The philosophical issue is the independence of the judiciary
Gov. Bill Richardson has cleaned house, replacing hundreds of board and commission members from the Gary Johnson years without regard to the system of staggered terms intended to assure continuity in the governing of everything from universities to museums to professional licensing. Where specific law kept him from tossing out the Johnson highway commissioners, he had the legislature change the law.
The Richardson sweep stunned many conscientious board and commission members settled comfortably into fixed terms. And although Johnson had been hauled before the Supreme Court in 1996 for arbitrarily axing New Mexico Tech regents (Lt. Gov. Diane Denish was one), Richardson went unchallenged — until he stepped over a revered constitutional line. It was then that a lone district judge decided to stand up to the governor.
The case began on March 15 when Richardson signed identical kiss-of-death letters: “Please accept my deepest thanks for your diligent and tireless service on the Judicial Standards Commission. Pursuant to the authority vested in me under the Constitution and laws of the State of New Mexico, I hereby relieve you of your duties. I have appointed your successor. . . .”
His office notified the commission that the governor had replaced Douglas Turner, Teresa Chaparro, Marie Garcia-Shaffner, Daniel Houck, Francis McKinney-Ferguson and James Tooke with Valerie Espinosa, Zolene Knott, Esther Marquez, Paul Sena, Gloria Taradash and Shirley Williams.
For the first time, the chief executive had extended his house cleaning to another branch of government, stepping over the separation-of-powers line. The move, if it ultimately succeeds, would give the Richardson appointees control of the authority that polices the judiciary. The commission since its creation by constitutional amendment in 1967 has knocked off faulty magistrates, judges and even a Supreme Court justice.
The commission is made up of two judges and one magistrate appointed by the Supreme Court, two lawyers named by the State Bar and six lay members appointed by the governor. The one-vote majority of non-lawyers serve staggered terms, as provided in the constitution and by statute, and none of the six terms had expired.
District Court Judge Frank K. Wilson of Alamogordo, a non-lay member of the commission, took action. He wrote to Atty. Gen. Patricia Madrid on April 16, demanding that she file a “quo warranto” petition against the governor in the Supreme Court. The rare proceeding requires someone acting in an official capacity to prove his authority to do so.
Time was of the essence because a meeting of the commission, which considers confidential material, was set for April 25. When Madrid failed to respond (she would emerge as an attorney for, not against, the governor), Wilson on April 22 faxed his own urgent petition, in the name of himself and other commissioners. The high court temporarily stopped the meeting.
In his faxed petition, Wilson said the provision of staggered terms “is meaningless if the appointees can be removed at will.” He argued that the independent and non-political setup of the commission, as well as the integrity of the entire judicial process, were at stake.
On the one hand, he wrote, was “the specter of an unhappy but politically well connected target of an investigation calling the governor to influence the commission.” On the other, “A politically powerful citizen could enlist the aid of the governor in influencing the commission to investigate a judge with whom the citizen is dissatisfied.”
In his subsequent brief, Wilson said a check with a national authority showed that no other governor has sought to remove members of a judicial disciplinary body. He quoted the Federalist papers on the fundamental American concept of separation of powers. Namely, that accumulation of all powers in the same hands is “the very definition of tyranny.”
In response, governor’s chief counsel Eugene Zamora and assistant attorney general David Thomson avoided the philosophical. They argued that a constitutional amendment adopted by the people in 1988 establishes that the governor’s power to appoint is the power to remove, “unless otherwise provided by law.” And the law does not specifically prevent the governor from removing Judicial Standards Commission members, they said. True, almost every state appointive office has a term, but they argued this doesn’t give the appointee some kind of “property right.”
The entire Supreme Court — Chief Justice Petra Jimenez Maes and Justices Pamela Minzner, Patricio Serna, Richard Bosson and Edward Chavez — signed the order stopping the meeting, requesting briefs by noon, May 1, and setting oral arguments the next day. Six weeks later, the case was still under advisement, leading at least one judicial expert to wonder what’s taking them so long.