CONFLICT OF INTEREST?: The five justices of the New Mexico Supreme Court have a case before them that would grant all judges in the state an 8 percent raise.
By Rob Nikolewski │ New Mexico Watchdog
SANTA FE, N.M. — The five justices of the New Mexico Supreme Court may find themselves in a position most American workers can only dream of. Giving themselves a raise.
The state Supreme Court has been asked to rule whether a line-item veto from Gov. Susana Martinez that refused to grant an 8-percent pay raise for all judges in the state is lawful. Those 8-percent raises would include the five justices themselves.
Will any of the high court members recuse themselves from the case?
“There hasn’t been any action on that,” Joey Moya, chief clerk of the New Mexico Supreme Court, told New Mexico Watchdog on Tuesday. “The case was just filed (Monday).”
The lawsuit comes at the behest of eight judges across the state, as well as groups representing magistrate and district judges, plus two state senators who maintain the Legislature — not the governor — has the right to set judicial salaries.
The petitioners want the state Supreme Court to make the final decision.
But there are complications.
For example, Martinez administration spokesman Enrique Knell says the state Supreme Court’s chief justice, Petra Jimenez Maes, lobbied the governor’s office in favor of judicial raises during the legislative session earlier this year.
“If she or any other judge actually thinks the executive has no role in the process of setting salaries for judges, then why would she have personally lobbied the executive to approve the very large salary increase?” Knell asked in an email. “But more importantly, this presents an extraordinary conflict of interest, and it would be a brazen move for the Supreme Court to hear a case that would produce an outcome that could financially benefit them … and about which they themselves lobbied in favor of one position.”
Might Maes recuse herself? New Mexico Watchdog wanted to ask Maes, but chief clerk Moya said that might be impermissible, given that any comment could be construed as ex parte communications now that the case is pending.
Moya said it will be up to individual members of the high court to determine whether they should recuse themselves.
A minimum of three justices must preside to hear a case, Moya said.
Who would hear the case if at least three members of the New Mexico Supreme Court recuse themselves? “That’s a good question,” Moya said. “That, I’m not sure.”
During the legislative session that wrapped up in February, state employees were given across-the-board 3-percent raises. But the Legislature passed and additional 5 percent “personal services and employee benefits” appropriations for all judges in the state.
New Mexico has one of the lowest salaries for trial judges in the country.
In her line-item veto message, Martinez said, “though I would have supported a more modest 3 percent increase in pay for judges that would have put them on par with other pay raises in the budget, I cannot support the dramatic 8 percent raise requested in the budget. This would have amounted to nearly three times the raise that teachers received, in a year in which taxpayers are being asked to contribute additional funds to shore up the judicial and magistrate retirement systems, in addition to five new judgeships throughout New Mexico.”
The lawsuit also claims that by issuing her line-item veto, Martinez left no provision to pay judges at all once the new fiscal year begins. It calls the decision “an unworkable piece of legislation that conflicts with itself and other current laws.”
The lawyer representing the judges, Ray Vargas of Albuquerque, said he filed the lawsuit with the Supreme Court because it’s the appropriate venue per state law, and he believes the justices can be impartial should the case be heard before them.
“In our (state) constitution, it is solely up to the Legislature to set judicial pay, which it did,” Vargas told the Santa Fe New Mexican. “By vetoing judicial salaries, the governor exercised powers the executive branch does not have and ignored the system of checks and balances built into the constitution.”
“The argument that the executive plays a role in setting the salaries of every state worker except judges is not only brazen, but quite arrogant,” Knell said. “Judges are not above the law, and their salaries are set through the legislative process as well — a process that includes the governor.”
According to a 2013 report from the New Mexico Judicial Compensation Commission, the median salary for a justice in supreme courts across the country is $150,000, but in New Mexico the chief justice gets $126,927 and the other four justices earn $124,927 a year.
“New Mexico is next to last in pay for Court of Appeals Judges and ranks last in pay for Supreme Court Justices among the nine states in the mountain west region,” said the commission’s report.
A 2012 report said that district judges in New Mexico make $111,631 a year, and magistrate judges earn $79,537.
Contact Rob Nikolewski at email@example.com and follow him on Twitter @robnikolewski