At the end of a decision that abandoned the separation of powers in order to uphold Gov. Bill Richardson’s unprecedented assertion of executive authority, the New Mexico Supreme Court asked for money. Not exactly like a Papal indulgence or anything, but still pretty venal. And unwarranted, in so far as budget matters were not even mentioned in the pleadings.

The 3-2 opinion upholdsl Richardson’s removal of all Gary Johnson appointees to the Judicial Standards Commission before the end of their staggered terms. The crass add-on at the end was a plea for a commission budget increase.

“The lack of funding to this body may pose a greater threat than the governor’s recent action,” said the majority opinion by Chief Justice Petra Maes.

That’s precisely the point, dissenting Justice Pamela Minzner responded, in so many words. “As an entity that has had limited resources with which to discharge its responsibilities, such a disruption seems particularly unfortunate.” So why not stop him?

The two sides were that close. All five members of the state’s highest court agreed that the governor’s replacement of the lay majority, all appointed over eight years by former Gov. Johnson, disrupted the watchdog agency that receives about 1,000 complaints a year against judges and magistrates.

Even the majority, while demeaning the commission as subordinate to them, agreed that some of the state’s judges do bear watching.

Where Maes and Justices Edward Chavez and Patricio Serna parted company with Minzner and Justice Richard Bosson was on the question what could be done about the executive housecleaning of an agency that answers to them, not to the governor.

The majority bowed respectfully out, saying the governor had some absolute powers that not even the Supreme Court shared. The opinion said it was up to the Legislature, not the high court, check him. Too late, of course. But the majority invited the Legislature to “step in now to protect this commission from future interference.”

The majority found that the constitutional power of the governor to remove, without cause, any gubernatorial appointee mid term is absolute unless limited by legislation. (With the Transportation Commission law changed by the 2003 Legislature, the only appointees still protected by law apparently are university regents.)

Now, the dissenting two of the minority agreed with this interpretation in so far as it applies to the executive branch of government but said Richardson stepped over a fundamental constitutional line when he fired the six governor-appointed laypersons on the commission because. . . .they belong to the judicial branch. In other words, he was compromising the independence of the judiciary.

The majority disagreed, dismissing the commission as an advisory panel without judicial function.

In view of the closeness of the arguments for and against, what might have made the difference in this decision was the personal issue of trust in Richardson himself.
The opinion all but acknowledges this personal factor in its reaction to the widely quoted argument in the original petition by District Judge Frank Wilson of Alamogordo. (He is one of the five non-gubernatorial appointees on the 11-member commission, and he’s the one who, on his own after Attorney General Patricia Madrid failed to respond as time ran out before a crucial commission meeting, petitioned the high court by fax to stop the governor.) Wilson raised two political specters. On the one hand was “an unhappy but politically well connected target of an investigation calling the governor to influence the commission.” On the other, “A politically powerful citizen could enlist the aid of the governor in influencing the commission to investigate a judge with whom the citizen is dissatisfied.”

Maes responded in the majority opinion: “We recognize that such a situation, though unlikely, would be unfortunate.” She did not explain why the Wilson specters are “unlikely.”

By contrast, she said, the intent of the legislature in giving governor-appointed lay people the chairmanship and a one-vote majority might have been to prevent “members of the judiciary from unduly influencing the investigations of the commission.” Meaning who?

A footnote added, “We will not speculate on this governor’s motive for removing all six executive appointees at one time, although we observe that he is certainly not the first,” etc., to fire holdovers.

Bosson, with Minzner concurring, wrote, “I cast my vote as I do, regardless of the benign motives of this governor or any other appointing authority.” (The others: the Supreme Court appoints two judges and one magistrate; the State Bar appoints two lawyers.)

“Indeed,” the dissent continued, “in the constitutional sense, motives are irrelevant to our analysis. Either the constitution tolerates the power to replace commission members or it does not. In interpreting the constitution, we write for the future, not just the present. Wholesale replacement of commission members will subject future commissions to unfettered control of one political office.”

Richardson and legislative leaders have not commented, but the ball is in their collegial court, and it could take some funny bounces.

A funding increase would gratify the new Richardson commission majority, but could be seen as a reward for stepping out of bounds.

A statute limiting the removal authority in the future might give commissioners some job security, but could be seen as an admission that the governor got away with something. And Republicans?

They might want to keep their opportunities open, given the politicized atmosphere surrounding the judiciary these days