Clerk disqualifies both magistrate candidates
Doña Ana County Clerk Lynn Ellins
A state statute requires magistrate judges in counties with more than 200,000 residents to be attorneys. Neither who filed for an open seat in Doña Ana County – which topped 200,000 in 2010 – is a lawyer. At least one plans to challenge the law.
This year’s magistrate judge race in Doña Ana County may be without any major-party candidates after Clerk Lynn Ellins disqualified both who filed because they aren’t attorneys.
Ellins did that because, as of the 2010 Census, the county’s population is over the 200,000 threshold that triggers a state law that requires magistrate judges to be attorneys.
At least one of the candidates plans to ask the N.M. Supreme Court to overrule the clerk’s decision and the law.
At issue is a longstanding debate in Doña Ana County about whether magistrate judges should have to be lawyers as the county’s population center, Las Cruces, grows. The situation raises questions not only about whether non-attorneys can run for the position this year, but about the future of the three current magistrate judges who aren’t lawyers.
No Republicans filed to run for the open seat on the court, but Democrats Paul A. Martinez and Keith E. LaMonica filed declarations of candidacy last week. Neither is a lawyer.
Martinez has hired an attorney and said he plans to file a writ of mandamus with the Supreme Court challenging the law.
“Legislative intent was never to make magistrate judges licensed attorneys. It was always the people’s court,” Martinez said.
Magistrate positions are normally up for election in the same years as the governor, but the November resignation of Democrat Olivia Nevarez Garcia created the Division 3 vacancy that’s on the ballot this year.
Though the filing day to run in the Democratic and Republican primaries has passed, that doesn’t mean there won’t be any candidates for the position on the November ballot if Ellins is successful in disqualifying the two Democrats. June 26 is the deadline for independent, minor-party and write-in candidates.
But if Ellins’ ruling stands, those candidates will have to be attorneys.
Martinez pushed metro court; Nuñez led opposition
Until recently, state law mandated the creation of a metro court – which would require judges to be attorneys – to replace magistrate and municipal courts when a county reached a population of 200,000. Only Bernalillo County was above that threshold.
For a decade prior to the 2010 Census, as Doña Ana County’s population approached 200,000, officials in the area began debating what to do. Gov. Susana Martinez, who was district attorney at the time, pushed the creation of a metro court system, saying all judges should be attorneys. Many Democrats opposed her efforts.
The reality is that much of Doña Ana County has become urban – Las Cruces is the state’s second largest city – but much of it remains quite rural.
The opposition to a metro court has been led in the Legislature by Rep. Andy Nuñez, a Democrat-turned-independent from Hatch, who says the law was not intended to require that a rural community like his be part of a metro court system.
Hatch is a rural farming community of about 1,700 people located some 40 miles from Las Cruces in far north Doña Ana County.
A bill Nuñez sponsored in 2010, which then-Gov. Bill Richardson signed, raised the population requirement for a metro court system from 200,000 to 250,000.
But a second statute, which required magistrate judges in counties with a population of 200,000 or more to be lawyers, remained. In 2011, the Legislature passed a second Nuñez bill that would have raised that requirement to 250,000. But Martinez, who was governor by then, pocket vetoed the bill.
So the threshold in that statute remains at 200,000. Doña Ana County’s official population in 2010 was 209,233.
AG agrees with clerk’s position
Letters Ellins sent to both candidates last week (here and here) inquiring about whether they were lawyers cite that statute. Ellins sent follow-up letters this week formally disqualifying both, telling them their names are not “qualified to be placed on the June 5, 2012 Primary Election Ballot as a Democrat Party candidate for the office of Magistrate.”
Ellins told NMPolitics.net he expects LaMonica to join Martinez in challenging his decision.
Kenneth Ortiz, the secretary of state’s chief of staff, said his office asked the attorney general for an opinion. Assistant Attorney General Tania Maestas “advised us that she agreed with the county’s position,” Ortiz said.
If Ellins is successful, Paul Martinez said he finds it unlikely that the magistrate race will draw lots of interest. He said there are only three lawyers who serve as magistrate judges in the state. One of them, Conrad Perea, serves in Doña Ana County.
What about the current judges?
There’s another issue to consider: If Ellins is right, would that mean the other three magistrate judges in Doña Ana County, who are not lawyers, are no longer qualified to serve? If so, would they have to resign immediately? Or would they simply not be eligible to seek re-election in 2014?
“I think this does need to be challenged, so it rests with the Supreme Court to decide whether the sitting magistrates can run for re-election, because they’re in limbo,” Martinez said.
I’ve heard House Majority Leader Martinez state that ‘legislative intent’ is not part of NM law.
I believe it is. Here is New Mexico Statute 12-2A-18
12-2A-18. Principles of construction; presumption.
A. A statute or rule is construed, if possible, to:
(1) give effect to its objective and purpose;
(2) give effect to its entire text; and
(3) avoid an unconstitutional, absurd or unachievable result.
‘Objective and purpose’ is, more or less, legislative intent. Of course, how you figure out what the legislature intended is another question. I can’t figure out how to link to the source. Here’s what I have in my browser window: http://www.conwaygreene.com/nmsu/lpext.dll/nmsa1978/4cb/88a1/88ed/8939?f=templates&fn=document-frame.htm&2.0#JD_12-2A-18
As to the Martinez comment about legislative inent … I’ve heard House Majority Leader Martinez state that ‘legislative intent’ is not part of NM law. The content of the discussion on the floor of the house or in committee about the intent of legislation is irrelevant – it is the words in the bill that matter … although there was a publc safety bill about 20 years ago that passed both houses, and the governor signed, with ‘pubic’ vice ‘public’ throughout the bill … and the spellling error was changed by someone before it hit the final record.
Observer, actually there are 2 comments on this thread that pertain to the subject. I made a comment and Frustratedvoter made a very fine comment and asked a really good question, “what are the differnces between a metro court system versus municipal/magistrate systems, and what are arguments (besides whether you should be an attorney or not)? I get the fact that it at least appears that so-called conservatives prefer the former (or is it the just the attoney requirement?) and so-called liberals prefer the latter (or do they just not like he attorney requirment?).” to which I would like to hear an informed answer.
I do not think that Liberals per se don’t require a lawyer in good standing to be a judge. Just because a republican governor instigated an enforcement of the law does not make it a left or right issue. It does make traditional dynastic (nepotistic) politicians including judgeships more difficult to follow on because now those hijos will have to stay in school and actually work very hard to get those law degrees.
So now all candidates up for election and/or re election must have a law degree?
Observer – part of it is about the importance of elected Officials upholding their oaths of office and another big part of the conversation is about educating voters.
EW-aif is Ellen Wedum who often runs for public office. If I lived in her district I would campaign and vote against her as evidenced in a joking manner she does not take criminal investigations seriously. I find her harrassing, pointless, and uneducated in regard to the good ole boy girl syndicate that plagues New Mexico. In my opinion she is part of the problem, not the solution. It seems she is constantly rambling on about something she knows nothing about why similtaneously defending individuals who are accused of crime and in the process of being investigated.
I congratulate the County Clerk for disqualifying the unqualified candidates who do not meet the State’s statute.
Qui Tam:
I’m going to have to assume that when you talk about civility among posters you are not referring to yourself; As Ms. Wedum pointed out, your response to disagreement is personal attacks and rants that are rarely related to what people actually write. Put simply, you are so incredibly blinded by your own ever-more-obsessive crusade that you constantly waste time attacking people who are technically on your side simply because while we agree with your general position, we find flaws with your demonstrably counter-productive methodology. There’s a reason that absolutists like yourself rarely accomplish anything. Seriously, when you have to resort to quoting Monahan as a source, you’re stretching.
Despite your fantastical and repetitious charges, I have never “defended criminals”; I’ve merely pointed out that calling unconvincted individuals “criminals” is not only misleading, but quite frankly a perversion of our system of justice. Despite your strange charges, I do not have a “disrespect for the law” – indeed, I’ve actually written a few, and I’ve spent my entire adult life pushing for expansion of the very transparency laws that you have, on more than one occasion, accused me of disrespecting; I’ve merely pointed out that many of the things that you insist are illegal actually aren’t – even if many of them probably should be – and that someone can not be convicted for violating a law that exists only in your mind. Despite your unsubstantiated charges, I’ve never “failed to see the value of investigation(s)” – indeed, not only have I pushed for certain investigations that you have repeatedly and without basis insisted I’m opposed to, I’ve actually voluntarily offered my services as a witness more than once; I’ve merely pointed out that your fervent calls for investigation of everything you disagree with borders on crying wolf and is generally a hindrance to the very progress that you desire.
No where in this thread have I addressed voter education in any way, so accusing me of lacking a respect for the intellect of the voting public or opposing better methods of voter information – I’m unsure which charge you’re making, since your words are, as usual, rather disjointed – is, quite frankly, bizarre. Furthermore, facts are not spin, and disagreement is not a personal attack. I hope this ends your unnecessary and consistently false personal attacks on me and my integrity, as well as your insistence on attributing to me views that I’ve never supported – though from my experience with you, I realistically have no expectation that it will; I fully expect you to continue launching wild personal attacks on your fantasy of who I am, and to continue arguing against things I’ve never written nor believed rather than what I actually say.
Observer:
You’ll note I asked Qui Tam that very question right at the beginning, and Ms. Wedum’s initial comment hinted at the same perplexity; indeed, our queries seem to be what set the aforementioned short-tempered individual off on yet another long series of unsubstantiated personal attacks against people he(?) doesn’t even know. I do thank frustratedvoter and qofdisks for at least trying to bring the discussion back into the realm of relevancy.
What in God’s name has any of this discussion to do with the sub ject of this article?
I have been polite to QT, who makes unsupported allegations and rants all the time. His lack of civility is very annoying. I am resolving to discontinue reading any of his comments.
part two in response to Icarus Phoenix – in regard to criminals, investigations and voters’ educations. Here we see another blogger, Joe Monahan, asking similar questions on his blog today:
“CALLING JUSTICE
Maybe the 20 fatal police shootings in the past two years in ABQ deserve an outside investigation by the Department of Justice or maybe they don’t. But how about a decision? The department has months to weight whether they will get involved, but we sense foot-dragging in Washington. And there shouldn’t be. What’s the hold-up, Attorney General Holder?
And it’s not just the police probe that makes Justice look like a sick snail. How about the never-ending apparent federal investigation of former Governor Bill Richardson? When does that end? It makes you wonder if Justice does start a probe of the police shootings if it would ever conclude.”
And again from me, how about a decision or at least an update on the investigation into former Secretary of State Mary Herrera’s alledged criminal activity?
IcarusPhoenix – as so many commenters on this website have pointed out before your skills in understanding the English language and logic are severly lacking. Time and again people have been polite to you when you scribe your fantasies. And, you may be receiving pay to write dribble and spin spin spin but I think you should seriously consider how you appear when you defend criminals, disrespect law, and fail to see the value(s) of investigation. Some of us are trying to help educate voters so they don’t get stuck with Officials who do not uphold their sworn oaths. Ms. Wedum appears to have some very serious issues but I don’t think she is a school yard bully so you might want to cease and desist with that tactic as well. Thanks!
frustratedvoter:
Without getting into the minutiae of why or my particular position of the matter in question, the difference is quite simply that the metro court is a state-administered court established by the state Constitution, and selection of its judges is derived from that document… in what would actually be the best judicial-selection process in the country if it weren’t for the partisan election that judges are forced to go through immediately after going through an incredibly rigorous selection process; that sort of makes the whole process pointless. Judges in the magistrate courts of every other county, meanwhile, are chosen entirely through partisan elections, without the rigorous constitutional process. As such, the rules of conduct, standards of selection, and electoral regulations are all quite different.
Qui Tam:
As Ms. Wedum pointed out, you really don’t understand the difference between actual guilt and your perceptions of guilt. If you did, you wouldn’t be constantly using the phrase “criminal” for everyone you disagree with, regardless of investigation, indictment, or conviction… or, for that matter, if the law they’re apparently violating in your eyes that particular day even exists.
Oh and my last paragragh refers back to, of course, having educated voters.
It really won’t matter whether a Judge is an attorney or not if cases aren’t brought before them in the eventuality of County Clerks, Secretaries of State and Attorney Generals not carrying out their sworn duties.
But, I think Judge Michael Vigil of Santa Fe is an exception to all rules. He appears to be part of the good ole boy girl club which enables criminals regardless of the laws which makes knowing law fruitless to begin with…
What I find missing from this piece, as well as discussion that followed, is what are the differnces between a metro court system versus municipal/magistrate systems, and what are arguments (besides whether you should be an attorney or not)? I get the fact that it at least appears that so-called conservatives prefer the former (or is it the just the attoney requirement?) and so-called liberals prefer the latter (or do they just not like he attorney requirment?).
Generally, I agree with qofdisks. Judges shoud know the law. Period. If there’s a reasonable rationale for not requiring an attorney, than some sort of standardized test would be in order. Otherwise , the judicial system more easily can look like the PRC… which it already does from time to time. Remember Tommy Rodella…
Once upon a time if you knew enough to pass the Bar exam you could be an attorney. Now, you have to come outof the system AND pass the exam (which most everyone does, so hopefully that means the expensive 3 year schools, which should be 2, are doing their jobs.
The judges should know the law period. Judgeships are required to work long demanding days of heartbreaking exposure to the worst of humanity where the RULES serve as a bulwark. The tempering that is law school is a minimum requirement for a judge. Does Dona Ana county deserve less? Sorry people but, attorneys are the trained experts of our judicial system.
Oh Ellen, just anything to keep voters uneducated, the criminal good ole boy girl system in place and elected officials unaccountable in New Mexico, huh?
It is simply astounding and indefensible to watch Democrats defend criminal activity. I guess that is why New Mexicans elected a Republican Governor and a Republican Secretary of State. Will a Republican President be next?
And the criminals keep victimizing…
If it is totally rrelated, let’s talk about the checker-spot butterfly…
It is totally related. Furthermore, when King runs for Governor voters deserve to look at his prior past performance(s) in elected Office. Is that too not in the realm of your comprehension?
“whistleblowers risking their lives”
Hyperbole much? This is Mary Herrera you’re talking about, not the mafia. To say nothing of the fact that – as usual – you’re bringing this topic up on an essentially-unrelated article.
Ellen Wedum – now count on it ten fold. “innocent until proven guilty”? I am inquiring about the investigation not, at this point, a trial resulting from criminal charges brought by a prosecutor. Why are you defending someone in regard to an investigation that was partially the result of whistleblowers risking their lives? I think voters deserve the results of the investigation for in the eventuality that Herrera runs for office again the information may prove valuable.
I believe that the current sitting judges will be “grandfathered in.”
QT, give it a rest. Innocent until proven guilty. As I recall, the two employees who filed complaints against Herrera were both Republicans and were recording her without her knowledge (which is legal in New Mexico).
Any word on the investigation of former Secretary of State Mary Herrera who took an oath which was partially in regard to uphold the Election Code? Are the whistleblowers still alive?
You must be logged in to post a comment.