Clark v. Mitchell, 2016 NMSC 005

Background

Albert J. Mitchell Jr., elected Tenth Judicial District judge in 2008, faced a nonpartisan retention vote in November 2014 and failed to receive the 57% required for retention.
Under N.M. Const. art. VI, § 34, the office became vacant January 1 following the election; §§ 35–36 require a nominating commission to solicit applicants and submit recommended names to the governor within 30 days of a vacancy.
A district judges nominating committee interviewed both Mitchell and his 2008 opponent Donald Schutte; the committee considered Mitchell’s nonretention and recommended both applicants to the governor.
Governor Susana Martinez appointed Mitchell to fill the vacancy on January 9, 2015; petitioner Clark sought a writ of quo warranto to remove him, arguing Article VI, § 33 precluded appointment of a recently nonretained judge.
The New Mexico Supreme Court denied the quo warranto petition, holding the Constitution does not bar a nominating commission from considering, or the governor from appointing, a qualified applicant who was nonretained in the immediately preceding election.
Court emphasized that retention rules (art. VI, § 33) govern retention elections, while succession (nomination/appointment) is governed by §§ 35–36; nonretention does not equal affirmative constitutional disqualification from appointment.

Issues

Issue	Clark's Argument	Mitchell's Argument	Held
Whether Article VI, § 33 prohibits nominating committee/governor from considering or appointing a judge who was not retained in the immediately preceding election	§ 33’s retention language means a nonretained judge cannot be appointed to the vacancy created by nonretention; such appointment defeats voters’ will	§ 33 governs retention only; §§ 35–36 govern succession and contain no disqualification for prior nonretention; a qualified applicant must be considered	Court held § 33 does not bar consideration or appointment; succession is governed by §§ 35–36 and the Constitution contains no affirmative disqualification
Whether appointment of a nonretained judge amounts to “retention of the judicial office” under § 33	Appointment effectively lets judge keep office, so it is retention contrary to § 33	"Retain" implies no break in service; Mitchell vacated the office and thus was not retained	Court held appointment after a break in service is not "retention" under plain meaning of § 33
Whether the nominating committee was required to accept or consider Mitchell’s application	Mitchell’s nonretention should preclude acceptance/consideration	Committee must accept and evaluate applications from qualified lawyers per § 35; Mitchell met qualifications	Court held committee had to accept and consider his application; it could weigh nonretention as one factor
Whether the governor’s appointment defeated voters’ will and was improper	Appointment undermines electorate’s decision not to retain Mitchell	Electorate’s role in succession is indirect; governor may appoint from commission’s recommendations; appointment has consequences (Mitchell must run in a partisan election at next general election)	Court held appointment lawful and consistent with constitutional succession process; political remedy rests with Legislature/voters if change desired

Key Cases Cited

State ex rel. Anaya v. McBride, 539 P.2d 1006 (1975) (quo warranto’s purpose and liberal interpretation)
State ex rel. Gomez v. Campbell, 400 P.2d 956 (1965) (constitutional language given plain meaning)
In re Generic Investigation into Cable Television Servs. v. N.M. Corp. Comm’n, 707 P.2d 1155 (1985) (construe constitutional provisions as a whole)
Richardson v. Fifth Judicial Dist. Nominating Comm’n, 160 P.3d 566 (2007) (commission’s core discretion to recommend nominees; governor’s appointment role)
Hem v. Toyota Motor Corp., 353 P.3d 1219 (2015) (start with plain language in interpreting constitutional provision)
State v. Boyse, 303 P.3d 830 (2013) (use historical purposes and context to interpret constitutional provisions)
In re Rescue EcoVersity Petition, 270 P.3d 104 (2012) (courts will not read into the Constitution language that is not there)
Convisser v. EcoVersity, 308 P.3d 125 (2013) (consideration of appellate correction to prior court of appeals decision)
Swink v. Fingado, 850 P.2d 978 (1993) (legislative silence is an imperfect guide to intent)