Reining in ‘unchecked’ judicial power
Rep. Antonio “Moe” Maestas, D-Albuquerque, was recently quoted as saying, “The Legislature doesn’t write criminal procedure.” This is currently true, but it doesn’t have to be the case.
Although one often hears of “inherent judicial power,” this is a myth, a phrase is encountered only in written orders and opinions of judges. It cannot be found in the statutes or the state constitution. No branch of government has “inherent powers.”
All powers are delineated in the constitution and were granted to the government by the people. This is more than just arcane political theory.
In our republican model, the branches of government are independent, but not isolated. Although each branch is said to be coequal, the doctrine of checks and balances requires that they operate in conjunction with, not in segregation from, the others.
This concept of “inherent judicial power” in New Mexico may well stem from a 1933 statute in which the Legislature delegated (some would say abdicated) its power over the courts to the Supreme Court itself.
In the 1930s, in a sparsely populated, mostly rural state with a part-time citizen Legislature, presumably possessing little legal expertise, this might have made some sense. In this century, leaving almost all questions of procedure and practice to the courts themselves, makes very little sense. This is especially true when one considers that, as a practical matter, these various rules are promulgated by committees of lawyers appointed by the Supreme Court who are accountable to no one.
One-third of our state government is controlled by an oligarchy, even an aristocracy, of lawyers. The Legislature could remedy this condition by simply repealing the applicable portions of the 1933 statute that gave the New Mexico Supreme Court unfettered and unchecked control over most aspects of procedure and practice in our courts. However, a simple and direct constitutional amendment delineating the powers of the Legislature vis-à-vis the judiciary would be even better.
If this proposal seems odd at first, consider that the U.S. Congress and most state legislatures maintain direct control over court procedures. These legislative bodies routinely enact the rules of governing the courts. They do this through ordinary legislation, with input from the courts to be sure, but subject only to a veto by the executive. This is the true republican model.
All three branches are involved in the decision-making process and are ultimately accountable to one another and to the voters. Some might point to the judicial retention process as the ultimate check against the judiciary. However, since this system was adopted nearly 30 years ago, only a handful of judges have failed to gain retention. This is true even though a sitting judge is required to obtain a 57 percent “yes” vote to retain his or her office. Consequently, judicial retention elections in New Mexico hardly provide a remedy for any reckless application of unchecked “inherent judicial power.”
A revised judiciary statute or a standalone constitutional amendment would clarify the relationship between the legislative and judicial branches more along the lines adopted by the first Congress in 1789 and most jurisdictions since. Rather than continue the bluster and finger pointing, the upcoming Legislature needs to address this issue once and for all by placing this constitutional amendment on next November’s ballot.
Steven Suttle served as an elected district attorney in Oklahoma and he has served as a deputy district attorney and assistant attorney general in New Mexico. Before his retirement in 2010, he spent his entire 36-year career as a public prosecutor.