(dissenting).
{57} I fully concur in Justice Bosson’s dissent. I write separately only to emphasize my disagreement with the arguments advanced by counsel in opposition to a writ of quo warranto. For the reasons that follow, I believe acceptance of those arguments will result in an infringement upon the powers and responsibilities of both the Legislature and the Judiciary. For the reasons contained in Justice Bosson’s dissent and for the reasons that follow, I also respectfully dissent.
{58} The arguments for and against the writ begin in different places; each argument, while acknowledging the other, focuses on a different section of the New Mexico Constitution. The placement of the Commission within Article VI, which generally describes the judicial branch of government, is of significance in evaluating the arguments in favor of and those against the writ of quo warranto. Our precedent and our rules reflect a perception that the Commission, while an independent entity, supports the constitutional responsibilities and powers of this Court. Only the argument in favor of the writ perceives the placement of the Commission within the part of the Constitution that addresses the powers of the judicial branch as significant.
{59} In creating the Commission, the people of New Mexico explicitly provided that “[t]his section is alternative to, and cumulative with, the removal of justices, judges and magistrates by impeachment and the original superintending control of the supreme court.” N.M. Const, art. VI, § 32. We construed this provision in In re Castellano, 119 N.M. 140, 143, 889 P.2d 175, 178 (1995), in response to an argument that another constitutional provision “superseded the constitutional authority on which the Commission [had] relied in petitioning this Court for [the] removal [of a judge],” id. at 142, 889 P.2d at 177. In Castellano, we were asked to construe N.M. Const, art. VI, § 34 (as amended 1994), which defined “vacancy” for purposes of convening a judicial nominating commission, as limiting the ways in which a judicial office became vacant to those specified in that section. Because Article VI, § 34 did not list removal by this Court, we were asked to determine that after the adoption of merit selection, this Court no longer had the power to remove a judge on the Commission’s petition. Castellano, 119 N.M. at 142, 889 P.2d at 177. We concluded that the absence of a reference to this Court’s power within the text of Article VI, § 34 should be taken into account but that the absence of a reference was inconclusive, “because other portions of the Constitution fill any gap and otherwise make the legislative intent clear.” Id. at 143, 889 P.2d at 178. We described this Court’s authority as “powers of removal, on petition by the Judicial Standards Commission or under [our] superintending control,” and characterized both as “alternative and cumulative with the legislature’s power of removal by impeachment,” based on the text of Article VI, § 32. Id.
{60} At one time, the Legislature had provided for removal of a magistrate judge other than by impeachment or by this Court. NMSA 1978, § 35-7-2 (repealed 1997) required the Director of the Administrative Office of the Courts to suspend a magistrate’s certificate of qualification under certain circumstances. Section 35-7-2 also provided that the magistrate judge was entitled to appeal the suspension to the district court of Santa Fe County. Section 35-7-2 further provided, if the suspension was upheld on appeal or if the magistrate judge failed to appeal the suspension order, for the revocation of the certificate of qualification and for certification of a vacancy to the Governor. In 1997, a constitutional amendment was proposed to add a magistrate judge to the Judicial Standards Commission, which amendment was approved in 1998. See 1997 N.M. Laws, S.J.R. No. 5, § 1.
{61} Based on the text of Article VI, § 32, as we have construed it, and the history of amendments to it, the Commission now provides the primary administrative support for the exercise of this Court’s historic powers and responsibilities with respect to the removal of all judges. Although the text of this constitutional provision indicates that we have “powers of removal,” as a practical matter ordinarily a complaint about a judge will begin as a pleading filed with the Commission, rather than this Court, and we will provide appellate review of the Commission’s findings and conclusions. The structure provided by the Constitution is systematic and for the most part contained within the text of Article VI, § 32.
{62} Article VI, § 32 provides for investigation, for a hearing before the Commission or before three masters, who must be judges or justices of courts of record, and for a recommendation after the hearing before the Commission or after a review of the record and the masters’ findings, if there is “good cause.” Under Article VI, § 32, this Court “shall review the record of the proceedings on the law and facts and may permit the introduction of additional evidence, and it shall order the discipline, removal or retirement as it finds just and proper or wholly reject the recommendation.” The Commission “shall promulgate regulations establishing procedures for hearings under this section,” which it has done. See generally Judicial Standards Commission Rules 1 to 38 NMRA 2003. We have adopted rules governing our appellate review of Commission proceedings. See generally Rules 27-101 to 27-403 NMRA 2003 (“Rules Governing Review of Judicial Standards Commission Proceedings”).
{63} In Castellano, which we heard before we had adopted rules governing our review of Commission proceedings but after the Commission had adopted rules governing its own proceedings pursuant to the authority vested in the Commission by Article VI, § 32, we reviewed the findings and conclusions of the Commission to determine whether the findings were supported by clear and convincing evidence of judicial misconduct. See Castellano, 119 N.M. at 149, 889 P.2d at 184. In doing so, we gave deference to those charged by Article VI, § 34 with the obligation of finding facts. Id. at 149-50, 889 P.2d at 184-85. In reviewing the recommendation by the Commission for removal, we noted that the question of whether the findings supported a determination of judicial misconduct was separate from the issue of whether removal was an appropriate discipline. Id. at 150, 889 P.2d at 185. We appear to have reviewed the findings and conclusions in much the same manner as we would have reviewed those of a district judge, while reserving for ourselves the ultimate decision of what discipline should be imposed. The rules we have adopted for reviewing Commission proceedings restate our discretion to “accept, reject or modify” the findings and conclusions of the Commission, Rule 27-401(A)(l) NMRA 2003, to “impose the discipline recommended by the [C]om-mission” or any other that seems appropriate, Rule 27-401(A)(3), and to remand for additional evidence, Rule 27-401(A)(8).
{64} The administrative support that the Constitution provides seems to facilitate this Court’s powers and obligations of superintending control, in the same way that the Legislature has often provided administrative support for the Governor’s powers and obligations. Absent a staff charged with and funded for investigation and presentation of evidence, and absent a process for factfinding, we would be ill-equipped to pursue complaints as a matter of original jurisdiction. Section 35-7-2, adopted in 1968 and since repealed, and Article VI, § 32, proposed in 1967 and approved at a special election the same year, indicate to me a legislative concern that as a practical matter this Court needed more and different support in supervising the discipline of judges. Our precedent and our rules support a conclusion that the Commission has become an integral part of the Judicial Branch. It is as independent of us as is consistent with our ultimate responsibility under the Constitution.
{65} The primary argument in favor of the writ has been that removal of the prior Governor’s appointees before the end of their terms is inconsistent with the general principle that the three branches of government enjoy unique powers and responsibilities and that, generally, each branch is entitled to operate independently of the other in connection with the unique powers and responsibilities entrusted to that branch. See N.M. Const, art. Ill, § 1 (as amended 1986) (describing the powers of government as divided into “three distinct departments”). That argument is premised on the view that the Commission is part of the judicial branch, and that removal of all of the prior Governor’s appointees before the end of their terms, that being a majority of the Commission, would infringe upon the unique powers and responsibilities of the judicial branch. See State ex rel. Clark v. Johnson, 120 N.M. 562, 574, 904 P.2d 11, 23 (1995) (discussing the inquiry into whether and how much the action of one branch disrupts the work of another).
{66} The primary argument against the writ has been that Article V, § 5 authorizes the removal of any officer appointed by the Governor, except as otherwise as provided by law, and thus that granting the writ would infringe upon the unique powers and responsibilities of the executive branch. In fact, this argument, like the argument in favor of the writ, depends on the principle we sometimes refer to as the separation of powers. Those who have advanced this position contend that denying the Governor the power of removal is equally inconsistent with the general principle that the three branches of government enjoy unique powers and responsibilities and that, generally, each branch is entitled to operate independently of the other in connection with the unique powers and responsibilities entrusted to that branch. See N.M. Const, art. Ill, § 1.
{67} In making this argument, counsel have recognized that Article VI, § 32 provides for appointment of a minority of members of the Commission as “provided by law,” for a majority of members of the Commission to be appointed by the Governor as “provided by law,” and that the Legislature in implementing this constitutional provision made no provision for removal. See NMSA 1978, §§ 34-10-1 to -2. Nevertheless, counsel have reasoned that until the Legislature, in implementing Article VI, § 32, has expressly limited the Governor’s power of removal, the power of removal included in Article V, § 5 should be construed to include a power to remove the Governor’s appointees to the Commission, which power is unrestricted.
{68} The arguments against the writ appear to equate the Commission with an agency of the Executive Branch, charged with following the policies of the Governor in executing either duties imposed upon that agency by statute or responsibilities and duties inherent in the office of the Governor. Yet no one has identified a policy-making function of the Commission that the power of removal would serve. The arguments against the writ require a construction of both Article V, § 5 and Article VI, § 32 that seems inconsistent with the purposes those provisions serve.
{69} We noted in Board of Education of Carlsbad Municipal Schools v. Harrell, 118 N.M. 470, 882 P.2d 511 (1994), however, that “[t]he judiciary ... must maintain the power of check over the exercise of judicial functions by quasi-judicial tribunals in order that those adjudications will not violate our Constitution. The principle of cheek requires that the essential attributes of judicial power, vis-a-vis other governmental branches and agencies, remain in the courts.” Id. at 484, 882 P.2d at 525. In Harrell, this Court decided that when the Legislature had assigned adjudicative responsibilities to an administrative tribunal and limited an aggrieved party’s right of appeal to compulsory arbitration, we would “use due-process analysis to determine whether the judicial review provided in the compulsory arbitration statute is adequate to reserve ultimate judicial power to the judiciary.” Id. We concluded that the statute unduly restricted judicial review of the decision of the arbitrator and thus to that extent “violate[d] due process and the constitutional allocation of judicial power to the judiciary.” Id. at 486, 882 P.2d 527.
{70} In this case the Constitution itself has allocated to this Court responsibilities for reviewing the work of the Commission, which work is alternative and supplemental to our original jurisdiction, and the provision making that allocation has been placed in the section of the Constitution that generally allocates responsibilities to the judicial branch. I think the arguments against the writ are inconsistent with the allocation of responsibilities to the judicial branch and because it would result in changing so many members of the Commission at once would as a practical matter disrupt the activities of the Commission. As an entity that has had limited resources with which to discharge its responsibilities, such a disruption seems particularly unfortunate.
{71} In addition, because Article VI, § 32 characterizes appointments to the Commission as being made as “provided by law,” Sections 34-10-1 to -2 seem more relevant than the provisions of Article V, § 5. The Constitution seems to limit the appointment power as provided by statute. There being no specific provision for removal by any appointing power, I would construe Section 34-10-2 as providing for the appointment process to begin again only when the Commission itself certifies that a vacancy exists. That seems to be consistent with the independent character of the Commission and what we might perceive to be the responsibilities of the Dean of the Law School in convening a judicial nominating commission under N.M. Const, art. VI, § 35 (1988).
{72} I note that Article VI, § 35 uses the same phrase “[i]f a position on the commission becomes vacant for any reason,” in describing the nomination commissions as is used in describing the Judicial Standards Commission. In the case of the nomination commissions, however, as a matter of custom, each nominating commission has been convened anew, and the various appointing authorities have been asked by the Dean to resubmit nominations as a judicial vacancy has occurred. Consequently, the use of the same phrase in both sections of Article VI provides no guidance on the meaning of the phrase.
{73} In the end, however, the relevant provisions as they have been implemented seem to me to be in harmony. “Residual governmental authority should rest with the legislative branch rather than the executive branch.” Clark, 120 N.M. at 575, 904 P.2d at 24. To the extent Article VI, § 32 must be implemented other than by rules promulgated by the Commission or by this Court, it is the task of the Legislature. Section 34-10-2 seems to address the question of whether there is at present a vacancy for the Governor to fill. Article V, § 5, if relevant to the issue, seems to me to direct us first to Article VI, § 32, which in turn, probably directs us to Sections 34-10-1 to -2. Because that statute authorizes the Commission to certify a vacancy, I believe there is at present no vacancy for the Governor to fill. The arguments against the writ are, in effect, arguments for an implied power to remove the prior Governor’s appointees and thus intrude on what appears to be the Legislature’s prerogative under the Constitution to provide for the appointment process.
{74} “[W]e must never forget that it is a constitution we are expounding.” McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 407, 4 L.Ed. 579 (1819) (Marshall, C.J.). When the text is not clear, we do have to consider the likely intent of those who proposed and those who approved constitutional language. There may be differences in the way we construe constitutional provisions and the way we construe statutes. We do have to construe both, and any mistakes we make in construing the Constitution itself cannot be corrected by the Legislature by enacting a statute, but rather will require a constitutional amendment. If we are uncertain about the proper construction of a constitutional provision, it makes sense to me to adopt the construction that is more likely to have been the intention of those responsible for including it, rather than requiring that the Constitution be amended in order for that intention to be effectuated.
{75} If construction is necessary, in this case, it seems more likely to me that those who proposed and those who approved the relevant language meant to provide continuity and the stability and institutional memory that continuity tends to ensure. It also seems more likely to me that the Governor’s appointment power was perceived, given the functions of the Commission, to be analogous to his power to appoint judges and thus, in all likelihood, to be limited to appointment, rather than removal. That would be consistent with the reference within Article VI, § 32 to only the appointment power in the case of a vacancy. That would be analogous to the appointment power of the Governor in the event of a judicial vacancy.
{76} As we noted in Castellano, the absence of language within a constitutional provision needs to be taken into account in construing a provision, but it is not conclusive, and when the gap is otherwise filled and the intent of the language is clear, we can be confident in construing the language notwithstanding the absence of specific language. 119 N.M. at 143, 889 P.2d at 178. In the end, I am not persuaded that Article V, § 5 was meant to give powers to the executive extending beyond that branch of government. In context and in light of the likely intent of those who drafted the relevant provisions, the arguments in favor of the writ are more persuasive to me than the arguments offered in opposition to the writ. As in Castellano, the relevant provisions seem to me, when considered as a whole, to require this Court to grant the writ. A majority of this Court being of a different opinion, I respectfully dissent.
I CONCUR: RICHARD C. BOSSON, Justice.