State v. 5TH Judicial Nominating Com'n.

• Decision Date: 18 May 2007
• Docket Number: No. 30,254.,30,254.
• Citation: 160 P.3d 566,2007 NMSC 023
• Parties: STATE of NEW MEXICO, ex rel., Bill RICHARDSON, Governor of the State of New Mexico, Petitioner, v. FIFTH JUDICIAL DISTRICT NOMINATING COMMISSION, Respondent.
• Court: New Mexico Supreme Court

160 P.3d 566

2007 NMSC 023

STATE of NEW MEXICO, ex rel., Bill RICHARDSON, Governor of the State of New Mexico, Petitioner, v. FIFTH JUDICIAL DISTRICT NOMINATING COMMISSION, Respondent.

No. 30,254.

Supreme Court of New Mexico.

May 18, 2007.

Gary K. King, Attorney General, Stuart M. Bluestone, Deputy Attorney General, David K. Thomson, Zachary A. Shandler, Assistant Attorney Generals, Hilary Chandler Tompkins, Office of the Governor, Santa Fe, NM, for Petitioner.

Sanders & Westbrook, P.C., Maureen A. Sanders, Special Assistant Attorney General, Albuquerque, NM, for Respondent.

OPINION

SERNA, Justice.

{1} A district judge position in the Fifth Judicial District sits vacant because of a perceived conflict between our Governor's constitutional authority to appoint judges from a list of qualified and recommended nominees and the Fifth Judicial District Nominating Commission's discretion in recommending qualified nominees to the Governor. We are thus confronted with two critically important competing interests, which we must reconcile in order to comply with both the spirit and letter of our Constitution. The suit comes to us as an original proceeding in mandamus, in which the Governor petitioned this Court for a Writ of Mandamus to issue against the Commission to require it to "convene . . . to actively solicit, accept and evaluate applications from qualified lawyers and send more than one nominee to the Governor for consideration for appointment to fill the vacancy" in the Fifth Judicial District.

{2} We hereby grant the Governor's Petition in part and remand to the Commission to expeditiously develop and implement guidelines for the active solicitation of additional qualified applicants to fill the vacancy in the Fifth Judicial District. We further direct the Commission to make a good faith effort to submit at least two names to the Governor, after utilizing the solicitation process, in order to discharge its intertwined constitutional duties to actively solicit qualified applicants and to recommend, in its discretion, additional names to the Governor so that the Governor has before him a bona fide choice.

I. FACTS

{3} The material facts in this case are undisputed. On November 7, 2006, Dean Suellyn Scarnecchia ("Dean"), Chair of the Judicial Nominating Commission, advised Governor Bill Richardson ("the Governor") that the Fifth Judicial District Nominating Commission ("the Commission") would meet on January 8, 2007, to consider applications to fill the judicial vacancy created by the retirement of Judge Jay Forbes ("Judge Forbes") of the Fifth Judicial District. On November 15, 2006, the Governor received a letter from Judge Forbes, dated November 9, 2006, advising that he would retire effective December 31, 2006. On December 14, 2006, the Governor received from the Dean the applications of five attorneys for the judicial vacancy in the Fifth Judicial District. The five applicants were Denise A. Madrid Boyea, James Richard Brown, Matthew T. Byers, Bennie George Davis, and Raymond L. Romero.

{4} The Commission convened on January 8, 2007, in Carlsbad, to consider the five applicants. Following its meeting, the Dean sent a letter to the Governor, which he received on January 10, 2007, recommending "the following one (1) candidates (in alphabetical, unranked order) for this position: James Richard Brown." The Governor previously appointed James Richard Brown ("Brown") to a newly created district judge position in the Fifth Judicial District; however, Brown lost his subsequent general election. On January 11, 2007, the Governor sent a letter to the Dean requesting, pursuant to Article VI, Section 36 of the New Mexico Constitution, that the Commission reconvene and submit additional names.

{5} The Commission reconvened on January 29, 2007, in Carlsbad and met for less than forty-five minutes. The Dean informed the Governor that the Commission had reviewed the original list of five applicants to "determine if any additional names from that pool should be nominated" and that "[t]he Commission voted not to nominate any additional names from the applicant pool," as no other applicant garnered a majority vote.

{6} On January 30, 2007, the Governor wrote to the Dean stating "[t]he commission is unlawfully usurping the executive's constitutional authority to make judicial appointments" and that "[t]here is no legitimate basis for the commission to send me only one name." Therefore, the Governor "demand[ed] that the commission reconvene and send me more than one nominee for this judicial vacancy." The Dean responded on February 2, 2007, that she would "not be able to reconvene the Commission, as the constitution does not provide for additional requests or meetings," concluding "[b]ased on the constitution, the practice of past commissions and the applicable rules, there is no legal basis for me to require the Commission to recommend more than one name."

{7} The Governor responded on February 5, 2007, requesting "a detailed explanation of the . . . Commission's decision not to send me more names, including the specific criteria applied to evaluate each applicant, the interviewing process, and the specific reasons why each of the other four applicants were not recommended to me" as well as "a detailed description of the voting procedure you employed as you are relying on the fact that the Commission reached a majority vote for only one applicant on both occasions." The Dean responded on February 9, 2007, providing the information requested, including a description of the Commission's voting procedures, as well as the Minutes of both the January 8, 2007, and January 29, 2007, Commission meetings.

{8} On February 22, 2007, the Governor petitioned this Court for a Writ of Mandamus to issue against the Commission to require it to "convene . . . to actively solicit, accept and evaluate applications from qualified lawyers and send more than one nominee to the Governor for consideration for appointment to fill the vacancy created by the retirement of Judge Forbes."

II. ANALYSIS

{9} This Court exercises original jurisdiction in mandamus, pursuant to Article VI, Section 3 of our Constitution, which provides in pertinent part: "The supreme court shall have original jurisdiction in . . . mandamus against all state officers, boards and commissions . . .; it shall also have power to issue writs of mandamus . . . and to hear and determine the same." See State v. Kirkpatrick, 86 N.M. 359, 363, 524 P.2d 975, 979 (1974). "`Mandamus is a drastic remedy to be invoked only in extraordinary circumstances.'" State ex rel. Shell W. E & P, Inc. v. Chavez, 2002-NMCA-005, ¶ 8, 131 N.M. 445, 38 P.3d 886 (quoting Brantley Farms v. Carlsbad Irrigation Dist., 1998-NMCA-023, ¶ 12, 124 N.M. 698, 954 P.2d 763). Indeed, mandamus "`lies only to force a clear legal right against one having a clear legal duty to perform an act and where there is no other plain, speedy and adequate remedy in the ordinary course of law.'" Id. (quoting Brantley Farms, 1998-NMCA-023, ¶ 16, 124 N.M. 698, 954 P.2d 763). We have long recognized that mandamus is ordinarily "`the proper remedy to compel the performance of an official act by a public officer.'" Laumbach v. Bd. of County Comm'rs of San Miguel County, 60 N.M. 226, 233, 290 P.2d 1067, 1070 (1955) (quoting Heron v. Garcia, 48 N.M. 507, 510, 153 P.2d 514, 515 (1944)).

{10} The issue before us is whether the Commission has a constitutional duty to actively solicit qualified applicants so as to make a good faith effort to provide the Governor with a list of more than one recommended nominee. If the Commission's actions at issue here are purely discretionary, mandamus will not lie "to correct or control the judgment or discretion of a public officer in matters committed to his care in the ordinary discharge of his duties." State ex rel. Four Corners Exploration Co. v. Walker, 60 N.M. 459, 463, 292 P.2d 329, 331 (1956). We are guided by the same standard we have employed since the very first days of our Statehood:

[I]t is . . . well established that mandamus will lie to compel the performance of mere ministerial acts or duties imposed by law upon a public officer to do a particular act or thing upon the existence of certain facts or conditions being shown, even though the officer be required to exercise judgment before acting.

Id. at 463, 292 P.2d at 331-32 (citing State ex rel. Walker v. Hinkle, 37 N.M. 444, 24 P.2d 286 (1933); State ex rel. Otto v. Field, 31 N.M. 120, 241 P. 1027 (1925); State ex rel. Evans v. Field, 27 N.M. 384, 201 P. 1059 (1921); State v. Marron, 18 N.M. 426, 137 P. 845 (1913)).

A ministerial act, as applied to a public officer, is an act or thing which he is required to perform by direction of law upon a given state of facts being shown to exist, regardless of his own opinion as to the propriety or impropriety of doing the act in the particular case.

Id. at 463, 292 P.2d at 332.

{11} We must construe our Constitution in order to determine whether mandamus properly lies. We begin with a description of the judicial nominating and appointment system set forth in our Constitution. Under our merit selection system, the governor fills judicial vacancies, defined in Article VI, Section 34 of our Constitution, by appointment, selecting from a list of names recommended by either the "Appellate judges nominating commission," N.M. Const. art. VI, § 35, the "District court judges nominating committee," N.M. Const. art. VI, § 36 (stating that "[e]ach and every provision of Section 35 of Article 6 of this constitution shall apply to the `district judges nominating committee'" except those regarding the composition of the committee), or the "Metropolitan court judges nominating committee," N.M. Const. art. VI, § 37 (stating that "[e]ach and every provision of Section 35 of Article 6 of this constitution shall apply to the metropolitan court judicial nominating committee" except those regarding...