State Ex Rel. Franchini v. Toulouse Oliver

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1 IN THE SUPREME COURT OF THE STATE OF NEW MEXICO
2 Opinion Number:
3 Filing Date: June 2, 2022
4 NO. S-1-SC-38977
5 STATE OF NEW MEXICO, ex rel.,
6 HON. NANCY J. FRANCHINI,
7 HON. ROBERT DAVID PEDERSON,
8 HON. BRYAN BIEDSCHEID,
9 HON. RICHARD JACQUEZ,
10 As New Mexico State District Court Judges
11 And Citizens of New Mexico,
12 THE DISTRICT METROPOLITAN COURT
13 JUDGES’ ASSOCIATION, INC.,
14 HON. LINDA ROGERS,
15 HON. ROSEMARY COSGROVE-AGUILAR,
16 As Metropolitan Court Judges and
17 Citizens of the State of New Mexico,
18 Petitioners,
19 v.
20 MAGGIE TOULOUSE OLIVER,
21 Secretary of State for the
22 State of New Mexico,
23 Respondent.
24 ORIGINAL PROCEEDING
25 The Vargas Law Firm, LLC
26 Ray M. Vargas, II
27 Albuquerque, NM
1 for Petitioners
2 Office of the Secretary of State
3 Dylan Kenneth Lange, General Counsel
4 Santa Fe, NM
5 for Respondent
6 InAccord, P.C.
7 Daniel A. Ivey-Soto
8 Albuquerque, NM
9 for Amicus Curiae
1 OPINION
2 BOHNHOFF, Judge.
3 {1} In this case, we address the constitutionality of legislation that staggers
4 retention elections for New Mexico district and metropolitan court judges. In
5 November 2020, New Mexico voters approved an amendment to Article XX,
6 Section 3 of the New Mexico Constitution that authorized the Legislature to enact
7 legislation “to . . . stagger the election of officers for a particular state, county or
8 district office throughout the state.” N.M. Const. art. XX, § 3(C). In early 2021, the
9 Legislature passed and the Governor approved Senate Bill 266, which amended
10 NMSA 1978, Sections 1-26-5 and -6 (2021), to provide for staggered retention
11 elections of district court and metropolitan court judges, respectively. S.B. 266, 55th
12 Leg., 1st Sess. (N.M. 2021),
13 https://nmlegis.gov/Sessions/21%20Regular/final/SB0266.pdf. Petitioners, sitting
14 district and metropolitan court judges and their association, brought this mandamus
15 proceeding to challenge the constitutionality of this legislation. Petitioners contend
16 that Article VI, Section 33 of the New Mexico Constitution mandates that retention
17 elections of all district and metropolitan court judges must be held at the same time,
18 and as the more specific provision, it controls over Article XX, Section 3. Following
19 oral argument on December 2, 2021, we denied the petition, concluding that
1 amended Article XX, Section 3 authorized the Legislature to stagger the retention
2 election cycles for district and metropolitan court judges. We issue this opinion to
3 explain our reasoning.
4 I. JURISDICTION
5 {2} This Court has original jurisdiction to hear petitions for writs of mandamus.
6 N.M. Const. art. VI, § 3. Mandamus is a proper remedy to test the constitutionality
7 of a statute when the petitioner has no “plain, speedy, [or] adequate remedy at law.”
8 Bartlett v. Cameron, 2014-NMSC-002, ¶ 8, 316 P.3d 889 (internal quotation marks
9 and citation omitted); State ex rel. Sego v. Kirkpatrick, 1974-NMSC-059, ¶ 6, 86
10 N.M. 359, 524 P.2d 975. Mandamus may be used in appropriate circumstances to
11 “prohibit unconstitutional official action.” State ex rel. Sugg v. Toulouse Oliver,
12 2020-NMSC-002, ¶ 7, 456 P.3d 1065 (internal quotation marks and citation
13 omitted). Petitioners grounded their request for mandamus relief on the fact that,
14 based on the current language of Sections 1-26-5 and -6, Respondent would take
15 action in the near future to place district and metropolitan court judges on the 2022
16 general election ballot, action which otherwise would be unauthorized. Respondent
17 does not contest jurisdiction. We agree that our jurisdiction was properly invoked to
18 address the constitutionality of Respondent’s contemplated action.
2
1 II. BACKGROUND
2 {3} Prior to 1988, “our Constitution required partisan election of the entire
3 judiciary, with the governor filling judicial vacancies by appointment.” State ex rel.
4 Richardson v. Fifth Jud. Dist. Nominating Comm’n, 2007-NMSC-023, ¶ 16, 141
5 N.M. 657, 160 P.3d 566 (citations omitted); accord State ex rel. King v. Raphaelson,
6 2015-NMSC-028, ¶ 6, 356 P.3d 1096. At that time, Article XX, Section 4 of the
7 New Mexico Constitution provided that, following the governor’s appointment of a
8 district judge to fill a vacancy, “such appointee shall hold such office until the next
9 general election. His successor shall be chosen at such election and shall hold his
10 office until the expiration of the original term.” (Emphasis added.) State ex rel.
11 Swope v. Mechem, 1954-NMSC-011, ¶ 22, 58 N.M. 1, 265 P.2d 336, construed this
12 provision to reflect an intent that the terms of all district judges would be uniform.
13 That is, the terms of all district judges throughout the State would end at the same
14 time every six years, regardless of when or whether the seat became vacant or newly
15 occupied, and consequently all district judges would be subject to re-election at the
16 same time:
17 [The last sentence of Article XX, Section 4] applies to all vacancies
18 following an incumbent; assuming the death of an incumbent in the
19 office of . . . district judge, there can be no doubt that the appointee or
20 his successor elected at the general election following his appointment
21 serves only until the termination date of the term of the original
22 incumbent.
3
1 This means that, under all equations of vacancy in these offices,
2 . . . the terms of district judges . . . will begin and end at the same time.
3 Swope, 1954-NMSC-011, ¶¶ 21-22.
4 {4} New Mexico’s system for selecting its judges underwent major revision in
5 1988. In that year,
6 the Constitution was amended to institute a merit selection system, in
7 which the governor now fills judicial vacancies by appointment from a
8 list of applicants who are evaluated on a variety of merit-based factors
9 and recommended by a judicial nominating commission. N.M. Const.
10 art. VI, §§ 35-37. The appointed judge is then subject to one partisan
11 election in the next general election, after which he or she is subject to
12 nonpartisan retention election, requiring a fifty-seven percent
13 supermajority to be retained in office. N.M. Const. art. VI, § 33.
14 Fifth Jud. Dist. Nominating Comm’n, 2007-NMSC-023, ¶ 16 (footnote omitted).
15 {5} Article VI, Section 35, which addresses the appointment and initial election
16 of appellate judges, provides that “[a]ny person appointed [as a Supreme Court
17 justice or Court of Appeals judge] shall serve until the next general election. That
18 person’s successor shall be chosen at such election and shall hold the office until the
19 expiration of the original term.” We have held that pursuant to Article VI, Section
20 36, which states that “[e]ach and every provision of Section 35 of Article [VI] of this
21 constitution shall apply to the district judges nominating committee,” the foregoing
22 language in Article VI, Section 35 is applicable to district court judges. Raphaelson,
23 2015-NMSC-028, ¶ 13 (internal quotation marks and citation omitted). We now
4
1 similarly conclude that pursuant to Article VI, Section 37, which provides that
2 “[e]ach and every provision of Section 35 of Article [VI] of this constitution shall
3 apply to the metropolitan court judicial nominating committee,” that language in
4 Article VI, Section 35 also is applicable to metropolitan court judges.
5 {6} In Raphaelson, this Court addressed whether, under the 1988 amendments to
6 Article VI of our Constitution, a district court judge elected in a partisan election is
7 subject to retention in the sixth1 year of his or her predecessor judge’s term or in the
8 sixth year following the partisan election in which he or she was first elected.
9 Raphaelson, 2015-NMSC-028, ¶ 1. The Court observed that in Swope, 1954-NMSC-
10 11, ¶ 22, it had concluded that under Article XX, Section 4, “the terms for all district
11 court judges were designed to be on the same schedule, beginning and ending at the
12 same time every six years regardless of when or whether the seat became vacant or
13 newly occupied.” Raphaelson, 2015-NMSC-028, ¶ 23. The Court noted that “[t]he
14 language of former Article XX, Section 4 is substantially similar to the language of
15 current Article VI, Section 35.” Id. ¶ 25. The Court then reasoned that Article VI,
16 Sections 33, 35, and 36 should be given the same construction as Article XX, Section
17 4:
1
Article VI, Subsections 33(C) and (D) prescribe six- and four-year terms for
district court judges and metropolitan court judges, respectively.
5
1 The Swope opinion encapsulates the common understanding and
2 interpretation of terms of office for district judges, not only at the time,
3 but up to the successful amendment of the Constitution in 1988. In light
4 of this Court’s clear holding in Swope, the framers of the 1988
5 amendments had a choice. They could have altered the definition of a
6 term of office . . . . But they did not do so. Far from a change in
7 direction, the 1988 amendments enshrine the same understanding and
8 interpretation as Swope.
9 Raphaelson, 2015-NMSC-028, ¶ 27; see also id. ¶ 31. The Court also reiterated the
10 public purpose, previously noted in Swope, 1954-NMSC-011, ¶ 22, served by this
11 approach to judicial elections: “It fosters consistency and uniformity thereby
12 avoiding confusion in the electorate. Both judges and the people who will sit in
13 judgment of their performance know exactly when that opportunity arises—and
14 when to focus on that performance—every six years across the state.” Raphaelson,
15 2015-NMSC-028, ¶ 30.
16 {7} By 2019, however, the wisdom of continued adherence to a policy of a
17 uniform date for the retention election of all district and metropolitan judges was
18 being questioned. The impetus for revisiting the issue was the increase in the number
19 of district judges in some judicial districts as well as the number of metropolitan
20 judges in Bernalillo County, the State’s only metropolitan court, and the impact that
21 those numbers had on election ballots. In 2014, for example, the Bernalillo County
22 general election ballot included twenty district judges and twelve metropolitan
23 judges who were subject to retention election. N.M. Sec’y of State, Canvass of
6
1 Results of General Election Held on November 4, 2014 – State of New Mexico.2 In
2 2018, the County’s general election ballot included eighteen metropolitan court
3 judges who were subject to retention election, and in 2020 the ballot included
4 seventeen district court judges who were subject to retention election. N.M. Sec’y
5 of State, Canvass of Results of General Election Held on November 6, 2018 – State
6 of New Mexico;3 N.M. Sec’y of State, Canvass of Results of General Election Held
7 on November 3, 2020 – State of New Mexico.4 In theory, in 2026, twenty-seven
8 district court judges and nineteen metropolitan court judges could be on the County’s
9 general election ballot. This development, which would contribute to lengthier
10 ballots printed with smaller fonts, generated concern among legislators and election
11 administrators. See, e.g., Verified Response of the Secretary of State filed herein at
12 2 (“[V]oting is very different today than it was in 1954. Now ballot crowding, voter
13 fatigue, and high costs of elections are the major concerns of every election
2
Available at https://www.sos.state.nm.us/voting-and-elections/election-
results/past-election-results-2014/ (last visited April 22, 2022) (follow the “2014
Statewide General Election Results Statewide Summary” hyperlink).
3
Available at https://www.sos.state.nm.us/voting-and-elections/election-
results/past-election-results-2018/ (last visited April 22, 2022) (follow the “2018
General Election Results Statewide Summary” hyperlink).
4
Available at https://www.sos.state.nm.us/voting-and-elections/election-
results/election-results-2020/ (last visited April 22, 2022) (follow the “2020 General
Election Candidate Summary Results Report” hyperlink).
7
1 administrator . . . .”); Brief of Amicus Curiae Legislative Sponsors at 29-30, State
2 ex rel. Sommer v. Oliver, S-1-SC-37785 (N.M. July 18, 2019) (discussing prospect
3 that absent staggered retention elections for district and metropolitan court judges,
4 the addition of forty-six retention questions to the Bernalillo County general election
5 ballot every twelve years could “have the potential to overwhelm voters”).
6 {8} The Legislature attempted to address these concerns in 2019 when it passed
7 and the Governor approved House Bill 407, which included the Nonpartisan Judicial
8 Retention Act, codified at NMSA 1978, §§ 1-26-1 to -6 (2019, amended 2021). H.B.
9 407, 54th Leg., 1st Sess. (N.M. 2019),
10 https://nmlegis.gov/Sessions/19%20Regular/final/HB0407.pdf. That Act generally
11 provided for staggered retention elections of Supreme Court justices and Court of
12 Appeals, district court, and metropolitan court judges. In particular, Section 1-26-
13 5(B) (2019) provided:
14 Terms of office for positions on the district court in each judicial
15 district shall be staggered, as follows:
16 (1) the term of office for division 1 and for every third
17 division number thereafter shall expire in 2020 and every six years
18 thereafter;
19 (2) the term of office for division 2 and for every third
20 division number thereafter shall expire in 2022 and every six years
21 thereafter; and
8
1 (3) the term of office for division 3 and for every third
2 division number thereafter shall expire in 2024 and every six years
3 thereafter.
4 In similar manner, Section 1-26-6(B) (2019) provided for staggering the expiration
5 of the terms of office of metropolitan court judges in 2022 and 2024 and every four
6 years thereafter.
7 {9} Soon thereafter, certain district and metropolitan court judges brought a
8 mandamus action challenging the constitutionality of Sections 1-26-5 and -6 (2019)
9 as impermissibly extending their terms of office. See Verified Petition for Writ of
10 Mandamus, State ex rel. Sommer v. Oliver, S-1-SC-37785 (N.M. July 2, 2019). In
11 Sugg, 2020-NMSC-002, ¶¶ 1, 13, we agreed with the petitioning judges and found
12 that the statutes were unconstitutional.5 However, in that case the constitutional
13 infirmity at issue was not grounded in the conflict between the mandate of uniform
14 judicial elections found in Article VI, Sections 33 and 35, and the legislation’s
15 provision for staggering those elections, see id. ¶ 11, and we therefore had no
16 occasion to revisit Swope or Raphaelson. Rather, “the narrow but important
17 question” that we addressed was the Legislature’s authority to alter terms of office
5
In Sugg, 2020-NMSC-002, we also addressed and upheld related petitions
challenging, on the same grounds, the constitutionality of other provisions of House
Bill 407 that provided for staggered elections of county commissioners, other county
officers, and district attorneys by altering the terms of those offices.
9
1 and thus election cycles that are established by the Constitution: “whether the
2 challenged provisions of HB 407, in delaying [the p]etitioners’ election cycles and
3 extending—either expressly or . . . by necessary implication—their term limits,
4 exceeded the Legislature’s authority.” Sugg, 2020-NMSC-002, ¶ 11. Following
5 extensive discussion of case law from other jurisdictions, see id. ¶¶ 13-22, we
6 concluded that, whether characterized as extending terms or deferring elections,
7 Sections 1-26-5 and -6 (2019) were unconstitutional:
8 As to the petitioning judges . . . , the Legislature’s attempts to modify
9 their election cycles contravened clear and unambiguous constitutional
10 mandates. Specifically, in requiring district and metropolitan court
11 judges to face retention or rejection at general elections every sixth and
12 fourth year, respectively, the framers of our Constitution evinced a clear
13 intent to establish outer time limits by which retention elections for
14 these classes of judges must be held.
15 Sugg, 2020-NMSC-002, ¶ 20 (internal quotation marks and citation omitted). We
16 nevertheless suggested the Legislature could resolve the problem by proposing a
17 constitutional amendment that would authorize the invalidated legislation:
18 “Assuming, as appears to be the case, that the Legislature wishes to pursue the
19 election-related policy goals sought to be effectuated through the portions of HB 407
20 that we strike down today, it is its prerogative to propose, and the voters[’] to adopt,
21 a constitutional amendment to that end.” Id. ¶ 23.
10
1 {10} The Court’s invitation was accepted. In its 2020 session, the Legislature
2 adopted House Joint Resolution 8, which proposed to amend Article XX, Section 3
3 of the Constitution by, among other changes, adding the following language as part
4 of Subsection C:
5 The term of a state, county or district officer may be adjusted by law to
6 align or stagger the election of officers for a particular state, county or
7 district office throughout the state. Any such adjustment shall require a
8 legislative finding that the adjustment is to provide for consistency in
9 the timing of elections for that office or to balance the number of offices
10 appearing on the ballot.
11 H.J.R. 8, 54th Leg., 2nd Sess. (N.M. 2020),
12 https://nmlegis.gov/Sessions/20%20Regular/final/HJR08.pdf. Thereafter, at the
13 November general election, the voters adopted this amending language by a margin
14 of 503,308 in favor to 277,744 against. Canvass of Returns of General Election Held
15 on November 3, 2020 – State of New Mexico, supra.
16 {11} Finally, in 2021, the Legislature passed and the Governor approved Senate
17 Bill 266, which amended Sections 1-26-5 and -6 (2019). S.B. 266. The legislation
18 re-adopted nearly verbatim the language of Sections 1-26-5(B) and -6(B),6 quoted
6
The only differences between the 2019 and 2021 versions of these two
sections are that the years of the expiring terms were updated in the 2021
amendment.
11
1 above. Section II, paragraph 9, supra. The legislation also included, as a temporary
2 provision that was not codified, the following legislative finding:
3 Pursuant to Article 20, Section 3 of the constitution of New
4 Mexico, the legislature finds that the judicial term adjustments provided
5 for district court judges in Section 1 of this 2021 act and for
6 metropolitan court judges in Section 2 of this 2021 act are needed to:
7 A. balance the number of judicial positions appearing on the
8 ballot in any one election cycle;
9 B. enable more effective evaluation of judges by the judicial
10 performance evaluation commission; and
11 C. create greater continuity of judges at the trial court level
12 by not having all judges up for judicial retention in the same election
13 cycle.
14 S.B. 266, § 3.
15 III. PETITIONERS’ ARGUMENT
16 {12} Petitioners’ argument is straightforward. Article VI, Section 33 of the New
17 Mexico Constitution, as construed by Raphaelson, 2015-NMSC-028, ¶ 28,
18 specifically requires that retention elections of all district judges statewide occur at
19 the same time. Article XX, Section 3, as amended in 2020, generally authorizes the
20 Legislature to stagger the dates of elections of district officers. If district and
21 metropolitan court judges are “district officers” within the meaning of Article XX,
22 Section 3, then the two provisions are in conflict. Citing the principle of
23 constitutional construction that, where two constitutional provisions are in
12
1 irreconcilable conflict, the general provision must yield to the specific provision,
2 Petitioners assert that Article VI, Section 33 must control district and metropolitan
3 court judge retention elections, and as a result Sections 1-26-5 and -6 are
4 unconstitutional.
5 IV. PRINCIPLES FOR RESOLVING CONFLICTS BETWEEN
6 CONSTITUTIONAL PROVISIONS
7 {13} The primary goal of our interpretation of the Constitution is to identify and
8 give effect to the intent of its framers and the electorate. State v. Ameer, 2018-
9 NMSC-030, ¶ 9, 458 P.3d 390; see also Greene v. Esquibel, 1954-NMSC-039, ¶ 29,
10 58 N.M. 429, 272 P.2d 330 (“[T]he polestar in the construction of Constitutions is
11 the intention of the makers and adopters.”). In Asplund v. Alarid, this Court noted
12 the challenge in discerning intent when constitutional provisions are in conflict:
13 Acts passed which conflict with the Constitution are invalid. But the
14 Constitution itself may be amended in the manner provided by it; and
15 when an amendment has been duly made, it becomes as much a part of
16 the Constitution as any other part thereof. It can hardly be asserted that
17 one part of the Constitution is unconstitutional, because it is not in
18 perfect accord with another part of the same instrument.
19 1923-NMSC-079, ¶ 11, 29 N.M. 129, 219 P. 786 (internal quotation marks and
20 citation omitted). Prior decisions of this Court have articulated several principles to
21 address this situation and construe constitutional provisions which are claimed to be
22 in conflict.
13
1 {14} First, if possible we will construe constitutional provisions in a harmonious
2 manner that will avoid any conflict. Hem v. Toyota Motor Corp., 2015-NMSC-024,
3 ¶ 23, 353 P.3d 1219; accord State ex rel. League of Women Voters v. Advisory
4 Comm., 2017-NMSC-025, ¶ 19, 401 P.3d 734.
5 {15} Second, where a constitutional amendment conflicts with a pre-existing
6 provision of the Constitution, and one provision “is not readily identifiable as the
7 more specific of the two” provisions, the later provision governs “‘as the latest
8 expression of the sovereign will of the people, and as an implied modification pro
9 tanto of the original provision.’” City of Albuquerque v. N.M. State Corp. Comm’n,
10 1979-NMSC-095, ¶ 6, 93 N.M. 719, 605 P.2d 227 (quoting Asplund, 1923-NMSC-
11 079, ¶ 11); see also Denish v. Johnson, 1996-NMSC-005, ¶ 29, 121 N.M. 280, 910
12 P.2d 914 (same).
13 {16} Third, and as a qualification to the second principle of recency, if one
14 provision is identifiable as the more specific of the two, “‘the specific section
15 governs over the general regardless of priority of enactment.’” Denish, 1996-
16 NMSC-005, ¶ 29 (emphasis added) (quoting N.M. State Corp. Comm’n, 1979-
17 NMSC-095, ¶ 5). The rationale for the general/specific rule is that the enacting body
18 “is presumed not to have intended a conflict between two [provisions] and because
19 [its] attention is more particularly directed to the relevant subject matter in
14
1 deliberating upon the special law.” State v. Santillanes, 2001-NMSC-018, ¶ 7, 130
2 N.M. 464, 27 P.3d 456 (internal quotation marks and citation omitted).7
3 {17} In New Mexico, the general/specific rule of constitutional construction can be
4 traced to statutory construction principles. See N.M. State Corp. Comm’n, 1979-
5 NMSC-095, ¶5 (citing State v. Blevins, 1936-NMSC-052, ¶ 7, 40 N.M. 367, 60 P.2d
6 208; Saiz v. City of Albuquerque, 1971-NMCA-101, ¶ 9, 82 N.M. 746, 487 P.2d 174,
7 overruled on other grounds by Galvan v. City of Albuquerque, 1975-NMSC-005, ¶
8 14, 87 N.M. 235, 531 P.2d 1208; Santa Fe Downs, Inc. v. Bureau of Revenue, 1973-
9 NMCA-064, ¶ 11, 85 N.M. 115, 509 P.2d 882); see also Fifth Jud. Dist. Nominating
10 Comm’n, 2007-NMSC-023, ¶ 17 (“[R]ules of statutory construction . . . apply
11 equally to constitutional construction.”); Postal Fin. Co. v. Sisneros, 1973-NMSC-
12 029, ¶ 8, 84 N.M. 724, 507 P.2d 785 (“The usual principles governing the
13 construction of statutes also apply to the interpretation of constitutions.”).
7
While three decisions of this Court have articulated the rule that the specific
constitutional provision prevails over the general one, in none of these cases has the
rule actually been applied. In New Mexico State Corp. Commission, neither of the
two provisions in question could be characterized as more specific than the other,
and the conflict was resolved instead on the basis of the principle of recency. 1979-
NMSC-095, ¶ 6. In Denish, the two provisions at issue were not irreconcilable and
could be construed in a harmonious manner. 1996-NMSC-005, ¶¶ 30-33. And in
League of Women Voters, the two conflicting provisions again were resolved on the
basis of the principle of recency. 2017-NMSC-025, ¶ 23.
15
1 {18} The general/specific rule is subject to an exception: “[T]o the extent of any
2 necessary repugnancy between them, the special statute, or the one dealing with the
3 common subject matter in a minute way, will prevail over the general statute, unless
4 it appears that the legislature intended to make the general act controlling.” Blevins,
5 1936-NMSC-052, ¶ 7 (emphasis added) (internal quotation marks and citation
6 omitted); see also Santillanes, 2001-NMSC-018, ¶ 7 (“[I]f two statutes dealing with
7 the same subject conflict, [then] the more specific statute will prevail over the more
8 general statute absent a clear expression of legislative intent to the contrary.”
9 (emphasis added)). More generally, we have noted that
10 the general/specific statute rule should not be applied in a rigid,
11 mechanistic fashion. . . . [T]he general/specific statute rule is merely a
12 tool of statutory interpretation and is not an end to itself. The
13 general/specific statute rule should not be applied in a manner that
14 ignores . . . the overall goal of statutory construction to ascertain and
15 give effect to the intent of the Legislature.
16 Id. ¶ 17 (internal quotation marks and citations omitted).
17 {19} The same considerations that underlie adoption of the clear intent exception
18 to the general/specific rule of statutory construction counsel its adoption in the
19 context of constitutional construction. See Block v. Vigil-Giron, 2004-NMSC-003, ¶
20 4, 135 N.M. 24, 84 P.3d 72 (“[O]ur primary goal is to give effect to the intent of the
21 Legislature which proposed [the constitutional provision] and the voters of New
22 Mexico who approved it.”). If evidence indicates that the purpose of a later-adopted
16
1 constitutional provision, whether general or specific, was to accomplish an implicit
2 repeal of an earlier provision, we will give effect to the later-adopted provision. Cf.
3 Galvan, 1975-NMSC-005, ¶ 11 (noting that “repeals by implication,” while not
4 favored, “will be declared where the last statute is so broad in its terms and so clear
5 and explicit in its words as to show it was intended to cover the whole subject, and
6 therefore to displace the prior statute” (internal quotation marks and citation
7 omitted)).
8 V. THE 2020 AMENDMENT TO ARTICLE XX, SECTION 3
9 IMPLICITLY REPEALED ARTICLE VI, SECTION 33’S
10 REQUIREMENT THAT ALL DISTRICT AND METROPOLITAN
11 COURT JUDGES STAND FOR RETENTION ELECTION AT THE
12 SAME TIME
13 {20} How do these principles inform our analysis of the constitutionality of
14 Sections 1-26-5 and -6? Initially, we consider whether “district officer,” as used in
15 Article XX, Section 3(C), encompasses district and metropolitan court judges.
16 Judges hold public offices and thus are public officers as opposed to employees. See
17 N.M. Const. art. VI, § 19 (barring Supreme Court justices and Court of Appeals,
18 district, and metropolitan court judges from holding any office other than a judicial
19 office); Perea v. Bd. of Torrance Cnty. Comm’rs, 1967-NMSC-056, ¶ 8, 77 N.M.
20 543, 425 P.2d 308 (outlining the characteristics of a public officer and stating that
21 judges are public and judicial officers); see generally 63C Am. Jur. 2d Public
17
1 Officers and Employees §§ 9, 19 (2018) (stating that judges are public and judicial
2 officers). In New Mexico, district court judges hold office within specific judicial
3 districts, N.M. Const. art. VI, § 12. Similarly, metropolitan court judges hold their
4 offices within a “metropolitan court district.” N.M. Const. art. VI, § 38; NMSA
5 1978, § 34-8A-1 (2010). “It is presumed that words appearing in a constitution have
6 been used according to their plain, natural, and usual signification and import.”
7 Clark v. Mitchell, 2016-NMSC-005, ¶ 12, 363 P.3d 1213 (internal quotation marks
8 and citation omitted). We conclude that district court judges and metropolitan court
9 judges are district officers within the meaning of Article XX, Section 3. As a result,
10 Article VI, Sections 33, 35, 36, and 37, and Article XX, Section 3 irreconcilably
11 conflict and cannot be harmonized: Article XX, Section 3 authorizes staggering of
12 terms contrary to this Court’s interpretation of Article VI, Sections 33, 35, 36, and
13 37 as requiring all district and metropolitan court judges to stand for retention at the
14 same time. See Raphaelson, 2015-NMSC-028, ¶¶ 28, 31; Swope, 1954-NMSC-011,
15 ¶ 22. Because Article VI, Section 33 focuses solely on judicial retention elections, it
16 is the more specific of the two provisions, and therefore in the absence of clear intent
17 to the contrary its provisions would control.
18 {21} The succession of legislative and judicial developments during the recent past
19 as described above is evidence of an intent that the 2020 amendment to Article XX,
18
1 Section 3 controls over the requirement in Article VI, Sections 33, 35. 36, and 37,
2 as interpreted by this Court, that all district and metropolitan court judges must stand
3 for retention election at the same time.
4 In the interpretation of a statute, changes made by the act in the previous
5 state of the law may be given consideration. Indeed, one of the
6 recognized rules of construction of statutes is to look to the state of the
7 law when the statute was enacted in order to see for what it was intended
8 as a substitute.
9 Bettini v. City of Las Cruces, 1971-NMSC-054, ¶ 12, 82 N.M. 633, 485 P.2d 96710 (internal quotation marks and citation omitted); see, e.g., Clark, 2016-NMSC-005, ¶
11 16 (relying on “the history and context of Article VI, Section 33” of the New Mexico
12 Constitution to conclude that it did not reflect “any intent by the framers to prohibit
13 nonretained judges from applying for and being appointed to judicial vacancies”);
14 Vigil-Giron, 2004-NMSC-003, ¶ 10 (“Finally, any uncertainty as to the legislative
15 intent behind the constitutional provision is removed by the implementing
16 legislation, enacted . . . immediately following the adoption of the constitutional
17 provision.”). See generally Raphaelson, 2015-NMSC-028, ¶ 22 (“The historical
18 purposes of the constitutional provision are instructive in determining the obvious
19 spirit . . . utilized in [its drafting].” (alterations in original) (internal quotation marks
20 and citation omitted)).
19
1 {22} In particular, statutory changes—and thus, pursuant to the foregoing
2 authority, a constitutional amendment—may be interpreted in light of court
3 decisions that prompted the amendment. See, e.g., Trujillo v. Trujillo, 1986-NMCA-
4 052, ¶ 21, 104 N.M. 379, 721 P.2d 1310 (“The statute [narrowing the scope of
5 tavernkeeper liability regarding alcohol sales to potentially intoxicated persons] was
6 an obvious response to Lopez [v. Maez, 1982-NMSC-103, 98 N.M. 625, 651 P.2d
7 1269], . . . [and w]e would contravene legislative intent were we to interpret the
8 statute as broadening the scope of tavernkeeper’s liability.”), implicitly overruled on
9 other grounds as recognized in Mendoza v. Tamaya Enters., Inc., 2010-NMCA-074,
10 ¶ 20, 148 N.M. 534, 238 P.3d 903; Feminist Women’s Health Ctr. v. Codispoti, 821
11 P.2d 1198, 1202 (Wash. 1991) (en banc) (construing statute regarding insurance
12 proceeds exemptions in light of court decisions that preceded its amendment); cf.
13 Brown v. Shell Oil Co., 339 N.W.2d 709, 711 (Mich. App. 1983) (“Amending
14 legislation should be liberally construed so as to correct defects in predecessor
15 statutes.”).
16 {23} In 2019, the Legislature enacted Sections 1-26-5 and -6 (2019) as part of an
17 attempt to address concerns about “ballot integrity” and “voter fatigue” by
18 staggering the terms of district and metropolitan court judges along with other
19 officials. See Brief of Amicus Curiae Legislative Sponsors at 29-30, State ex rel.
20
1 Sommer v. Oliver, S-1-SC-37785 (N.M. July 18, 2019). In 2020, in Sugg, 2020-
2 NMSC-002, ¶ 23, we invalidated the 2019 legislation for lack of constitutional
3 authorization, but invited the Legislature to propose and submit to the voters an
4 amendment to the Constitution that would authorize such staggered elections. The
5 following year, the Legislature passed House Joint Resolution 8, and the voters
6 subsequently approved the amendment to Article XX, Section 3. In 2021, the
7 Legislature with the Governor’s approval amended Sections 1-26-5 and -6 (2019) to
8 reinstate the provisions for staggered elections of district and metropolitan court
9 judges. Granted, the Legislature could have made its intent unmistakable by
10 expressly stating in the amendatory language of Article XX, Section 3 that it applied
11 to district and metropolitan court judges. This sequence of events nevertheless
12 reflects with sufficient and reasonable clarity that the 2020 amendment to Article
13 XX, Section 3 was intended to implicitly repeal the requirement in Article VI,
14 Sections 33, 35, 36, and 37, that all district and metropolitan court judges stand for
15 retention at the same time. We therefore hold that Article XX, Section 3 authorizes
16 the Legislature to stagger the retention terms of district and metropolitan court
17 judges and there is no other constitutional bar to such staggering.
21
1 VI. CONCLUSION
2 {24} Article XX, Section 3 of the New Mexico Constitution, as amended by the
3 voters in 2020, authorized the Legislature to amend Sections 1-26-5 and -6 (2019)
4 to stagger retention elections for district and metropolitan court judges. Accordingly,
5 the petition for writ of mandamus is denied.
6 {25} IT IS SO ORDERED.
7
8 HENRY M. BOHNHOFF, Judge
9 Retired, sitting by designation
10 WE CONCUR:
11
12 MICHAEL E. VIGIL, Justice
13
14 BRIANA H. ZAMORA, Justice
15
16 J. MILES HANISEE, Chief Judge
17 Sitting by designation
18
19 RICHARD C. BOSSON, Justice,
20 Retired, sitting by designation
22