UNM law school dean rebuffs governor in dispute over state’s judicial nominating process

There’s a fight brewing between Gov. Bill Richardson and the woman in charge of the state’s judicial nominating system.

At issue is the fact that a judicial nominating commission in Carlsbad, in January, recommended only one candidate to Richardson for appointment to an open district judge seat. The law requires commissions to interview applicants and recommend candidates to the governor. If the governor doesn’t like the options, he is allowed to ask, once, for the commission to meet again and send him additional recommendations from the original list of applicants.

The system is designed so that a bipartisan group of legal professionals weed out applicants who aren’t suited to be judges before politics enter into the picture with the appointment by the governor.

In this instance, the commission sent the name of only one – former District Judge James Richard Brown – to Richardson, though there were five applicants. Richardson didn’t like that and asked the commission for additional names. The commission met again and opted against sending other names to the governor.

That prompted Richardson to send a letter to the chair of the commission, University of New Mexico Law School Dean Suellyn Scarnecchia, demanding that it meet again and send him more names. Richardson argued in the Jan. 30 letter that, by sending only one name, the commission was taking from him the authority to appoint a new judge.

“It is wholly inappropriate for the commission to unilaterally appoint its preferred candidate in contravention of the governor’s clear appointment authority,” Richardson’s letter states. “If the commission fails to abide by this requirement, I will pursue all remedies available to me.”

Richardson said in a news release that he will push for legislation during the session “to reinforce the constitutional requirement that the commission send more than one judicial candidate to the governor for consideration.”

Richardson may not want to appoint Brown, a Democrat, because he appointed him last year to a newly created district judgeship in Carlsbad, but he only served for three months before being defeated in the November election by Republican Tom Rutledge, a former district attorney.

Richardson claims that has nothing to do with it, and says he wants more candidates who reflect the state’s diversity.

Scarnecchia, according to the Carlsbad Current-Argus, sent a letter to Richardson on Friday telling him his legal opinion is wrong and the commission won’t meet again.

“Because there is no requirement in the constitution to send the governor more than one name when only one candidate received a majority of votes from the commission, the various commissions believed that it would contravene the constitution to recommend the name of a candidate who did not have majority support,” Scarnecchia wrote.

Scarnecchia said she couldn’t call the commission to meet again because the constitution prohibits it.

“At the second meeting (of the commission), no additional nominees were able to garner a majority of commissioner votes and, therefore, the commission did not recommend any additional names,” she wrote, according to the newspaper. “I will not be able to reconvene the commission as the constitution does not provide for additional requests or meetings.”

The governor’s office had no immediate comment.

Scarnecchia, in her letter, responded to the governor’s charge that the commission is taking away his authority by writing that many nominating commissions have opted to send only the names of those candidates who have the support of a majority of commissioners.

At times that has meant sending only one name. Last fall, a commission in Las Cruces had two applicants to consider – Democrat Lisa Schultz and Republican Rita Nuñez Neumann – and commissioners only sent Schultz’s name to the governor. Neumann has been passed over several times because many in the legal community, including those who often serve on such commissions, don’t think she is qualified to be a judge.

Scarnecchia, in her letter, wrote that commissioners are sensitive to Richardson’s concern, which has also been expressed by previous governors, and strive to recommend at least two candidates to governors.

“The rule contemplates that the governor should normally have a choice in the selection of the new judge but also, at times, only one name will be recommended by a majority of commissioners,” she wrote, according to the newspaper. “Based on the Constitution, the practice of past commissions and the applicable rule, there is no legal basis for me to require the commission to recommend more than one name.”

Once recommendations are made, Richardson has 30 days to make an appointment. If he fails to do so, the chief justice of the New Mexico Supreme Court will do it.

Richardson could appoint Brown, or might instead opt to challenge Scarnecchia’s opinion in court.