State Ex Rel. King v. Sloan

2011 NMSC 020, 253 P.3d 33, 149 N.M. 620
CourtNew Mexico Supreme Court
DecidedJune 1, 2011
Docket32,411
StatusPublished
Cited by4 cases

This text of 2011 NMSC 020 (State Ex Rel. King v. Sloan) is published on Counsel Stack Legal Research, covering New Mexico Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State Ex Rel. King v. Sloan, 2011 NMSC 020, 253 P.3d 33, 149 N.M. 620 (N.M. 2011).

Opinion

OPINION

PER CURIAM.

{1} Carol Sloan, a New Mexico Public Regulation Commission (PRC) Commissioner, was convicted and subsequently sentenced for the felony offenses of aggravated battery and aggravated burglary. That same day, the Attorney General filed a petition for a writ of quo warranto asking that this Court remove Ms. Sloan from office because of her felony convictions. We set the matter for oral argument and ruled from the bench that Ms. Sloan was removed from office because of her felony convictions. We accordingly issued a writ of quo warranto but also ordered the parties to submit supplemental briefs addressing whether Ms. Sloan should be removed from office as of the day she was found guilty of her felony offenses, the day she was sentenced, or the day this Court issued its writ. The Attorney General subsequently filed his supplemental brief but Ms. Sloan never did. We now issue this opinion to explain in greater detail the decision we issued from the bench and to explain why we conclude that Ms. Sloan’s removal from office was effective upon entry of her judgment of conviction.

{2} The office of PRC Commissioner is a constitutionally created elective public office. See N.M. Const, art. XI, § 1. The qualifications for holding elective public office are set forth in Article VII, Section 2(A) of the New Mexico Constitution, which provides that “[ejvery citizen of the United States who is a legal resident of the state and is a qualified elector therein, shall be qualified to hold any elective public office except as otherwise provided in this constitution.” Of relevance to this case is who is considered “a qualified elector” under our state constitution, or, more specifically, who is not.

{3} If Ms. Sloan is not a qualified elector, she is not qualified to hold the office of PRC Commissioner. Article VII, Section 1 provides that anyone “convicted of a felonious or infamous crime” is not a qualified elector “unless. restored to political rights.” Our legislature has recognized this constitutional restriction on the right to hold public office. See, e.g., NMSA 1978, § 10-1-2 (1953) (providing that a person convicted of a felony is not qualified to be elected to a public office); NMSA 1978, § 31-13-1 (E) (2005) (providing that a person convicted of a felony “shall not be permitted to hold an office of public trust for the state”). In light of the foregoing constitutional and statutory provisions, because Ms. Sloan was convicted of two felony offenses, we issued a writ of quo warranto to remove her from office.

{4} In her written response to the petition and subsequent oral argument before this Court, Ms. Sloan raised two basic arguments in opposition to the issuance of a writ of quo warranto. First, she contended that her felony convictions did not disqualify her from continuing to hold a public office to which she was lawfully elected. And second, even if her felony convictions disqualified her from continuing to hold public office, she contended that only the Legislature could remove her from office through the impeachment process. For the reasons that follow, we reject both arguments.

Felony Convictions Occurring During the Term of an Elective Office Disqualify the Elected Official from Continuing to Hold That Office

{5} Although Ms. Sloan does not dispute that she was convicted and sentenced for two felony offenses, she nonetheless maintains that those convictions do not disqualify her from continuing to hold public office until the expiration of the term for which she was elected. Ms. Sloan emphasizes that at the time she was elected she was qualified to hold office. In this regard, there is no dispute between the parties. Though Ms. Sloan appears to recognize that her felony convictions could preclude her from holding elective office in the future, she maintains that her felony convictions do not disqualify her from serving the remainder of her elected term of office. Instead, Ms. Sloan suggests that a writ of quo warranto is only properly used to remove someone who is not qualified to hold office at the outset. While it is true that the writ of quo warranto can be used to remove someone who from the very beginning was not qualified to hold office, see, e.g., State ex rel. Anaya v. McBride, 88 N.M. 244, 539 P.2d 1006 (1975), we disagree with Ms. Sloan’s contention that the writ is an inappropriate means for removing someone who was qualified at the time of taking office but later becomes disqualified.

{6} Quo warranto is an appropriate procedure for removing someone who has committed an act that forfeits the office he or she once lawfully held. See NMSA 1978, § 44-3-4(B) (1953) (authorizing an action for a writ of quo warranto “when any public officer, civil or military, shall have done or suffered an act which, by the provisions of law, shall work a forfeiture of his office”); see also State ex rel. Repay v. Fodeman, 30 Conn.Supp. 82, 300 A.2d 729 (1972) (approving the use of a writ of quo warranto to remove a public official who became disqualified from continuing to hold office by changing residency to a different town). In this regard, it is generally recognized that

eligibility to public office is of a continuing nature and must exist at the commencement of the term and during the occupancy of the office. The fact that the candidate may have been qualified at the time of his election is not sufficient to entitle him to hold the office, if during the continuance of his or her incumbency he or she ceases to be qualified.

State ex rel. Graddick v. Rampey, 407 So.2d 823, 826 (Ala.1981) (internal quotation marks and citation omitted).

{7} As noted above, our state constitution provides that “to hold any elective public office” one must be “a qualified elector.” N.M. Const, art. VII, § 2(A). One cannot be a qualified elector if convicted of committing a felony offense. See N.M. Const, art. VII, § 1. Ms. Sloan would have us construe the phrase “to hold any elective public office” as a discrete act that only refers to the time when one is elected to office. But as noted above, to hold public office is an ongoing endeavor. As such, it requires the officeholder to maintain the status of a qualified elector. Because Ms. Sloan is a convicted felon she is no longer a qualified elector and cannot continue to hold public office.

Impeachment Does Not Preempt Quo Warranto as the Exclusive Means for Removing a Felon from Public Office.

{8} Sloan also argues that, even if her felony conviction disqualifies her from continuing to hold office, she cannot be removed by this Court through a writ of quo warranto. Ms. Sloan argues instead that impeachment by the Legislature is the exclusive means for removing her from office. See N.M. Const, art. IV, § 36 (“All state officers and judges of the district court shall be liable to impeachment for crimes, misdemeanors and malfeasance in office ....”); see also N.M. Const, art. IV, § 35 (vesting the impeachment power solely with the House of Representatives and requiring all impeachments to be tried by the Senate). We reject her attempt to place that limitation on the constitutionally sanctioned power of quo warranto.

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Bluebook (online)
2011 NMSC 020, 253 P.3d 33, 149 N.M. 620, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-king-v-sloan-nm-2011.