STATE JUDICIAL STANDARDS COM'N v. Espinosa

• Decision Date: 02 July 2003
• Docket Number: No. 28,040.,28,040.
• Citation: 2003 NMSC 17,134 N.M. 59,73 P.3d 197
• Court: New Mexico Supreme Court
• Parties: STATE of New Mexico, ex rel., NEW MEXICO JUDICIAL STANDARDS COMMISSION and Commissioners, Douglas W. Turner, Chair, Lay Member, Teresa G. Chaparro, Vice-Chair, Lay Member, Hon. Frank H. Allen, District Judge Member, Hon. Frank K. Wilson, District Judge Member, Hon. Buddy Hall, Magistrate Judge Member, Kathleen M. Brandt, Esq., Attorney Member, Mark A. Filosa, Esq., Attorney Member, Marie N. Garcia-Shaffner, Lay Member, Daniel H. Houck, Lay Member, Francis McKinney-Ferguson, Lay Member, and James W. Tooke, Lay Member, Petitioners, v. Valerie ESPINOSA, Zolene Knott, Esther Marquez, Paul Sena, Dr. Gloria Taradash, and Shirley Williams, Purported Appointees, Respondents, and Honorable Bill Richardson, Governor of New Mexico, Real Party in Interest.

73 P.3d 197

134 N.M. 59

2003 NMSC 17

STATE of New Mexico, ex rel., NEW MEXICO JUDICIAL STANDARDS COMMISSION and Commissioners, Douglas W. Turner, Chair, Lay Member, Teresa G. Chaparro, Vice-Chair, Lay Member, Hon. Frank H. Allen, District Judge Member, Hon. Frank K. Wilson, District Judge Member, Hon. Buddy Hall, Magistrate Judge Member, Kathleen M. Brandt, Esq., Attorney Member, Mark A. Filosa, Esq., Attorney Member, Marie N. Garcia-Shaffner, Lay Member, Daniel H. Houck, Lay Member, Francis McKinney-Ferguson, Lay Member, and James W. Tooke, Lay Member, Petitioners, v. Valerie ESPINOSA, Zolene Knott, Esther Marquez, Paul Sena, Dr. Gloria Taradash, and Shirley Williams, Purported Appointees, Respondents, and Honorable Bill Richardson, Governor of New Mexico, Real Party in Interest.

No. 28,040.

Supreme Court of New Mexico.

July 2, 2003.

Hon. Frank K. Wilson, Alamogordo, NM, for Petitioners.

Patricia Madrid, Attorney General, David K. Thomson, Assistant Attorney General, Santa Fe, NM, for Respondents.

Eugene Zamora, Santa Fe, NM, for Real Party in Interest.

OPINION

MAES, Chief Justice.

{1} Petitioners, members of the Judicial Standards Commission (Commission), filed a petition for a writ of quo warranto with this Court, seeking to stop Governor Bill Richardson from removing the six lay members of the Commission and replacing them with new gubernatorial appointees. We issued a stay of any further business while we determined whether the Governor has the authority to remove prior gubernatorial appointees to the Commission. We hold that Article V, Section 5 of the New Mexico Constitution grants the governor the right to remove and replace lay members of the Commission. We therefore deny the petition for the writ and lift the stay of Commission business.

BACKGROUND

{2} The Commission was created in 1967. Its purpose is "to oversee and investigate the performance, conduct and fitness of members of the judiciary." 1967 Report of the Constitutional Revision Commission at 88. The Commission is made up of 11 members. Two members are district court judges and a third must be a magistrate judge. Those members are appointed by this Court. See NMSA 1978, § 34-10-1(C) (1999). Two members must be lawyers. Those members are appointed by the State Bar Association. See § 34-10-1(B). The other six "citizen" or "lay" members are appointed by the Governor. See § 34-10-1(A). The Commission operates with a system of staggered terms. Each lay Commissioner serves a term of five years. The lay members' terms are staggered such that one term expires each year. Because the sixth lay member was added later, however, two positions will expire June 30, 2004. The terms of the other Commissioners are also staggered.

{3} Shortly after Governor Richardson took office in January 2003, he began removing executive officers, state employees and board members and replacing them with his own appointees. He did so under the power of Article V, Section 5 of the New Mexico Constitution, which gives the Governor the power to remove officials that he has appointed, "unless otherwise provided by law." The Governor also sought to remove the lay members of the Commission who were serving at the time he took office. In March, he sent letters to at least four lay members of the Commission, thanking them for their service but informing them that they were being relieved of their positions. He then appointed six new members to serve on the Commission. The judge and lawyer Commissioners then filed this petition, seeking to prevent Respondents, the Governor's new appointees, from serving as commissioners. They also sought a stay of further Commission meetings until it could be determined which appointees are authorized to serve on the Commission. We granted the stay and agreed to consider the issues raised in the petition.

DISCUSSION

{4} Petitioners seek a writ of quo warranto. An action for a writ of quo warranto may be brought "when any person shall usurp, intrude into or unlawfully hold or exercise any public office...." NMSA 1978, § 44-3-4(A) (1919). "One of the primary purposes of quo warranto is to ascertain whether one is constitutionally authorized to hold the office he claims, whether by election or appointment...." State ex rel. Anaya v. McBride, 88 N.M. 244, 247, 539 P.2d 1006, 1009 (1975). The Governor argues that Petitioners should have sought a writ of mandamus or prohibition to prevent him from removing the existing members, rather than a writ of quo warranto to remove his appointees. We think Petitioners' claim can validly be raised under an action in quo warranto. Even if a different writ would be more appropriate, this Court ultimately needs to decide whether the Governor has the authority to remove sitting members of the Commission before their terms expire. The writ, if granted, would preclude Respondents from taking positions on the Commission.

{5} The Governor, on behalf of Respondents, asserts that he had the authority to remove the lay members of the Commission under Article V, Section 5 of our Constitution, which provides that, "The governor shall nominate and, by and with the consent of the senate, appoint all officers whose appointment or election is not otherwise provided for and may remove any officer appointed by him unless otherwise provided by law." Because the Legislature has imposed no limits on his removal power, the Governor argues that he can remove the lay members of the Commission at will. Petitioners, on the other hand, begin their analysis with Article VI, Section 32 of the New Mexico Constitution, which created the Commission, and its implementing statutes, NMSA 1978, § 34-10-1 through -4. At the core of their arguments is that the Commission must be an independent body free from political influence. Their claims involve the interpretation of both statutes and constitutional provisions, and our review is therefore de novo. See Georgia O'Keefe Museum v. County of Santa Fe, 2003-NMCA-003, ¶ 27, 133 N.M. 297, 62 P.3d 754; Bd. of Comm'rs v. Greacen, 2000-NMSC-016, ¶ 4, 129 N.M. 177, 3 P.3d 672.

{6} Article VI, Section 32 provides that:

There is created the `judicial standards commission,' consisting of two justices or judges, one magistrate and two lawyers selected as may be provided by law to serve for terms of four years, and six citizens, none of whom is a justice, judge or magistrate of any court or licensed to practice law in this state, who shall be appointed by the governor for five-year staggered terms as may be provided by law. If a position on the commission becomes vacant for any reason, the successor shall be selected by the original appointing authority in the same manner as the original appointment was made and shall serve for the remainder of the term vacated.

As noted above, § 34-10-1 provides for the appointment of the 11 members. Nothing in the implementing statutes expressly provides for the removal of Commission members once they are appointed. Similarly, nothing in Article VI, Section 32 expressly allows for the removal of Commission members.

{7} Because the commissioners have designated terms, this is not a situation in which the right of appointment carries an implied right of removal. See Adie v. Mayor of Holyoke, 303 Mass. 295, 21 N.E.2d 377, 380-81 (1939) ("[T]he right of removal does not exist in the appointing power, in the absence of some constitutional or statutory provision, where the term of the official is fixed by law for a definite period."). The Governor seems to argue that removal power is implied because the appointing authorities can fill a position if it becomes vacant "for any reason." We do not agree. In another case involving the removal of executive appointees, we explained that "[a] vacancy occurs when an appointee leaves office before the completion of his or her constitutional or statutory term." Denish v. Johnson, 1996-NMSC-005, ¶ 16, 121 N.M. 280, 910 P.2d 914 (emphasis omitted). We do not think this includes involuntary removal by the appointing authority. In addition, the Legislature has defined the term vacancy in NMSA 1978, § 34-10-2 (1968), which provides that: "Whenever any member of the judicial standards commission dies, resigns or no longer has the qualifications required for his original selection, his position on the commission becomes vacant." This statute was passed by the Legislature immediately after the Commission was created. "A contemporaneous construction by the legislature of a constitutional provision is a safe guide to its proper interpretation[] and creates a strong presumption that the interpretation was proper." State ex rel. Udall v. Colonial Penn Ins. Co., 112 N.M. 123, 129, 812 P.2d 777, 783 (1991) (internal quotations and citation omitted). We do not think any of the appointing authorities have the power to create a vacancy by removing one of the Commissioners from his or her position. For that reason, we agree with Petitioners that neither Article VI, Section 32 nor its implementing statutes provides a mechanism for the removal of Commission members.

{8} The Governor, however, is constitutionally endowed with a power that neither this Court nor the State Bar have been granted. The question before us is whether the power granted to the Governor under Article V, Section 5 extends to the lay positions on the Judicial Standards Commission. Petitioners raise two main arguments against extending the Governor's authority under Article V, Section 5 to the executive appointees on the Commission. They argue that allowing the Governor to remove lay members of the Commission would violate the separation of powers. They also argue that the text of Article VI, Section 32 prohibits the removal of Commission members before the end of a designated term. We address each argument in turn.

Separation of Powers

{9} Article III of our Constitution declares that:

The powers of the government of this state are divided into three distinct departments,

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