Russillo v. Scarborough, Civ. No. 88-1412 JB.

• Citation: 727 F. Supp. 1402
• Decision Date: 20 December 1989
• Docket Number: Civ. No. 88-1412 JB.
• Parties: Frederick M. RUSSILLO, Petitioner, v. The Honorable Tony SCARBOROUGH, Chief Justice of the New Mexico Supreme Court, Robert J. Lovato, Court Administrator, the Supreme Court of the State of New Mexico, Tommy E. Jewell, Presiding Judge of the Metropolitan Court of Bernalillo County, and the Metropolitan Court of Bernalillo County, Respondents.
• Court: U.S. District Court — District of New Mexico

727 F. Supp. 1402

Frederick M. RUSSILLO, Petitioner, v. The Honorable Tony SCARBOROUGH, Chief Justice of the New Mexico Supreme Court, Robert J. Lovato, Court Administrator, the Supreme Court of the State of New Mexico, Tommy E. Jewell, Presiding Judge of the Metropolitan Court of Bernalillo County, and the Metropolitan Court of Bernalillo County, Respondents.

Civ. No. 88-1412 JB.

United States District Court, D. New Mexico.

December 20, 1989.

Frank P. Dickson, Albuquerque, N.M., for petitioner.

John B. Pound, Santa Fe, N.M., for respondents.

MEMORANDUM DECISION AND ORDER

J. THOMAS GREENE, District Judge.

This matter is before the court on defendants' motion to dismiss or in the alternative for summary judgment. Frank P. Dickson, Jr. represents the plaintiff, and John B. Pound represents the defendants. The court heard extensive argument of counsel and received post hearing supplemental memorandums and materials, after which the matter was deemed submitted for decision. Now being fully advised, the court enters its Memorandum Decision and Order.

FACTUAL BACKGROUND

Plaintiff was hired as Administrator of the Metropolitan Court of Bernalillo County, New Mexico, in January 1986 and served in that capacity until he was terminated on or about April 26, 1988. He was selected and appointed by the judges of the Metropolitan Court, and at the time of termination he was directly responsible to Judge Tommy E. Jewell, the Metropolitan Court's presiding judge.

On January 21, 1988, former New Mexico Supreme Court Justice Edwin Felter, at the direction of the New Mexico Supreme Court, initiated an investigation regarding irregularities at the Metropolitan Court as set forth in an audit and financial report of the State Auditor. The report disclosed interfund borrowing from bail bond accounts, cashing of employees' checks from court funds, and cash control problems.¹ During that investigation plaintiff was placed on administrative leave. Once the investigation was concluded, plaintiff was reinstated as Metropolitan Court Administrator. Three months later, on or about April 18, 1988, approximately $29,000 was stolen from the accounting department of the Metropolitan Court. After the theft, plaintiff submitted a written resignation to Judge Jewell, stating, "While I had felt the security measures we had instituted were adequate to meet our needs, this is apparently not the case." (Affidavit of Frederick M. Russillo, Exhibit E.) Judge Jewell rejected plaintiff's resignation. However, plaintiff was terminated shortly thereafter by Judge Jewell, acting at the direction of Tony Scarborough, then Chief Justice of the New Mexico Supreme Court.²

Plaintiff asserts four claims. First, that he has been deprived of a property interest without due process of law in violation of 42 U.S.C. § 1983. The property interest claimed is the right of plaintiff to continued employment so long as he satisfied his hiring authority, that is, the judges of the Metropolitan Court. Plaintiff also asserts in his first claim that he was wrongly denied a pre-termination or post-termination hearing and the right to have his termination decided by a majority of the Judges of the Metropolitan Court. Second, that he has been deprived of a liberty interest without due process of law in that he was terminated without a "name-clearing" hearing in violation of 42 U.S.C. § 1983. Plaintiff claims that the circumstances of his termination unfairly tarnished his good name and reputation. Third, that a Writ of Mandamus should be issued requiring his reinstatement as Metropolitan Court Administrator since the judges of the Metropolitan Court never took action to terminate him. Fourth, that defendants are in breach of contract in that they terminated plaintiff in contravention of New Mexico statutes and court personnel rules, which plaintiff claims formed the terms of his employment contract.³

Defendants' response to all of the claims essentially is grounded upon the prerogatives and authority vested in the Supreme Court of New Mexico by the Constitution of New Mexico under which the termination action taken is claimed to be fully authorized. Defendants also assert defenses of the Eleventh Amendment as to the Supreme Court and the Metropolitan Court, qualified immunity as to the individual defendants, and that in all events injunctive and mandamus relief is not appropriate.

The claims of plaintiff and defenses asserted by defendants will be addressed under the following categories: (I) The nature and scope of the power of superintending control of the Supreme Court of New Mexico; (II) Claims of deprivation of property and liberty; and (III) Contract claim.

I. SUPERINTENDING CONTROL POWER OF NEW MEXICO SUPREME COURT

The Metropolitan Court was established as an inferior court within the New Mexico judicial system by the New Mexico Legislature in 1979.⁴ The New Mexico Constitution disburses judicial power of the state to all courts, including inferior courts such as the Metropolitan Court,⁵ but places in the Supreme Court alone the power of "superintending control over all inferior courts." Article VI, section 3, of the Constitution of New Mexico states:

The supreme court shall have original jurisdiction in quo warranto and mandamus against all state officers, boards and commissions, and shall have a superintending control over all inferior courts; it shall also have power to issue writs of mandamus, error, prohibition, habeas corpus, certiorari, injunction and all other writs necessary or proper for the complete exercise of its jurisdiction and to hear and determine the same.

(Emphasis added).

The fundamental issue in this case is whether the aforesaid constitutional grant of "superintending control" gives the New Mexico Supreme Court control over administrative functions of inferior courts.

A. Scope of Power of "Superintending Control"

1. Control over Judicial Functions — Litigated Matters

Plaintiff seeks to have this court narrowly limit the New Mexico Supreme Court's power of superintending control to only those matters which arise in the course of ordinary litigation. In this regard, plaintiff contends that the constitutional grant is only an historical power which allows the court to issue writs to inferior tribunals in order to direct the course and progress of litigation. In support of this position, plaintiff relies on the case of State v. Roy, 60 P.2d 646 (N.M. 1936). In that case, the New Mexico Supreme Court referred to the constitutional power of superintending control as "the power to control the course of ordinary litigation in inferior courts, as exercised at common law by the Court of King's Bench and by the use of writs specifically mentioned in the Constitution and other writs there referred to or authorized." Id. at 661 (emphasis added). Plaintiff maintains that reported cases in New Mexico dealing with the power of superintending control only involve the exercise of power over a lower court by writ or other process in connection with litigated matters.⁶

Defendants also emphasize the State v. Roy case, because in another portion of the opinion the New Mexico Supreme Court very broadly described the scope of the power of superintending control:

"The power of superintending control is an extraordinary power. It is hampered by no specific rules or means for its exercise. It is so general and comprehensive that its complete and full extent and use have practically hitherto not been fully and completely known and exemplified. It is unlimited, being bounded only by the exigencies which call for its exercise. As new instances of these occur it will be found able to cope with them. And, if required, the tribunals having authority to exercise it will, by virtue of it possess the power to invent, frame, and formulate new and additional means, writs, and processes whereby it may be exerted."

Id. at 662 (emphasis added) (quoting 51 L.R.A. 111). Defendants also place emphasis on the later case of State ex rel. Anaya v. Scarborough, 75 N.M. 702, 410 P.2d 732 (1966), in which the New Mexico Supreme Court explained the unique and broad nature of the power of superintending control and how it can be used to maintain public respect for the judiciary:

One of the reasons for placing the power of superintending control in the Supreme Court must have been to make the Supreme Court responsible to see that inferior courts do not depart from proper judicial activity, become dictatorial or oppressive in their conduct, or otherwise behave improperly so as to interfere with or reflect upon the court system, or shake public confidence in the administration of justice and the judiciary.

Id. 410 P.2d at 734 (emphasis added).⁷

The wording of Article VI, section 3 of the New Mexico Constitution makes it clear that the power to issue writs constitutes a grant of power in addition to the power of superintending control. In this regard, the New Mexico Supreme Court also said in Scarborough, "We recognize the power of superintending control as one separate and distinct from other power and jurisdiction granted this court in the constitution." 410 P.2d at 734; see also Alexander v. Delgado, 84 N.M. 717, 507 P.2d 778, 779 (1973) ("This court has a superintending control over all inferior courts as well as jurisdiction and power to issue writs of certiorari.") (emphasis added). This court is convinced that the power of superintending control extends beyond the issuance of writs in litigated matters.

2. Control over Administrative and Personnel Functions

Notwithstanding the broad scope of the power of superintending control described in the foregoing case law, plaintiff submits that Article VI, section 3 of the New Mexico constitution does not establish in the New Mexico Supreme Court power over administrative matters, such as exist in states which have adopted a "unified court system." Plaintiff argues that specific constitutional or legislative authority must...