Court rules Mitchell's application for judge should not be eliminated

The New Mexico Supreme Court ruled Wednesday that Tenth Judicial District Court Judge Albert Mitchell should not be eliminated as a candidate to fill his position after it is vacated on Dec. 31.

The court denied a request for a writ that would have prevented Mitchell from applying to again be named the district’s judge, saying the request was premature, according to the court’s order.

The time to challenge Mitchell’s application is after Gov. Susana Martinez makes an appointment to fill the position, which will occur after a judicial nominating commission screens candidates for the post, the court’s order says.

The Committee for Law and Order, which campaigned against retaining Mitchell, filed its request for the writ on Nov. 19, through its attorney Warren Frost.

Mitchell and Don Schutte, who served as Tenth Judicial District judge from September 2007 through December 2008 are the only candidates who have applied for the judge’s position. Mitchell defeated Schutte in the 2008 general election to become the district judge.

After hearing arguments Wednesday, Mitchell said, the court recessed for about 15 minutes and came back to announce its unanimous decision to deny a writ that would have blocked Mitchell’s application.

The court said Frost’s motion was “without merit,” Mitchell said, “and the writ was denied.”

Frost said, “we’re a little disappointed” in the supreme court’s decision.

“We’ve lost the battle, but not the war,” he said.

In his request for a “writ of prohibition,” Frost said that allowing Mitchell to apply for the judgeship after losing the retention vote “makes a mockery” of state laws that allow voters to decide whether judges should be retained.

Mitchell said on Wednesday the voters did not decide to reject him. The voters, he said, sent a message that the judge “should face a political race if he wants to keep his job.”

If he is re-appointed to the bench, he said, he would face a political contest to keep his job two years from now, anyway.

Mitchell’s written response, filed Monday, said:

• the supreme court should not have jurisdiction on the issue,

• there is nothing in the law or rules for judicial nomination that prohibits Mitchell from filling a vacancy created by his non-retention, and

• the arguments in the original writ request are not persuasive.