NMSC Upholds Law Staggering District Court Judge Elections


In State ex rel. Franchini v. Oliver, the petitioners–a group of district court and metropolitan court judges–petitioned for mandamus to challenge the constitutionality of a statute staggering judicial terms. The New Mexico Supreme Court denied the petition, holding that recent constitutional amendments authorized the legislature to stagger judicial elections.


Prior to 1988, judges were elected by partisan election and all district court judge terms of office began and ended at the same time, on a six-year interval. In 1988, however, the constitution was amended to implement the current “merit selection system,” which allows the Governor to fill vacancies and subjects judges to an initial partisan election, followed by uncontested retention elections. One thing that did not change, however, was the timing of the elections: all judges continued to be on the ballot at the same time every six years.

By 2019, the wisdom of this approach was being questioned. A larger number of judges meant that the ballot was being overwhelmed. The legislature addressed the problem by passing a bill allowing for staggered retention elections of judges. Certain judges sued to block this law, and the New Mexico Supreme Court held that it was unconstitutional. The law had the effect of changing the terms of some judges, a power not given to them by the constitution.

In response, the legislature proposed an amendment that would allow the staggering of elections. In the November 2020 election, the voters passed the amendment by a nearly 2 to 1 margin. In 2021, the legislature re-adopted nearly verbatim the statute that had previously been held unconstitutional. Once again, a group of judges sued to block the measure.


The judges could only win this case if the amendment to the constitution–passed for the express purpose of allowing the legislature to pass this statute–was not effective for its purpose. So the case is largely about interpreting the amendment.

Courts spend much of their time interpreting language, and have developed an extensive set of tools for doing so. Whether analyzing a constitutional clause, a statute, or a contract, the objective is always the same: to give effect to the intent. Most of the rules courts apply are meant to achieve that purpose. However, it is easy–indeed it is often an attorney’s job–to use those rules to try to achieve some other purpose.

Here, the judges used a rule of construction to argue that the new amendment was inconsistent with a prior amendment. Article XX, Section 3 (the new amendment) allowed the legislature to adjust terms. But the older provision, Article VI, Section 33, required the retention elections of all district judges statewide to occur at the same time. The petitioners argued that the older provision should control, and therefore the legislature still lacked authority to pass a law staggering judicial elections.

The petitioners essentially asked the Court to elevate canons of construction over the overarching purpose of giving effect to the intent of the framers and the voters. The Court declined that invitation. Perhaps stating the obvious, the Court noted that the legislative and judicial developments–i.e., the passing of an amendment in response to the law being struck down as unconstitutional–was evidence of an intent that the 2020 amendment should control over the older sections requiring all judges to be elected at the same time.

Having discerned the intent of the framers and voters, the court held that Article XX, Section 3 authorized the legislature to stagger retention elections. Accordingly, the petitioners’ writ of mandamus was denied. The decision will have little practical effect going forward, other than to perhaps cause some judges to sit for re-election earlier than they otherwise would have. But it does show the similarity between constitutional interpretation and statutory interpretation, and is a good reminder that a clever legal argument by itself is often not enough–the big picture is still important.

Looking for a New Mexico appellate attorney? Contact us or give me a call at (505) 273-9379.