Johnson v. Vigil-Giron

• Decision Date: 02 November 2006
• Docket Number: No. 30,039.,30,039.
• Citation: 2006 NMSC 051,146 P.3d 312
• Parties: Barbara V. JOHNSON, Roger Gonzales, and Republican Party of New Mexico, Petitioners, v. Rebecca VIGIL-GIRON, New Mexico Secretary of State, and Patricia Madrid, New Mexico Attorney General, Respondents, and Hector Balderas, Real Party in Interest, and New Mexico Democratic Party, Intervenor.
• Court: New Mexico Supreme Court

146 P.3d 312

2006 NMSC 051

Barbara V. JOHNSON, Roger Gonzales, and Republican Party of New Mexico, Petitioners, v. Rebecca VIGIL-GIRON, New Mexico Secretary of State, and Patricia Madrid, New Mexico Attorney General, Respondents, and Hector Balderas, Real Party in Interest, and New Mexico Democratic Party, Intervenor.

No. 30,039.

Supreme Court of New Mexico.

November 2, 2006.

Carpenter Law, P.C., Joshua Carpenter, Albuquerque, NM, for Petitioners.

Patricia A. Madrid, Attorney General, Christopher D. Coppin, Special Assistant Attorney General, David K. Thomson, Assistant Attorney General, Zachary A. Shandler, Assistant Attorney General, Santa Fe, NM, for Respondents.

Freedman Boyd Daniels, Hollander Goldberg & Ives, P.A., Joseph Goldberg, Matthew L. Garcia, Albuquerque, NM Garcia & Vargas, LLC, David P. Garcia, Ray M. Vargas, II, Santa Fe, NM, for Real Party In Interest.

Jones, Snead, Wertheim & Wentworth, P.A., Jerry Todd Wertheim, Santa Fe, NM, for Intervenor.

OPINION

BOSSON, Chief Justice.

{1} In this original proceeding in mandamus, Petitioners Barbara Johnson, Roger Gonzales, and the Republican Party of New Mexico, make three separate challenges to the upcoming 2006 general election ballot. While each Petitioner relies on different arguments, all three assert that the Secretary of State erred in including or excluding certain candidates from the 2006 general election ballot.

{2} In reaching the merits of Petitioners' claims, we must interpret certain sections of New Mexico's Election Code. Petitioner Johnson's and Petitioner Gonzales's claims require us to interpret NMSA 1978, § 1-8-8 (1995) and NMSA 1978, § 1-8-26 (1997). The Republican Party's claim requires us to review NMSA 1978, § 1-8-9 (1975). As explained in detail below, based on our examination of these sections of our Election Code, we find the arguments of all three Petitioners unpersuasive. Accordingly, we hold that the Secretary of State did not err in printing the 2006 general election ballot, and we deny the writ.

BACKGROUND

{3} We address three different challenges to the 2006 general election ballot, involving a Second Judicial District Judge position, a House of Representatives District 68 opening, and the State Auditor position. The discussion and resolution of each issue is highly reliant on specific facts which we address below.

DISCUSSION

Second Judicial District Judgeship

{4} Petitioner Johnson was nominated by the Republican Party of Bernalillo County (County Central Committee) to fill a district judge position that arose after the June primary with the retirement of District Judge James Blackmer, effective April 30, 2006. See State ex rel. Noble v. Fiorina, 67 N.M. 366, 369, 355 P.2d 497, 499 (1960) (when timing of resignation precludes a political party from choosing a candidate at the primary election, then the party may fill the vacancy after the primary by a central committee nomination). Pursuant to that nomination, the County Central Committee Chairman sent a nomination letter to the Bernalillo County Clerk on September 6, 2006. A courtesy copy of that letter was also sent to the Secretary of State. In its letterhead, title, text and signature, the letter referred to the County Central Committee as the nominating authority.

{5} The Bernalillo County Clerk rejected the filing and sent a letter to the County Central Committee explaining her reasons why the nomination letter was "improperly filed:" (1) under Section 1-8-8(A)(1) district judge positions are to be nominated by the state central committee, not the county central committee, and (2) the nomination should have been filed with the Secretary of State, not the county clerk, as required by Section 1-8-25.¹ The Secretary of State notified Johnson on September 20, 2006, that she would not appear on the ballot because she did not qualify as a candidate pursuant to Section 1-8-8(A)(1).

{6} Section 1-8-8, entitled "Vacancy on general election ballot; occurring after primary," in pertinent part states:

A. If after a primary election a vacancy occurs, for any cause, in the list of nominees of a qualified political party for any public office to be filled in the general election, ... the vacancy on the general election ballot may be filled by:

(1) the central committee of the state political party filing the name of its nominee for the office with the proper filing officer when such office is a federal, state, district or multi-county legislative district office; and

(2) the central committee of the county political party filing the name of its nominee for the office with the proper filing officer when such office is a magistrate, county or a legislative district office where the district is entirely within the boundaries of a single county.

...

C. Appointments to fill vacancies in the list of a party's nominees shall be made and filed at least fifty-six days prior to the general election ....

D. When the name of a nominee is filed as provided in this section, such name shall be placed on the general election ballot as the party's candidate for that office.....

(Emphasis added.)

{7} Petitioner Johnson asserts that Section 1-8-8(A)(2) applies to her candidacy because the Second Judicial District Court position is located in a single county, Bernalillo County. She relies on two New Mexico Attorney General Opinions interpreting a predecessor version of Section 1-8-8, one of which concludes "[i]f the Judicial District is composed of a single county, as the Second Judicial District now is, there can be no question but that the nominee is to be selected by the County Central Committee." N.M. Att'y Gen. Op. 72-49 (1972) (emphasis added); N.M. Att'y Gen. Op. 74-33 (1974) (concluding that a nominee for a legislative district located entirely within one county, as opposed to a multi-county legislative district, may be chosen by the county central committee). Petitioner therefore claims that it was proper for her to be nominated by the County Central Committee instead of the State Central Committee. She also argues that even if it was inappropriate to be nominated by the County Central Committee, her name should still be on the ballot because the Secretary of State did not notify her that she was off the ballot until well after the fifty-six day deadline for filling a vacancy set forth in Section 1-8-8(C).

{8} In examining the statute, we are impressed that the Legislature included a clear designation of when the County Central Committee or the State Central Committee fills a vacancy. The statute explicitly gives authority to the State Central Committee when the "office is a federal, state, district or multi-county legislative district office." Section 1-8-8(A)(1) (emphasis added). It gives the County Central Committee nominating authority only when the "office is a magistrate, county or a legislative district office where the district is entirely within the boundaries of a single county." Section 1-8-8(A)(2).

{9} The nomination in question here is for a "district" court judicial position, not a "magistrate, county or legislative district office where the district is entirely within the boundaries of a single county." Thus, based on the character of the position, the statute designates it as one to be filled by the state central committee and not the county central committee. This legislative choice is consistent with other legislative indicators. A district judgeship is a state position, not a county position. See Perea v. Bd. of Torrance County Comm'rs, 77 N.M. 543, 546, 425 P.2d 308, 309-10 (1967) (noting that a district court judge is a "state officer" thus employees under the control of district court judges are not county employees); NMSA 1978, § 1-8-25 (1998) (stating that all judicial offices, other than magistrates, file their declarations of candidacy with the secretary of state along with all the other state positions while the county positions file their declarations with the county clerk).

{10} We also observe that the two Attorney General Opinions on which Petitioner relies involved an older statute, since replaced by the current form of Section 1-8-8. When the Legislature amended the statute in 1979, it included a clear designation of when the County Central Committee or the State Central Committee is to act in the nomination process. While prior to the statute's amendment it arguably might have been proper for the County Central Committee to nominate Petitioner Johnson, the Legislature subsequently clarified the law, and the Secretary of State was obliged to follow it.² Thus, we hold that a district court judge position falls squarely under Section 1-8-8(A)(1), which means that a nomination to fill a vacancy for a district judge position must come from the state central committee of a political party.

District 68 of the New Mexico House of Representatives

{11} The conflict over the names on the ballot for State Representative for District 68 extends back to the primary election on June 6, 2006. In that election, Representative Hector Balderas won the Democratic primary for the district. Importantly, no Republican candidate ran in that primary election. Balderas subsequently withdrew from the race for District 68 to run for State Auditor. His withdrawal on September 5, 2006 was timely under New Mexico law. See § 1-8-9 (withdrawal must occur at least sixty-three days prior to the general election).

{12} Then, on September 9, 2006, the State Central Committee of the Republican Party sent the Secretary of State a letter nominating Roger Gonzales as the Republican candidate for the District 68 Representative seat. The Secretary of State rejected the nomination. Petitioner Gonzales argues that the rejection was in error because his nomination was in compliance with state law, and alternatively, that even if not in compliance, he should be included on the ballot because the Secretary of State did not inform him by mail that his name would not...