State ex rel. New Mexico Judicial Standards Commission v. EspinosaState ex rel. New Mexico Judicial Standards Commission v. Espinosa
- Reporters:
- , ,
- Before:
- Maes, Richard C. Bosson
OPINION
MAES, Chief Justice.
{1} Petitioners, members of the Judicial Standards Commission (Commission), filed a petition for a writ of quo warranto with this Court, seeking to stop Governor Bill Richardson from removing the six lay members of the Commission and replacing them with new gubernatorial appointees. We issued a stay of any further business while we determined whether the Governor has the authority to remove prior gubernatorial appointees to the Commission. We hold that
BACKGROUND
{2} The Commission was created in 1967. Its purpose is “to oversee and investigate the performance, conduct and fitness of members of the judiciary.” 1967 Report of the Constitutional Revision Commission at 88. The Commission is made up of 11 members. Two members are district court judges and a third must be a magistrate judge. Those members are appointed by this Court. See
{3} Shortly after Governor Richardson took office in January 2003, he began removing executive officers, state employees and board members and replacing them with his own appointees. He did so under the power of
DISCUSSION
{4} Petitioners seek a writ of quo warranto. An action for a writ of quo warranto may be brought “when any person shall usurp, intrude into or unlawfully hold or exercise any public office....”
{5} The Governor, on behalf of Respondents, asserts that he had the authority to remove the lay members of the Commission under
{6}
There is created the `judicial standards commission,’ consisting of two justices or judges, one magistrate and two lawyers selected as may be provided by law to serve for terms of four years, and six citizens, none of whom is a justice, judge or magistrate of any court or licensed to practice law in this state, who shall be appointed by the governor for five-year staggered terms as may be provided by law. If a position on the commission becomes vacant for any reason, the successor shall be selected by the original appointing authority in the same manner as the original appointment was made and shall serve for the remainder of the term vacated.
As noted above,
{7} Because the commissioners have designated terms, this is not a situation in which the right of appointment carries an implied right of removal. See Adie v. Mayor of Holyoke, 303 Mass. 295, 21 N.E.2d 377, 380-81 (1939) (“[T]he right of removal does not exist in the appointing power, in the absence of some constitutional or statutory provision, where the term of the official is fixed by law for a definite period.“). The Governor seems to argue that removal power is implied because the appointing authorities can fill a position if it becomes vacant “for any reason.” We do not agree. In another case involving the removal of executive appointees, we explained that “[a] vacancy occurs when an appointee leaves office before the completion of his or her constitutional or statutory term.” Denish v. Johnson, 1996-NMSC-005, ¶ 16, 121 N.M. 280, 910 P.2d 914 (emphasis omitted). We do not think this includes involuntary removal by the appointing authority. In addition, the Legislature has defined the term vacancy in
{8} The Governor, however, is constitutionally endowed with a power that neither this Court nor the State Bar have been granted. The question before us is whether the power granted to the Governor under
Separation of Powers
{9}
The powers of the government of this state are divided into three distinct departments, the legislative, executive and judicial, and no person or collection of persons charged with the exercise of powers properly belonging to one of these departments, shall exercise any powers properly belonging to either of the others, except as this constitution otherwise expressly directed or permitted.
In this case, our Constitution expressly permits the encroachment of the executive branch into the judicial branch. The Judicial Standards Commission is a creature of the judicial branch. The constitutional provision creating the Commission is found in
{10} The Commission was created by constitutional amendment in 1967. The idea to create the Commission was first recommended to Governor Campbell in 1964, then again to Governor Cargo in 1967. The commentary in the 1964 Report of the Constitutional Revision Commission explains that the judiciary lacked an “appropriate judicial disciplinary machinery.” 1964 Report of the Constitutional Revision Commission at 116. At the time, impeachment was the sole method of removing a judge from office, while the Board of Bar Commissioners maintained its disciplinary authority over judges as members of the bar. Petition of Bd. of Comm‘rs of State Bar, 65 N.M. 332, 333, 337 P.2d 400, 401 (1959). The Report observed that “The present system of reliance upon impeachment as the exclusive method of supervision of conduct of judges during their term of office is inadequate and should be supplemented [by an] independent commission of laymen, judges and lawyers.” 1964 Report of the Constitutional Revision Commission at 117. The report filed in 1967 elaborated on this need, explaining that “In order to achieve an efficient and well disciplined judicial system possessing the highest degree of integrity, it is felt that an independent commission is necessary to oversee and investigate performance, conduct and fitness of members of the judiciary.” 1967 Report of the Constitutional Revision Commission at 88.
{11} Thus, the Commission was assigned the role of watchdog for the judiciary. The Commission was given the authority to investigate allegations against judges and to make recommendations to this Court, which determines the proper disposition of each case. See
{12} Petitioners argue that the Governor‘s removal of the executive appointees represents a further encroachment into the
{13} The function of the judiciary is to construe laws and render judgments in the cases that come before it. “The essence of judicial power is the final authority to render and enforce a judgment.” Otero v. Zouhar, 102 N.M. 493, 502, 697 P.2d 493, 502 (Ct.App. 1984). The Commission itself plays no role in these functions; it neither construes laws nor renders judgments. Nor does the Commission have the power to remove or sanction judges. It acts as an advisory body, and makes recommendations to this Court, which has the final decision making authority. The United States Supreme Court faced a similar situation when examining the constitutionality of the United States Sentencing Commission. See Mistretta v. United States, 488 U.S. 361, 380-86, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989). The Court observed that: “The Sentencing Commission unquestionably is a peculiar institution within the framework of our Government. Although placed by the Act in the Judicial Branch, it is not a court and does not exercise judicial power. Rather the Commission is an independent body. . . .” Id. at 384-85, 109 S.Ct. 647. Similarly, the drafters proposing the creation of the Commission stressed the need for the Commission to act as an independent body. Because the Commission plays no role in the traditional functions of the judiciary, the Governor‘s actions do not infringe on the judiciary‘s performance of those functions.
{14} Nonetheless, the Commission is constitutionally committed to the judicial branch. For that reason, we think the functions of the Commission itself are now judicial functions. Petitioners argue that allowing the Governor to remove and replace the executive appointees would infringe upon the independence of the Commission. Petitioners raise the possibility that “an unhappy, but politically well-connected, target of an investigation calling the Governor to influence the Commission.” They envision future governors removing all six executive appointees as a means to force the Commission to either halt or instigate an investigation.1
{15} We recognize that such a situation, though unlikely, would be unfortunate. The Constitution, however, intentionally grants lay members the majority of seats on the Commission. This was perhaps designed to preserve the Commission‘s independence by preventing members of the judiciary from unduly influencing the investigations of the Commission. We do not think the amount of control given to the executive branch increases if the Governor is allowed to replace the six executive appointees. Even with removal power, the Governor‘s role remains limited to the appointment of six members of an 11 member board, while this Court retains the ultimate decision making authority. In addition, as Petitioners themselves point out, the Commission works in near total confidentiality. The Governor has no access to the complaints filed before the Commission unless and until they are made public when a recommendation is made to this Court. Thus, the Governor will not be in a position to interfere with an ongoing investigation, and our Constitution has thereby provided another check on potential abuse of power.
{16} An actual attempt to influence the actions of the Commission would be an attempt to control the judiciary and, therefore, a violation of separation of powers that would be a different matter. Cf. Horton v. McLaughlin, 821 A.2d 947, 952 (N.H.2003) (“Finally, we address the petitioners’ assertion that the legislative impeachment process as carried out threatens the independence of the judiciary. . . . To subject a judge to financial
{17} Finally, while it is possible a governor could abuse the removal power in an attempt to control the Commission, we think it more likely a governor would use the power to remove a Commissioner whose performance is inadequate. If we were to conclude that
Article VI, Section 32
{18} Having concluded that the Governor‘s removal of Commissioners would not violate the separation of powers doctrine, we must still determine whether the text of the Constitution permits such removal. The Petitioners recognize that the power to remove Commissioners is not expressly denied, but they argue that the text of
{19} We discussed the proper functioning of a system of staggered terms in Denish. In that case, Governor King filled two mid-term vacancies on the Board of Regents for the New Mexico Institute of Mining and Technology. Denish, 1996-NMSC-005, ¶¶ 1-5, 121 N.M. 280, 910 P.2d 914. He attempted to grant the new appointees five-year terms, even though each term would expire earlier under that board‘s system of staggered terms. We held that the Governor‘s appointees could only serve for the remainder of the unexpired term. Id. ¶ 41. In other words, to preserve a formal system of staggering, the terms themselves could not be varied. We explained that “[s]taggered terms preserve continuity in the public entity by preventing the theoretical possibility of all appointees being replaced at once. This continuity ensures that there will be no erratic changes in the entity‘s policies.” Id. ¶ 40. In addition, we observed that, “[t]hough individual members may be pressured, this staggering tends to insulate the public entity as a whole from being manipulated for political reasons.” Id.
{20} Petitioners rely on this discussion from Denish to argue that the use of a staggered term system prevents the Governor from removing executive appointees before the end of their terms have expired. They argue that “[a] provision which creates staggered terms is meaningless if the appointees can be removed at will.” We agree to some extent. In this case, the system of staggered terms will technically be preserved. The new Commission appointees will serve the unexpired term of the replaced Commission member and thus preserve the status of the staggered term system. Nonetheless, six out of 11 members will change at
{21} In response to Petitioners’ arguments, however, the Governor observes that almost every executive board or commission has staggered terms. See, e.g.,
{22} A comparison between
{23} Petitioners similarly argue that a limit should be implied from the provisions dealing with vacancies on the Commission. Because the language only provides a means for the Governor to fill a vacancy, they argue, the intent must be to deny the Governor the authority to remove members. The Legislature, however, frequently addresses both the power to fill a vacancy and the power to remove an appointed official. See, e.g.,
{24} Moving away from the specific language of
{25} The fundamental flaw in Petitioners’ argument is that they are attempting to use implied terms to negate the Governor‘s express removal authority. See Flaska v. State, 51 N.M. 13, 20, 177 P.2d 174, 178
{26} Both Ulrick and Duran dealt with executive officers, rather than appointees who in fact serve under the judiciary. Nonetheless, those cases indicate that the Governor has plenary authority to remove his appointees unless the Legislature has imposed an express limit on that power. In 1988, the voters of this state broadened the Governor‘s authority, eliminating the requirement that the Governor allege “incompetency, neglect of duty or malfeasance” in order to remove an appointed official. Those drafting this amendment observed that “the existing bases for removal forced previous governors to develop a case against an appointee in order to remove the person from office.” New Mexico Legislative Council Service, “Constitutional Amendments Proposed by the Legislature in 1988 and Arguments For and Against.” June 1988, 203.2, at 7-8. They explained that “[a] governor must have the power to remove appointees without fear of prolonged legal challenges to the removal and the media exposure that goes along with these public dismissals.” Id. at 8.
{27} Without a compelling reason to hold otherwise, we must conclude that
{28} Because
{29} Similarly, for many executive boards the Legislature has exercised its authority to expressly limit the Governor‘s removal power. It has done so by specifying the reasons for which an appointee can be removed, or by requiring notice and a hearing prior to removal. As one of many examples, members of the lottery authority “may be removed by the governor for malfeasance, misfeasance or willful neglect after reasonable notice and a
{30} The Legislature has not limited the Governor‘s removal authority for the Commission. The Legislature‘s silence may be purposeful. The Legislature may have believed that its silence safeguarded the Governor‘s removal authority, as the Constitution requires the Legislature to speak on the issue. For that reason, we think this Court would be overstepping its bounds to impose a limit on the Governor‘s removal authority when the Legislature has imposed none. The Legislature, however, may not have considered the possibility that a governor would remove all six lay appointees at one time. No prior governor has attempted to make a wholesale change in the lay membership on the Commission. The Legislature, therefore, might not have recognized that the Governor‘s removal power posed a threat to the independence of the Commission.
{31} If indeed the legislative silence is merely an oversight, then it is the Legislature, and not this Court, that should step in now to protect this Commission from future interference. The Legislature is in a position to exercise its authority under
After the benefit of lobbying, public participation and public debate, the Legislature can decide whether and to what extent a governor‘s removal authority regarding the Commission may be limited. In the absence of any express limit within the language of
{32} There is an additional way in which the Legislature could continue to ensure that the Commission fulfills its mission of overseeing judicial conduct. In fiscal year 2002, the Commission received 923 complaints. The Commission currently has one executive director and three staff members charged with investigating all of these complaints. The lack of funding to this body may pose a greater threat than the Governor‘s recent action. Unfortunately, events in recent years have shown the harm that can be caused by judges who are no longer qualified to perform their duties. We urge the Legislature to consider the important role the Commission plays in ensuring that we have a reliable and trustworthy judiciary, and evaluate the proper level of funding needed for the Commission to fulfill its mission.
{33} We deny Petitioners’ request for a writ of quo warranto, and we lift the stay of Commission business.
{34} IT IS SO ORDERED.
WE CONCUR: EDWARD L. CHAVEZ, Justice, PATRICIO M. SERNA, Justice (Specially Concurring).
SERNA, Justice (specially concurring).
{35} I concur with the majority opinion without reservation. I write separately simply to emphasize my rationale. I took an oath to uphold our Constitution, and today, I reaffirm that sacred oath. There can be no doubt that the Supreme Court must keep our State true to its Constitution. The dissent contends that “we are confronted with a conflict between two separate sections of the Constitution.” I, however, see no conflict. The deciding factor that led me to join the majority opinion, which I find wholly sound and persuasive, is the well-established and fundamental rule of constitutional law that if
{36} The present situation cries out for “legislative therapy, not judicial surgery.” State v. Leiding, 112 N.M. 143, 146, 812 P.2d 797, 800 (Ct.App.1991). “[I]t is the particular domain of the legislature, as the voice of the people, to make public policy.” Torres v. State, 119 N.M. 609, 612, 894 P.2d 386, 389 (1995). Justice Minzner believes that any mistake in constitutional construction cannot be corrected by the Legislature and relies on the importance of continuity and stability on the Commission. I respectfully disagree.
{37} Justice Minzner points out that the Governor has not identified a policy-making function of the Commission that his removal power would serve. Similarly, Justice Bosson emphasizes that the Commission does not serve a policy-making role. Again, I must respectfully disagree.
{38} In her dissent, Justice Minzner argues that the Commission acts as a trial court and that this Court‘s role in reviewing the Commission‘s recommendation is as an appellate court. I must respectfully disagree. The Commission does not exercise judicial power.
{39} Further, unlike appellate review of a district court‘s judgment, which envisions significant deference on factual matters, this Court may accept, reject, or modify both the Commission‘s findings and its conclusions. While we may give weight to evidentiary findings and credibility assessments by the Commission or its appointed masters, we are not bound to do so. The fact that the Constitution allows this Court to “permit the introduction of additional evidence” in reviewing a recommendation of the Commission,
{40} For these reasons, I conclude that it is proper to deny the Petitioners’ request for a writ of quo warranto. Thus, I join the majority opinion.
BOSSON, Justice (dissenting).
{41} Respectfully, I must dissent from the majority opinion. I also concur fully in Justice Minzner‘s dissent. I believe the Governor‘s appointment authority in regard to the Judicial Standards Commission is limited by
{42} At its core, the Commission‘s argument centers on its essential need for independence, an independence which is, in my judgment, implicit in the Constitution and which precludes any wholesale change of membership, whether by a governor or any other appointing authority. In support of its claim to independence, the Commission emphasizes its quasi-judicial functions, which include investigating complaints against judges throughout the state and, when appropriate, recommending their removal to the Supreme Court.
{43} The majority, however, is persuaded by Respondents’ reliance on
{44} Respondents emphasize that nothing in
{45} As the majority discusses, the Constitutional Revision Commission determined that the way to create “judicial disciplinary machinery” was to establish an independent, non-political entity that could investigate and recommend removal of corrupt and incompetent judges, without the political burdens and obstacles of the impeachment process. Elaborating on the need for a commission with independence, the 1967 Report stated: “In order to achieve an efficient and well disciplined judicial system possessing the highest degree of integrity, it is felt that an independent [judicial standards] commission is necessary to oversee and investigate the performance, conduct and fitness of members of the judiciary.” 1967 Report of the Constitutional Revision Commission at 88; see also Petition of Bd. of Comm‘rs of State Bar, 65 N.M. 332, 337 P.2d 400 (1959) (holding that impeachment, not a complaint by the Board of Bar Commissioners, was the sole method of reviewing a judge for cause under the Constitution). Continuing on the need for independence, the 1967 Report stated:
Not only is the independence of the judiciary protected, but we are convinced that the strength and capability of the judicial branch of the government is greatly enlarged. The essence of such a body, functioning and able to be used if and when necessary, is an effective element in the strengthening of the judicial system and in leading to a higher standard of judicial conduct.
Id. at 90, 337 P.2d 400. See generally Joseph Michael Norwood, Constitutional Revision—Judicial Removal and Discipline—The California Commission Plan for New Mexico?, 9 Nat. Resources J. 446 (1969).
{46} To realize this goal of an independent “judicial disciplinary machinery,”
{47}
{48} The Constitution‘s express choice of staggered terms is significant. It puts in place what we have previously described as a “formal system of staggered terms,” the objective of which “is the perpetuation of a rigid staggering plan” by ensuring that vacancies unfold in an organized, pre-determined fashion. Denish v. Johnson, 1996-NMSC-005, ¶ 38, 121 N.M. 280, 910 P.2d 914. In Denish, unlike the present case, the constitutional section at issue did not use the express language, “staggered terms,” but this Court was not deterred; we recognized that same intent from the language employed. We stated that a staggered-term system is designed to preserve continuity and stability “by preventing the theoretical possibility of all appointees being replaced at once.” Id. ¶ 40. As one of its virtues, a formal system of staggered terms “tends to insulate the public entity as a whole from being manipulated for political reasons.” Id. Staggering also promotes “institutional memory by assuring that older appointees have the opportunity to pass on important knowledge and experience to newer appointees.” Id.; see also Commonwealth v. Singley, 481 Pa. 367, 392 A.2d 1337, 1340 (Pa.1978) (holding that newly-elected mayor did not have the power to remove and replace, at his pleasure, two redevelopment authority officers appointed by his predecessor, and noting that “creating fixed, staggered terms of office demonstrates a legislative intent to deny the mayor the right to remove, at his pleasure, members of the Redevelopment Authority“).
{49} Thus, a formal provision for staggered terms, when inscribed indelibly in the Constitution, represents a deliberate choice by the people to limit turnover in the Commission‘s membership. Like any choice, it
{50} On its face,
{51} The majority acknowledges that the appellate cases interpreting
{52} However, the Judicial Standards Commission is different. The Constitution places the Commission within the judicial branch, not the executive. As part of the judicial branch, the Commission‘s functions are primarily investigative and quasi-judicial; it has no policy-making function, least of all that of implementing polices and initiatives of any single branch of government. This is why the Commission was created to be independent of any exterior influence, not integrated within the overall policy-implementing apparatus of any one branch of government. Thus, the critical distinction between this case and the authorities relied on by the majority lies in the fundamental constitutional principle of separation of powers, as illustrated by
{54} The majority, focusing on the precise language utilized in
{55} If the Commission were just another executive agency, the argument might be persuasive. The scope of executive powers under
{56} Finally, I cast my vote as I do, regardless of the benign motives of this Governor or any other appointing authority. Indeed, in the constitutional sense, motives are irrelevant to our analysis. Either the Constitution tolerates the power to replace Commission members at will, or it does not. In interpreting the Constitution, we write for the future, not just the present. Wholesale replacement of Commission members will subject future Commissions to the unfettered control of one political office. Once ratified, however improvidently by this Court, that power may be exercised for good or for ill by future governors. The very principle of separation of powers is built on a premise, tested by time and experience, that takes into account the worst as well as the best of mankind. Absent some express exception in the Constitution, that principle should inform our decision and, in my judgment, requires us to delimit executive authority in this special circumstance. For that reason, I respectfully dissent from the majority opinion and would vote to grant the writ.
I CONCUR: PAMELA B. MINZNER, Justice.
{57} I fully concur in Justice Bosson‘s dissent. I write separately only to emphasize my disagreement with the arguments advanced by counsel in opposition to a writ of quo warranto. For the reasons that follow, I believe acceptance of those arguments will result in an infringement upon the powers and responsibilities of both the Legislature and the Judiciary. For the reasons contained in Justice Bosson‘s dissent and for the reasons that follow, I also respectfully dissent.
{58} The arguments for and against the writ begin in different places; each argument, while acknowledging the other, focuses on a different section of the New Mexico Constitution. The placement of the Commission within
{59} In creating the Commission, the people of New Mexico explicitly provided that “[t]his section is alternative to, and cumulative with, the removal of justices, judges and magistrates by impeachment and the original superintending control of the supreme court.”
{60} At one time, the Legislature had provided for removal of a magistrate judge other than by impeachment or by this Court.
{61} Based on the text of
{62}
{63} In Castellano, which we heard before we had adopted rules governing our review of Commission proceedings but after the Commission had adopted rules governing its own proceedings pursuant to the authority vested in the Commission by
{64} The administrative support that the Constitution provides seems to facilitate this Court‘s powers and obligations of superintending control, in the same way that the Legislature has often provided administrative support for the Governor‘s powers and obligations. Absent a staff charged with and funded for investigation and presentation of evidence, and absent a process for factfinding, we would be ill-equipped to pursue complaints as a matter of original jurisdiction.
{65} The primary argument in favor of the writ has been that removal of the prior Governor‘s appointees before the end of their terms is inconsistent with the general principle that the three branches of government enjoy unique powers and responsibilities and that, generally, each branch is entitled to operate independently of the other in connection with the unique powers and responsibilities entrusted to that branch. See
{66} The primary argument against the writ has been that
{67} In making this argument, counsel have recognized that
{68} The arguments against the writ appear to equate the Commission with an agency of the Executive Branch, charged with following the policies of the Governor in executing either duties imposed upon that agency by statute or responsibilities and duties inherent in the office of the Governor. Yet no one has identified a policy-making function of the Commission that the power of removal would serve. The arguments against the writ require a construction of both
{69} We noted in Board of Education of Carlsbad Municipal Schools v. Harrell, 118 N.M. 470, 882 P.2d 511 (1994), however, that “[t]he judiciary . . . must maintain the power of check over the exercise of judicial functions by quasi-judicial tribunals in order that those adjudications will not violate our Constitution. The principle of check requires that the essential attributes of judicial power, vis-a-vis other governmental branches and agencies, remain in the courts.” Id. at 484, 882 P.2d at 525. In Harrell, this Court decided that when the Legislature had assigned adjudicative responsibilities to an administrative tribunal and limited an aggrieved party‘s right of appeal to compulsory arbitration, we would “use due-process analysis to determine whether the judicial review provided in the compulsory arbitration statute is adequate to reserve ultimate judicial power to the judiciary.” Id. We concluded that the statute unduly restricted judicial review of the decision of the arbitrator and thus to that extent “violate[d] due process and the constitutional allocation of judicial power to the judiciary.” Id. at 486, 882 P.2d at 527.
{70} In this case the Constitution itself has allocated to this Court responsibilities for reviewing the work of the Commission, which work is alternative and supplemental to our original jurisdiction, and the provision making that allocation has been placed in the section of the Constitution that generally allocates responsibilities to the judicial branch. I think the arguments against the writ are inconsistent with the allocation of responsibilities to the judicial branch and because it would result in changing so many members of the Commission at once would as a practical matter disrupt the activities of the Commission. As an entity that has had limited resources with which to discharge its responsibilities,
{71} In addition, because
{72} I note that
{73} In the end, however, the relevant provisions as they have been implemented seem to me to be in harmony. “Residual governmental authority should rest with the legislative branch rather than the executive branch.” Clark, 120 N.M. at 575, 904 P.2d at 24. To the extent
{74} “[W]e must never forget that it is a constitution we are expounding.” McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 407, 4 L.Ed. 579 (1819) (Marshall, C.J.). When the text is not clear, we do have to consider the likely intent of those who proposed and those who approved constitutional language. There may be differences in the way we construe constitutional provisions and the way we construe statutes. We do have to construe both, and any mistakes we make in construing the Constitution itself cannot be corrected by the Legislature by enacting a statute, but rather will require a constitutional amendment. If we are uncertain about the proper construction of a constitutional provision, it makes sense to me to adopt the construction that is more likely to have been the intention of those responsible for including it, rather than requiring that the Constitution be amended in order for that intention to be effectuated.
{75} If construction is necessary, in this case, it seems more likely to me that those who proposed and those who approved the relevant language meant to provide continuity and the stability and institutional memory that continuity tends to ensure. It also seems more likely to me that the Governor‘s appointment power was perceived, given the functions of the Commission, to be analogous to his power to appoint judges and thus, in all likelihood, to be limited to appointment, rather than removal. That would be consistent with the reference within
{76} As we noted in Castellano, the absence of language within a constitutional provision needs to be taken into account in construing a provision, but it is not conclusive, and when the gap is otherwise filled and
I CONCUR: RICHARD C. BOSSON, Justice.