Castellano, Matter of
| Decision Date | 26 January 1995 |
| Docket Number | No. 22126,22126 |
| Citation | 1995 NMSC 7,889 P.2d 175,119 N.M. 140 |
| Parties | In the Matter of Joe Cruz CASTELLANO, Jr., District Judge. |
| Court | New Mexico Supreme Court |
Pursuant to its power under New Mexico Constitution Article VI, Section 32, the Judicial Standards Commission of the State of New Mexico petitions this Court for an order permanently removing from office the Honorable Joe Cruz Castellano, Jr., District Judge, Division II, First Judicial District, on the grounds of willful misconduct in office. Judge Castellano contends that his rights to due process have been violated; that, as a result of recent amendments in the state constitution, this Court lacks authority to order his removal from office; that the standard of proof for disciplining a judge should be that the fact-finder is satisfied that the charges are true by proof beyond a reasonable doubt; and that even if this Court adheres to the view that the standard of proof is clear and convincing evidence, the charges against him were not proved by clear and convincing evidence. In answering these contentions, this Court has considered the questions whether the Commission's findings and conclusions support a determination that Judge Castellano has engaged in willful misconduct within the meaning of Article VI, Section 32 and, if so, whether that conduct merits the sanction of removal. For the following reasons, we grant the Commission's petition.
The Commission's petition supplements a prior request for relief. The Commission originally petitioned this Court in May 1994 for an order permanently removing Judge Castellano from office on the basis of a complaint filed in January 1994 by Martha A. Frank, Court Administrator for the First Judicial District, and a complaint filed in March 1994 by the Honorable Petra Jimenez Maes, Chief Judge of the District.
The original petition invoked this Court's power of superintending control under New Mexico Constitution Article VI, Section 3, and the Commission's authority under Article VI, Section 32 and requested an expedited briefing schedule and hearing date. The Commission had consolidated the two complaints, Nos. 94-03 and 94-25, for hearing and scheduled the matter for trial in April 1994 before three district judges acting as Special Masters: the Honorable Frank H. Allen and the Honorable Gerald R. Cole, district judges for the Second Judicial District, and the Honorable Robert M. Doughty II, district judge for the Twelfth Judicial District. Both Judge Cole and Judge Doughty are also members of the Judicial Standards Commission; Judge Allen is not.
On May 6, 1994, the Special Masters issued a report, which included findings of fact and conclusions of law, recommending that the Commission seek the immediate permanent removal of Judge Castellano from office and, in the alternative, immediate temporary removal pending the completion of other pending matters. On the same day the Commission accepted and adopted the report and directed its special counsel, George Gary Duncan, to petition this Court for the recommended relief. On June 20, 1994, this Court heard oral argument on the original petition and on June 22 issued an order immediately suspending Judge Castellano from office, remanding the matter back to the Commission for further consideration, and ordering that the Commission send a final recommendation in no more than six months.
In August 1994 the Commission began formal proceedings against Judge Castellano in a consolidated case that encompassed the charges made in Nos. 94-03 and 94-25 and two other matters: No. 93-52, concerning Judge Castellano's relationship with an organization known as First CASA (Court-Appointed Special Advocates, volunteers for children in dependency proceedings), which regularly engaged in proceedings before him; and No. 94-67, concerning Judge Castellano's conduct in presiding over the matter of City of Espanola v. Schneider, Rio Arriba County Cause No. 88-1282(c). In October 1994 Special Masters Allen, Cole, and Doughty heard evidence and then issued a second report, which included findings and conclusions, that again recommended permanent removal of Judge Castellano for willful misconduct in office. Judge Castellano filed objections to the report, and the Commission heard oral argument in November 1994. Following oral argument, the Commission overruled Judge Castellano's objections and adopted the report.
Subsequently the Commission's special counsel filed a supplemental petition for removal with this Court, requesting a briefing schedule and hearing date, renewing its prior request for an order permanently removing Judge Castellano from his judicial office, and assessing costs and expenses against him. This Court heard oral argument on January 11, 1995, and reserved ruling.
We begin with Judge Castellano's argument that this Court lacks constitutional authority to order his removal from office because that argument touches our jurisdiction as well as that of the Commission. We next address his argument that he has been deprived of due process and that the appropriate remedy would be dismissal of the charges. Finally, we consider his remaining arguments, which challenge the sufficiency of the evidence and the findings and conclusions on which the Commission has relied in its supplemental petition for removal.
Judge Castellano notes that in 1988 the people of New Mexico in adopting a form of merit selection for appellate, district, and metropolitan court judges, see N.M. Const. art. VI, Secs. 33-37, described the various ways in which a judicial office becomes vacant, see N.M. Const. art. VI, Sec. 34. That description, he contends, contains an exclusive listing, and because the listing does not mention removal by the Supreme Court, the 1988 amendments have superseded the constitutional authority on which the Commission has relied in petitioning this Court for his removal. We disagree.
The language on which Judge Castellano relies is as follows:
The office of any justice or judge subject to the provisions of Section 33 of Article 6 of this constitution becomes vacant on January 1 immediately following the general election at which the justice or judge is rejected by a majority of those voting on the question of his retention or rejection or on January 1 immediately following the date he fails to file a declaration of candidacy for the retention of his office in the general election at which the justice or judge would be subject to retention or rejection by the electorate. Otherwise, the office becomes vacant upon the date of the death, resignation or removal by impeachment of the justice or judge. The date for filing a declaration of candidacy for retention of office shall be the same as that for filing a declaration of candidacy in a primary election.
N.M. Const. art. VI, Sec. 34. Specifically, he contends that the second sentence precludes this Court from removing him from office because his right to occupy that office continues until his death, resignation, or removal by impeachment pursuant to New Mexico Constitution Article IV, Section 35. Article IV, Section 35 provides that the "sole power of impeachment shall be vested in the house of representatives."
Judge Castellano's argument asks this Court to read Article VI, Section 34 without regard to the context in which it appears and thus without regard to either the legislative purpose in proposing merit selection or the popular will in approving the amendment. Article VI, Section 34 contains the listing of when a judicial vacancy occurs in order to establish the point at which the appropriate nominating commission must begin its process for recommending names to the governor for appointment to fill that vacancy. Article VI, Section 35 requires the relevant nominating commission to meet within thirty days "[u]pon the occurrence of an actual vacancy," and Article VI, Sections 36 and 37 incorporate that provision by reference. Article VI, Section 34 defines the date of vacancy for a judge or justice who fails to be retained as January 1 of the year following the general election in which the judge or justice was unsuccessful in his or her attempt to be retained--an event for which no provision had been made prior to 1988. This same section then indicates that in other cases, the vacancy occurs when the judge ceases to serve as a result of death, resignation, or removal by impeachment.
We recognize, as Judge Castellano has noted, that the listing does not refer to the possibility of removal by the Supreme Court. We think that fact should be taken into account in construing Article VI, Section 34, but we also think that failure to specify removal by the Supreme Court as an occurrence of vacancy is inconclusive because other portions of the Constitution fill any gap and otherwise make the legislative intent clear.
Article VI, Section 35 provides that the relevant commission shall meet within a period of time after an actual vacancy. In the case of removal by the Supreme Court, as in the case of impeachment by the New Mexico House of Representatives, the commission chair should be able to determine on his or her own or with the assistance of the Attorney General when the vacancy actually occurs. Further, Article VI, Section 32 describes the procedures of the Judicial Standards Commission as "alternative to, and cumulative with, the removal of justices, judges and magistrates by impeachment and the original superintending control of the supreme court."...
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