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                                                                      New Mexico Compilation
                                                                    Commission, Santa Fe, NM
                                                                   '00'04- 11:27:52 2015.10.02


         IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

Opinion Number: 2015-NMSC-028

Filing Date: August 20, 2015

Docket No. 34,985

STATE OF NEW MEXICO, EX REL.,
GARY K. KING, NEW MEXICO ATTORNEY GENERAL,

       Petitioner,

v.

HON. SHERI RAPHAELSON,
First Judicial District Court Judge,

       Respondent.

ORIGINAL PROCEEDING

Hector H. Balderas, Attorney General
Scott Fuqua, Assistant Attorney General
Santa Fe, NM

for Petitioner

The Perrin Law Firm
Doug Perrin
Santa Fe, NM

for Respondent

                                          OPINION

BOSSON, Justice.

{1}     Under Article VI, Section 33 of the New Mexico Constitution, a district judge elected
to that position in a partisan election is thereafter “subject to retention or rejection in like
manner at the general election every sixth year.” Section 33 does not specify when this six-
year term begins, particularly when the elected judge succeeds a predecessor who has not
completed his or her full term in office. In that case, does the successor judge’s election
mark the beginning of a new six-year term, or does the successor judge assume the six-year

                                               1
term of the predecessor judge? The answer determines when the successor judge must stand
for nonpartisan retention election. For the reasons that follow, we hold that under the New
Mexico Constitution a judge elected in a partisan election is subject to retention in the sixth
year of the predecessor judge’s term. Our holding is consistent with the intent and purpose
of our New Mexico Constitution.

BACKGROUND

{2}     In 2009, Governor Bill Richardson appointed District Judge Sheri Raphaelson to fill
a vacancy in Division V of the First Judicial District Court created when then-District Judge
Timothy L. Garcia was appointed to the New Mexico Court of Appeals, leaving an
unexpired term of office. A year later, as required by Article VI, Section 35 of the New
Mexico Constitution (providing that the appointee “shall serve until the next general
election” and that at the election a judge “shall be chosen . . . and shall hold the office until
the expiration of the original term”), Judge Raphaelson successfully ran in a partisan election
to remain in office as Judge Garcia’s successor. Thereafter, Judge Raphaelson had only to
run for retention, but in what year?

{3}     On March 11, 2014, Judge Raphaelson filed a declaration of candidacy to place her
name on the ballot for retention in the 2014 general election in accordance with Article VI,
Section 34 of the New Mexico Constitution and NMSA 1978, Section 1-8-26 (2013). In the
general election, only 55.87 percent of the votes cast were in favor of Judge Raphaelson’s
retention, falling short of the 57 percent necessary to retain the office as stipulated by Article
VI, Section 33(A) of the New Mexico Constitution.1

{4}     Days after the 2014 general election, despite her unsuccessful retention election,
Judge Raphaelson publically declared her intent to remain on the bench until January 1,
2017, not January 1, 2015. Judge Raphaelson contended for the first time that her six-year
term of office had begun on January 1, 2011, after her successful partisan election, and that
she had mistakenly stood for retention prematurely.

{5}    On November 21, 2014, the State of New Mexico, through the Office of the Attorney
General, filed a petition for writ of quo warranto with this Court seeking to remove Judge
Raphaelson from the bench due to her unsuccessful retention election. After hearing oral
arguments, we issued the writ requested by the Attorney General removing Judge
Raphaelson from judicial office effective January 1, 2015. We issue this opinion to explain
our reasoning.

DISCUSSION


        1
          See New Mexico Secretary of State Official Election Results, available at
http://electionresults.sos.state.nm.us/resultsSW.aspx?type=JDX&map=CTY (last viewed on
July 21, 2015).

                                                2
{6}     Beginning at statehood, New Mexico judges were elected and reelected at periodic
partisan elections. That changed in 1988 when the electorate amended the New Mexico
Constitution.

{7}      “In 1988, the Constitution was amended to institute a merit selection system, in
which the governor now fills judicial vacancies by appointment from a list of applicants who
are evaluated on a variety of merit-based factors and recommended by a judicial nominating
commission.” State ex rel. Richardson v. Fifth Judicial Dist. Nominating Comm’n,
2007-NMSC-023, ¶ 16, 141 N.M. 657, 160 P.3d 566 (internal footnote omitted); see also
N.M. Const. art. VI, §§ 35-37. Of particular significance to this case, “[t]he appointed judge
is then subject to one partisan election in the next general election, after which he or she is
subject to nonpartisan retention election, requiring a fifty-seven percent supermajority to be
retained in office.” State ex rel. Richardson, 2007-NMSC-023, ¶ 16; see also N.M. Const.
art. VI, §§ 33, 35-37. “The 1988 amendment to the New Mexico Constitution adopting the
new judicial selection system was the culmination of over fifty years of efforts to reform the
method of selecting judges.” Leo M. Romero, Judicial Selection in New Mexico: A Hybrid
of Commission Nomination and Partisan Election, 30 N.M. L. Rev. 177, 181 (2000).

{8}     Judge Raphaelson argues that Article VI, Section 33, which implements the retention
requirement, controls her term in office. Paragraph C of Section 33 states that “[e]ach district
judge shall be subject to retention or rejection in like manner at the general election every
sixth year.” Judge Raphaelson interprets this provision to mean that her six-year term began
after her partisan election to succeed Judge Garcia in 2010. Therefore, under Judge
Raphaelson’s interpretation, her term in office would not expire until December 31, 2016.
Notwithstanding the unfavorable results of the 2014 retention election, Judge Raphaelson
maintains that she should be allowed to remain on the bench through that date. The 2014
retention election was, therefore, a “nullity because Judge Raphaelson’s term was not up and
had not expired and she was not subject to retention” until 2016.

{9}     The Attorney General disagrees, arguing that Judge Raphaelson has misconstrued
the 1988 amendments to the Constitution. According to the Attorney General, Judge
Raphaelson was properly up for retention in the 2014 general election pursuant to Article VI,
Sections 33, 35, and 36 of the New Mexico Constitution. Having not garnered 57 percent of
the votes cast on her retention, Judge Raphaelson was required to vacate her position by
January 1, 2015. See N.M. Const. art. VI, § 34 (stating that the office of district judge
“becomes vacant on January 1 immediately following the general election at which the . . .
judge is rejected by more than forty-three percent of those voting on the question of retention
or rejection”).

{10} We analyze these competing positions and conclude that the Attorney General’s
interpretation is more reasonable considering both the text and the purpose of the 1988
constitutional amendments. We explain our reasoning.

In 2010 Judge Raphaelson was elected to complete Judge Garcia’s six-year term in

                                               3
office, not to begin a new six-year term

{11} “In construing the New Mexico Constitution, this Court must ascertain the intent and
objectives of the framers.” See In re Generic Investigation into Cable Television Servs.,
1985-NMSC-087, ¶ 10, 103 N.M. 345, 707 P.2d 1155. In doing so, “[t]he provisions of the
Constitution should not be considered in isolation, but rather should be construed as a
whole.” See id. ¶ 13; see also Block v. Vigil-Giron, 2004-NMSC-003, ¶ 9, 135 N.M. 24, 84
P.3d 72 (“In general, we interpret constitutional provisions as a harmonious whole . . . .”).

{12} Judge Raphaelson’s argument relies on interpreting Section 33 of the Constitution
in isolation when it prescribes that a district judge shall be subject to retention “at the general
election every sixth year.” But Section 33 does not prescribe when a judge’s six-year term
begins, so we cannot confine our analysis to that one paragraph. As the Attorney General
rightly points out, Sections 35 and 36 expressly define the term of a judge, like Judge
Raphaelson, who is elected to the bench following the interim appointment process.
Therefore, in determining when Judge Raphaelson’s term begins and ends, we must construe
Section 33 in conjunction with Sections 35 and 36. See Generic Investigation,
1985-NMSC-087, ¶ 13.

{13} Although Section 35 addresses the appointment and election of appellate judges, that
section, with some exceptions pertaining to the makeup of the judicial nominating
committee, is made applicable to district judges as well by Section 36. See N.M. Const. art.
VI, § 36 (“Each and every provision of Section 35 of Article 6 of this constitution shall apply
to the district judges nominating committee . . . .”) (internal quotation marks omitted). Thus,
we look to Section 35 for guidance. After describing the manner in which the nominating
committee operates and the governor’s appointment power, Section 35 provides: “Any
person appointed shall serve until the next general election. That person’s successor shall
be chosen at such election and shall hold the office until the expiration of the original term.”
(Emphasis added.)

{14} The inclusion of the phrase “original term” in Section 35 is important. The successor
judge—whether appointed or elected—holds the office for the remainder of the “original
term.” Therefore, in calculating the time at which the successor judge will first be subject
to a retention election, we look to the date that the “original term” expires. At the very least,
the text of Section 35 implies that we focus on the “original term” to calculate the time of
future retention elections, particularly in the absence of any other language in the 1988
amendments indicating a contrary result.

{15} Here, the “original term” was the term for which Judge Raphaelson’s predecessor,
Judge Garcia, was retained. In 2008, the people retained Judge Garcia for a new six-year




                                                4
term beginning January 1, 2009.2 Had Judge Garcia remained on the district court, his term
would have ended six years after his retention, on December 31, 2014, and he would have
been subject to another retention vote in the 2014 general election. See N.M. Const. art. VI,
§ 33(C) (“Each district judge shall be subject to retention or rejection in like manner at the
general election every sixth year.”).

{16} However, on November 12, 2008, days after Judge Garcia’s successful retention
election, Governor Richardson appointed Judge Garcia to the Court of Appeals, leaving his
district court seat vacant.3 After the constitutional nomination process was complete,
Governor Richardson appointed Judge Raphaelson early in 2009 to fill that vacancy “until
the next general election,” which took place in November 2010. See N.M. Const. art. VI, §
35 (“Any person appointed shall serve until the next general election.”). At that partisan
election, the voters chose Judge Raphaelson to succeed Judge Garcia and “hold the office
until the expiration of the original term.” See id. (emphasis added). Because the “original
term” was that of Judge Garcia, Judge Raphaelson was subject to a retention vote at the same
time Judge Garcia would have been—the 2014 general election. During that election, she
did not receive 57 percent of the vote in her favor, and therefore her seat became vacant on
January 1, 2015. See N.M. Const. art. VI, § 34 (“The office of any justice or judge subject
to the provisions of Article 6, Section 33 of this constitution becomes vacant on January 1
immediately following the general election at which the justice or judge is rejected by more
than forty-three percent of those voting on the question of retention or rejection.”).

New Mexico’s judicial selection system was designed so that all district judges are up
for retention at the same time

{17} As previously stated, Section 35 stipulates that “[a]ny person appointed shall serve
until the next general election. That person’s successor shall be chosen at such election and
shall hold the office until the expiration of the original term.” (Emphasis added.)

{18} Judge Raphaelson argues that the phrase “original term” in Section 35 must be read
in context with the phrase “that person’s successor.” According to Judge Raphaelson, “that
person’s successor” is the judge elected to succeed the appointed judge at the first partisan
election. If the winner of the partisan election is someone other than the appointed judge,
then he or she becomes the “successor” to the appointed judge and serves the remainder of
the “original term.”

{19} When, however, the appointed judge is herself successful at the partisan election,
Judge Raphaelson maintains that she is not a “successor” judge, as contemplated by Section


       2
        See http://www.nmjpec.org/en/judge-evaluation?election_id=119&year=2008 (last
viewed on July 21, 2015).
       3
        See https://coa.nmcourts.gov/bios/garcia.php (last viewed on July 22, 2015).

                                              5
35, but is merely one continuing in office. According to Judge Raphaelson, therefore, the
phrase “[t]hat person’s successor . . . shall hold the office until the expiration of the original
term” does not apply because she is not a “successor” to herself. Thus, she would have this
Court create a new term of office for appointed judges who succeed at the partisan election,
one that would cast aside the “original term” and begin anew with a six-year term upon
election.

{20} We concede that Judge Raphaelson’s position is not inherently unreasonable,
particularly if it were supported by some affirmative language in the 1988 amendments. But
the text of the Constitution yields no such support. Judge Raphaelson’s argument attempts
to add a substantive distinction between an appointed judge who wins a subsequent partisan
election and an appointed judge who loses a subsequent partisan election. Whatever the
policy arguments might be in support of such a distinction, the text of Section 35 ignores
them.

{21} Of equal importance, we would have to consider the question without regard to
context and the history of both the 1988 amendments and the constitutional language that
preceded it. Such an examination reaffirms our initial conclusion that the phrase “original
term” applies in all situations, regardless of whether the winner at the partisan general
election is the appointed judge or a new judge. In a word, New Mexico has consistently
followed a practice of uniformity going back many years, one that requires all judges
statewide to stand for retention at the same time, a practice modeled on years of history that
preceded even the 1988 amendments. We now turn to those lessons of history.

{22} “The historical purposes of the constitutional provision are instructive in determining
the obvious spirit . . . utilized in [its drafting].” State v. Boyse, 2013-NMSC-024, ¶ 16, 303
P.3d 830 (internal quotation marks and citation omitted, alterations in original). The U.S.
Supreme Court has observed that “[l]ong settled and established practice is a consideration
of great weight in a proper interpretation of constitutional provisions.” See N.L.R.B. v. Noel
Canning, ___ U.S. ___, 134 S.Ct. 2550, 2559 (2014) (quoting The Pocket Veto Case, 279
U.S. 655, 689 (1929) (alterations in original)). Similarly, this Court has noted the relevancy
of past practice in interpreting constitutional and statutory issues. See Jones v. Murdoch,
2009-NMSC-002, ¶ 28, 145 N.M. 473, 200 P.3d 523 (“[I]n light of past practice, it would
be unreasonable to conclude that the Legislature decided to explicitly give the target the right
to alert the grand jury to the existence of exculpatory evidence while nevertheless allowing
the prosecutor to reject such offers without a check.”); State ex rel. Taylor v. Johnson,
1998-NMSC-015, ¶ 32, 125 N.M. 343, 961 P.2d 768 (holding that “the past practices of the
New Mexico Legislature and Executive are instructive” in determining whether the
executive branch had exceeded its constitutional powers in enacting and implementing
certain welfare regulations).

{23} Prior to the adoption of the 1988 amendments, “our Constitution required partisan
election of the entire judiciary, with the governor filling judicial vacancies by appointment.”
State ex rel. Richardson, 2007-NMSC-023, ¶ 16 (internal citations omitted). This Court held

                                                6
under the previous system, that the terms for all district court judges were designed to be on
the same schedule, beginning and ending at the same time every six years regardless of when
or whether the seat became vacant or newly occupied. See State ex rel. Swope v. Mechem,
1954-NMSC-011, ¶ 22, 58 N.M. 1, 265 P.2d 336 (“[U]nder all equations of vacancy in these
offices, excepting only a vacancy occurring by the creation of a new judge . . . the terms of
district judges . . . will begin and end at the same time.”).

{24} Swope involved three district judges who were appointed by former Governor Edwin
Mechem, two in 1949 and one in 1951. See id. ¶ 1. Each of the three district judges ran and
were elected in the first general election following their appointments, Judges Swope and
Harris in 1950 and Judge Bonem in 1952. See id. ¶ 2. All three judges then intended to run
again in 1954 when “the terms of all other district judges [would] expire.” See id. Governor
Mechem, however, notified the three judges that he would not include their offices in the
1954 election proclamation along with all other district judges. The governor contended, as
Judge Raphaelson does here, that each judge held his respective office for six years from the
date of that judge’s election. See id. This Court concluded, based on former Article XX,
Section 4 of the New Mexico Constitution, that the terms of office for all district judges
began and ended at the same time: the 1954 general election. See Swope, 1954-NMSC-011,
¶¶ 20-22.

{25} The language of former Article XX, Section 4 is substantially similar to the language
of current Article VI, Section 35. Compare N.M. Const. art. XX, § 4 (1912) (“[T]he
governor shall fill such vacancy by appointment, and such appointee shall hold such office
until the next general election. His successor shall be chosen at such election and shall hold
his office until the expiration of the original term.”) with N.M. Const. art. VI, § 35 (“Any
person appointed shall serve until the next general election. That person’s successor shall
be chosen at such election and shall hold the office until the expiration of the original
term.”).

{26} This Court held that Governor Mechem’s interpretation of the last sentence of Article
XX would render the word “expiration” as well as the whole sentence meaningless. See
Swope, 1954-NMSC-011, ¶ 21 (“If it be said that ‘original term,’ as applied to these two
offices, means any four or six years respectively between two general elections, then the
word ‘expiration,’ in fact, the whole sentence becomes surplusage and meaningless.”). This
Court concluded, therefore, that under Article XX, Section 4, “there can be no doubt that the
appointee or his successor elected at the general election following his appointment serves
only until the termination date of the term of the original incumbent.” Swope,
1954-NMSC-011 ¶ 21. “This means that, under all equations of vacancy in these offices,
excepting only a vacancy occurring by the creation of a new judge . . . , the terms of district
judges . . . will begin and end at the same time.” Id. ¶ 22.4 The Court concluded, as we have


       4
        Our holding in the present case also does not address the question of newly created
judgeships.

                                              7
in this opinion, that if the drafters of the Constitution “desired to make an exception of this
one isolated case, it is hard to believe that it would not have been spelled out with
particularity.” Id. Concluding that the drafters had a valid interest in preserving concurrent
terms for all district judges, this Court entered its writ of mandamus compelling the governor
to place the three judicial positions on the 1954 ballot. Id.

{27} The Swope opinion encapsulates the common understanding and interpretation of
terms of office for district judges, not only at the time, but up to the successful amendment
of the Constitution in 1988. In light of this Court’s clear holding in Swope, the framers of
the 1988 amendments had a choice. They could have altered the definition of a term of
office, much as the Attorney General argued unsuccessfully in 1954 and Judge Raphaelson
does here. But they did not do so. Far from a change in direction, the 1988 amendments
enshrine the same understanding and interpretation as Swope. Under paragraph E of Article
VI, Section 33:

        Every . . . district judge . . . holding office on January 1 next following the
        date of the election at which this amendment is adopted shall be deemed to
        have fulfilled the requirements of Subsection A of this section [regarding
        partisan election] and the . . . judge shall be eligible for retention or rejection
        by the electorate at the general election next preceding the end of the term of
        which the . . . judge was last elected prior to the adoption of this amendment.

{28} In other words, any district judge holding office on January 1, 1989, was deemed to
have been elected in a partisan election and eligible for retention “at the general election next
preceding the end of the term of which the . . . judge was last elected.” Because, as
confirmed in Swope, all district judges were elected at the same time every six years prior
to the adoption of Article VI, Section 33, paragraph E ensured that all district judges would
stand for retention at the same time every six years under the new system.

{29} The history of the Division V seat on the First Judicial District Court, which Judge
Raphaelson held, illustrates this point. Division V of the First Judicial District was created
in 1980. See 1980 N.M. Laws, ch. 141. Governor Bruce King appointed J. Michael Francke
to fill the new position on May 6, 1980. Judge Francke held that office until 1983, when it
was filled by the appointment of Arthur Encinias. Judge Encinias held the position at the
time the 1988 constitutional amendments were adopted. Accordingly, Judge Encinias
successfully ran for retention in 1990, the first year retention elections were held for all
district judges across the state.5 See N.M. Const. art. VI, § 33(E); see also Romero, supra,
at 182 (“All judges sitting in 1988 would be considered to have met the competitive election
requirement and would face only retention elections.”). Six years later, Judge Encinias was


        5
        See Secretary of State Statewide Results for 1990 General Election
http://www.sos.state.nm.us/uploads/files/Election%20Results/CanvassGeneral1990.pdf (last
viewed on July 22, 2015).

                                                8
retained a second time. He retired in advance of the 2002 election, and Judge Garcia was
chosen in the partisan election of that same year. Thereafter, Judge Garcia was retained in
2008 simultaneously with all other sitting judges. As discussed above, Judge Raphaelson
then filled Judge Garcia’s unexpired term which ended in 2014.

{30} Uniformity of judicial terms serves a legitimate public purpose. Admittedly, it is not
the only way to devise a judicial system. The constitutional framers, both in the distant past
and more recently, could have selected a system not unlike the one for which Judge
Raphaelson advocates, but clearly they did not. That choice is not unreasonable. It fosters
consistency and uniformity thereby avoiding confusion in the electorate. Both judges and
the people who will sit in judgment of their performance know exactly when that opportunity
arises—and when to focus on that performance—every six years across the state. See Swope,
1954-NMSC-011, ¶ 22 (in retaining concurrent terms, the framers of the Constitution were
preserving uniformity). Under a contrary interpretation, district judges would have
informally staggered terms based capriciously upon when the individual judge was elected,
regardless of whose term the judge was filling. Such an interpretation might lead to
confusion by creating an uneven and ad-hoc system with judges being elected at differing
times. Some years, many judges might stand for retention; other years only a few. The
framers and the people who adopted the 1988 amendments should be supported for selecting
reason over disorder. See Romero, supra, at 224-25 (stating that “the
nomination-appointment aspect and the electoral aspect have played significant roles in the
selection of New Mexico judges” and “[t]wo in-depth examinations of the compromise
system concluded that the current system should not be jettisoned”).

CONCLUSION

{31} We appropriately granted the State’s petition for a writ of quo warranto. Judge
Raphaelson was properly up for retention in the 2014 general election pursuant to Article VI,
Sections 33, 35, and 36 of the New Mexico Constitution. Judge Raphaelson’s failure to earn
57 percent of the votes in favor of retention in the 2014 general election resulted in her loss
of the seat. Any effort to remain in office beyond December 31, 2014 contravened the
Constitution, justifying our writ of quo warranto.

{32}   IT IS SO ORDERED.

                                               ______________________________________
                                               RICHARD C. BOSSON, Justice

WE CONCUR:

____________________________________
BARBARA J. VIGIL, Chief Justice

____________________________________

                                              9
PETRA JIMENEZ MAES, Justice

____________________________________
EDWARD L. CHÁVEZ, Justice

____________________________________
CHARLES W. DANIELS, Justice




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