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AG tells Supreme Court Judge Raphaelson must go

SANTA FE – The New Mexico Attorney General’s Office is asking the state Supreme Court to issue an order to have state District Judge Sheri Raphaelson removed from the bench by Jan. 1.

The AG’s office says Raphaelson is ignoring “a critical provision” of the state constitution in maintaining she shouldn’t have faced a retention vote this year.


1st District Judge Sheri Raphaelson (Eddie Moore/Journal)

Raphaelson, who typically holds court in Tierra Amarilla but also oversees cases in Los Alamos and Santa Fe, lost her retention election Nov. 4. She needed to get 57 percent of voters to answer “yes” to whether she should stay on the bench but came up about 500 votes short, with 55.87 percent.

Two days after the election, Raphaelson submitted a letter to 1st Judicial District Chief Judge Raymond Ortiz saying she shouldn’t have been on the Nov. 4 ballot in the first place and she won’t leave office.

Under New Mexico’s system for choosing and keeping judges, created under a 1988 constitutional amendment, vacancies are filled by gubernatorial appointment. The appointee then must run in the next general election, in a contest open to other candidates.

The amendment also says all judges must stand for yes or no retention votes every six years. As the amendment has been interpreted up to now, all district judges face retention together on an every-six-years schedule – 2002, 2008, 2014 and so on – regardless of how long they’ve been on the bench or when they ran in a general election.

Raphaelson was appointed by former Gov. Bill Richardson in 2009 to replace Judge Timothy Garcia after he’d been appointed to the state Court of Appeals. She argues that her retention election was held improperly two years early. It’s her stance that her six-year term as a district judge only started on Jan. 1, 2011, after she won her general election race in 2010 (her only opposition was in the Democratic primary). “My term expires on January 1, 2017 and I plan to continue to work until that time,” her letter to Judge Ortiz concluded.

The Attorney General’s petition says Raphaelson ignores a provision that says an appointed judge “shall hold the office until the expiration of the original term.” She was appointed to and then won election only to serve out Garcia’s “original” six-year term, slated to end Jan. 1, the petition argues. “Because she inherited a six-year term two years after it had begun, she was properly subject to retention in the 2014,” it reads.

The petition, prepared by Assistant Attorney General Scott Fuqua, wonders why Raphaelson didn’t raise the issue before she was rejected in her retention election. “Respondent cannot now be heard to complain about the results of an electoral process in which she voluntarily participated,” the petition reads.

Raphaelson has said it wasn’t until a day after the election that she discovered what she believes to be the error that put her on the November ballot. She could not be reached for comment late Friday.

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