Amendment needed to check judicial power
Three branches of government currently weighted too heavily in judges’ favor
Recent judicial decisions concerning pre-trial release, grand juries and settled plea agreements have again drawn attention to how flawed judicial proceedings in New Mexico can become. More and more these judges, over whom the electorate has little meaningful control, do what they want seemingly with impunity, relying on supposed “inherent judicial power.” Inherent judicial power is a myth. This is a phrase one encounters only in written orders and opinions of judges. It is a phrase that 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 are granted to the government by the people in ratification elections.
The specious concept of inherent judicial power in New Mexico may well stem from a 1933 statute, 38-1-1, 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 citizen legislature that presumably had 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 given the number and the influence of lawyers in our recent Legislatures. And as a practical matter these various rules are promulgated by committees of lawyers appointed by the state Supreme Court who have no constituencies except their own special interests. They are essentially unelected legislators who are accountable to no one. One-third of our state government is controlled by small groups of attorneys.
For this reason our senators and representatives should, during the next legislative session, revisit Albuquerque Republican Rep. Bill Rhem’s proposed constitutional amendment — HJR 6; 2018 regular session — that clarifies the judiciary’s position in the scheme of separation of powers and checks and balances. The Legislature can adjust the balance of power by referring to the electorate a simple and direct constitutional amendment such as HJR 6 that redefines the powers of the Legislature vis-à-vis the judiciary. Currently, the U.S. Congress and most state legislatures have this power to exercise direct control over court procedures. These legislative bodies enact the rules of evidence and other trial procedures as well as the mechanics of the appellate process. 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 each other and to the voters.
Potential critics of such change will undoubtedly point to the judicial retention process as the ultimate check against the judiciary. All appellate, district and metropolitan court judges are periodically subject to retention elections. This is a nearly meaningless check. Since this system was adopted nearly 30 years ago, only a handful of judges have failed to gain retention. This is true even though currently they are required to obtain a 57 percent “yes” vote to retain their offices. Consequently judicial retention elections in New Mexico hardly provide a remedy for any reckless application of unchecked inherent judicial power.
Needless to say most judges take their oath of office seriously and do not act with caprice and arrogance, but this stand-alone constitutional amendment would clarify the relationship between the legislative and judicial branches. It is a question of having a proper check against the abuse of judicial power. This amendment would bring about a systemic change more along the lines adopted by the first Congress in 1789 and most jurisdictions since.
The U.S. Constitution guarantees each state a republican form of government. Perhaps it is time New Mexico had one.