Lawsuit calls Supreme Court appointment unconstitutional

SANTA FE, N.M. (AP) - The appointment of District Court Judge Judith Nakamura of Albuquerque to fill a vacancy on the New Mexico Supreme Court was unconstitutional, according to a lawsuit filed by a former attorney.

The process of choosing her was illegally rushed, Stuart Stein of La Cienega said in the lawsuit, which names Nakamura as a defendant.

Nakamura declined to comment on the litigation Friday, but she told the Santa Fe New Mexican that nothing was done improperly.

"I have faith in the system, and whatever decision is made by the court is what I will abide by," Nakamura said. "But let me be clear: I followed the process that was in place to the T."

On Thursday, Gov. Susana Martinez chose Nakamura, a former chief judge in Bernalillo County Metropolitan Court, to replace retiring Supreme Court Justice Richard Bosson.

The University of New Mexico Law School, which convenes judicial nominating commissions to fill vacancies, acted too quickly, Stein said. A commission was scheduled to meet Oct. 19 to discuss candidates. Stein wrote to law school Dean Alfred Mathewson four days prior. He warned that convening before Bosson's actual final day in office violated the state constitution. According to Stein, the law demands the judicial nominating commission meet "upon the occurrence of an actual vacancy" in the Supreme Court.

Barry Massey, a spokesman for Administrative Office of the Courts, said there is no case law that outlines what qualifies as an actual vacancy. "The traditional view is that an actual vacancy occurs when a formal letter is sent to the governor announcing a judge's retirement or resignation," Massey said.

The idea is to find a replacement as soon as possible, he added.

Stein also argued that by acting so quickly, a retiring judge can sit in on a commission and apply undue pressure on the other commissioners to pick his or her choice for a successor.

Massey said there is nothing improper about a retiring judge providing "frank, unbiased feedback on applicants without the risk that a future working relationship could be affected."

Stein also took his case to state Attorney General Hector Balderas, but his office declined it. That decision was not a reflection of how the office viewed the merits of the case, Balderas' spokesman, James Hallinan, said.

Stein said his protests might have less weight because of his disbarment in 2007.

Published: Tue, Nov 17, 2015

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