trial attorney why he thought Onuska had such a grossly disproportionate number of excusals. His immediate reply: "because he is a jerk."

     We faxed and mailed Judge Onuska a letter on Sept. 5, (see "Questions for Onuska") asking him to explain why lawyers excuse him from hearing his cases in such high numbers. So far, he's refused to explain.

As damning as the excusal figures are, they are only part of the story. Judges in New Mexico are allowed to "recuse" themselves from a case for any reason, or no reason. If they "recuse" themselves, the case is reassigned by the district clerk's computer to another judge.

     From 1999 through the end of June 2002, Onuska "recused" himself from a whopping 323 cases! His nearest "rivals" for recusals-Judge Harrison and Judge Birdsall-are not even close, with 246 and 203 recusals, respectively. The other judges have far fewer recusals. Judge Rich had 172 recusals, Judge Caton had 143, and Judge Foutz had 114. The average number of recusals for the other five judges is 175.6. Onuska recuses himself almost twice as often as the average of the other judges!

     Actually, Onuska's recusal rate is even worse than it appears. Judge Harrison and Judge Birdsall had active courtroom practices for many years before taking the bench, and are the most recent judges to take the bench. It is reasonable for a judge to recuse himself in many of the cases in which one of the parties is a former client of his. So it's not surprising that their recusal rates are a little higher than the others. That's what the right of recusal is all about: allowing judges to avoid cases where they feel it would be unfair to one side or the other if they heard the case. But Onuska doesn't have that excuse-he's been on the bench since 1985. Why does he have such an enormous recusal rate?

     One possible reason: two lawyers told us that Onuska recuses himself whenever he sees a case may present difficult political problems for him. For example, if both parties to a lawsuit are prominent people, he figures he's in a lose-lose situation. In such a case he'll recuse himself, and let another judge handle that hot potato.

     What all this means is that Onuska leaves the heavy lifting to the other judges. It also means that Onuska's already sky-high excusal rate by attorneys would probably be even higher if he wasn't so quick to hand off a case.

     To be fair, we pointed these facts out to Onuska in a letter faxed and mailed Sept. 5, and asked for an explanation (see "Questions for Onuska"). So far, he has no answer.

     The figures quoted here were prepared by the San Juan County District Clerk's Office (tel. 334-6151), and are public information.

So far we have not received a reply (see "Questions for Onuska")