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Court: Judge Can Keep Seat

Court: Judge Can Keep Seat

The case revolved around 1988 amendments to the Constitution that created the state's judicial nominating process.


There is nothing in the New Mexico Constitution that prohibits a judge who loses a retention election from being appointed to fill the vacancy created by his election loss, the New Mexico Supreme Court ruled Monday.

The ruling means that State District Judge Albert Mitchell Jr. of Tucumcari can continue being the judge for the 10th Judicial District, a job he was appointed to earlier this year after losing his retention election last November.

The New Mexico Constitution “contains no affirmative language prohibiting a nominating commission from considering and nominating, and the governor from appointing, a judicial applicant based upon the applicant’s nonretention in the immediately preceding election,” said the opinion by Justice Petra Jimenez Maes.

The case revolved around 1988 amendments to the Constitution that created the state’s judicial nominating process. Nominating committees of lawyers, judges and non-lawyers interview judicial candidates and send a list of recommended names to the governor. The governor fills vacancies from those lists, and the person named to a judgeship must run in a contested election the next election cycle. After that, judges are up for retention and must get a “yes” vote from 57 percent of the voters.

Mitchell, a Republican, lost his retention election in November 2014 when 52 percent of the voters cast ballots to retain him. He left the job on Jan. 1 and then applied to the area’s nominating commission to be reappointed to his old seat. Also applying for the seat was Donald Schutte, a Democrat who had held the judgeship before Mitchell. But Mitchell beat Schutte in the 2008 election. Gov. Susana Martinez appointed Mitchell to the vacancy on Jan. 9.

After Mitchell’s appointment, Tucumcari area resident Pamela Clark asked the Supreme Court to remove him from office. Clark argued that the case was governed by the retention sections of the constitutional amendments that created the judicial nominating process. A judge who loses a retention election can’t be considered for reappointment, she argued. After oral arguments in the case earlier this year, the Supreme Court refused to remove Mitchell from the bench.

The court’s opinion said the retention and nominating sections of the Constitution are separate. The 1988 amendments “do not indicate any intent by the framers to prohibit nonretained judges from applying for and being appointed to judicial vacancies,” Maes wrote.

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Dennis Domrzalski is managing editor of ABQ Free Press. Reach him at dennis@freeabq.com.

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