State ex rel. Franchini v. Oliver, S-1-SC-38977

CitationS-1-SC-38977
Case DateJune 02, 2022
CourtSupreme Court of New Mexico

STATE OF NEW MEXICO, ex rel., HON. NANCY J. FRANCHINI, HON. ROBERT DAVID PEDERSON, HON. BRYAN BIEDSCHEID, HON. RICHARD JACQUEZ, As New Mexico State District Court Judges And Citizens of New Mexico, THE DISTRICT METROPOLITAN COURT JUDGES' ASSOCIATION, INC., HON. LINDA ROGERS, HON. ROSEMARY COSGROVE-AGUILAR, As Metropolitan Court Judges and Citizens of the State of New Mexico, Petitioners,
v.

MAGGIE TOULOUSE OLIVER, Secretary of State for the State of New Mexico, Respondent.

No. S-1-SC-38977

Supreme Court of New Mexico

June 2, 2022


Released for Publication August 30, 2022

ORIGINAL PROCEEDING

The Vargas Law Firm, LLC Ray M. Vargas, II Albuquerque, NM for Petitioners

Office of the Secretary of State Dylan Kenneth Lange, General Counsel Santa Fe, NM for Respondent

In Accord, P.C.

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Daniel A. Ivey-Soto Albuquerque, NM for Amicus Curiae

OPINION

HENRY M. BOHNHOFF, JUDGE RETIRED, SITTING BY DESIGNATION

{¶1} In this case, we address the constitutionality of legislation that staggers retention elections for New Mexico district and metropolitan court judges. In November 2020, New Mexico voters approved an amendment to Article XX, Section 3 of the New Mexico Constitution that authorized the Legislature to enact legislation "to . . . stagger the election of officers for a particular state, county or district office throughout the state." N.M. Const. art. XX, § 3(C). In early 2021, the Legislature passed and the Governor approved Senate Bill 266, which amended NMSA 1978, Sections 1-26-5 and -6 (2021), to provide for staggered retention elections of district court and metropolitan court judges, respectively. S.B. 266, 55th Leg., 1st Sess. (N.M. 2021), https://nmlegis.gov/Sessions/21%20Regular/final/SB0266.pdf. Petitioners, sitting district and metropolitan court judges and their association, brought this mandamus proceeding to challenge the constitutionality of this legislation. Petitioners contend that Article VI, Section 33 of the New Mexico Constitution mandates that retention elections of all district and metropolitan court judges must be held at the same time, and as the more specific provision, it controls over Article XX, Section 3. Following oral argument on December 2, 2021, we denied the petition, concluding that amended Article XX, Section 3 authorized the Legislature to stagger the retention election cycles for district and metropolitan court judges. We issue this opinion to explain our reasoning.

I. JURISDICTION

{¶2} This Court has original jurisdiction to hear petitions for writs of mandamus. N.M. Const. art. VI, § 3. Mandamus is a proper remedy to test the constitutionality of a statute when the petitioner has no "plain, speedy, [or] adequate remedy at law." Bartlett v. Cameron, 2014-NMSC-002, ¶ 8, 316 P.3d 889 (internal quotation marks and citation omitted); State ex rel. Sego v. Kirkpatrick, 1974-NMSC-059, ¶ 6, 86 N.M. 359, 524 P.2d 975. Mandamus may be used in appropriate circumstances to "prohibit unconstitutional official action." State ex rel. Sugg v. Toulouse Oliver, 2020-NMSC-002, ¶ 7, 456 P.3d 1065 (internal quotation marks and citation omitted). Petitioners grounded their request for mandamus relief on the fact that, based on the current language of Sections 1-26-5 and -6, Respondent would take action in the near future to place district and metropolitan court judges on the 2022 general election ballot, action which otherwise would be unauthorized. Respondent does not contest jurisdiction. We agree that our jurisdiction was properly invoked to address the constitutionality of Respondent's contemplated action.

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II. BACKGROUND

{¶3} Prior to 1988, "our Constitution required partisan election of the entire judiciary, with the governor filling judicial vacancies by appointment." State ex rel. Richardson v. Fifth Jud. Dist. Nominating Comm'n, 2007-NMSC-023, ¶ 16, 141 N.M. 657, 160 P.3d 566 (citations omitted); accord State ex rel. King v. Raphaelson, 2015-NMSC-028, ¶ 6, 356 P.3d 1096. At that time, Article XX, Section 4 of the New Mexico Constitution provided that, following the governor's appointment of a district judge to fill a vacancy, "such appointee shall hold such office until the next general election. His successor shall be chosen at such election and shall hold his office until the expiration of the original term." (Emphasis added.) State ex rel. Swope v. Mechem, 1954-NMSC-011, ¶ 22, 58 N.M. 1, 265 P.2d 336, construed this provision to reflect an intent that the terms of all district judges would be uniform. That is, the terms of all district judges throughout the State would end at the same time every six years, regardless of when or whether the seat became vacant or newly occupied, and consequently all district judges would be subject to re-election at the same time:

[The last sentence of Article XX, Section 4] applies to all vacancies following an incumbent; assuming the death of an incumbent in the office of . . . district judge, there can be no doubt that the appointee or his successor elected at the general election following his appointment serves only until the termination date of the term of the original incumbent
This means that, under all equations of vacancy in these offices, . . . the terms of district judges . . . will begin and end at the same time

Swope, 1954-NMSC-011, ¶¶ 21-22.

{4} New Mexico's system for selecting its judges underwent major revision in 1988. In that year,

the Constitution was amended to institute a merit selection system, in which the governor now fills judicial vacancies by appointment from a list of applicants who are evaluated on a variety of merit-based factors and recommended by a judicial nominating commission. N.M. Const. art. VI, §§ 35-37. The appointed judge is then subject to one partisan election in the next general election, after which he or she is subject to nonpartisan retention election, requiring a fifty-seven percent supermajority to be retained in office. N.M. Const. art. VI, § 33.

Fifth Jud. Dist. Nominating Comm'n, 2007-NMSC-023, ¶ 16 (footnote omitted).

{¶5}Article VI, Section 35, which addresses the appointment and initial election of appellate judges, provides that "[a]ny person appointed [as a Supreme Court justice or Court of Appeals judge] shall serve until the next general election. That person's successor shall be chosen at such election and shall hold the office until the expiration

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of the original term." We have held that pursuant to Article VI, Section 36, which states that "[e]ach and every provision of Section 35 of Article [VI] of this constitution shall apply to the district judges nominating committee," the foregoing language in Article VI, Section 35 is applicable to district court judges. Raphaelson, 2015-NMSC-028, ¶ 13 (internal quotation marks and citation omitted). We now similarly conclude that pursuant to Article VI, Section 37, which provides that "[e]ach and every provision of Section 35 of Article [VI] of this constitution shall apply to the metropolitan court judicial nominating committee," that language in Article VI, Section 35 also is applicable to metropolitan court judges.

{¶6} In Raphaelson, this Court addressed whether, under the 1988 amendments to Article VI of our Constitution, a district court judge elected in a partisan election is subject to retention in the sixth[1] year of his or her predecessor judge's term or in the sixth year following the partisan election in which he or she was first elected. Raphaelson, 2015-NMSC-028, ¶ 1. The Court observed that in Swope, 1954-NMSC-11, ¶ 22, it had concluded that under Article XX, Section 4, "the terms for all district court judges were designed to be on the same schedule, beginning and ending at the same time every six years regardless of when or whether the seat became vacant or newly occupied." Raphaelson, 2015-NMSC-028, ¶ 23. The Court noted that "[t]he language of former Article XX, Section 4 is substantially similar to the language of current Article VI, Section 35." Id. ¶ 25. The Court then reasoned that Article VI, Sections 33, 35, and 36 should be given the same construction as Article XX, Section 4:

The Swope opinion encapsulates the common understanding and interpretation of terms of office for district judges, not only at the time, but up to the successful amendment of the Constitution in 1988. In light of this Court's clear holding in Swope, the framers of the 1988 amendments had a choice. They could have altered the definition of a term of office . . . . But they did not do so. Far from a change in direction, the 1988 amendments enshrine the same understanding and interpretation as Swope.

Raphaelson, 2015-NMSC-028, ¶ 27; see also id. ¶ 31. The Court also reiterated the public purpose, previously noted in Swope, 1954-NMSC-011, ¶ 22, served by this approach to judicial elections: "It fosters consistency and uniformity thereby avoiding confusion in the electorate. Both judges and the people who will sit in judgment of their performance know exactly when that opportunity arises-and when to focus on that performance-every six years across the state." Raphaelson, 2015-NMSC-028, ¶ 30.

{¶7} By 2019, however, the wisdom of continued adherence to a policy of a uniform date for the retention election of all district and metropolitan judges was being questioned. The impetus for revisiting the issue was the increase in the number of district judges in some judicial districts as well as the number of metropolitan judges in Bernalillo County, the State's only metropolitan court, and the impact that those numbers had on election ballots. In 2014, for example, the Bernalillo County general

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election ballot included twenty district judges and twelve metropolitan judges who were subject to retention election. N.M. Sec'y of State, Canvass of Results of General Election Held on November 4, 2014 - State of New Mexico.[2] In 2018, the...

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