Hans Voss
This is in response to the recent column, It’s time for a review of how judges are held accountable, by State Rep. Dennis Kintigh.
As president-elect of the State Bar of New Mexico, I am responding to the recent attention focused on our judiciary on NMPolitics.net and in the Albuquerque Journal regarding checks and balances in the New Mexico judicial system. While this response is provided on behalf of the Board of Bar Commissioners (BBC), the elected body that represents New Mexico’s 8,000+ lawyers, any errors or omissions are my own.
I write because the BBC is dedicated to providing the public with more information about the role of the judiciary, and the article in question may have left its readers with the idea that the New Mexico judiciary is somehow above the law, lacking appropriate oversight or accountability. I am confident that a full consideration of the judicial appointment, election/retention system and the established regulatory process will show that there are many checks on the quality and performance of our courts and that the safeguards provided therein are employed when appropriate.
Safeguards in the appointment process and on the bench
Take as a starting point the process by which judges are initially appointed to the bench. A nonpartisan merit selection commission comprised of judicial, attorney and non-attorney members, each of whom are appointed by members of the three branches of government, screen applicants for an open judicial position to verify the qualifications of applicants before they can be considered by the governor for appointment. The names of those with sufficient qualifications are sent to the governor for further consideration.
During the next step of the process, beginning when the governor receives this list of potential appointees from a Judicial Selection Commission, the Governor’s Office further reviews the qualifications of the applicants. The governor then makes an appointment to bench.
The chosen appointee then serves as judge until the first election cycle after his or her appointment. As part of the election process, the judge must face a contest with any interested and qualified candidates in a primary and a general election. Once elected, a sitting judge must thereafter meet with the approval of the voters in retention elections.
Once on the bench, whether newly appointed or having been elected, each member of the judiciary is subject to the Code of Judicial Conduct, must answer inquires/complaints made before the Judicial Standards Commission, and is scrutinized by the Judicial Performance Evaluation Commission, which reports its findings and recommendations to the public before each election to help inform the electorate so that each voter can in turn make an educated decision about whether or not a judge should be retained.
Each of these three safeguards is in place to ensure that judges act appropriately and are held responsible for their actions. In addition to the safeguards addressed so far, the New Mexico Constitution provides for impeachment of a judge just as it does for any other elected official.
Judges are occasionally voted out or removed from office
Importantly, the Judicial Standards Commission is created by the New Mexico Constitution, not the Supreme Court. It is an independent, objective body that investigates and prosecutes charges against judges. While the Supreme Court is the final arbiter in maters involving complaints of judicial misconduct, the court does not play a role in the process regarding specific concerns with any individual judge prior to the issue being heard by the court.
Supreme Court justices are likewise subject to these same processes and procedures. They too are held accountable: Their qualifications are verified; they have to stand in a primary and a general election after their appointment; and they have to stand for retention elections every six years. The justices are subject to the Code of Judicial Conduct, must answer to the Judicial Standards Commission and are scrutinized by the Judicial Performance Commission.
Since the merit selection and evaluation process was created over 20 years ago, at least five district and metropolitan court judges have been rejected by voters in their retention elections. The Judicial Standards Commission process has resulted in the occasional removal of judges from every level of the New Mexico judiciary, including the Supreme Court itself.
The judiciary is made of fallible human beings. But for the most part, these human beings are hard-working, well-intentioned, ethical public servants who sacrifice everyday to meet their responsibilities and meet the expectations placed upon them.
Voss is president-elect of the State Bar of New Mexico.