(concurring in part and dissenting in part).
{26} I respectfully dissent from the proposed result and from much of the analysis in the majority opinion. I disagree with my colleagues that we have the authority to do what the Governor has requested. The Governor has asked us to order the Fifth Judicial District Nominating Commission to convene a third time and to send him an additional qualified nominee for the existing vacancy in the Fifth Judicial District. In addition, or perhaps alternatively, he asks us to direct the Commissioners to reconvene to satisfy their obligation to solicit additional applicants or make a further investigation “into the qualifications of pending candidates.”
{27} The majority opinion appears to concede our inability to order the Commission to send more than one name. With that concession, for the reasons that follow, I agree. The majority, to its credit, seeks to identify a resolution to the conflict between the Governor’s interpretation of his power and the Commission’s interpretation of its responsibilities under the New Mexico Constitution. The majority would order the Commission to reconvene, because when the Governor requested additional names, the Commission was required by the constitution “to actively solicit additional qualified applicants.” Maj. Op. ¶ 22. With this conclusion, I do, respectfully, disagree.
{28} Because the text of the constitution is important, I have included it as an appendix to this opinion. Other than those who have served on nominating commissions or applied for consideration by a nominating commission, few New Mexico citizens will have read the entire text of the relevant constitutional amendment, and the text as a whole is important. The Governor relies on our power to issue a writ of mandamus, which I believe is more limited than does the majority, and which in any event depends on the clarity of the obligations established by the constitution.
{29} “This Court exercises constitutionally invested original jurisdiction in mandamus against all State officers, boards and commissions.” State ex rel. Sego v. Kirkpatrick, 86 N.M. 359, 363, 524 P.2d 975, 979 (1974); accord N.M. Const. art. VI, § 3. In the past, we have exercised our original jurisdiction in mandamus when one branch of government interferes with the authority of another branch of government. See State ex rel. Sandel v. N.M. Pub. Util. Comm’n, 1999-NMSC-019, ¶ 11, 127 N.M. 272, 980 P.2d 55.
Such an exercise may be appropriate when the petitioner presents a purely legal issue concerning the non-discretionary duty of a government official that (1) implicates fundamental constitutional questions of great public importance, (2) can be answered on the basis of virtually undisputed facts, and (3) calls for an expeditious resolution that cannot be obtained through other channels such as a direct appeal.
Id. The Governor contends all these factors are present in this case. The Governor further asserts that mandamus is defined to include an order directing the restoration of rights or privileges of which the claimant asserts he has been illegally deprived. See State ex rel. Bird v. Apodaca, 91 N.M. 279, 282, 573 P.2d 213, 216 (1977). The Governor maintains this Court should “restore” his right to choose a judicial appointee. Ultimately, the Governor argues that the action of the Commission in sending only one name, if sustained in this proceeding, effectively precludes his having a choice of appointee and “eviscerate[s his] appointive authority.”
He argues that:
mandamus will lie to compel the performance of mere ministerial acts or duties imposed by law upon a public officer to do a particular act or thing upon the existence of certain facts or conditions being shown, even though the officer be required to exercise judgment before acting. A ministerial act, as applied to a public officer, is an act or thing which he is required to perform by direction of law upon a given state of facts being shown to exist, regardless of his own opinion as to the propriety or impropriety of doing the act in the particular case.
State ex rel. Reynolds v. Bd. of County Comm’rs, 71 N.M. 194, 198-99, 376 P.2d 976, 979 (1962) (quoting State ex rel. Four Corners Exploration Co. v. Walker, 60 N.M. 459, 463, 292 P.2d 329, 331-32 (1956)) (internal citations omitted). The Governor contends the Commission’s failure or refusal to reopen the application process and actively solicit additional candidates, or to reassess the additional four applicants not selected for recommendation when he exercised his constitutional right to request additional nominees, also infringes upon his appointment power.
{30} The Governor’s reliance on his appointment power is misplaced. The Constitution provides that the Governor may request additional names, and the Commission shall submit “such additional names if a majority of the commission finds that additional persons would be qualified and recommends those persons for appointment” to the Governor. N.M. Const, art. VI, § 35 (emphasis added). The Commission did not make such a finding when it reconvened.
{31} The Commission was acting within the text of the amendment when it determined to recommend only one name initially and to send no additional name or names after the Commission reconvened. The Governor asks us to “compel the performance of an act which the law specially enjoins as a duty resulting from an office.” NMSA 1978, § 44-2-4 (1884). Yet he can identify within the text no express obligation that the Commission failed to perform. The Commission performed its express constitutional obligation when its Chair announced the vacancy, initiated the application process, conducted interviews, evaluated the candidates, voted on who should be recommended to the Governor, and sent him the list. See N.M. Const, art. VI, add. §§ 2, 4, 6-9. In fact, the Commission’s duty, as mandated by the Constitution, is to submit only “the names of persons qualified for the judicial office and recommended ... to that office” which must be determined “by a majority of the commission.” N.M. Const, art. VI, § 35 (emphasis added). I think a majority of this Court agrees that we cannot compel the Commission to send more than one name. At the heart of the Commission’s obligations is the responsibility to provide the Governor a list from which he can choose without fear of choosing badly. That is what I believe the Legislature and the people of this State intended.
{32} According to Section 4 of the Judicial Nominating Commission Rules, the commissioners must evaluate candidates on the basis of the constitutional requirements and specifically enumerated evaluative criteria including physical and mental ability to perform the tasks required, impartiality, industry, integrity, professional skills, community involvement, social awareness, collegiality, writing ability, decisiveness, judicial temperament, and speaking ability. N.M. Const, art. VI, add. § 4. These factors indicate that the constitutional duty and authority of the Commission is discretionary and not ministerial, making mandamus inappropriate. In fact, the Commission would have been acting outside the bounds of its authority and duty had it simply sent the Governor additional names of candidates it had already determined, by a majority vote, were unqualified for appointment.
{33} The majority’s decision to require the Commission to reconvene and solicit further candidates seems to me equally inappropriate. The delicate balance of power which the 1988 amendment to the constitution tried to achieve, as expressed in the text, is not facilitated by the majority’s decision. Prior to 1988, the Governor had virtually unfettered discretion to appoint whomever he chose for judicial vacancies. The Legislature chose when it enacted the 1988 amendment to limit the Governor’s appointment power in the judicial nomination process, to strike a balance of power between a judicial nominating commission and the Governor, and it elected not to include a requisite number of names to be sent to the Governor from each commission.
{34} The majority offers three reasons for its decision to require the Fifth Judicial District Nominating Commission to reconvene. First, it suggests we have an obligation to protect the Governor’s power of appointment. Maj. Op. ¶ 16. Second, the majority relies on the use of the plural within Section 35, in reference to the Commission’s obligations, the Governor’s power of appointment, and the obligation of the Chief Justice if the Governor does not appoint in a timely fashion. Id. ¶ 17. Finally, the majority opinion relies on placement of the obligation of the Commission to solicit applications within Section 35, in the second full paragraph, “demonstrating the overarching and ongoing nature of the Commission’s duty.” Id. ¶ 19.
{35} With respect, none of the three reasons offered by the majority seem compelling, and none of them justify diminishing the discretion of each nominating commission. As the majority acknowledges, id. ¶ 17, “the use of plurals is without significance.” Further, the majority opinion relies on the “clear intent that the governor, as representative of the people, will have more than one name from which he can make a bona fide choice with respect to whom shall fill the judicial vacancy.” Id. I think we must determine what the Legislature intended, and practices of the nominating commissions since 1988, as well as the text of Section 35 that make the scope of the Governor’s power unclear. It is worth noting that the Governor has two appointments to the Commission who can argue for his preference(s) during the voting process, if he directs them to do so. Finally, the placement of the second paragraph of Section 35 seems to me to emphasize a duty of soliciting applicants prior to the date the Commission convenes. That language is not repeated after the reference, in the last paragraph, to the Governor’s right to solicit more names.
{36} For these reasons, I do not think the majority has made a case for the result it reaches. One could say that the majority opinion grants half of the relief the Governor has requested, in an effort to support the greater likelihood that he will achieve the ultimate goal of receiving at least one additional name. Yet, we do not seem to have the power or authority to issue a writ of mandamus under our existing cases to compel the commissioners to act in accordance with the Governor’s petition. I would deny the writ. My colleagues being of a different view, I respectfully dissent.
APPENDIX A
Sec. 35. [Appellate judges nominating commission.]
There is created the “appellate judges nominating commission”, consisting of: the chief justice of the supreme court or the chief justice’s designee from the supreme court; two judges of the court of appeals appointed by the chief judge of the court of appeals; the governor, the speaker of the house of representatives and the president pro tempore of the senate shall each appoint two persons, one of whom shall be an attorney licensed to practice law in this state and the other who shall be a citizen who is not licensed to practice law in any state; the dean of the university of New Mexico school of law, who shall serve as chairman of the commission and shall vote only in the event of a tie vote; four members of the state bar of New Mexico, representing civil and criminal prosecution and defense, appointed by the president of the state bar and the judges on this committee. The appointments shall be made in such manner that each of the two largest major political parties, as defined by the Election Code, shall be equally represented on the commission. If necessary, the president of the state bar and the judges on this committee shall make the minimum number of additional appointments of members of the state bar as is necessary to make each of the two largest major political parties be equally represented on the commission. These additional members of the state bar shall be appointed such that the diverse interests of the state bar are represented. The dean of the university of New Mexico school of law shall be the final arbiter of whether such diverse interests are represented. Members of the commission shall be appointed for terms as may be provided by law. If a position on the commission becomes vacant for any reason, the successor shall be selected by the original appointing authority in the same manner as the original appointment was made and shall serve for the remainder of the term vacated.
The commission shall actively solicit, accept and evaluate applications from qualified lawyers for the position of justice of the supreme court or judge of the court of appeals and may require an applicant to submit any information it deems relevant to the consideration of his application.
Upon the occurrence of an actual vacancy in the office of justice of the supreme court or judge of the court of appeals, the commission shall meet within thirty days and within that period submit to the governor the names of persons qualified for the judicial office and recommended for appointment to that office by a majority of the commission.
Immediately after receiving the commission nominations, the governor may make one request of the commission for submission of additional names, and the commission shall promptly submit such additional names if a majority of the commission finds that additional persons would be qualified and recommends those persons for appointment to the judicial office. The governor shall fill a vacancy or appoint a successor to fill an impending vacancy in the office of justice of the supreme court or judge of the court of appeals within thirty days after receiving final nominations from the commission by appointing one of the persons nominated by the commission for appointment to that office. If the governor fails to make the appointment within that period or from those nominations, the appointment shall be made from those nominations by the chief justice or the acting chief justice of the supreme court. Any person appointed shall serve until the next general election. That person’s successor shall be chosen at such election and shall hold the office until the expiration of the original term.
N.M. Const, art. VI, § 35.
Sec. 36. [District court judges nominating committee.]
There is created the “district court judges nominating committee” for each judicial district. Each and every provision of Section 35 of Article 6 of this constitution shall apply to the “district judges nominating committee” except that: the chief judge of the district court of that judicial district or the chief judge’s designee from that district court shall sit on the committee; there shall be only one appointment from the court of appeals; and the citizen members and state bar members shall be persons who reside in that judicial district.
N.M. Const, art. 6, § 36.
Sec. 37. [Metropolitan court judges nominating committee.]
There is created the “metropolitan court judges nominating committee” for each metropolitan court. Each and every provision of Section 35 of Article 6 of this constitution shall apply to the metropolitan court judicial nominating committee except that: no judge of the court of appeals shall sit on the committee; the chief judge of the district court of the judicial district in which the metropolitan court is located or the chief judge’s designee from that district court shall sit on the committee; the chief judge of that metropolitan court or the chief judge’s designee from that metropolitan court shall sit on the committee only in the case of a vacancy in a metropolitan court; and the citizen members and state bar members shall be persons who reside in the judicial district in which that metropolitan court is located.
N.M. Const, art. 6, § 37.