Santa Fe New Mexican

Reining in ‘unchecked’ judicial power

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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.

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Steven Suttle

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