Attorney General Opinions and Advisory Letters
Decision Information
Citations - New Mexico Appellate Reports
In The Matter of Salazar - cited by 0 documents
State ex rel. New Mexico Judicial Standards Comm'n v. Espinosa - cited by 58 documents
State v. Andrews - cited by 46 documents
State v. Boyse - cited by 94 documents
State v. Willie - cited by 35 documents
In The Matter of Salazar - cited by 0 documents
State ex rel. New Mexico Judicial Standards Comm'n v. Espinosa - cited by 58 documents
State v. Andrews - cited by 46 documents
State v. Boyse - cited by 94 documents
State v. Willie - cited by 35 documents
Decision Content
STATE OF NEW MEXICO
OFFICE OF THE ATTORNEY GENERAL
HECTOR H. BALDERAS
ATTORNEY GENERAL
November 30, 2020
Joyce Bustos, Chair
New Mexico Judicial Standards Commission
P.O. Box 27248
Albuquerque, NM 87125-7248
Re: Opinion Request: Constitutionality of Certain Provisions in Senate Bill 668,
Passed During the 2019 Regular Session (Revised)
Dear Chair Bustos:
You requested an Attorney General Opinion regarding the constitutionality of certain
provisions of the State Ethics Commission Bill (SB 668) passed during the 2019 Regular
Session of the New Mexico Legislature. Specifically, you asked whether a floor
amendment, adopted and included in the final bill signed by the Governor, impermissibly
expanded the Judicial Standards Commission’s (“the Commission”) oversight from
justices, judges and magistrates to include “court-appointed commissioners, hearing
officers, administrative law judges or special masters while acting in a judicial
capacity.” NMSA 1978, § 34-10-2.1(A) (1977, amended eff. Jan. 1, 2020).
You noted that Article III of the New Mexico Constitution establishes the separation of
powers of our three branches of state government. N.M. Const. art. III. You also identified
those express provisions of the New Mexico Constitution which authorize legislative
encroachment on the power of the judiciary, citing Article VI, Sections 10, 16, 23, 24 and
26, authorizing inter alia, legislative determination of judicial pay and districts, and those
portions of Section 32 allowing legislation regarding the selection of, and staggering of
terms of certain members. N.M. Const. art. VI, § 10, §§ 23 to -24, § 26, § 32.
Finally, you expressed the Commission’s concerns that, if it proceeds upon a complaint
against a commissioner, hearing officer, or special master, the Commission will be acting
unconstitutionally and thereby subject itself to litigation. In light of such concerns, the
Commission requests an opinion as to whether the recent amendment to Section 34-10-2.1
expanding the Commission’s jurisdiction to encompass “court-appointed commissioners,
hearing officers, administrative law judges or special masters is constitutional.” § 34-10-
2.1(A) (1977, amended eff. Jan. 1, 2020).
TOLL FREE 1-844-255-9210 TELEPHONE: (505)490-4060 FAX: (505)490-4883 www.nmag.gov
MAILING ADDRESS: P.O. DRAWER 1508 - SANTA FE, NEW MEXICO 87504-1508
STREET ADDRESS: 408 GALISTEO STREET - SANTA FE, NEW MEXICO 87501
Chair Joyce Bustos
Page 2
November 30, 2020
ANALYSIS
A fundamental
aim
of statutory
construction
is
to
determine
legislative
intent,
accomplished primarily by looking at the language of the statute and its legislative
purpose. State v. Andrews, 1997-NMCA-017, ¶ 5, 123 N.M. 95, 934 P.2d 289. Statutes
are to be read literally, so long as their words are plain and unambiguous, and a literal
reading would not lead to an injustice, absurdity, or contradiction. Id.; see also State v.
Willie, 2009-NMSC-037, ¶ 9, 146 N.M. 481, 212 P.3d 369. The rules of statutory
construction apply equally to interpret the Constitution. State v. Boyse, 2013-NMSC-024,
¶ 9 (citing State ex rel. Richardson v. Fifth Judicial Dist. Nominating Comm’n, 2007-
NMSC-023, ¶ 17, 141 N.M, 657, 160 P.3d 566).
The New Mexico Constitution should be interpreted in a way “that reflects the drafter’s
intent.” Boyse, 2013-NMSC-024, ¶ 9, 303 P.3d 830, 832 (quoting State v. Lynch, 2003-
NMSC-020, ¶ 24, 134 N.M. 139, 74 P.3d 73).
The questions you raise about the constitutionality of the 2019 legislative amendment
implicate the separation of powers between government branches. The New Mexico
Constitution created three co-equal branches of state government: the legislative,
executive, and judicial. N.M. Const., art. III. Article III of the Constitution clearly
provides:
The powers of the government of this state are divided into three distinct
departments, the legislative, executive and judicial, and no person or
collection of persons charged with the exercise of powers properly belonging
to one of these departments, shall exercise any powers properly belonging to
either of the others, except as in this constitution otherwise expressly directed
or permitted.
The Supreme Court detailed the Commission’s origins in its 2003 decision, State ex rel.
New Mexico Judicial Standards Comm’n v. Espinosa, 2003-NMSC-017, 73 P.3d 197. In
1964, the sole method of removing a judge from office was impeachment. Espinosa, 2003-
NMSC-017, ¶ 10. This prompted the 1964 Constitutional Revision Commission to
recommend the creation of the Commission, noting the lack of “appropriate judicial
disciplinary machinery.” Id. (quoting 1964 Report of the Constitutional Revision
Commission, at 116). The 1967 Constitutional Revision Commission echoed the need for
an independent commission to oversee judicial performance, conduct and fitness. Id.
(quoting 1967 Report of the Constitutional Revision Commission, at 88). Hence, the voters
approved a constitutional amendment creating the Commission during the November 7,
1967 special election. N.M. Const. art. VI, § 32.
The Supreme Court has described the Commission’s role as a “weighty responsibility”
vested in the Commission by our Constitution. In re Salazar, 2013-NMSC-007, ¶ 7, 299
P.3d 409, 411. As a co-equal branch of government, the judiciary is obligated to ensure
integrity and high standards of conduct of its members. Id. In essence, the Commission
serves “the role of watchdog for the judiciary.” Espinosa, 2003-NMSC-017, ¶ 11.
TOLL FREE 1-844-255-9210 TELEPHONE: (505)490-4060 FAX: (505)490-4883 www.nmag.gov
MAILING ADDRESS: P.O. DRAWER 1508 - SANTA FE, NEW MEXICO 87504-1508
STREET ADDRESS: 408 GALISTEO STREET - SANTA FE, NEW MEXICO 87501
Chair Joyce Bustos
Page 3
November 30, 2020
The express language of the 1967 constitutional amendment authorized the Commission to
investigate and to recommend the discipline, removal or retirement of “a justice, judge or
magistrate.” N.M. Const. art. VI, § 32. The language specifying the Commission’s
oversight of justices, judges and magistrate has not been altered since the Commission’s
1967 creation, although voters have approved several amendments to Section 32. These
changes included substituting a sentence listing the basis for discipline (1978 amendment,
adopted at the November 7, 1978 general election); the addition of one magistrate as a
Commission member (1998 amendment, adopted at November 3, 1998 general election);
and multiple changes in 2012 in increase the Commission’s membership, alter the terms of
members, and to remove the gendered words “he” and “his” in references to justices, judges
or magistrates. (2012 amendment, adopted at November 6, 2012 general election).
Neither the 1967 constitutional amendment nor the successive iterations of Section 32
contain any grant of authority to the legislature in relation to the Commission’s
jurisdiction. The sole grant of authority Section 32 provides the legislature concerns the
selection and staggered terms of Commission members. N.M. Const. art. VI, § 32 (stating
Commission consists of two justices or judges, one magistrate and two lawyers “selected
as may be provided by law”; and gubernatorial appointments serve five-year terms
staggered “as may be provided by law”).
Article VI contains other sections granting the legislature the authority to legislate in
regards to the judicial branch. Section 11 states that supreme court justices shall receive
“such salary as may hereafter be fixed by law.” NM Const. art. VI, § 11. Compensation
of district court judges is equally within the legislative branch’s authority. Section 17 states
“[t]he legislature shall provide by law for the compensation of the judges of the district
court.” N.M. Const. art. VI, § 17. Further examples of legislative authority expressly
granted by the Constitution include allowing the legislature to establish the appellate
jurisdiction of the supreme court (Section 2); the establishment of judicial districts (Section
12); and the judicial districts and limited original jurisdiction to be exercised by magistrate
courts (Section 26). N.M. Const. art. VI, § 2, § 12, § 26.
The functions of the Commission are judicial functions. Espinosa, ¶ 14. The Constitution
does not provide a grant of authority to the legislature regarding the Commission’s
jurisdiction. Accordingly, the 2019 amendment to Section 34-10-2.1(A), expanding the
jurisdiction
of
the
Commission
beyond
justices,
judges
and
magistrates,
is
an
impermissible encroachment upon the independent and co-equal judicial branch, and is
likely therefore unconstitutional. See N.M. Const., art. III.
As noted in your letter, there are multiple systems of discipline in place regulating the
conduct of judicial employees acting in a quasi-judicial capacity. These systems derive
from professional and judicial codes of conduct, and statutes referencing these codes. All
attorneys practicing in New Mexico, including those employed in quasi-judicial capacities,
are subject to discipline pursuant to the Rules of Professional Conduct, which are
administered and enforced by the Disciplinary Board and Supreme Court. Rules 16-100
to 16-805 NMRA.
TOLL FREE 1-844-255-9210 TELEPHONE: (505)490-4060 FAX: (505)490-4883 www.nmag.gov
MAILING ADDRESS: P.O. DRAWER 1508 - SANTA FE, NEW MEXICO 87504-1508
STREET ADDRESS: 408 GALISTEO STREET - SANTA FE, NEW MEXICO 87501
Chair Joyce Bustos
Page 4
November 30, 2020
The judiciary exercises direct oversight of its employees acting in a quasi-judicial capacity
through the application of the Judicial Code of Conduct. Rules 21-001 to 21-406
NMRA. The Code requires all judges to supervise their staff and others subject to their
direction and control to ensure they act in a manner consistent with the Code. Rule 21-
212. The Code expressly conditions the employment of those acting in a quasi-judicial
capacity upon their compliance with certain enumerated Rules. Rule 21-004(C)(setting out
the rules quasi-judicial employees must comply with). Any violation of the relevant rules
must be addressed by the chief judge of the district employing that individual. Rule 21-
406(D). The Code provides that the Supreme Court and the Disciplinary Board retain
jurisdiction to hear violations of the Code of Judicial Conduct by hearing officers and
special commissioners. Id.
Additionally, constraints on quasi-judicial employees are embedded in various statutes
referencing the Judicial Code of Conduct. For example, Section 40-4B-4(C) requires that
child support hearing officers appointed by the district courts conform to Canons 21-100
through
21-500
of
the
Code
of
Judicial
Conduct.
NMRA
1978,
§
40-4B-
4(C)(1988). Violations of the canons are grounds for dismissal pursuant to Section 40-4B-
4(C). Similarly, domestic violence commissioners have a statutory obligation to conform
to the relevant canons of the Code of Judicial Conduct, and shall be dismissed from
employment for violation of the canons. NMRA 1978, § 40-13-9(B)(3)(2005).
In conclusion, the expanded Commission oversight contained in the version of Section 34-
10-2.1(A) effective January 1, 2020 is an unconstitutional encroachment upon judicial
authority. Judicial employees acting in a quasi-judicial capacity are now subject to valid
laws and rules comprising a system of discipline. The only means by which such
employees may be brought within the Commission’s oversight is through a public vote to
amend the plain language of Article VI, Section 32 of the New Mexico Constitution.
You have requested a formal opinion on the matters discussed above. Please note that such
an opinion is a public document available to the general public. Therefore, we may provide
copies of this letter to the general public. If we may be of further assistance, or if you have
any questions regarding this opinion, please let us know.
Respectfully,
Marah deMeule
Assistant Attorney General
Cc:
Tania Maestas, Chief Deputy Attorney General for Civil Affairs
Randall D. Roybal, Executive Director and General Counsel
Email: rroybal@nmjsc.org
Jeremy D. Farris, Executive Director
Email: jeremy.farris@state.nm.us
TOLL FREE 1-844-255-9210 TELEPHONE: (505)490-4060 FAX: (505)490-4883 www.nmag.gov
MAILING ADDRESS: P.O. DRAWER 1508 - SANTA FE, NEW MEXICO 87504-1508
STREET ADDRESS: 408 GALISTEO STREET - SANTA FE, NEW MEXICO 87501
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.