Legal battle taken to Supreme Court
By Molly Ann Howell
Managing Editor
New Mexico’s highest court was asked to intervene in a simmering dispute over the defunding of the McKinley County District Attorney’s Office.
District Attorney Bernadine Martin filed a Supreme Court petition June 17, arguing the Legislature and Gov. Michelle Lujan Grisham violated the state Constitution’s separation of powers provision by stripping state funds for her office out of a $10.8 billion budget bill.
The bill excludes any base funding for employee salaries and benefits in Martin’s office.
Instead, the bill that takes effect July 1 earmarks $1.9 million for the district attorney in neighboring San Juan County to prosecute cases in McKinley County. It also provides an additional $1.9 million for contract attorneys to be hired in the district.
«The legislative and executive branches have no discretion to withhold essential government services in a manner that violates equal protection or due process rights,» Martin wrote in her petition.
Martin and her office declined to speak to the Sun due to the forthcoming court proceedings. But she did state in her petition that the elimination of funds to her office, if allowed to happen, would effectively nullify her authority as an elected official.
SEN. MUÑOZ CALLS FOR CHANGE
Sen. George Muñoz, D-Gallup, the chairman of the Senate Finance Committee, is one of the key forces calling for change in the DA’s office.
In a November opinion column for the Sun, he laid out some concerning numbers.
“Over the years, we’ve seen crime rates rise, but when we look at the number of criminal cases being prosecuted, something doesn’t add up, especially in McKinley County,” he stated in his column. “In 2017, there were 6,397 criminal cases filed by the McKinley County District Attorney’s office. Fast forward to 2024, and that number has dropped to just 4,388 cases — nearly a third less. Yet, anyone who lives in McKinley County knows that crime is still on the rise.”
Muñoz also said that he wanted the DA in San Juan County to oversee the McKinley County office to ensure that criminals are prosecuted properly.
During the 2025 legislative session, he got his wish.
“The court system is a three-legged stool,” he said in a June 23 interview with the Sun. “If you don’t have the police arresting, and the DAs prosecuting, and the judges working then it becomes broken, and we have a broken leg on our stool in McKinley County.”
Many cases in McKinley County are dismissed because of a lack of prosecutors in the District Attorney’s Office. Currently, only two contract attorneys are working in Martin’s office.
And they have an overwhelming workload. As of last fall, the office had over 2,800 assigned cases per attorney, according to Legislative Finance Committee data, making it the state’s highest average caseload.
Muñoz shared one story of a person who reached out to him. Their loved one was murdered in 2015, and their case hasn’t been prosecuted yet.
He said that something needs to change in order to help victims and families experience the wheels of justice turning.
“It’s not political, it’s not personal,” he said. “But if your daughter was raped, or if your mother was killed, you’d want justice in the court system.”
HANDLING AN ‘UNPRECEDENTED’ SITUATION
In an interview with the Sun, Gary Risley, one of two Chief Deputy Attorneys who work in the Eleventh District Division II under San Juan County District Attorney Jack Fortner, called the legislative move “unprecedented.”
The Division II office is working closely with McKinley County Sheriff James Maiorano III, Gallup Police Chief Erin Toadlena-Pablo, and the state’s Department of Finance and Administration to ensure a smooth transition.
Risley said regardless of the July 1 transition, the Division II office is ready.
“We have done everything within our power to be ready to go on July 1,” he said. “We’ll be standing on the starting line ready to go to work to help the citizens of McKinley County.”
He explained that the Division II District Attorney’s office has no plans to fire or let the McKinley County District Attorney’s office’s staff go. The legislative action will allow them to include the staff in their payroll.
The two attorneys who currently work in Martin’s office are contract attorneys, not full-time staff attorneys. Risley said that the San Juan DA’s office is accepting requests for proposals from attorneys, and that the two who work for Martin are welcome to apply.
He said that Fortner’s office is already working to fill the McKinley County office with qualified attorneys who will be able to help the community.
There are plans in the works to hire a former district judge to serve as a contract attorney. This individual will work on a flat per-month rate to handle cases, along with a senior attorney. Finally, they’re also hoping to hire a former prosecutor and criminal defense lawyer.
So, in total, the McKinley County DA’s office will consist of two senior attorneys, a former district judge, and two contract attorneys on staff when the San Juan County DA’s office takes charge.
Risley did note that they may have to deal with office space issues; a problem he said Fortner’s office is more than willing to tackle.
In a statement published in the June 11 issue of the Albuquerque Journal Martin lashed out at Fortner.
“Because [Fortner] gets my money doesn’t mean he runs my office,” she said.
Risley said Fortner’s office isn’t trying to “take” Martin’s money.
“We didn’t ask for the money, we don’t want the money, but we’ll do the job that we’ve been asked to do, but we’d really appreciate it if people stopped throwing rocks in the road,” he said. “You can knock yourself out fighting it in court, but quit trying to be an obstructionist. The people you’re going to hurt are the people who currently work for Division 2, and they shouldn’t suffer because of all this.”
For now, Martin still has full authority to decide whether she’s going to assign cases to Division I. Risley said that it may turn out that Fortner’s people end up with nothing to do based on Martin’s decision.
As for Martin’s petition, Risley said Fortner’s office will be “grateful” for some guidance on the unprecedented situation.
“If the Court declares this all illegal then OK, we’re fine, y’all figure out what to do with the money, we can do other things,” Risley said. “If they do rule against her and say ‘No, this is legal in this part of the legislature, then we would hope that she would be willing to comply with the court’s order and she would not refuse to hand cases over to us. We’re not elected by the people of McKinley County, but we want to be of service to them and we want to protect the public and prosecute bad guys and get them off the streets. We’re willing to do that if she’s willing to help us do that.”
With less than a week before Fiscal Year 2026 begins July 1, Risley said if the Supreme Court doesn’t act before then, Fortner’s office will move forward as if Martin’s complaint was never filed.
Meanwhile, in a June 24 interview with the Sun, Sheriff Maiorano said he was looking forward to working with Fortner’s office.
“Based on the meetings we’ve been in with DA Fortner, he’s very respectful of DA Martin and trying to make this work,” the sheriff said. “Obviously this was not his choice, this is something that was pushed through, and it seems like everyone is trying the best they can to make a plan to move forward so we don’t have dropped prosecutions here in McKinley County. I’m hopeful he’ll do what he can.”
Maiorano said this won’t change anything about how his department functions.
“We’re going to continue to work hard on our Drug Task Force and on our DWI Enforcement, and any other cases that come up, we’ll continue to work those, turn them over to the district attorney for prosecution, and we’re waiting to see what July 1 looks like,” he said.
