NMSC: Legislature Cannot Extend Terms Beyond What Is Allowed by Constitution

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The New Mexico Supreme Court released two opinions last week: In re Padilla, and State ex rel. Sugg v. Tolouse Oliver. I’ve previously blogged about Padilla. In this post, I look at the Sugg case.

This case is a challenge to House Bill 407 (HB 407), a 2019 statute that postponed the times of election and extended the terms of certain public offices. HB 407 was a major overhaul of New Mexico’s election code. It was intended to standardize election dates, balance the number of county officials on the ballot in any given election year, and stagger the retention elections of district and metropolitan court judges.

The change to when officials were elected had the effect of extending the terms of some of those officials. The term extensions were generally between two and four years. A number of the affected officials filed a “mandamus” lawsuit to prevent the term extensions from going into effect.

What Is Mandamus?

A “mandamus” lawsuit is a relatively uncommon type of case. So before we get into the details, let’s talk about what that means.

The writ of mandamus is one of several types of “extraordinary writs” under which the Court exercises an unusual or discretionary power. In this case, the power is that of “mandamus”: the power to compel a lower court or a government officer to perform its duties correctly. As this case illustrates, that power includes not only the ability to order a person to do something, but also to order a person not to do something.

The Court has original jurisdiction over a number of extraordinary writs. It is unclear how often it uses this jurisdiction since it does not always publish opinions in these cases. We do know that the Court publishes one or two opinions regarding writs each year.

It can be quite difficult to get the Court to grant a petition for an extraordinary writ. For mandamus, the petitioner must show that there is “a purely legal discretionary duty of a governmental official that (1) implicates fundamental constitutional questions of great 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.” Since this case concerned the right to vote and needed to be decided before the next election, it easily met all three criteria.

In this case, the writ of mandamus goes hand in hand with another extraordinary writ: the writ of quo warranto. Quo warranto is a writ that is used to determine whether an individual is constitutionally authorized to hold an office. If this case had been brought after a government official had started an extended term under HB 407, a petition for writ of quo warranto might have been brought against the officials. Because it was brought ahead of time, however, mandamus was the appropriate writ.

HB 407 Unconstitutionally Extended Terms

Although the details of how HB 407 was implemented varied for different types of officials, they all shared a common feature. By postponing the elections of officials, each official’s term was extended by either two or four years. The Court found that this was unconstitutional.

The term limits of the officials are set in the constitution. County officials have a term of four years. So do district attorneys. District court and metropolitan court judges sit for retention elections every six and four years, respectively. Since the constitution is clear on the length of the terms, the question the Court had to answer was whether the legislature had exceed its authority by extending the term limits.

The court began its analysis by noting the “time-worn principle” that, where the constitution sets a term limit, the legislature may not extend it. To the extent that HB 407 expressly extended the term length, this principle would render it unconstitutional.

Things are not as straightforward, however, when a statute implicitly extends a term. This can happen when the law delays an election, rather than providing for a longer term length. In that case, a “holdover” provision often comes into play, allowing the officers to stay in office past their terms until a replacement is elected. However, since HB 407 expressly extends terms, the holdover clause does not apply.

It appears that the holdover discussion was included less to decide the case than to guide the legislature going forward. In addition to rejecting the statute as written, the Court goes further, using the background on holdovers to reject the alternative ways HB 407 could have been written. Having rejected every possible legislative approach, the Court finally concludes that if New Mexico is to achieve staggered terms, it will have to do so by way of a constitutional amendment.

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