According to this report by Phaedra Haywood in the Santa Fe New Mexican, disbarred lawyer Stuart Stein has filed a lawsuit challenging Judge Judith Nakamura’s appointment to the New Mexico Supreme Court on the ground that the Judicial Nominating Commission could not meet until after Justice Richard Bosson left office on October 31. The Commission met on October 19 (I wrote about that meeting, and Mr. Stein’s participation in it, here).

In my opinion, this lawsuit is completely without merit:

Although I haven’t seen a copy of the complaint, Mr. Stein’s claim appears to be based on Article VI, Section 35 of the state constitution, which governs the selection of judges to New Mexico’s appellate courts. The relevant language is as follows:

“Upon the occurrence of an actual vacancy in the office of justice of the supreme court or judge of the court of appeals, the commission shall meet within thirty days and within that period submit to the governor the names of persons qualified for the judicial office and recommended for appointment to that office by a majority of the commission.”

Evidently, Mr. Stein’s allegation is that until Justice Bosson retired on October 31, there was no “actual vacancy” on the Supreme Court, and the Nominating Commission could not meet until after that date.

But this argument overlooks the principle that constitutional provisions are not read in isolation, but as a whole. Article VI, Section 35 also provides as follows:

“The governor shall fill a vacancy or appoint a successor to fill an impending vacancy in the office of justice of the supreme court or judge of the court of appeals within thirty days after receiving final nominations from the commission by appointing one of the persons nominated by the commission for appointment to that office.” (emphasis added).

The reference to “an impending vacancy” plainly contemplates that the Judicial Nominating Commission may meet before a justice of the Supreme Court actually leaves office. Rather, the Commission may act when a judicial vacancy is “impending.”

In addition, Article VI, Section 33 provides in part that judicial office “becomes vacant upon the date of the death, resignation or removal by impeachment of the justice or judge.” (emphasis added). Thus, the vacancy at the Supreme Court occurred when Justice Bosson submitted his resignation to Governor Martinez, not when he actually packed up his office and left the Supreme Court building.

As Mr. Barry Massey of the Administrative Office of the Courts explains in Ms. Haywood’s article, the traditional view has been that an “actual vacancy” occurs when a justice submits his or her resignation to the governor, and this allows a replacement judge to be selected promptly so that disruption to the Supreme Court’s work is minimized.

Although no appellate court has construed what “actual vacancy” means, the traditional view is by far the better one. Dean Mathewson and the Judicial Nominating Commission acted properly here. Mr. Stein’s lawsuit should be swiftly dismissed.

(UPDATE, Nov. 17, 2015): Here is a copy of Mr. Stein’s complaint against Judge Nakamura. Nothing in it changes my opinion that it should be swiftly dismissed.