PAMELA J. CLARK, Petitioner, v. HON. ALBERT J. MITCHELL, JR., Tenth Judicial District Court Judge, Respondent.
NO. S-1-SC-35,075
IN THE SUPREME COURT OF THE STATE OF NEW MEXICO
December 21, 2015
Opinion Number:
ORIGINAL PROCEEDING
Warren F. Frost
Logan, NM
for Petitioner
Rodey, Dickason, Sloan, Akin & Robb, P.A.
Henry M. Bohnhoff
Melanie Bret Stambaugh
Albuquerque, NM
for Respondent
MAES, Senior Justice.
{1} In this case we are once again called upon to interpret the 1988 amendments to the New Mexico Constitution governing judicial selection. The question before the Court is whether
BACKGROUND
{2} There is only one judge on the Tenth Judicial District Court which has jurisdiction over the counties of Quay, DeBaca, and Harding. See
{3} A district court judges nominating committee (“nominating committee“) was convened to solicit and evaluate applicants to fill Judge Mitchell‘s impending vacancy. See
{4} Before the nominating committee could meet, Petitioner asked this Court to prevent the nominating committee from accepting or considering Judge Mitchell‘s application. See Clark v. Tenth Jud. Dist. Nominating Comm., No. 34,983 petition for writ of prohibition and/or superintending control (N.M. Sup. Ct. Nov. 19, 2014). Following oral argument, we denied Petitioner‘s request on the grounds that the matter would not be ripe for review until the nominating committee and the governor had an opportunity to exercise their respective constitutional authorities. See Clark, No. 34,983, order (N.M. Sup. Ct. Dec. 3, 2014).
{5} On December 11, 2014, the nominating committee met to interview and evaluate Judge Mitchell and former Judge Schutte for the impending vacancy. The fact of and reasons for Judge Mitchell‘s nonretention by the voters of the Tenth Judicial District were the subject of extensive discussion. The nominating committee
{6} On January 9, 2015, Governor Susana Martinez appointed Judge Mitchell to the vacancy on the Tenth Judicial District Court. According to Judge Mitchell, the fact of and reasons for his nonretention were raised during his interview with the governor. In appointing Judge Mitchell the governor acknowledged,
This decision presents an unusual choice between two candidates who each have lost judicial elections in their district. Donald Schutte, appointed in 2007, lost a contested election against Mitchell in 2008. In the most recent election in 2014, although Mitchell received support from a majority of voters in his district, he did not receive the higher number of votes needed in a retention election. The Judicial Performance Evaluation Commission had recommended that Mitchell be retained as a judge. Under state law, Mitchell will be required to stand for re-election in a contested race in the next general election.3
{7} On January 12, 2015, Petitioner filed a petition for a writ of quo warranto seeking to remove Judge Mitchell from the bench. After hearing oral argument, we denied the writ requested by Petitioner. We issue this opinion to explain our reasoning.
DISCUSSION
{8} “One of the primary purposes of quo warranto is to ascertain whether one is constitutionally authorized to hold the office he claims, whether by election or appointment, and we must liberally interpret the quo warranto statutes to effectuate that purpose.” State ex rel. Anaya v. McBride, 1975-NMSC-032, ¶ 16, 88 N.M. 244, 246, 539 P.2d 1006. A petition for a writ of quo warranto may be brought by a private person when the district attorney refuses to act. See
{9} Petitioner contends that Judge Mitchell is not constitutionally authorized to be appointed to the Tenth Judicial District Court due to his nonretention in the 2014 general election. In arguing for removing Judge Mitchell from the bench, Petitioner relies exclusively on
Each . . . district judge . . . shall have been elected to that position in a partisan election prior to being eligible for a nonpartisan retention election. Thereafter, each such . . . judge shall be subject to retention or
rejection on a nonpartisan ballot. Retention of the judicial office shall require at least fifty-seven percent of the vote cast on the question of retention or rejection.
(Emphasis added). Petitioner asserts that this language precludes the nominating committee from considering and nominating, and the governor from appointing, Judge Mitchell to the vacancy created by his nonretention. Finally, Petitioner argues that Judge Mitchell‘s appointment defeats the will of the voters of the Tenth Judicial District.
{10} Judge Mitchell counters that this case is governed by the Constitution‘s rules of judicial succession, rather than judicial retention. In that regard, the text of the Constitution does not prohibit a judicial nominating commission from considering, and the governor from appointing, an otherwise qualified applicant to fill a vacant judicial office based on the applicant‘s nonretention in the immediately preceding election.
I. Judge Mitchell‘s appointment to his former office did not constitute “retention of the judicial office” under Article VI, Section 33
{11} Petitioner argues that by being appointed to the vacancy created by his nonretention Judge Mitchell is, in effect, “retaining” his office. Petitioner urges us to take a “common-sense” approach in viewing the concept of retention.
II. Judge Mitchell‘s nonretention in the immediately preceding election did not disqualify him from lawfully succeeding himself
A. Article VI, Section 33 does not expressly prohibit a judicial nominating commission from considering and nominating, or the governor from appointing, an otherwise qualified judicial applicant to fill a vacant judicial office based on the judicial applicant‘s nonretention in the immediately preceding election
{14} “In construing the New Mexico Constitution, this Court must ascertain the intent and objectives of the framers.” In re Generic Investigation into Cable Television Servs. v. N.M. Corp. Comm‘n, 1985-NMSC-087, ¶ 10, 103 N.M. 345, 349, 707 P.2d 1155. “[T]o determine the meaning of a constitutional provision, we begin with the language used in the provision and the plain meaning of that language.” Hem v. Toyota Motor Corp., 2015-NMSC-024, ¶ 10, 353 P.3d 1219 (internal quotation marks and citation omitted). “The historical purposes of the constitutional provision are instructive in determining the obvious spirit . . . utilized in [its drafting].” State v. Boyse, 2013-NMSC-024, ¶ 16, 303 P.3d 830 (alterations and omission in original)
{15} Article VI, Section 33 contains no affirmative language prohibiting a nominating commission from considering and nominating, and the governor from appointing, a judicial applicant based upon the applicant‘s nonretention in the immediately preceding election. Nevertheless, Petitioner argues that “[e]ven if this Court should determine that [Article VI,] Section 33 is somehow ambiguous because it does not contain a specific provision prohibiting a non-retained judge from seeking appointment to his own vacancy, this Court should interpret [Article VI,] Section 33 to include such a prohibition . . . .” “We will not read into the Constitution language which is not there, especially when it makes sense as it is written.” In re Rescue EcoVersity Petition, 2012-NMCA-008, ¶ 6, 270 P.3d 104 (internal quotation marks and citation omitted), rev‘d on other grounds by Convisser v. EcoVersity, 2013-NMSC-039, ¶ 30, 308 P.3d 125.
{16} Furthermore, the history and context of Article VI, Section 33 do not indicate any intent by the framers to prohibit nonretained judges from applying for and being appointed to judicial vacancies. See New Mexicans for Free Enter. v. City of Santa Fe, 2006-NMCA-007, ¶ 11, 138 N.M. 785, 792, 126 P.3d 1149 (“If the meaning of a
B. Article VI, Section 33 does not govern the process of judicial succession
{17} “The provisions of the Constitution should not be considered in isolation, but rather should be construed as a whole.” In re Generic Investigation into Cable Television Servs., 1985-NMSC-087, ¶ 13. Petitioner‘s argument relies on interpreting Article VI, Section 33 in isolation. Article VI, Section 33 only addresses the requirements for winning a retention election. As Judge Mitchell points out, this case is governed by the constitutional provisions governing nomination and appointment to judicial vacancies, or judicial succession, rather than the constitutional provisions
{18} The judicial succession process is separate and apart from the retention election process and is governed by two different sections of the New Mexico Constitution,
{19} When a judge is not retained, that judge‘s office becomes vacant the following January 1. See
{20} As a preliminary matter, neither of the two requirements for appointment to a judicial vacancy described above specifically include not losing a retention election. Article VI, Section 35 contains no express language precluding a nominating commission from considering and nominating, and the governor from appointing, an otherwise qualified judicial applicant to fill a vacant judicial office based on the judicial applicant‘s nonretention in the immediately preceding election. “We will not read into the Constitution language which is not there, especially when it makes sense as it is written.” In re Rescue EcoVersity Petition, 2012-NMCA-008, ¶ 6 (internal quotation marks omitted).
{21} Under the New Mexico Constitution, district judges must (1) be at least thirty-five years old, (2) have been in the actual practice of law for at least six years preceding their assumption of office, (3) have resided in this state for at least three years immediately preceding their assumption of office, and (4) reside in the district in which they seek appointment. See
{22} While we hold that the nominating committee was required to accept and consider Judge Mitchell‘s application, we also hold that in the course of its evaluation of an applicant, a nominating committee may take into consideration the fact that an applicant previously lost a retention election for the judicial office in question. The fact and reasons for a judge‘s nonretention may warrant consideration among the
{23} In this case, the fact and reasons of Judge Mitchell‘s nonretention were considered by the nominating committee. Ultimately, the nominating committee, in its discretion, recommended Judge Mitchell to the governor. Petitioner would have us control the discretion of the committee by reading into the Constitution a disqualification that does not exist. This Court has been hesitant to disturb a nominating commission‘s discretion to recommend qualified applicants to the governor. “It is the Commission alone that decides who to recommend to the governor. We will neither trammel upon, nor diminish in any way, that core function reposed in the Commission by our Constitution.” Richardson, 2007-NMSC-023, ¶ 18. Therefore, we will not second-guess the nominating committee‘s decision to recommend Judge Mitchell to the governor.
{24} We are equally hesitant to disturb the governor‘s authority to appoint a judge from a list of qualified and recommended applicants. “In designing the merit selection
C. Other states have expressly prohibited judges who lose retention elections from succeeding themselves
{25} While the 1988 amendments that resulted in the adoption of Article VI, Sections 33, 35, and 36 do not include any express prohibition against the appointment of a judge who loses a retention election to fill the resulting vacancy, the constitutions and statutes of at least six other states with retention elections do provide such a prohibition. See
{26} The silence of New Mexico‘s constitution regarding the appointment of nonretained judges stands in stark contrast to the states listed above. We recognize that “[l]egislative silence is at best a tenuous guide to determining legislative intent . . . .” Swink v. Fingado, 1993-NMSC-013, ¶ 29, 115 N.M. 275, 283, 850 P.2d 978 (internal citation omitted). It is certainly possible that the drafters of the 1988 amendments simply never thought of and considered whether to prohibit nonretained judges from seeking appointment to vacant judicial offices. Nevertheless, “[t]he Legislature is presumed to know existing statutory law and to take that law into consideration when enacting new law.” Gutierrez v. W. Las Vegas Sch. Dist., 2002-NMCA-068, ¶ 15, 132 N.M. 372, 377, 48 P.3d 761. The prohibitions in Alaska, California, Kansas, and Oklahoma were adopted prior to 1988. Theoretically, the drafters of the 1988 amendments could have drawn on these existing state statutes and constitutions
III. Judge Mitchell‘s appointment does not defeat the will of the voters
{27} Petitioner argues that Judge Mitchell‘s appointment defeats the will of the voters of the Tenth Judicial District. While we are not unsympathetic to Petitioner‘s argument, we disagree for two reasons. First, the electorate‘s role in the process of judicial succession is indirect and the process by which Judge Mitchell was appointed proceeded according to the dictates of the Constitution. Second, Judge Mitchell‘s nonretention has practical and legal consequences.
A. The role of the electorate in the process of judicial succession is and has always been indirect
{29} The electorate played its role under Article VI, Section 33 in not retaining Judge Mitchell. However, as we have explained, the nominating committee and the governor equally played their roles under Article VI, Sections 35 and 36 in nominating and appointing Judge Mitchell. Although the end result may be disappointing to some, the process by which Judge Mitchell was appointed proceeded according to the dictates of the Constitution.
{30} Judge Mitchell‘s nonretention and appointment is not without consequence. Indeed, it was only because of his nonretention that a nominating committee was convened, applications to fill the vacancy were solicited and accepted, the committee met and interviewed the applicants, and the governor filled the vacancy. Due to his nonretention in the 2014 general election, in order to remain on the bench, Judge Mitchell will be required to run in a partisan election in the 2016 general election, instead of a nonpartisan retention election in 2020. See
CONCLUSION
{31} The New Mexico Constitution contains no affirmative language disqualifying an applicant for a vacant judicial office based upon the applicant‘s nonretention in the immediately preceding election. Despite its appeal, adopting Petitioner‘s argument would require us to read language into the Constitution that does not exist.
{32} Accordingly, we appropriately denied Petitioner‘s petition for a writ of quo
{33} IT IS SO ORDERED.
PETRA JIMENEZ MAES, Justice
WE CONCUR:
BARBARA J. Vigil, Chief Justice
MICHAEL D. BUSTAMANTE, Judge
Sitting by designation
JONATHAN B. SUTIN, Judge
Sitting by designation
CYNTHIA A. FRY, Judge
Sitting by designation