Clark v. Mitchell

2016 NMSC 005, 9 N.M. 141
New Mexico Supreme Court·Decided December 21, 2015·No. Docket S-1-SC-35,075·Published·Cited by 6 cases

Opinion

OPINION

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 Article VI, Section 33 of the New Mexico Constitution prohibits a district judge who loses a nonpartisan retention election from being appointed to fill the resulting vacancy created by that judge’s nonretention. We hold that the New Mexico Constitution does not 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. We recognize that our holding may seem counterintuitive at first glance. However, our holding is governed by our Constitution’s provisions governing judicial succession, not retention.

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 NMSA 1978, § 34-6-1 (J) (1992); § 34-6-13 (1968). In 2008, Albert J. Mitchell, Jr. won a contested election for Tenth Judicial District judge against Judge Donald Schutte. Pursuant to Article VI, Section 33 of the New Mexico Constitution, Judge Mitchell ran for retention in the 2014 general election. See N.M. Const, art. VI, § 33(A). (“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.”). Prior to the retention election, the Judicial Performance Evaluation Commission evaluated Judge Mitchell and recommended that voters retain him in the general election. 1 Despite the Commission’s recommendation, on November 4,2014, Judge Mitchell was not retained, failing to garner at least fifty-seven percent of the votes cast on the question of his retention as required by Article VI, Section 3 3 of the New Mexico Constitution. 2

{3} A district court judges nominating committee (“nominating committee”) was convened to solicit and evaluate applicants to fill Judge Mitchell’s impending vacancy. See N.M. Const, art. VI, § 34 (stating that the office of a judge who is not retained becomes vacant on January 1 immediately following the election at which the judge is not retained); id. art. VI, § 35 (stating that the appellate judges nominating commission “shall actively solicit, accept and evaluate applications from qualified lawyers for the position” and “shall meet within thirty days” of the judicial vacancy); id. art. VI, § 36 (applying the provisions of Section 35 to “the district judges nominating committee”). Judge Mitchell and former Judge Shutte applied for the vacancy.

{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 ultimately submitted the names of both applicants to the governor for consideration.

{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, 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 NMSA 1978, § 44-3-4 (1919) (“When the attorney general or district attorney refuses to act . . . such action may be brought in the name of the state by a private person on his own complaint.”). Petitioner requested that the district attorney pursue a quo warranto action against Judge Mitchell and the district attorney refused. Therefore, we proceed to the merits of Petitioner’s claim.

{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 Article VI, Section 33(A) of the New Mexico Constitution which states:

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.

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Clark v. Mitchell, 2016 NMSC 005, 9 N.M. 141 (N.M. 2015).

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