Former judge still has hurdles to overcome

Guest columnist

Democracy, rule by the people, and the rule of law don’t always see eye-to-eye.

In the case of Tenth District Court Judge Albert Mitchell, there seems to be some conflict between these two foundations of our civic life.

“The people” often must be defined as the people who vote, and in the last general election, the turnout was about 45 percent of eligible voters.

A slim majority — a little less than 51 percent — voted against retaining Mitchell as judge. To be retained, however, he would have needed 57 percent of the vote.

According to New Mexico’s judicial retention laws, that is supposed to mean his time on the bench ends when this year is over.

Officially it does, but things get complicated when the will of the people and the rule of law collide.

Mitchell is trying to keep his job by applying for the opening that will occur when the vacancy officially exists on Jan. 1. The Supreme Court this week has said that’s OK — for now at least.

The court ruled that a judicial nominating commission’s deliberations and Gov. Susana Martinez’s appointment of a judge must be completed before Mitchell’s application in defiance of the popular vote can be tested in court.

The Committee for Law and Order and its attorney, Warren Frost, said Mitchell’s application makes a mockery of the will of the people. The court response recalls the words H.L. Mencken is said to have used in rejection letters: “You could be right.” The court has added, “but just not yet.”

Judges often find themselves caught between the law and public opinion, and on several occasions, Mitchell has found himself on the wrong side of public opinion whether or not he was on the right side of the law.

The New Mexico Judicial Performance Evaluation Commission recommended that Mitchell be retained before November’s elections, since he has shown himself to be careful and scholarly in his application of the law.

Some of his rulings, however, seem to fly in the face of the public’s perception of justice.

In New Mexico, that means a judge can be voted out. Mitchell is testing whether that’s an absolute.

Since the judicial nominating commission is working only with Mitchell and Donald Schutte, another former judge with a long record of public service, we will have to see whether the commission will recommend Mitchell for the governor’s appointment.

Nominating commissions usually give the governor more than one choice for the job, and the governor then can order the commission to find more applicants, but eventually must pick from the commission's recommendations.

That means Mitchell must overcome at least two hurdles before the courts will consider whether he is acting within his rights to apply for the job voters have said he should not have.

It also means that we must be patient enough to let the drama play out.

Steve Hansen is managing editor for the Quay County Sun. Contact him at:

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